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Hearing to test ruling against Mexican-American Studies

State Superintendent of Public Instruction John Huppenthal, who ruled that the Tucson Unified School District’s Mexican-American Studies program violates state law, is expected to be called before an administrative hearing later this month to explain his decision. If Huppenthal’s ruling is upheld, the school district could lose 10 percent of its state funding. (File photo)

Attorneys for Superintendent of Public Instruction John Huppenthal aren’t planning on calling him as a witness in an administrative hearing to defend his findings that Tucson Unified School District’s Mexican American Studies program is race-based and promotes resentment toward a class of people. But that doesn’t mean he isn’t going to be questioned.

Huppenthal’s spokesman, Andrew LeFevre, said the rationale behind leaving the superintendent off the witness list was to present the testimony of the people in the Department of Education who gathered, reviewed and passed along the information Huppenthal used in his decision-making.

“It’s not what he decided, but how he decided,” LeFevre said.

Few motions have been filed in advance of the three-day hearing scheduled to begin Aug. 19, and attorneys aren’t disclosing strategy, but the witness lists for both sides provide a glimpse into their cases.

For instance, the district is going to call Huppenthal and expects him to explain how he determined the program is violating a law passed in 2010 that bans ethnic studies, and the scope of the investigation that led to his decision.

The hearing is on the district’s appeal of Huppenthal’s June 15 finding that the Mexican American Studies program puts the district out of compliance. The district could lose up to 10 percent of its state aid money if Huppenthal’s decision stands.

He is also expected to testify about the audit of the program conducted by Cambium Learning Group. The company found that there was “no observable evidence” to suggest the district was in violation of the law.

Taking a page from the state’s playbook, the district is not calling its top man either, Superintendent John Pedicone, and relying instead on people who are closer to the program to testify, such as school principals, an assistant superintendent and the leader of the audit for Cambium Learning.

“He believes and others in the district believe that there are other individuals that have pertinent information regarding the program,” said Heather Gaines, an attorney with DeConcini, MacDonald Yetwin & Lacy, who represents the district. “He’s the superintendent, he’s aware of it, he has certainly a lot of knowledge, but he’s in charge of everything.”

Huppenthal intends to call Pedicone.

Huppenthal’s lawyers named 11 witnesses in a list filed with the Office of Administrative Hearings, and two of them are school board members who are either against the program or want to modify it.

Board member Michael Hicks, a Republican, has called for an end to the program, while Board President Mark Stegeman, a Democrat, has said he has reservations about the program and he unsuccessfully pushed for making the classes elective instead of core graduation credits. Stegeman, a college professor, said he’s never concealed that he believes the classes are too political.

He said he has already been deposed and was asked about his impressions upon visiting the classes and his opinion on various pieces of evidence.

“Obviously, I’m not taking the position that we’re in violation of the law because that would contradict the board’s expressed position and be inconsistent with my fiduciary responsibility to the district,” Stegeman said. “The state feels my answers help them in some way or they wouldn’t be asking me to come down.”

The district isn’t planning on calling any board members.

Gaines said it is unusual to call individual school board members to testify at administrative hearings because boards function as a body and their actions are a matter of public record that can be introduced as evidence.

“We don’t think it’s particularly appropriate or relevant to call individual board members as to what they feel or think because we don’t think that relates to the actual issue here, which is compliance with the statute,” Gaines said.

Huppenthal’s lawyers intend to call two parents of students who were in the program.

Mary Stevenson is an English teacher in the district whose daughter took Mexican American Studies classes in the last school year.

According to a June 19 email Stevenson sent to Huppenthal, her daughter was required to attend rallies in support of the program and “Chicano Americans.”

Stevenson said Latino students grew larger chips on their shoulders as the class progressed and the teacher taught the class that Chicanos have been treated worse than any other culture.

She said she also found the teacher’s use of the term Chicano offensive because the way he used it placed a label on all people of Mexican or Latin American heritage.

“I, for one, prefer ‘American,’” Stevenson wrote.

The other parent doesn’t seem so favorable to Huppenthal’s case at first glance. Irene Corella sent the superintendent a

Jan. 24 email saying she and her daughter are conservative and are against “this whole taking away ethnic studies” and if that happens she will vote Democrat in the next election and persuade her friends and family to do the same.

“I believe her perspective changed as her child went through the program,” said Huppenthal’s attorney, Bryan Murphy of the firm Burch and Cracchiolo.

Huppenthal is also going to call two teachers from the program, but their attorney is trying to limit their testimony because of a pending lawsuit against Huppenthal.

The program has been in existence since 1998, but it came under the scrutiny of Huppenthal’s predecessor, Tom Horne, current attorney general. In 2006, civil rights activist Dolores Huerta told a group of Mexican American Studies students that Republicans hate Latinos.

Horne wrote and advocated for HB2281, which prohibits classes that promote the overthrow of the U.S. government, promote resentment toward a race or class of people, are designed primarily for pupils of a particular ethnic race and advocate ethnic solidarity instead of treating pupils as individuals.

The law took effect Jan. 1 and Horne in his last hours as superintendent found the Tucson program out of compliance.

Rather than upholding Horne’s findings, Huppenthal hired Cambium Learning Group in March to audit the program.

Huppenthal found the district in violation of three of the four prohibitions, saying that the audit was flawed because most of it was beyond the scope of determining compliance and the classroom visits by auditors were too short in duration and announced ahead of time. The program teachers, 11 of whom are suing Huppenthal in federal court, also refused to cooperate with the audit.

Huppenthal said he based his findings on textbooks, class materials and the program’s website.

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