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Attorney: Huppenthal failed to identify any illegal TUSD ethnic studies courses

School Superintendent John Huppenthal (Photo by Ryan Cook/RJ Cook Photography)

School Superintendent John Huppenthal (Photo by Ryan Cook/RJ Cook Photography)

Superintendent of Public Instruction John Huppenthal failed to indentify a single course that makes Tucson Unified School District’s Mexican American Studies program unlawful and he relied too heavily on quotes lifted from textbooks and the program’s website, an attorney for the district asserted in an appeal filed June 22.

Heather Gaines, an attorney with DeConcini McDonald Yetwin & Lacey, wrote in the seven-page notice of appeal sent to the Department of Education that those textbook excerpts don’t show whether the texts are actually taught or how they are presented to students.

“Notably, it would presumably be acceptable (and perhaps even necessary) to include Marxist texts or writings of Adolf Hitler in an American History or World History course,” Gaines wrote, noting that wouldn’t mean such courses would be espousing socialism or Nazi beliefs.

Gaines also noted Huppenthal disregarded findings by his own hired auditors, Cambium Learning Group, who determined that there was no violation of the state law banning certain ethnic studies courses, which was passed as HB2281 in 2010.

“The findings of the audit are quite extensive and provide valuable evidence in evaluating TUSD’s compliance with (the law),” Gaines wrote.

On June 15, Huppenthal announced that the Mexican American Studies program violated provisions of the law that prohibit classes that are designed primarily for pupils of a particular ethnic group, prohibit classes that advocate ethnic solidarity instead of the treatment of pupils as individuals and promote resentment toward a race or class of people.

The superintendent cleared the district on the provision that forbids classes that promote the overthrow of the United States government. The district has 60 days to comply or begin losing 10 percent of its monthly apportionment of state aid, a figure that could reach about $15 million a year.

Gaines appealed on several other grounds as well.

She said Huppenthal’s notice of violation was insufficient because it didn’t conform to the law and notify the district of its right to appeal or “identify with reasonable particularity” the nature of the violations.

Gaines also argued that the district is in compliance with the law, specifically provisions that allow for “courses or classes that include the history of any ethnic group and that are open to all students.” The law also prohibits the restriction of instruction of “the holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.”

Arizona’s ethnic studies ban is also too vague to provide guidance for compliance, she argued.

Gaines said the district is in full compliance with the law, but could unintentionally violate it.

“For example, studying the history of slavery in the United States may engender feelings of resentment among some students,” she wrote.

And that might be construed as a violation of a subsection of the law that prohibits classes that promote resentment toward a race or class of people.

Gaines said in the notice that while the program tries to teach students “about important historical events that involve systemic oppression of one race or class of people by another,” the law doesn’t provide a compass for the school’s compliance.

Gaines’s final argument is that Huppenthal’s notice of violation exceeds the scope of HB2281 because he alleges the district violated several state laws that require the governing board to oversee and approve curriculum.

Huppenthal said the program operated separately from the district, so much so that principals weren’t allowed into Mexican American Studies classrooms to evaluate teachers and curriculum.

Andrew LeFevre, Huppenthal’s spokesman, said he had no comment on the appeal because he hadn’t seen it yet. He said the office is looking forward to moving the appeal process along.

The Department of Education will now send the appeal to the Arizona Office of Administrative Hearings, which will have 60 days to schedule a hearing.

After the conclusion of the hearing, the administrative law judge will have 20 days to issue an opinion, which will include findings of fact and conclusions of law, and serve it upon the Department of Education.

The department will have the option of rejecting the findings, in which case the school district will be able to appeal to Maricopa County Superior Court.

An attorney challenging the constitutionality of the law banning the ethnic studies courses said Huppenthal is “in the worst of all possible positions.”

“His own experts told him no violation and now he’s trying to discredit his own experts,” said Richard Martinez, an attorney representing 11 Mexican Studies teachers who are suing Huppenthal. “If you’re pushing a position and your own expert says, ‘No, there’s no violation here,’ for most litigators it’s game over.”

If the judge rules in the district’s favor, Martinez believes Huppenthal will reject the opinion just like he rejected the Cambium audit.

Huppenthal said at a June 15 press conference and in a subsequent press release that the audit was based mostly on classroom visits, which were short in duration and announced ahead of time. He also said that auditors didn’t come up with their own statistics in analyzing student achievement, but instead relied on ones supplied by the program.

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