123456789101112131415161718192021222324252627THOMAS C. HORNEAttorney GeneralFirm Bar No. 14000Thomas C. Horne, No. 002951Kevin D. Ray, No. 007485Jinju Park Hurtado, No. 026023Assistant Attorneys General1275 West Washington StreetPhoenix, Arizona 85007-2926Telephone: (602) 542-8328Facsimile: (602) 364-0700Email:EducationHealth@azag.gov
Attorneys for Defendants John Huppenthal,Superintendent of Public Instruction, in his official capacity;and the State Board of Education and its individual members,named in their official capacity as nominal parties
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA
MAYA ARCE, et al.,Plaintiffs,and NICHOLAS DOMINGUEZ, et al.Intervenors,vs.JOHN HUPPENTHAL, Superintendent of Public Instruction, in his Official Capacity,et al.,Defendants.Case No. CV-10-623-TUC-AWT
REPLY IN SUPPORT OFSUPERINTENDENT’S CROSS-MOTION FOR SUMMARYJUDGMENT
Honorable A. Wallace Tashima
I.SUMMARY.A.As a Matter of Law, Students Have No First Amendment Rights to DictateCurriculum to the Schools.
The following crucial distinction between two entirely separate concepts shouldestablish the Superintendent’s right to summary judgment on the First Amendment issue:
Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 1 of 25
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123456789101112131415161718192021222324252627In one type of case, where students may have First Amendment claims, the State prohibits certain types of speech against students or teachers, or others, and assesses a penaltydirectly against them if they violate the prohibition (which A.R.S. § 15-112 does not do). Or,the State expressly bans students from reading certain books, and bans those books from thelibrary (which A.R.S. § 15-112 does not do). The statute does not do it, and neither does theSuperintendent.
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All of the cases cited by Plaintiffs fall into these categories. It is completelyinapplicable here. Our statute prohibits districts from offering certain courses which areinconsistent with the State’s curricular choices. All sanctions run against the school district,not against students. The State has not made any sanctions applicable directly againststudents or teachers. The statute does not prevent the discussion of any topic: it does not prevent the discussion of the Declaration of Independence. It does not prevent the discussionof the 9/11 attacks on the World Trade Center or the Pentagon. It does not prevent thediscussion of
anything
. All of the cases cited by Plaintiffs pertaining to the First Amendmentare therefore inapplicable to this case.The second type of case is where people disagree with the curriculum set by the state.The Arizona Supreme Court has held that the State of Arizona is responsible for publiceducation, a duty it cannot delegate.
Roosevelt Elementary Sch. Dist. No. 66 v. Bishop
, 179Ariz. 233, 239, 8778 P.2d 806, 812 (1994); A.R.S. § 15-341 (delegating a limited authority toschool district governing boards to “prescribe and enforce policies and procedures for thegovernance of the schools,
not inconsistent with law
or rules prescribed by the state board of education”)(
emphasis added
). Part of this duty is to set standards and curriculum for thestate. Deciding on one curriculum, and rejecting a second curriculum, is not a violation of theFirst Amendment rights of those who wish it had adopted the second curriculum. The UnitedStates Supreme Court has been crystal clear on this subject:The question whether the First Amendment requires a school to tolerate particular student speech – the question that we addressed in Tinker – isdifferent from the question whether the First Amendment requires a school
1
See
Affidavit of Kathy Hrabluk ¶ 9.
Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 2 of 25
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123456789101112131415161718192021222324252627affirmatively to promote particular student speech. The former questionaddresses educators’ ability to silence a student’s personal expression thathappens to occur on the school premises. The latter question concernseducators’ authority over school-sponsored publications, theatrical productions,and other expressive activities that students, parents, and members of the publicmight reasonably perceive to bear the imprimatur of the school.
Hazelwood Sch. Dist v. Kuhlmeier,
484 U.S. 260, 270-71 (1988) (
emphasis added
)Similarly: “A teacher’s curricular and pedagogical choices are categorically unprotected.”
Evans-Marshall v. Bd. Of Educ. Of the Tipp City Exempted Village Sch. Dist.
, 624 F.3d 332,342 (6th Cir. 2010) (emphasis added). As discussed below in Section III, every single Circuitthat has considered this issue has ruled the same way: 11 cases in 7 circuits.It is therefore respectfully submitted that the Superintendent should be entitled tosummary judgment on the First Amendment issues.
B.As a Matter of Law, There Is No Valid Facial Challenge to This Statute forAlleged Vagueness.
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The Ninth Circuit “presume[s] statutes are constitutional.” S
ea River Mar. Fin. Holdings, Inc. v. Mineta
, 309 F.3d 662, 669 (9th Cir. 2002). “Facial invalidation is,manifestly, strong medicine that has been employed by the court sparingly and only as a lastresort.”
Nat’l Endowment for the Arts v. Finley
, 524 U.S. 569, 580 (1998). Courts mustconstrue statutes to uphold their validity if possible.
Robertson v. Seattle Audubon Soc’y,
5032 U.S. 429 (1992). Because plaintiffs cannot show that A.R.S. § 15-112 affects their FirstAmendment Rights, they must show that the law is unconstitutional “in all its applications” to prevail on their facial challenge.
Humanitarian Law Project v. U.S. Treasury Dep’t
, 578 F.3d 1133, 1146 (9th Cir. 2009). They cannot do so here.Plaintiffs Reply argues that the statute itself must define terms, and that dictionary
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Wherever Plaintiffs summarize their claims (e.g., motion pages ii,7), they present threetheories: 1. The statute does not provide notice as to what constitutes a violation; 2. It grantsa subjective power of enforcement; 3. It violates the First Amendment. As Plaintiffsrecognize in their Reply at page 20 lines 19-22, the first and second theories fall under theFourteenth Amendment prohibition against vagueness. This Reply in Support of the CrossMotion is organized under two headings, First Amendment and Alleged Vagueness. Wesubdivide our analysis of alleged Vagueness under “facial” and “applied” challenges.
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