TUSD's effort to appeal a decision that said its Mexican American Studies program violates state law has failed.

The administrative law judge - Lewis D. Kowal - who presided over the appeal upheld Arizona school chief John Huppenthal's determination about the program.

Kowal also found that grounds exist to withhold 10 percent of the district's state aid, which amounts to about $15 million a year, until it can come into compliance.

Kowal did not touch on whether the program was effective, rather his focus was on whether it promotes racial resentment, is designed primarily for one ethnic group, and if it advocates for ethnic solidarity.

He concluded that while the law permits the teaching of historical oppression, there is a difference between teaching it objectively and presenting material in a "biased, political, and emotionally charged manner, which is what occurred in (Mexican American Studies) classes."

Kowal's recommendation, which was released Tuesday, will be forwarded to Huppenthal, who will have 30 days to accept, reject or modify Kowal's finding. Huppenthal said Tuesday that he can likely issue his judgment much sooner than that.

Huppenthal plans to review the judge's recommendation carefully, but acknowledged that he'll likely maintain his position that the program is in violation of the law and that it needs to be dismantled.

TUSD will be informed of Huppenthal's final judgment, and its Governing Board can either accept it, work to come into compliance or appeal to Superior Court.

"The main game here is ensuring that students are getting a quality education, and that's not happening in Tucson Unified," Huppenthal said. "This whole issue has been a sideshow. I'm anxious to get to the main mission and put this distraction to the side. It will be up to them on whether they want to appeal, but that would be a tragedy because the agony would go on."

Throughout the appeal hearing, the Arizona Department of Education stated that the only way TUSD could come into compliance would be to suspend Mexican American Studies courses and rebuild the entire program.

TUSD Superintendent John Pedicone has said that a financial loss of that proportion would cripple the district. The decision on how to proceed ultimately rests with the Governing Board.

"Know and understand that we're going to try - under the constraints of the law - to make decisions that are in the best interest of the students," Pedicone said. "We'll do the best we can to protect students' educational opportunities and make adjustments as we have to."

The judge's recommendation was not entirely unexpected, said TUSD Governing Board member Adelita Grijalva.

Because she believes TUSD is in compliance, Grijalva said she would support an appeal.

Board President Miguel Cuevas said it was too early to determine what the best course of action would be, but said "any reduction to our budget is something we cannot weather."

Grijalva is optimistic that a separate legal challenge in federal court spearheaded by a group of teachers will be more favorable.

The educators are challenging the constitutionality of the law, formerly known as HB 2281.

The state law, which is aimed at the district's ethnic-studies program, took effect this year.

Contact reporter Alexis Huicochea at ahuicochea@azstarnet.com or 573-4175.