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THOMAS C. HORNE Attorney General Firm Bar No. 14000 Thomas C. Horne, No. 002951 Attorney General Kevin D. Ray, No. 007485 Leslie Kyman Cooper, No. 012782 Jinju Park, No. 026023 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007-2926 Telephone: (602) 542-8328 Facsimile: (602) 364-0700 Email: EducationHealth@azag.gov Attorneys for Amicus Curiae State of Arizona ex rel. Attorney General Thomas C. Horne IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ROY and JOSIE FISHER, et al., Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor vs. ANITA LOHR, et al., Defendants. and SIDNEY L. SUTTON, et al., Defendants-Intervenors. MARIA MENDOZA, et al., Case No. 4:74-cv-00090-DCB ARIZONA’S OBJECTION TO THE DRAFT UNITARY STATUS PLAN FOR TUCSON UNIFIED SCHOOL DISTRICT NO. 1 Honorable David C. Bury

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Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor, vs. TUCSON UNIFIED SCHOOL DISTRICT NO. ONE, et al., Defendants.

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The State of Arizona objects to the portion of the Draft Unitary Status Plan (“USP”) that requires the Tucson Unified School District (“TUSD”) to establish culturally relevant “core courses” in Latino and African American studies. (Document [“Doc.”] 1406-1 at 37.) Arizona joins TUSD’s objection (Doc. 1407 at 17-20) because such relief is unprecedented, particularly where there has been no finding that the curriculum violated any person’s civil rights, and because the requirements will violate Arizona law, promote segregation, and prompt the return of the discredited Mexican-American Studies (“MAS”) Program. After an extensive evidentiary hearing in the State’s Office of Administrative Hearings, with a right of appeal to state courts, an independent Administrative Law Judge concluded that the MAS Program courses in Latino history and culture offered by TUSD presented material “in a biased, political, and emotionally charged manner” that promoted social and political activism against “white people,” promoted racial resentment, and advocated ethnic solidarity instead of treating pupils as individuals. (In the Matter of the Hearings of an Appeal by Tucson Unified School District, No. 11F-002-ADE No. 11F-002ADE, see Case 4:10-CV-00623-AWT Doc. 132-1 at 35.) This violated Arizona Revised Statute (“A.R.S.”) §15-112 and led to the suspension of the MAS Program at TUSD. The requirements of Section V(6)(a)(ii) in the draft USP will lead to a re-establishment of a segregated, racially divisive ethnic studies program at TUSD rather than promoting integration and unity. Furthermore, the requirement that TUSD develop and implement specific classes in Latino and African American studies violates Arizona law, which prohibits the creation of classes for a specific ethnic group. A.R.S. §15-112. Because there is no compulsory constitutional requirement for such classes, no authority allows a federal court to disregard this Arizona law. Arizona further objects to the requirement in Section V(6)(a)(i) requiring TUSD to develop and implement a multicultural curriculum for District courses which integrates racially and ethnically diverse perspectives and experiences because, to the extent that the

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proposed curriculum meets the State’s Academic Content Standards, this requirement is unnecessary. To the extent that the proposed curriculum is not aligned to the State’s Academic Content Standards, this requirement violates State law. I. ARIZONA JOINS TUSD AND OBJECTS TO THE REQUIREMENTS IN SECTION V(6)(a)(ii). Section V(6(a)(ii) of the Draft USP requires TUSD to develop and implement “socially and culturally relevant curriculum, including courses of instruction centered on the experiences and perspectives of African American and Latino communities.” (Doc. 1406-1 at 37.) It further requires that “core courses shall be developed in social studies and literature and shall be offered at all feasible grade levels in all high schools across the District.”1 (Id.) The requirements of this provision are unprecedented. Not only does the Draft USP require all TUSD high schools to offer specific classes addressed to specific ethnic groups, but it mandates that such classes be offered at all TUSD high schools at all feasible grade levels. (Id.) Professor Christine Rossell, an expert who has been retained by the State in this matter, has over thirty-eight years of experience in teaching, designing desegregation plans, consulting, and researching desegregation policy. Professor Rossell, a full professor in the Political Science Department at Boston University, has never come across a court decision that actually specified the content of courses or curricula the way that this draft USP does. (See, Affidavit and Curriculum Vitae of Christine Rossell, attached as Exhibit [“Ex.”] 1 at 1 ¶ 3.) No court has ever ordered a school district to implement The requirement is vague in its reference to “core courses,” a term that is not defined in the Draft USP or Arizona law. Arizona’s high school graduation requirements are divided between “subject area course requirements” and “additional courses.” A.R.S. § 15203(A)(13); A.A.C. R7-2-302, R7-2-302.01, R7-2-302.02. Subject area course requirements include English (or English as a Second Language), United States Constitution and Arizona, world history/geography, mathematics, science and arts or vocational education. It is also vague because it refers to “core courses” in “literature.” Arizona’s graduation requirements include four years of English (or English as Second Language), which “shall include, but not be limited too, grammar, writing and reading skills, advanced grammar, composition, American literature, advanced composition, research methods and skills and literature.” A.A.C. R7-2-302(1)(a), R7-2-302.01(1)(a), R7-2-302.02(1)(a).
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particular courses of study as a solution to segregation without first making a factual finding that the school district’s curricula violated federal law. In fashioning and effectuating desegregation decrees, federal courts are guided by equitable principles that are informed by three factors. See Brown v. Board of Education, 349 U.S. 294, 300, 75 S. Ct. 753, 756 (1955). First, the nature and scope of the constitutional violation determines the nature of the desegregation remedy. Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 1276 (1971). Second, the remedy must relate to the constitutional violation – it must be “designed as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Milliken v. Bradley, 433 U.S. 267, 280, 97 S. Ct. 2749, 2757 (1977) (internal quotations omitted). Third, the remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. Id. at 280-81, 97 S. Ct. at 2757. In the long history of this case, this Court has made no findings that the curricula and courses offered by TUSD violated any student’s constitutional rights. The proposed remedy of creating specific courses for African-American and Latino students is thus not a remedy that is required to vindicate any constitutional guarantees. See Missouri v. Jenkins, 495 U.S. 33, 57-58, 110 S. Ct. 1651, 1666 (1990) (stating that a particular remedy may not be required in every case to vindicate constitutional guarantees). Federal courts interfere in school curriculum only with great reluctance. See Griggs v. Cook, 272 F. Supp. 163, 169 (N.D. Ga. 1967) (stating that “[i]t is only when some transcendent personal constitutional right is involved that the federal courts take jurisdiction of such matters at all.”). While the prohibition of racial discrimination under the constitution is such a right, id., the requirements envisioned by this Draft USP not only fail to remedy past racially-discriminatory practices, but directly interfere with the State’s firmly established authority to set curricula, and will lead to segregation rather than desegregation of students.

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When federal courts have fashioned desegregation orders affecting a school district’s curricular choices, they focus on two issues. First, these courts examine whether a school district offers equal access to curriculum and instruction. Keyes v. School Dist. No. 1, Denver, Colorado, 521 F.2d 465, 481 (10th Cir. 1975). Second, these courts determine whether a school district’s curricular content creates racial bias. Coalition to Save Our Children v. State Bd. Of Educ. Of State of Del., 90 F.3d 752, 769 (3rd Cir. 1996). Here, the provision of the Draft USP requiring specific courses addresses neither the question of equal access to specific curriculum nor the question of whether specific curricular content created a racial bias; instead, this requirement remedies a problem that does not exist. As noted by TUSD, plaintiffs here dropped their only claim regarding curriculum more than 30 years ago. (Doc. 1407 at 17.) In any event, Arizona already recognizes the academic value of multicultural perspectives. Its Academic Content Standards (“Standards”) require all school districts and charter schools to implement central components of standards-based educational criteria to provide a consistent academic framework for its public school pupils throughout the State. Arizona has implemented performance standards incorporating culturally sensitive curricula into the statewide standards for elementary and secondary education. In 2005, the Arizona Department of Education created academic standards and performance objectives to comport with requirements in the No Child Left Behind Act of 2001. See Arizona Standards for Social Studies, Articulated by Grade Level, available at: http://www.azed.gov/standardspractices/files/2011/09/ssstandard-full-05-22-06.pdf, last accessed November 28, 2012. The Arizona Department of Education created the Standards with the help of an ethnicallydiverse committee. (Id. at xii-xiii.) Subject matter experts, university professors, and community members provided advice to the committee. (Id. at xiii.) This ultimately resulted in the adoption of vigorous and diverse multicultural curricula that must be implemented by every school district in Arizona, including TUSD.

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Federal law does not require academic standards and performance objectives to encourage multicultural perspectives. However, Arizona’s educational policy makers believed that multicultural perspectives were sufficiently important to warrant state-wide implementation. The introduction to the Standards states that the Standards include “the study of rich and diverse contributions that people of many backgrounds have made to American life and institutions while emphasizing our shared heritage.” (Id. at xvi, emphasis added.) The standards weave an emphasis on the contributions of other civilizations and cultures into the topical strands of American History, World History, Civics/Government, Geography, Economics, and English Language Arts. Arizona’s Standards require multicultural learning beginning in kindergarten and continuing through twelfth grade. In fact, multi-cultural references are found throughout Arizona’s Standards for Social Studies, beginning with kindergartners who are taught to “[r]ecognize that classmates have varied backgrounds but may share principals, goals, customs, and traditions.” (Id. at 2.) The First Grade American History lessons teach them about how Rosa Parks, Martin Luther King, Jr., and César Chavez worked for civil rights. (Id. at 12.) Fourth graders focus much of their American History studies on Arizona and the Southwest; as part of that focus, they learn about the contributions of Mexico and Spain to our state, as well as those of the Native Americans. (Id. at 46.) They study the early Spanish exploration of Mexico and the Southwest by Cabeza de Vaca, Estevan, Fray Marcos de Niza and Francisco Vásquez de Coronado; they learn about Spanish colonization of the Southwest, the establishment of Spanish missions and how these changes affected the lifestyle’s of Arizona’s native peoples. (Id. at 44.) They continue their study of westward expansion by learning how the Mexican Revolution caused a change in governance from Spain to Mexico, and learn how Arizona became a part of the United States. (Id. at 45.) Their study of World War II includes information about Native-American, AfricanAmerican, and Hispanic contributions to the war and the effect of the internment camps on Japanese Americans. (Id. at 49.) Their geography lessons ask them to understand how

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Arizona is connected to Mexico, by the movement of people, goods and ideas; they also learn about Mexico’s culture at this time. (Id. at 47.) Fifth graders compare the American Revolution to other revolutions around the world, such as those in France, Haiti, South America and Russia. (Id. at 59.) They are asked to describe different perspectives on Manifest Destiny, including those of Native Americans, settlers, the Spanish and the United States Government. (Id. at 62.) In geography, they examine the economic, cultural, environmental and political effects of human migration, tying these lessons into their history studies. (Id.) As students mature, the Standards become more nuanced. For example, in seventhgrade geography, students continue their study of human migration, but deepen their learning, looking at factors such as enslavement, war, religious freedom and political freedom that cause human migration. (Id. at 92.) Eighth graders learn how different aspects of culture, such as literacy, occupations, clothing and property rights relate to the “beliefs and understandings that influence the economic, social, and political activities of men and women.” (Id. at 110.) In Civics and Government, they examine the impact of Jim Crow laws, the Civil Rights movement, desegregation, the National Organization for Women and the United Farm Workers. (Id. at 112.) Their World History lessons introduce them to twentieth-century independence movements in Pakistan, Afghanistan, Africa, Latin America and Asia. (Id. at 113.) In high school, students analyze the growth of the American nation and trace the impact of expansion and colonization on Africa, the Americas, and Asia. (Id. at 124.) Students learn about a multicultural world in world history, covering the post-imperial independence movements of emerging nations, the genocides of Armenia, the Holocaust, Cambodia, Bosnia, Rwanda, Kosovo, and Sudan in twentieth century, and society’s economic and political interdependence during the second half of the twentieth century. (Id. at 134-35.) Important human rights issues of the twentieth century such as apartheid, genocide, famine, and disease are discussed, as are changes in America after World War II,

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including protest movements such as those against the war, in favor of women’s rights and civil rights, as well as those by farm workers and César Chavez. (Id. at 138.) High school students examine, as well, the shift to increased immigration from Latin American and Asian countries. (Id.) They study the scourge of terrorism, asking how cultural insensitivities and political and economic inequality have contributed to terrorist movements in Chechyna, Northern Ireland, the Philippines and the modern Middle East. (Id. at 136.) Arizona’s Standards for English also recognize the importance of teaching students about cultural diversity. The Arizona Reading Standards for kindergarten through twelfth grade aspire to create students who “understand other perspectives and cultures.” Arizona’s Standards, English Language Arts and Literacy, available at http://www.azed.gov/azcommoncore/elastandards/hsela/, last accessed Nov. 28, 2012.) More specifically, it is hoped that Arizona students will display the following qualities: Students appreciate that the twenty-first-century classroom and workplace are settings in which people from often widely divergent cultures and who represent diverse experiences and perspectives must learn and work together. Students actively seek to understand other perspectives and cultures through reading and listening, and they are able to communicate effectively with people of varied backgrounds. They evaluate other points of view critically and constructively. Through reading great classic and contemporary works of literature representative of a variety of periods, cultures, and worldviews, students can vicariously inhabit worlds and have experiences much different than their own. (Id. at 10.) To that end, the standards note that “through extensive reading of stories, dramas, poems, and myths and exposure to visual media from diverse cultures and different time periods, students gain literary and cultural knowledge.” (Id. at 13.) Under these standards, children in Arizona are expected to read a wide variety of texts, not only those traditionally conceived of as literature, but also texts related to history, social studies, science and other disciplines. (Id.) Arizona English Language Standards also include a list of sample texts that represent the range of topics and genres to which Arizona students should be exposed. Even a casual perusal of these lists demonstrates that works

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from many periods and cultures are represented. The list of sample text for kindergarten through fifth grade includes such works as The Story of Ruby Bridges, by Robert Coles, about the first black child to attend an all white school in the American South; “Zlateh the Goat,” by Isaac Bashevis Singer, a modern folktale set at Chanuka; and Where the Mountain Meets the Moon, by Grace Lin, an Asian-inspired fantasy. (Id. at 45.) Sample works for sixth through twelth graders include Black Boy, by Richard Wright, the autobiography of a black man; The Namesake, by Jhumpa Lahiri, about an Indian-American young man; and Take the Tortillas out of Your Poetry, by Rudolfo Anaya (a collection of a renowned Chicano author’s works). (Id. at 79.) In short, Arizona already requires all students to learn from a culturally diverse curriculum. Furthermore, the operation and effect of Section V(6)(a)(ii) does not further the State’s educational interests or the constitutional rights of previously segregated students but instead creates deliberate curricular segregation. The program would be implemented by administrators and teachers who were already found (by an independent, objective Administrative Law Judge) to have implemented this type of program in a biased, political, and emotionally charged manner.” II. THE PROPOSED REQUIREMENT DEFEATS THE PURPOSE OF ANY DESEGREGATION EFFORTS BY SEGREGATING CLASSES BY RACE RATHER THAN ACHIEVING INTEGRATION. The development and implementation of specific courses designed primarily for African-American and Latino students pursuant to Section V(6)(a)(ii) does not further the academic interests of our State’s diverse, multi-ethnic student body. It creates a divided, segregated student body at TUSD by providing students with the ability to enroll in courses designed primarily for students of a particular race or ethnicity rather than integrating classes by encouraging enrollment in multi-ethnic classes representative of the student population in the district. While a desegregation plan should take all steps necessary to address the vestiges of past discrimination, this provision in the PUSP fails to do so. Instead, it creates segregation by driving the students apart into separate classrooms, where an unchecked

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pedagogy could create a fractured student body and has done so in the past. As found by an objective Administrative Law Judge, TUSD previously implemented a program that resulted in a racially divisive program that fomented hatred against other races contrary to state law. The teachers and administrators in the former MAS program were radical socialist activists who promoted an anti-capitalist and anti-Western Civilization ideology. They used ethnic solidarity as their vehicle of delivery. The program’s founder, Augustine F. Romero, and the program administrator, Sean Arce, believed that the founders of the nation created a structure that is racist and oppressive in nature. (Excerpts from the Transcript of the Administrative Hearing In the Matter of the Hearings of an Appeal by Tucson Unified School District, No. 11F-002-ADE [“Tr.”]; Testimony of Sean Arce, August 23, 2011 (p.m.), attached as Ex. 2 at 47:13-20, 48:7-19; for the full text of the transcript, see Case 4:10-CV-00623-AWT Doc. 194-1.) Using the basic theory that the American culture was oppressive and racist, they established a modified pedagogy based on Paolo Freire’s theories that deliberately attempted to “racismize” education. (Id. at 60:9-25 – 61:1-2.) Racismization, according to Arce, was the process of looking at issues with a racial lens. (Id. at 61:3-7.) Arce and Romero saw themselves as “emancipatory educators” who grounded their pedagogy in racismized education. (Id. at 59:21-25; 60:1-6.) This pedagogical methodology was based on the belief that failure to look at issues with a racial lens would place MAS educators “in the role as agents of injustice.” (Id. at 61:8-25; 62:1-2.) They gave this racismized pedagogy a name, calling it “barrio pedagogy.” (Id. at 72:8-18.) This barrio pedagogy in the MAS Program resulted in teachers who vehemently opposed the culture of the United States and indoctrinated their students with this message. (Affidavit of John Ward, attached as Ex. 3 ¶ 8b.) MAS staff promoted racial and ethnic solidarity among students and fostered an “us versus them” mentality. (Id. ¶ 4.) Accepting the MAS staff’s views was a litmus test for students to demonstrate that they were “Raza” – in other words a proud member of their ethnic group. (Id.)

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Assignments the MAS teachers gave their students were not academically beneficial and did not attempt to develop critical thinking. (Tr., Testimony of Dr. Sandra Stotsky, Expert in K-12 Curriculum, October 27 (a.m.), attached as Ex. 4 at 19: 17-20.) Instead, they presented material designed to arouse emotions in one direction about a group of students who were designated as oppressed. (Id. at 20:1-7.) The MAS teachers undermined the integrity of the educational process by teaching unscientific myths to the students as though they were true. (Ex. 3 ¶ 9.) For example, the first half of an MAS American History course was all about the Aztecs, because the teachers wanted the students to identify themselves as being in the tradition of the Aztecs, as native to North America. (Id.) They taught students it was a “White racist myth” that the Native Americans crossed over the Bering Straits from Asia, and that they really originated in the Americas. (Id.) They also taught them that it was a White racist myth that the Aztecs engaged in human sacrifice, notwithstanding the substantial historical evidence that human sacrifice was part of the Aztec ceremonies. (Id.) According to the MAS staff, this misinformation was an attempt by whites to dehumanize Mexican American students and their ancestors in order to justify oppressing them. (Id.) Anger permeated the MAS program. The MAS teachers aggressively promoted an ideological agenda that taught students that the United States was and still is a fundamentally racist country to those of Mexican-American descent. (Id. ¶ 8a.) MAS teachers repeatedly told their students that the white power structure was designed to oppress them and relegate them to a second-class existence. (Id. ¶ 8b.) They taught students that they were victims who were oppressed by a white, racist, capitalist system. (Id. ¶ 8a.) Teachers told MAS students things such as: “[y]our Anglo teachers don’t want you in AP (advanced placement) classes because they do not want you to succeed. This is how Anglos keep us on the bottom.” (Id. ¶ 5.) These statements illustrated their skewed view of society’s constant victimization of minorities to the MAS students. (Id.) The MAS teachers literally reprogrammed the students to believe that a white power structure conspired to suppress them and relegate them to a second-class existence. (Id. ¶

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8b.) This fomented resentment and resulted in visible contempt for all authority outside of their ethnic community and their total lack of identification with a political heritage of this country. As a result, students who enrolled in the classes changed. They became angry, distrustful of teachers, and disrespectful of authority due to the curriculum of the MAS Program classes. (Id.) The MAS program required intellectual conformity based on the ideology held by MAS staff. (Id. ¶ 10.) The teachers did not allow for any balance on the controversial issues, but advocated only views and ideas that were consistent with their ideology and demeaned opposing viewpoints. (Id. ¶ 3, 8a.) They actively suppressed intellectual diversity and celebrated conformity when it aligned with their partisan ideology. (Id. ¶ 3, 4, 10.) This constant propaganda resulted in the ostracization of non-Latino students. At a TUSD governing board meeting, Christina Cruz told the governing board that her daughter attempted to withdraw from a MAS class because she had no interest in learning why she should hate her white mother and love her Mexican father. (Tr., Testimony of TUSD Governing Board Member, Mark Stegeman, August 19, 2011 (p.m.), attached as Ex. 5 at 131:12-15.) Another teacher/parent heard her (Caucasian) daughter express distress over the fact that the Hispanic students would not talk to her at all at by end of an MAS class semester. (Tr., Testimony of TUSD parent, Mary Stevenson, August 19, 2011 (p.m.), attached as Ex. 6 at 152:6-23.) A climate of outright intimidation stopped many other teachers from standing up to MAS teachers for fear of being labeled racists. When teacher John Ward criticized the MAS Program, the TUSD administrators removed him from his class. (Ex. 3 ¶¶ 6-7.) The administrators called him a racist, despite his being Hispanic. (Id.) This fundamentally antiintellectual tactic stopped any debate by bullying and intimidation that threatened to destroy the reputation of those who would provide another viewpoint. This intimidation was used against anyone who criticized the MAS Program. (Id.)

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Hector Ayala, an English teacher at Cholla High School, observed that the MAS program taught students a separatist political agenda. (See Affidavit of Hector Ayala, attached as Ex. 7 ¶ 3.) His students have told him that their MAS teachers taught them not to “fall for the white man’s traps.” (Id. ¶ 3a.) One non-Hispanic student who was enrolled in an MAS course complained to him that he was being “dissed” in the classroom “because I am white.” (Id. ¶ 3b.) His public disagreement with the political beliefs of the MAS program led one of the founders of MAS, Augustine Romero, to call Mr. Ayala an “agent of the white man,” a “coconut,” and “racist”. (Id.) During the 2007-2008 school years, another non-MAS teacher, Prewitt Howie, overheard one MAS program instructor, Jose Gonzalez, tell his students that the University of Arizona is a racist organization because only 12% of the students are Latino. (Affidavit of Prewitt Howie, attached as Ex. 8 ¶ 3.) Mr. Gonzalez told his students they should go to college so they can gain the power to take back the stolen land and to give it back to Mexico. (Id.) And, he told his students that the United States is a meritocracy and that Latinos are not a part of it. (Id.) When Ms. Howie confronted Mr. Gonzalez about his classroom instruction, he told her that he teaches his students that Republicans hate Latinos and that legislation proves it. (Id.) When she asked him about Mexican American Republicans who are against illegal immigration, Mr. Gonzalez said this is an example of “self-racism.” (Id.) A social science teacher, Ron Silverman, observed that the MAS Program curriculum employs brainwashing practices that results in marked changes in the students. (Affidavit of Ron Silverman, attached as Ex. 9 ¶ 2.) While he was teaching at TUSD, he criticized the veracity of information disseminated in the MAS history class for failing to provide any primary source material and actual historically documented facts, as opposed to “feel good” information. (Id. ¶ 3.) As a result of his criticism, some MAS history teachers, including Sean Arce and Curtis Acosta, called him racist and openly encouraged their students to call him a racist as well. (Id. ¶ 4.)

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TUSD’s Governing Board Members were concerned that teachers in the MAS Program were teaching to indoctrinate based on racial issues. (Tr., Testimony of TUSD Governing Board Member, Charles Hicks, August 19, 2011 (p.m.), attached as Ex. 10 at 109:5-8.) TUSD Board member, Charles Hicks, testified that he was concerned that an “us (Chicanos) versus them (Anglos)” mentality was being created by the program. (Id. at 109:12-16.) TUSD Board member, Mark Stegeman, wrote an editorial in the Arizona Daily Star pointing out that three fundamental problems with the program predated A.R.S. § 15112. (Mark Stegeman, TUSD needs community support, balanced ethnic studies, The Arizona Daily Star, Feb. 9, 2012, attached as Ex. 11.) First, the process that created the MAS curriculum was so far out of compliance with state law and longstanding district policy. (Id.) Second, the “critical race” theory foundation of the MAS program and its emphasis on activism for particular causes raised serious concerns that may have violated TUSD’s policies. (Id.) And, third, the MAS program reached such a small fraction of TUSD’s Mexican American population that it had no appreciable effect on the low average achievement of that group, with any evidence of higher student achievement being exaggerated. (Id.) The creation of separate courses for students of different races envisioned by Section V(6)(a)(ii) causes racial divisions, and does not benefit the academic performance of the affected students. III. A FEDERAL COURT EXCEEDS APPROPRIATE LIMITS OF FEDERAL JUDICIAL AUTHORITY WHEN IT INTRUDES ON A STATE’S RIGHT TO DETERMINE THE CURRICULA AND EDUCATION OF ITS CITIZENS, IN THE ABSENCE OF A CONSTITUTIONAL COMPULSION TO DO SO. The Draft USP’s requirement that TUSD develop and implement “courses of instruction centered on the experiences and perspectives of African American and Latino communities” is a requirement that TUSD create courses that are designed primarily for students of a particular ethnic group and, as such, violates State law. A.R.S. § 15-112. No authority allows this Court to override State law.

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The implementation of a Unitary Status Plan (“USP”) that impairs the administration of state educational policy impermissibly interferes with Arizona’s exercise of its retained powers under the federal constitution. As a sovereign state, Arizona retains the authority to set educational policy for its citizens. The Tenth Amendment of the United States Constitution reserves any power not expressly delegated to the federal government to the states. U.S. Const. amend. X. Arizona’s constitution makes it clear that the State retains the non-delegable responsibility for public education. Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 239, 8778 P.2d 806, 812 (Ariz. 1994). Part of this duty is to set standards and curriculum for the state. Nothing in the federal constitution compels the provision of the proposed racially divisive courses and grants the federal government the authority to dictate Arizona’s curricular choices. Federal law cannot preempt state law in this circumstance. Federal law can preempt and displace state law through: (1) express preemption; (2) field preemption; and (3) conflict preemption. Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003). Express preemption occurs when Congress enacts an explicit statutory command that state law be displaced See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382, 112 S. Ct. 2031, 2036 (1992). Field preemption (or complete preemption) occurs where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 237, 67 S. Ct. 1146, 1155 (1947). Conflict preemption occurs where compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Ting, 319 F.3d at 1136 (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 1217 (1963), Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404 (1941)). Federal law cannot preempt Arizona’s prohibition on courses designed primarily for students of a particular race. Congress has never issued any statutory command that

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displaces Arizona’s right to determine curricular standards in education. Congress has never created any law or regulatory scheme that would deprive states of their firmly established right to determine their citizens’ education. Arizona’s law is not preempted by a congressional intent to occupy the field of elementary and secondary curricula. Moreover, the federal courts apply a presumption against preemption unless a state attempts to regulate an area in which there is a history of significant federal regulation. Ting, 319 F.3d at 1136. Education is not such an area. In fact, the opposite is true. The Supreme Court of the United States has repeatedly established that the primary responsibility for public education rests with the states. “[O]ne of the peculiar strengths of our form of government [is] each State's freedom to ‘serve as a laboratory; and try novel social and economic experiments.’ No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305 (1973) (Powell, J., quoting in part from the dissent of Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932)). This Court should not create a conflict between its order and Arizona’s legislative policy prohibiting the creation of segregative courses in public school by ordering TUSD to create culturally relevant core courses for African-American and Latino students when there is another way to achieve the goals of unification. See Missouri v. Jenkins, 495 U.S. 33, 5758, 110 S. Ct. 1651, 1666 (1990) (acknowledging that if a particular remedy is not required, the federal courts should not preempt state laws with a contrary order). Wherever possible, the federal courts must take the respectful approach of generally interpreting and applying legislation by harmonizing state and federal law where possible so as to avoid finding preemption. Unocal Corp. v. Kaabipour, 177 F.3d 755, 769 (9th Cir. 1999). In this case, the State’s legislative policy declares that students should not be segregated by race and taught resentment toward other races. The State has made the policy decision not to allow classes or courses of study that are primarily designed for a particular

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race or ethnic group, and that are ethnically divisive, such as the previous MAS Program. The federal interest in desegregation does not give the Court carte blanche authority to interfere with educational matters that have been clearly reserved by the states. Arizona’s Standards already require multiculturalism in all aspects of the curricula. An order to TUSD to create courses designed for students of a particular race or to implement curriculum that is not aligned to the State’s Standards violates the State’s laws and its right to determine educational policy. This Court should not order TUSD to implement curricula or courses of study in violation of state law, thereby preempting state law. A federal decree to implement separate courses designed for African-American and Latino students exceeds appropriate limits of federal judicial authority because it is aimed at eliminating a condition that does not flow from a violation. Bradley, 433 U.S. at 282, 97 S. Ct. at 2758. IV. THE STATE OBJECTS TO THE MULTICULTURAL CURRICULUM REQUIREMENTS FOUND IN SECTION V(6)(a)(i). Section V(6)(a)(i) requires TUSD to “develop and implement a multicultural curriculum for District courses which integrates racially and ethnically diverse perspectives and experiences”. This is unnecessary because, as shown above, Arizona Standards already require multiculturalism to be included at all grade levels. To the extent that Section V(6)(a)(i) requires TUSD to implement a curriculum that does not align with Arizona’s Academic Standards, this provision usurps the authority to set the standards for the courses of study in our public schools by the Arizona Department of Education and the Board of Education. See, e.g. A.R.S. § 15-701 (requiring the Board to prescribe a minimum course of study that incorporates the academic standards adopted by the Board to teach in all the public schools). To the extent that Section V(6)(a)(i) requires TUSD to implement a curriculum that does not deviate from the Standards, the provision is wholly unnecessary.

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V.

Conclusion For the reasons stated above, the State objects to Section V(6)(a)(i) and (ii) of the

Draft USP. Dated this 28th day of November, 2012. THOMAS C. HORNE Attorney General /s/ Thomas C. Horne Thomas C. Horne, Esq. Arizona Attorney General Kevin Ray, Esq. Leslie Kyman Cooper, Esq. Jinju Park, Esq. Assistant Attorneys General Attorneys for Amicus Curiae State of Arizona ex rel. Attorney General Thomas C. Horne

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CERTIFICATE OF SERVICE I certify that I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same to any non-registrants, this this 28th day of November 2012 to: Rubin Salter, Jr., Esq. Law Office of Rubin Salter Jr. 177 North Church, Suite 805 Tucson, Arizona 85701 Lois D. Thompson, Esq. Jennifer L. Roche, Esq. Proskauer Rose LLP 2049 Century Park East, Suite 3200 Los Angeles, California 90067 Nancy Anne Ramirez, Esq. Matthew David Strieker, Esq. Cynthia Valenzuela Dixon, Esq. Mexican American Legal Defense and Educational Fund (MALDEF) 634 South Spring Street, 11th Floor Los Angeles, California 90014 Richard M. Yetwin, Esq. Heather K. Gaines, Esq. Sesaly O. Stamps, Esq. Lisa Anne Smith, Esq. DeConcini McDonald Yetwin & Lacy, P.C. 2525 East Broadway Boulevard, Suite 200 Tucson, Arizona 85716-5300 Edmund D. Kahn. Esq. Law Offices of Edmund D. Kahn 7465 East Broadway, Suite 201 Tucson, Arizona 85710-3631 Nancy Hughes Woll, Esq. Tucson Unified School District Legal Department 1010 East 10th Street Tucson, Arizona 85719

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Christopher Awad, Esq. Zoe M Savitsky, Esq. U.S. Department of Justice 601 D Street NW, Suite 4300 Washington, DC 20004 Dr. Willis Hawley University of Maryland 2138 Tawes Building College Park, Maryland 20742 By: /s/ Jinju Park
#2949056

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