In his final hours as Arizona schools chief, Tom Horne is planning to make a declaration this morning that TUSD's ethnic studies program is in violation of state law.

For Horne, who has held the post for the last eight years and will be sworn in as the state's attorney general at noon, the only way the district can come into compliance will be complete elimination of the Mexican American Studies program.

"In view of the long history regarding that program, the violations are deeply rooted in the program itself, and partial adjustments will not constitute compliance," Horne wrote in a 10-page document of findings.

Failure to comply could result in the loss of up to 10 percent of the district's budget. The Tucson Unified School District's annual state-aid budget is more than $149 million. If a 10 percent reduction is imposed, that amounts to an annual loss of nearly $15 million, according to the Arizona Department of Education.

"My ultimate goal is that in taxpayer-supported public schools, students will be taught to treat each other as individuals and not on the basis of the race they were born into," said Horne, who has long said that the program promotes ethnic chauvinism. "What I'm dealing with here is among my most passionate and deeply held beliefs going back to the civil-rights demonstrations of my youth.

"This is specifically an attack in favor of the students to save them from a program that is itself dysfunctional and will make them dysfunctional. If I didn't care about the students, I wouldn't do this."

The law, which went into effect Friday, prohibits courses that:

• Promote the overthrow of the U.S. government.

• Promote resentment toward a race or class of people.

• Are designed primarily for students of a particular ethnic group.

• Advocate ethnic solidarity instead of the treatment of students as individuals.

Horne was the author of the first draft of the statute, which was amended in the Legislature. Though he believes that TUSD is in violation of all four of the criteria, he decided to focus on the criterion that the courses are designed primarily for students of a particular ethnic group.

TUSD maintains that the courses are open to all students, and Horne acknowledges that, saying: "The Mexican American Studies program is not populated exclusively by students of Hispanic background. Other students attend the course. However, the percentage of students in the course that are of Hispanic background greatly exceeds their overall percentage in the relevant schools."

He noted that the language in the law deliberately used the word "primarily" rather than "exclusively."

As evidence, Horne points to TUSD's website, which states the components for the model under which the program was developed are: "For Latino students, each of these components creates both a Latino academic identity and an enhanced level of academic proficiency. The end result is an elevated state of Latino academic achievement."

What Horne fails to include in his findings is that the description goes on to say: "For Latino students, the model serves as a mirror; for non-Latino students, the model serves as a window into cultural, historical and social understanding."

With Horne on his way out, John Huppenthal will become the superintendent of public instruction when he is sworn in today.

Huppenthal could not be reached for comment on whether he is in agreement with Horne regarding how TUSD can come into compliance or whether he'll direct the Arizona Department of Education to withhold funding, but Horne said Huppenthal approved of his going forward with the declaration of noncompliance in the final hours of his term.

A day before the law went into effect, the TUSD Governing Board passed a third resolution in support of the program, saying it was in compliance.

TUSD Superintendent John Pedicone said the district will consult its legal counsel and likely apply for a judicial hearing to appeal a state decision to withhold money.

If the district's appeal efforts fail, Pedicone said, it will be up to the Governing Board to decide what the next step will be.

"We believe we are not out of compliance - that's where we'll be spending our time defending," Pedicone said. "If the question is could we afford that financial decrease, the answer is no. It would cripple the district, quite frankly."

Pedicone said there are a number of legal actions the district can take, including asking the court for a stay to avoid the penalty while appealing.

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"We believe we are not out of compliance - that's where we'll be spending our time defending."

John Pedicone, TUSD superintendent

Contact reporter Alexis Huicochea at 573-4175 or