TUSD report: January 6, 2015

Dear supporters and correspondents,

In 2012 TUSD reached a settlement with the Arizona Department of Education (ADE) that seemed
to end the threat of state funding cuts due to violations of A.R.S. 15-112 (the ethnic studies law).
That major accomplishment has now unwound with last weeks new action by ADE.
This letter covers two topics:
Reported cancellation of Pasadera drug rehabilitation facility
Fridays Notice of Noncompliance from the ADE (main topic).
As usual, this letter reflects my own viewpoint, not the official viewpoint of TUSDs board or staff.

Cancellation of Pasadera drug rehabilitation facility

The large Pasadera drug rehabilitation facility that was seeking to locate directly across the street
from Mission View School in South Tucson has been blocked. The city of South Tucson has denied
the required permits, based on enforcement of existing zoning. This is a major victory for the
community members who fought the project, and it is also a victory for TUSD, because the facility
would have posed safety and enrollment issues for the school. I am personally grateful to the
persons, in and out of city government, who made this happen.

Notice of Noncompliance from the Arizona Department of Education (ADE).

Summary: On Huppenthals last day as Superintendent of Public Instruction, the ADE under his
direction wrote that TUSDs implementation of its court-ordered Culturally Relevant Courses (CRC)
violate the ethnic studies law A.R.S. 15-112 and other statutes. This action, which is essentially
unconnected to the court orders in both its process and the issues raised, threatens a substantial
funding cut in two months if changes are not made. What will actually happen is unclear, however,
because any enforcement action would depend on the not-yet-known views of the incoming state
superintendent. Some of the ADEs complaints mirror complaints of the desegregation plaintiffs and
other CRC supporters.
As reported in the media, on Friday the ADE sent TUSD a Notice of Noncompliance concerning its
Culturally Relevant Courses (CRC). This is the latest round in what has become an increasingly
contentious relationship between ADE and district leadership. You can see this evolution in the
correspondence I attached to the email: a November letter from ADE, Dr. Sanchezs December
response, and Fridays six-page Notice, which Huppenthal signed personally.

The tone of TUSDs relationships with the state, the desegregation plaintiffs, and the federal district
court have all deteriorated markedly, compared to a year ago. The inauguration of a new state
superintendent may give TUSD an opportunity to reboot the relationship with the state.
The original language of A.R.S. 15-112, the ethnic studies statute, held:
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.
On Friday the state alleged for the first time that TUSDs courses violate provision (1). It also
alleged, as in the past, that its courses violate (2) and (4). Provision (3) has become irrelevant since
a federal district court (different from the desegregation court) struck it down in 2013. The ADEs
new noncompliance letter has the same potentially serious implications as its 2011 noncompliance
letter: in the worst case, a 10% cut in TUSDs main funding line. It is however far from clear that
the matter will go that far. Here is a summary of (my understanding of) the main points of this messy
situation.
(1)

The states action has little connection to the desegregation lawsuit. This has two aspects.

(a) The two legal processes are formally unconnected, because the desegregation case is a
federal lawsuit and the ADE is enforcing state law.
The state has previously sought to become a party to the federal lawsuit but has been rebuffed by
the federal courts, most recently on December 15. In effect, the courts have said that the state has
adequate mechanisms to express its views and to enforce state law, without becoming a party to the
lawsuit. The states action on Friday implicitly accepts this result: it has returned to its established
enforcement process, which is wholly outside the federal courts.
(b) There is no apparent conflict between the Unitary Status Plan (USP) and enforcement
of 15-112, because while the USP requires the CRC it nowhere suggests that the courses be taught
in a way that violates 15-112. The courts, accordingly, have never indicated that the ADE should
disregard violations of 15-112.
The provision of 15-112 that came closest to contradicting the USP was (3), but (3) was struck down
for other reasons and now there is little obvious tension between the USP and 15-112..

The desegregation court has repeatedly noted this separation, writing for example in 2012: The
special master has asserted an approach, which on its face does not appear to be contrary to Arizona
law. The court believes that Defendant TUSD has demonstrated its capability and interest in
ensuring that the USP complies with state law. (The courts recent writings are less flattering to
TUSD.)
District leaderships interpretation of the ADEs Notice is somewhat different. TUSDs media
statement on Friday said, in part: This threatened enforcement proceeding is nothing more than an
attempt to circumvent the federal court orders denying the State's intervention. It seeks to
undermine our compliance with the curriculum mandates of the Unitary Status Plan. Whatever
merits the states complaint may or may not have, I see nothing in its action that circumvents any
court order or threatens compliance with the USPs curriculum mandates. The ADE has, in fact,
accepted the courts implicit guidance to pursue its enforcement activities outside of federal court.
Far from objecting to the existence of the CRC, the ADEs Notice instead complains about TUSDs
inadequate implementation of the courses. Some of the ADEs complaints are surprisingly similar
to those heard from the desegregation plaintiffs and other longstanding supporters of the CRC.
(2)
The states action has little meaning until Diane Douglas, the new state superintendent,
expresses her viewpoint.
The current finding, released in the final hours of Huppenthals term as state superintendent, oddly
parallels Tom Hornes similar finding exactly four years ago, in the final hours of his own term as
state superintendent. Hornes finding became largely irrelevant, because Huppenthal effectively set
it aside and conducted his own investigation. One issue was that Hornes finding complained about
violations that had occurred before 15-112 went into effect.
Fridays finding does not share that weakness but the state now faces a similar set of options. The
ADE could: embrace the new finding and threaten a funding cut unless TUSD makes significant
changes; or it could deemphasize Fridays specific findings and conduct a new or expanded
investigation, as Huppenthal did four years ago; or the new leadership could focus attention
elsewhere and let the matter slide without requiring any major changes in the CRC.
(3)
It is unclear from Fridays complaint whether the state would prevail in litigation, as it did
in 2011.
One problem in litigating 15-511 is that its remaining provisions are fairly vague. This problem may
be smaller than it was in 2011, because the administrative law judges detailed ruling against TUSD
in 2011 provides some guidance for interpreting provisions (2) and (4), even if that ruling has no
formal standing as precedent. It provides little such help for interpreting provision (1).

The second problem is that (everyone seems to agree that) whether a course violates the remaining
provisions of 15-501 is considerably tied to what teachers do in the privacy of their classrooms,
not merely the approved curriculum materials. If handled appropriately, even fairly extreme
materials need not violate the law; yet a teachers speech and conduct could cause violations even
if the approved texts were uncontroversial.
District staff have generally maintained that the CRC are much different from the original Mexican
American Studies (MAS) courses, but Augustine Romero, who helped to design the CRC and is
directly supervising CRC teachers as a high school principal, said famously a few weeks ago that
the old program is back. Central immediately disavowed those comments.
Most of ADEs examples in the six-page finding of noncompliance (attached to the email) are from
the Mexican American CRC, though one example comes from an African American CRC. The
African American CRC are quite unlike the few African American Studies courses that TUSD
offered historically. They have no antecedents analogous to the MAS program.
Some of the Notices examples of noncompliance seem stronger than others, but altogether they
form a weaker case than the many hundreds of pages of evidence that the ADE produced for the
MAS appeal hearing in 2011 (which it won decisively). The evidence at the 2011 hearing greatly
exceeded what the ADE had provided with its noncompliance letter earlier that year, so it is hard
to know how the evidence would unfold if the current claims were litigated. Even if the ADEs
allegations have merit, collecting sufficient evidence and building it into a case as strong as its 2011
case would require a major effort by the ADE.
(4)

There is an ongoing challenge to the constitutionality of 15-511.

After a district court upheld the constitutionality of provisions (1), (2), and (4) of 15-112, the MAS
supporters who brought the suit appealed to the Ninth Circuit, which is scheduled to hear arguments
later this month. If the Ninth Circuit overrules the district court and finds the remaining provisions
of the law to be unconstitutional, then the legal basis for the states action will evaporate.
(5)
The Notice of Noncompliance contains significant process complaints that are completely
separate from its complaints that the CRC violate 15-112.
Much of the Noncompliance Notice complains about inadequate preparation of the CRC, extending
back to the Pedicone administration but continuing into the current administration. The ADE writes,
in part: TUSDs failure to respond to ADEs requests for information and materials reveals a
program in disarray, with insufficient support for teachers, inadequate teaching to students, and little
transparency... The desegregation plaintiffs and other advocates for the CRC courses have,
ironically, made somewhat similar complaints.

I think that some of the process complaints, whether from the ADE or from the desegregation
plaintiffs, are understandable. I have raised similar concerns internally, over several years, and so
have some principals. I do not know, however, whether they have much legal significance. The last
page of Fridays Notice of Noncompliance does allege that TUSD is violating various statutes and
policies concerning curriculum, which are completely separate from 15-112.
The bottom line is that TUSD again finds itself with a problem that is partly self-created though also
tied up in the politics surrounding all MAS-related issues. The Notice of Noncompliance requests
that TUSD come into compliance within two months, but that timetable means little until Douglas
decides whether to keep it.
I hope that ADE and TUSD leadership work constructively together to find a solution that satisfies
both sides and the USP. I am convinced that this is possible. I also believe that returning to
contentious litigation and operating under the threat of a severe funding cut would serve no ones
ultimate goals.

Thanks for your own continuing interest in TUSD.

- Mark