Tom Horne's White Flag in Oral Arguments on Tucson's Ethnic Studies Program

This week Attorney General Tom Horne paid a visit to recalled ex-state Senate President Russell Pearce's Ban Amnesty Now radio show, where he regaled Pearce's tens of listeners with his heroic legal work of late, despite Pearce's incessant efforts to turn the conversation back to his ridiculous "buy-cott" (read, "boycott") of New Times.

At one point, Horne proudly mentioned that he had recently appeared in federal court and personally argued on behalf of Arizona Revised Statutes 15-111 and 15-112, also known as "House Bill 2281," Arizona's ethnic studies ban.

Horne did indeed appear before federal Judge A. Wallace Tashima in Tucson on March 19 for oral arguments on motions for summary judgment in a lawsuit initially brought by teachers and students of the Tucson Unified School District. 

But as I'll discuss later, Horne's performance was nothing to crow about, and at one point, he seemed to hoist a white flag of sorts. 

In fact, after reading the transcript of the hearing, I'm reminded of that old saw often attributed to Abe Lincoln that, "He who represents himself has a fool for a client."

As most people know, TUSD's Mexican American Studies program has been wiped out, its director Sean Arce fired, and books deemed questionable by school authorities removed from the classroom and banished to a school warehouse. 

TUSD's board eliminated MAS in response to state Superintendent John Huppenthal's decision to withhold 10 percent of TUSD's funding. That is, if the district did not comply with his finding that MAS was in violation of HB 2281. 

The board appealed Huppenthal's finding to an Administrative Law Judge, but when the ALJ backed Huppenthal's decision, TUSD caved and ended the program.

The federal lawsuit, which now only has the students as plaintiffs, challenges the eradication of MAS on constitutional grounds, as a violation of their First and Fourteenth Amendment rights under the U.S. Constitution. 

More specifically, in his motion for summary judgment, plaintiffs' counsel Richard Martinez asks the court to strike down ARS 15-111 and 112, mainly because the laws are "vague and overbroad," a description just about any layperson would deem accurate once they've read the statutes.

The sections of ethnic studies ban that are at issue read, thus:

15-111, Declaration of policy

The legislature finds and declares that public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.

15-112, Prohibited courses and classes; enforcement

A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following: 1. Promote the overthrow of the United States government. 2. Promote resentment toward a race or class of people. 3. Are designed primarily for pupils of a particular ethnic group. 4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

There are also some exceptions built into the law, but these are wide open to interpretation as well.

Though the law was drafted for the purpose of wiping out MAS -- a purpose it has achieved for the time being  -- the statute could apply to any course or class taught in Arizona's public schools, which opens it up to all kinds of abuse. 

Take the first prohibition, that a course or class cannot "promote the overthrow of the United States government." 

As Martinez has observed on numerous occasions, even the Declaration of Independence could, hypothetically, run afoul of this provision, since it says of people living under despotism that, "it is their right, it is their duty, to throw off such government."

That's just one example. Martinez picks apart each part of the law in his motion for summary judgment, which you can read, here. There are other issues with the application of the law, which also has been subjective and discriminatory.

In the motion, Martinez expertly argues that the law is fatally flawed because of its lack of specificity.  The law "punishes people for behavior they could not know was illegal" and allows for "arbitrary and discriminatory enforcement by government officers." Moreover, since the law deals with the regulation of speech, it has "a chilling effect on the exercise of First Amendment freedoms."

At the beginning of oral arguments on Martinez's motion and a counter-motion by the defendants, Judge Tashima noted that "overbreadth and vagueness" were Martinez's "best grounds," instructing him to stick to those issues with the law. 

Whenever Martinez strayed off topic, Tashima put him back on track. But, significantly, Tashima did not ask Martinez any questions either during his argument or after it.

Regarding section A(2), which prohibits promoting "resentment toward a race or class of people" in the classroom, Martinez observed that "you don't know what would promote resentment toward a race or class of people." So one "can't be on notice about that."

In other words, a law has to tell you what is prohibited, specifically enough for the average person to understand. Otherwise, how can you be "on notice" about what is illegal?

Martinez noted that the other sections of the law are "incredibly ambiguous." Summing up, he tells the court that there is "no core of easily identifiable and constitutionally prescribable conduct" that's permitted under the statute.

"You just don't find the core, your honor," Martinez contended of the law. "You can't point to [it] in the statute [and say] this is what it means, this is what you can do, this is what you cannot do."

Horne followed Martinez. He did not have to argue the case himself. Two assistant state attorneys general are currently assigned to the case and are likely far more familiar with the issues involved. 

But as one attorney put it to me, "General Horne fancies himself a lawyer," a Harvard-educated lawyer at that. And like they say, you can tell a man from Harvard, but you can't tell him much.

During Horne's argument, Judge Tashima interrupted the AG at several points, asking him revealing questions, questions Horne did not adequately address.

Tashima inquired if the statute is "legitimately designed" to accomplish its stated purpose.

"For instance," Tashima told Horne, "if you take the phrase `promote resentment toward a race or class of people,' it's quite a subjective phrase and, you know, it's subject to all kinds of interpretation.

"I mean, for instance, wouldn't you say that the Occupy movement promotes resentment against a class of people or the Tea Party promotes resentment against a class of people? And, you know, so does that mean a school can't teach that because they -- about the Tea Party or the Occupy movement because they promote resentment against a class of people? It's an awfully vague command from a legislature, isn't it?"

Horne then ventured off into the decision rendered by the Administrative Law Judge on TUSD's appeal of Huppenthal's order. But Tashima responded by stating that he found the ALJ's conclusions "vague" and "unhelpful." 

Tashima also observed that the ALJ's findings were "the complete opposite of the Cambium report," a study Huppenthal paid $110,000 for, then disregarded because it ended up praising the MAS program and stated MAS was not out of compliance with the law.

"To me that just shows how subjective this whole thing is," Tashima remarked. "You know, anybody could look at this and come to...lots of different kinds of conclusions."

Which just happens to be one of the plaintiffs' main points. There soon followed this somewhat embarrassing exchange for Horne:

MR. HORNE:Your Honor, first of all, I would point out to Your Honor that the administrative law judge's findings are subject to appeal to court. Tucson Unified School District decided not to appeal it because they thought they couldn't win the appeal.

THE COURT: I thought it was because they couldn't afford the attorney's fees.

MR. HORNE: They cited both reasons, Your Honor. But I think if you ask a person of ordinary intelligence what does it mean to create resentment against a group of people, they would understand what that means.

Ouch. Horne continued on, but he seemed to grok that things were not going well. That's when he threw up a white flag of sorts, by delving into the issue of "severability," where one part of a law can be enjoined or overturned while the others still stand.

Senate Bill 1070, for instance, contains a "severability clause," so when parts of that law were enjoined by a federal court in 2010, the others remained in effect. 

Significantly, HB 2281 contains no severability clause. Which lead to the following exchange between Horne and Tashima:

MR. HORNE: Your Honor, the -- one of the questions that I think is relevant to the question of vagueness is the question of severability. So if Your Honor were to find, for example, that the first section dealing with overthrowing the government is too vague, the others stand on their own because it's a question of "or". It's not a question of "and". The four different criteria don't interact with each other.Each one on its own is sufficient to invalidate the course.

THE COURT: There is some Arizona statutes that have express severability provisions right in the statute. So there it's clear. In this case there isn't such a provision, is there?

MR. HORNE: There isn't, Your Honor. But there is case law that says it depends on the extent to which the parts of the statute interact with each other. So if you take out one, the others are meaningless.

Certainly, there's no way to read Tashima's mind or predict precisely what he will do, but Horne was here anticipating that Tashima may strike down part or all of the law. 

Tashima is a visiting judge from the Ninth Circuit Court of Appeals. He took over the ethnic studies case from Judge John Roll who was killed in the 2011 Tucson massacre.

If appealed, Tashima's decision would go to some of his fellow judges on the Ninth Circuit, which makes it even more likely that Tashima's ruling in the matter will be as solid as a rock. 

I certainly hope Tashima throws out HB 2281, which appears to be unconstitutional on its face. Should he do so, Horne will have some serious egg on his mug. Not only did Horne help draft the law and exploit it to attain higher office, he stepped in to defend it at a moment when it might have been better if he'd let others do so instead.                            

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