CHICAGO — On July 7, 2015, the Ninth Circuit Court of Appeals issued its opinion in in Arce v. Douglas (formerly Arce v. Huppenthal), a lawsuit filed by students in the Tucson Unified School District (TUSD). The lawsuit challenges the constitutionality of Arizona Revised Statute § 15-112, which prohibits the use of class materials or books that encourage the overthrow of the government, "promote resentment toward a race or class of people," are "designed primarily for pupils of a particular ethnic group" and "advocate ethnic solidarity instead of the treatment of pupils as individuals."
The Freedom to Read Foundation (FTRF) prepared an amicus curiae brief in support of the student plaintiffs, arguing that the statute, which led to the disbanding of Tucson’s Mexican American Studies (MAS) program, violates Arizona students’ First Amendment rights to receive information and is unconstitutionally overbroad.
FTRF was joined in its amicus brief by the American Library Association, American Booksellers Association for Free Expression, Asian/Pacific American Librarians Association, Black Caucus of the American Library Association, Comic Book Legal Defense Fund, National Association for Ethnic Studies, National Coalition Against Censorship, National Council of Teachers of English and REFORMA: The National Association to Promote Library & Information Services to Latinos and the Spanish Speaking.
Legal counsel for the student plaintiffs issued the following statement on the opinion, which remanded the case back to the trial court for further consideration:
In an important decision to advance equality and freedom of speech, the Ninth Circuit reversed the district court and held that a challenge to the Arizona law prohibiting Mexican-American studies courses raises claims that should go to trial.
In Arce v. Douglas, high school students challenged an Arizona law that dismantled the highly successful Mexican American Studies (MAS) program in the Tucson Unified School District. They argued that it was unconstitutionally vague and overbroad, discriminated based on viewpoint, and was enacted and enforced in discriminatory manner.
The district court in 2013 agreed that one of the provisions, which could outlaw any ethnic studies course, violated the First Amendment, but it granted summary judgment against the students on their other claims.
Importantly, the Ninth Circuit panel agreed that students have a First Amendment right to receive information and ideas and the provision that would outlaw virtually any ethnic studies course violated this First Amendment right.
Though the panel agreed with the district court that the other provisions were not vague or overbroad, it reversed the grant of summary judgment against the students on their discrimination claims. The court found that there was substantial evidence that the law was adopted out of a racially discriminatory animus and directed that the students’ equal protection discrimination claims be set for trial. Erwin Chemerinsky, dean of University of California Irvine School of Law, who argued on behalf of the students, notes, “The panel’s opinion is a key step on the path to having this very objectionable, discriminatory law struck down as violating equal protection and freedom of speech.”
Robert Chang, executive director of the Korematsu Center, who led the students’ legal team on appeal, commented, “We are pleased that the Ninth Circuit upheld a key finding of the district court, and we are excited for the opportunity to tell the plaintiffs’ story in court, that the students and the Mexican American community might yet find vindication.”
"We are very happy that the students will finally have the opportunity for a full and fair hearing on their equal protection and First Amendment claims," said Barbara Jones, executive director of the Freedom to Read Foundation. "FTRF remains steadfast in its support of the students' right to receive information free from discrimination and looks forward to providing continuing support and assistance to the plaintiffs as they seek to vindicate their rights."