Ninth Circuit: a trial is needed to determine the constitutionality of Arizona's ethnic studies law (updated)

Arce v. Douglas, Nos. 13-15657, 13-15760 (9th Cir. July 7, 2015).

This man promotes resentment toward a race or class of people. (Credit: Gage Skidmore / flickr.) 

This man promotes resentment toward a race or class of people. (Credit: Gage Skidmore / flickr.) 

Arizona, which rivals Donald Trump in its popularity among Mexicans, forbids school districts from using any curriculum that “promote[s] resentment toward a race or class of people,” is “designed primarily for pupils of a particular ethnic group,” or “advocate[s] ethnic solidarity instead of the treatment of pupils as individuals.” A group of Mexican-American students have challenged this prohibition, asserting that it violates (among other things) the Equal Protection Clause and the First Amendment.

The Ninth Circuit concludes that a trial is needed to determine whether discriminatory intent against Mexican Americans motivated the Arizona Legislature’s 2010 enactment of this law. While conceding that the law isn’t discriminatory on its face, the court notes that the Arizona Legislature’s main motivation was to get rid of Tucson’s Mexican-American Studies program. Nine out of ten students in the program were Latino. And, of course, the program was focused on studying Mexican Americans. When a legislature passes a law that’s so squarely and exclusively aimed at a particular ethnic group, there’s at least a “plausible inference” that the law was motivated by animus toward that group. (You think? This part of the courts discussion would, I imagine, prompt Charles L. Black to break out in laughter.) So the equal-protection claim is remanded for trial—although Judge Clifton, in partial dissent, would leave open the possibility of summary judgment on the claim.

The Ninth Circuit then turns to the First Amendment, which, the court confirms, does put some limit on schools’ ability to restrict students from receiving information and ideas. The First Amendment requires that curricular restrictions be “reasonably related to legitimate pedagogical concerns.” Here, the Ninth Circuit agrees with the district court: The only part of the law that’s not reasonably related to legitimate pedagogical concerns is the subsection prohibiting curricula that are “designed primarily for pupils of a particular ethnic group.” Any legitimate purpose this subsection could serve, the court says, is already covered by the law’s prohibitions against curricula that promote racial resentment or advocate ethnic solidarity. Which, in turn, makes the subsection overbroad.

The court also observes that the plaintiffs had challenged the law on viewpoint-discrimination grounds—which is a separate First Amendment theory. The district court didn’t properly address this challenge, so it’s remanded for further proceedings.

The plaintiffs’ viewpoint-discrimination challenge is interesting. Presumably a school can engage in some viewpoint discrimination (and presumably the plaintiffs here don’t maintain otherwise). I assume a school can forbid explicitly racist instruction, for example. Given that the district court didn’t address the viewpoint-discrimination challenge, however, this appeal doesn’t present the Ninth Circuit with much of an opportunity to clarify the limits of permissible viewpoint discrimination in public schools.  

UPDATE: Dan Korobkin, the deputy legal director of the ACLU of Michigan and a very fine lawyer, points out an interesting aspect of this case that I’d missed. A Ninth Circuit judge—Judge Tashima—sat by designation as the district court judge in this case. His judgment is reversed in part by Judge Rakoff, a district court judge sitting by designation on the Ninth Circuit.