TUSD argues for appeal of Horne finding

Document makes case Mexican American Studies is within law
2011-01-22T00:00:00Z 2014-07-02T08:34:36Z TUSD argues for appeal of Horne findingAlexis Huicochea Arizona Daily Star Arizona Daily Star
January 22, 2011 12:00 am  • 

The Tucson Unified School District has laid out its argument for appealing a finding that its Mexican American Studies program is in violation of state law.

The finding, which was made by former Arizona schools chief Tom Horne, puts TUSD at risk of losing nearly $15 million annually if it does not come into compliance before the close of a 60-day period.

While TUSD requested that an administrative hearing occur as soon as possible, the hearing has yet to be scheduled.

The determination of compliance rests with Horne's successor - John Huppenthal - but much of TUSD's appeal is based on Horne's actions.

The law in question 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; or advocate ethnic solidarity instead of the treatment of students as individuals.

Though Horne believes TUSD is in violation of all four of the criteria, in his findings, he focused on the criterion that the courses are designed primarily for students of a particular ethnic group. He called for the elimination of the program as the only way to come into compliance.

The main arguments by the district for an appeal of Horne's findings are laid out in a six-page document. They are:

• Horne was no longer serving as state superintendent of public instruction when he released his detailed findings of the violation at 10 a.m. Jan. 3.

TUSD argues that Horne's term ended 10 hours earlier when the clock struck midnight and by law, only the state superintendent or the state board of education can issue a notice of non-compliance. However, Horne believed he was still acting in that capacity up until he was sworn in as attorney general later that afternoon.

The Secretary of State's Office, which is in charge of elections, declined to offer an opinion on when Horne's term officially ended. The state constitution says the superintendent of public instruction begins holding office on the first Monday of January. However, an Arizona statute states that officers shall continue to discharge the duties of the office, although the term has expired, until a successor has qualified.

Paul Bender, the former dean of the Arizona State University College of Law, believes the transfer of power doesn't occur until the oath of office is taken, in which case, Horne was likely still serving as superintendent when he issued the detailed findings.

Horne noted that in the unlikely event that he was no longer the state superintendent on Jan. 3, his findings were still valid because he had sent a notice of violation to TUSD on Jan. 1. TUSD claims the first notice was not sufficient because by law the notice needs to "identify with reasonable particularity the nature of any alleged violation, including … the conduct or activity constituting the violation." Horne's first notice simply stated the district was "in violation with respect to the Mexican American Studies program" and provided no further detail.

• The evidence cited by Horne in his findings related to allegations that occurred prior to the effective date of the law formerly known as HB 2281.

"Even assuming that the anecdotal evidence cited by Horne would establish that one or more TUSD classes violated HB 2281 (which TUSD does not concede), the incidents addressed in the notice occurred at a time when HB 2281 did not exist and the alleged conduct was not prohibited," the document said.

• The law is void for vagueness, making it unconstitutional. Under the vagueness doctrine, a law is unconstitutional if it does not allow a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or if it lacks explicit standards, which permit arbitrary or discriminatory enforcement.

TUSD argues that the law is vague both on its face and as applied. The district says the law gives no guidance as to how it must structure curriculum to ensure it's not perceived as promoting resentment toward a race or class of people while trying to teach students about important historical events that involve systemic oppression of one race or class of people by another.

• TUSD is not in violation of the law. In requesting an administrative hearing, the district says it has taken - and will continue to take - steps to ensure that its Mexican American Studies programs and courses are in compliance.

It cites the fact that the district's governing board adopted a resolution setting forth its intent to comply with the law. Additionally, on Jan. 3 the district held a training session for all educators who teach courses in the Mexican American Studies Department to familiarize them with the requirements of the law and TUSD's commitment to compliance.

The district also argues that the courses are open to all students and that students of all races and ethnicities are encouraged to enroll in them.

Huppenthal could not be reached for comment Friday.

After being sworn in on Jan. 3, Huppenthal released a statement that he supported Horne's decision to find TUSD in violation of the law.

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

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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