Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination

The Ninth Circuit has issued its decision in Arce v. Huppenthal.  The case arises out of the 2010 ban on Mexican American Studies programs in Arizona.  The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (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,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.” 

The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional.  The trickier analysis in regard to plaintiffs' motivations.  Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination.  The former would violate the Fourteenth Amendment and the latter the First Amendment.  The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims.  The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.