Acosta et al v. Huppenthal et al

MOTION for Partial Summary Judgment

D. Ariz.September 26, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK BRNOVICH Firm Bar No. 014000 Kevin D. Ray, No. 007485 Leslie Kyman Cooper, No. 012782 Jordan T. Ellel, No. 023911 Assistant Attorneys General 1275 W. Washington Street Phoenix, Arizona 85007 Telephone: (602) 542-8349 Email: EducationHealth@azag.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NOAH GONZÁLEZ; JESÚS GONZÁLEZ, his father and next friend, et al., Plaintiffs, vs. DIANE DOUGLAS, Superintendent of Public Instruction, in her Official Capacity, et al., Defendants. Case No. 4:10-cv-00623-AWT DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS’ FIRST AMENDMENT CLAIM Honorable A. Wallace Tashima Motion Defendants move, pursuant to Fed. R. Civ. P. 56 and LRCiv 56.1, for partial summary judgment on Plaintiffs’ viewpoint discrimination claim. For the reasons stated below, this Court should dismiss Plaintiffs’ viewpoint discrimination claim with prejudice and enter judgment in favor of Defendants. This motion is supported by the Memorandum of Facts and Law below and Defendants’ Statement of Facts (DSOF) filed concurrently herewith. Memorandum of Facts and Law Plaintiffs have frequently and vociferously excoriated Defendants for allegedly engaging in improper viewpoint discrimination. However, they have never described Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 1 of 6 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their claim, explained how it is distinguished from their Equal Protection claim, or even defined the material in the MAS program against which Defendants’ ire was purportedly directed.1 Plaintiffs’ failure to define their claim substantially complicates the task of demonstrating that summary judgment is appropriate. Fortunately, the Ninth Circuit’s recognition that A.R.S. § 15-112 serves the legitimate pedagogical purpose of reducing the promotion of racism, along with the independent Administrative Law Judge’s finding that TUSD’s MAS classes violated that statute, establish that Plaintiffs’ viewpoint discrimination claim must be dismissed. Facts The relevant facts here are few and undisputed. In June 2011, then-Superintendent John Huppenthal issued a finding that TUSD’s MAS program violated A.R.S. § 15-112. DSOF ¶ 2. TUSD requested, and was granted, a hearing before an independent administrative law judge pursuant to A.R.S. §§ 41-1092 – 1092.12. DSOF ¶ 3. Following a four-day hearing that included testimony from 12 witnesses, Administrative Law Judge Kowal determined that the TUSD MAS program violated A.R.S. § 15-112 because it included classes or courses that “promote[d] racial resentment.” DSOF ¶¶ 4-5. Superintendent Huppenthal accepted ALJ Kowal’s recommended decision without modification. DSOF ¶ 6. TUSD did not appeal. DSOF ¶ 7. Instead, its Governing Board suspended the MAS program and ordered MAS materials be removed from its classrooms. DSOF ¶¶ 7-8. Most prominent among the materials removed from TUSD classrooms were seven controversial books. Notably, the controversial books were not removed entirely from the schools, but remained available to students at school libraries. DSOF ¶ 8. Twenty- one months later, TUSD’s Governing Board formally approved, at a properly noticed 1 Defendants requested, through interrogatories, that Plaintiffs set out the facts constituting their viewpoint discrimination claim. DSOF ¶ 12. Plaintiffs’ response was inadequate. DSOF ¶ 13. Defendants then requested that Plaintiffs supplement their inadequate response. DSOF ¶ 14. Plaintiffs declined to do so. DSOF ¶ 15. Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 2 of 6 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 public meeting, the seven controversial books. DSOF ¶ 10. With this decision, the TUSD Governing Board made the books available for use by TUSD’s teachers in its new Culturally Responsive Curriculum (and any other classes). DSOF ¶¶ 10-11. Defendants have never taken any action to stop TUSD’s use of these seven controversial books. Memorandum of Law The Ninth Circuit held that “state limitations on school curricula that restrict a student’s access to materials otherwise available may be upheld only where they are reasonably related to legitimate pedagogical concerns.”2 Arce v. Douglas, 793 F.3d 968, 983 (9th Cir. 2015). In so doing, the Ninth Circuit, like this Court previously, drew on Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989) and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Supreme Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to a legitimate pedagogical concern.” 484 U.S. at 273. Applying this standard, the Supreme Court concluded that a principal who excised two pages of content from a school newspaper out of concern over the controversial nature of the content did not violate students’ First Amendment rights. Id. at 274. In Virgil, the Eleventh Circuit applied this standard to a school board’s decision to restrict access to curricular materials. It held that the removal of material from a classroom did not violate students’ constitutional rights because the decision was reasonably related to the legitimate pedagogical purpose of limiting students’ exposure to explicit sexuality and excessively vulgar language. Virgil, 862 F.2d at 1522-23. 2 The Ninth Circuit referred to TUSD MAS materials as having been approved by the TUSD Governing Board, but no facts before the Ninth Circuit at that time addressed that issue. In truth, TUSD’s Governing Board did not approve the MAS program or its materials pursuant to its Board policies or A.R.S. §§ 15-721(A) and (B), and -722(A) and (B). DSOF ¶¶ 1, 5. Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 3 of 6 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the Ninth Circuit held that A.R.S. § 15-112 served the legitimate pedagogical purpose of “prohibit[ing] courses that ‘promote racism.’” Arce, 793 F.3d at 984. It relied on this Court’s finding that the “primary legitimate purpose of the statute, on its face, is to prohibit courses that ‘promote racism,’ and the like.” Id. Both this Court and the Ninth Circuit grounded this conclusion in a plain reading of the stated purpose of the statute, as set out in A.R.S. § 15-111, which provides that “public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.” Id. The Ninth Circuit also noted that neither party challenged this finding on appeal. Id. This conclusion—combined with the independent ALJ’s determination that the MAS program violated A.R.S. § 15-112—undercuts Plaintiffs’ viewpoint discrimination claim, however defined. The contested hearing before an independent tribunal provided an unbiased forum where the Arizona Department of Education and TUSD presented evidence regarding the nature of the MAS program, so that the ALJ could determine whether A.R.S. § 15-112 was violated. After listening to testimony from 12 witnesses, over four days, the ALJ prepared a 36-page recommended decision in which he detailed his findings regarding TUSD’s MAS program and how it violated Arizona law. DSOF ¶ 4-5. After Superintendent Huppenthal accepted that decision, TUSD waited only four days before suspending the MAS program, apparently without ever contacting the Superintendent or ADE to discuss an orderly means of complying with ADE’s decision. DSOF ¶¶ 6, 7, 9. Under these circumstances, Plaintiffs’ viewpoint discrimination claim must fail. No matter how they define Defendants’ actions, they cannot overcome the barriers presented by these undisputed facts: (1) A.R.S. § 15-112 serves a legitimate pedagogical purpose, and (2) an independent factfinder concluded TUSD’s MAS program violated that statute. Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 4 of 6 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Conclusion For the reasons stated above, this Court should dismiss Plaintiffs’ viewpoint discrimination claim and enter judgment in favor of Defendants on that claim. DATED this 26th day of September, 2016. MARK BRNOVICH Attorney General /s/ Jordan T. Ellel Kevin D. Ray Leslie Kyman Cooper Jordan T. Ellel Assistant Attorneys General Attorneys for Defendants Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 5 of 6 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on September 26, 2016, I electronically transmitted that attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants of record. A copy was emailed to Judge Tashima’s chambers at judge_tashima@ca9.uscourts.gov pursuant to LRCiv 5.4. /s/ Kate Hofland PHX #5338286 Case 4:10-cv-00623-AWT Document 355 Filed 09/26/16 Page 6 of 6