FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAYA ARCE; her father and next

best friend, SEAN ARCE,

Plaintiffs-Appellants/

Cross-Appellees,

v.

DIANE DOUGLAS, Arizona

Superintendent of Public Instruction,

in her official capacity, ARIZONA

STATE BOARD OF EDUCATION, AND

MEMBERS OF THE ARIZONA STATE

BOARD OF EDUCATION,

Defendants-Appellees/

Cross-Appellants.

Nos. 13-15657

13-15760

D.C. No.

4:10-cv-00623-

AWT

OPINION

On Appeal from the United States District Court

for the District of Arizona

A. Wallace Tashima, Senior Circuit Judge,* Presiding

Argued and Submitted

January 12, 2015—San Francisco, California

Filed July 7, 2015

* The Honorable A. Wallace Tashima, Circuit Judge for the U.S. Court

of Appeals for the Ninth Circuit, sitting by designation.
2 ARCE V. DOUGLAS

Before: John T. Noonan and Richard R. Clifton, Circuit

Judges, and Jed S. Rakoff, District Judge.**

Opinion by Judge Rakoff;

Partial Concurrence and Partial Dissent by Judge Clifton

SUMMARY***

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment, and remanded in an action

challenging Arizona revised statutes §§ 15-111 and 15-112,

which were sponsored and implemented by the Arizona state

superintendent of education, and which eliminated the

Mexican American Studies program in Tucson public

schools.

Pursuant to §§ 15-111 and 15-112, a school district or

charter school is prohibited from including in its program of

instruction any courses or classes 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 parties did not dispute that the

** The Honorable Jed S. Rakoff, District Judge for the U.S. District

Court for the Southern District of New York, sitting by designation.

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ARCE V. DOUGLAS 3

statute was enacted almost entirely with the Mexican

American Studies program in mind, and that the program was

the first and only ethnic studies program that has been found

to be in violation of § 15-112.

The panel affirmed the district court’s rulings that § 15-

112(A)(3) is unconstitutional in violation of the First

Amendment but severable from the rest of the statute; that

§§ 15-112(A)(2) and (A)(4) are not overbroad in violation of

the First Amendment; and that §§ 15-112(A)(2) and (A)(4)

are not vague in violation of the Due Process Clause. 

The panel reversed the district court’s grant of summary

judgment for defendants on plaintiffs’ equal protection claim

and remanded that claim for trial. The panel held that 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. Finally, the panel remanded

plaintiffs’ First Amendment viewpoint discrimination claim

to the district court for further proceedings in accordance with

its opinion.

Concurring in part and dissenting in part, Judge Clifton

did not agree with the majority’s conclusion that the equal

protection claim must be remanded for trial. Judge Clifton

stated that the equal protection claim should be remanded for

further proceedings, without precluding further consideration

of summary judgment.
4 ARCE V. DOUGLAS

COUNSEL

Erwin Chemerinsky (argued), University of California Irvine

School of Law, Irvine, California; Richard M. Martinez, Law

Office of Richard M. Martinez, Tucson, Arizona; Anjana

Malhotra, SUNY Buffalo Law School, Buffalo, New York;

Sujal J. Shah, Jennifer MikoLevine, and Marcelo Quiñones,

Bingham McCutchen, LLP, San Francisco, California;

Lorraine Bannai, Robert S. Chang, and Charlotte Garden,

Fred Korematsu Center for Law and Equity, Ronald A.

Peterson Law Clinic, Seattle University School of Law,

Seattle, Washington, for Plaintiffs-Appellants/CrossAppellees.

Thomas C. Horne, Arizona Attorney General, Jinju Park and

Leslie Kyman Cooper (argued), Assistant Attorneys General,

Office of the Arizona Attorney General, Phoenix, Arizona,

for Defendants-Appellees/Cross-Appellants.

Meriem Hubbard and Ralph Kasarda, Pacific Legal

Foundation, Sacramento, California, for Amicus Curiae

Pacific Legal Foundation.

David Handzo, Julie Carpenter, andElizabeth Bullock, Jenner

& Block LLP, Washington, D.C., for Amici Curiae Freedom

to Read Foundation, American Library Association,

American Booksellers Foundation for Free Expression,

Asian/Pacific American Librarians Association, Black

Caucus of the American Library Association, Comic Book

Legal Defense Fund, National Association for Ethnic Studies,

National Coalition Against Censorship, National Council of

Teachers of English, and Reforma.
ARCE V. DOUGLAS 5

Samantha Blevins, Arizona Education Association, Phoenix,

Arizona; Alice O’Brien, Jason Walta, and Kristen Hollar,

National Education Association,Washington,D.C.,forAmici

Curiae National Education Association and Arizona

Education Association.

Charles Sipos, Nicholas Manheim, and David Perez, Perkins

Coie LLP, Seattle, Washington, for Amici Curiae Chief Earl

Warren Institute on Law and Social Policy and the AntiDefamation League.

Brian Matsui, Jeremy Merkelson, Laura Heiman, and Betre

Gizaw, Morrison & Foerster LLP, Washington, D.C., for

Amici Curiae Rodolfo Acuña, Bill Bigelow, Richard

Delgado, and Jean Stefancic.

Marie Quasius, Ben Hellerstein, Tia Sargent, Raina Wagner,

and Theodore Angelis, K&LGates LLP, Seattle,Washington;

Steven Bender, Marc-Tizoc González, and Beth Lyon, Coral

Gables, Florida, for Amicus Curiae Latina and Latino Critical

Legal Theory, Inc.

Warrington Parker and Mary Kelly Persyn, Orrick,

Herrington & Sutcliffe LLP, San Francisco, California, for

Amici Curiae 48 Public School Teachers.
6 ARCE V. DOUGLAS

OPINION

RAKOFF, District Judge:

The children of the Tucson Unified School District

(“TUSD”), a majority of whom are of Mexican or other

Hispanic descent, have a natural interest in knowing more

about their cultural heritage and that of their community—or

so the school board of Tucson decided, inaugurating a

Mexican American Studies (“MAS”) program in the Tucson

public schools. Arizona state superintendents of education, in

the belief that MAS was being perverted into a program for

promoting ethnocentrism and reverse racism, successfully

sponsored and implemented legislation that did awaywith the

program. The issue this case presents is whether in so doing

they and their colleagues violated the constitutional rights of

TUSD students.

In 2010, the Arizona legislature passed H.B. 2281,

codified at Arizona Revised Statutes (“A.R.S.”) §§ 15-111

and 15-112, which directly led to the elimination of the MAS

program. The statute prohibits a school district or charter

school from including in its program of instruction any

courses or classes 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.”

A.R.S. § 15-112(A). If the state board of education or the

superintendent of public instruction determines that a school

district is in violation of the statute, the district has sixty days

to achieve compliance (e.g., by eliminating the program),

failing which the state superintendent or state board may

direct the department of education to withhold ten percent of
ARCE V. DOUGLAS 7

the district’s state funding. A.R.S. § 15-112(B). The parties

do not dispute that the statute was enacted almost entirely

with the MAS program in mind, and MAS was the first and

only ethnic studies program that has been found to be in

violation of § 15-112.

This case was originally filed on October 18, 2010 by ten

teachers and the director of TUSD’s MAS program. The

complaint was later amended to add two TUSD students,

Maya Arce and Korina Lopez, and their parents as next best

friends. A third student, Nicolas Dominguez, and his mother

as his next best friend intervened in the case. However,

Nicolas Dominguez and Korina Lopez voluntarily dismissed

their appeals after graduating from high school, and the

teachers’ and director’s claims were dismissed for want of

standing in an Order dated January 10, 2012 from which no

appeal has been taken. Thus, the only remaining plaintiffs are

student Maya Arce and her father and next best friend, Sean

Arce. Defendants are the Superintendent of Public

Instruction, Diane Douglas,1the Arizona State Board of

Education, and members of the Board of Education.

Plaintiffs assert that § 15-112, as enacted and enforced

against the MAS program, violates their constitutional rights

under the First and Fourteenth Amendments. Relevant to this

appeal are plaintiffs’Fourteenth Amendment equal protection

claim, First Amendment overbreadth and “viewpoint

discrimination” claims, and FourteenthAmendment void-forvagueness claim. After § 15-112 was enacted and this lawsuit

was commenced, plaintiffs moved for partial summary

1 Superintendent Diane Douglas succeeded former Superintendent John

Huppenthal, and, accordingly, has been substituted as a defendant

pursuant to Federal Rule of Appellate Procedure 43.
8 ARCE V. DOUGLAS

judgment in theirfavor on their First Amendment overbreadth

and Fourteenth Amendment vagueness claims, but did not

move for summary judgment on their equal protection or First

Amendment viewpoint discrimination claims. Defendants

cross-moved for summary judgment in their favor on all of

plaintiffs’ First Amendment and vagueness claims.

Subsequently, after § 15-112 was enforced against TUSD and

TUSD eliminated the MAS program, plaintiffs filed their

second motion seeking a preliminary injunction and asserting

irreparable harm and a likelihood of success on their

overbreadth, vagueness, equal protection, and viewpoint

discrimination claims.

In a Memorandum Order dated March 8, 2013, the district

court granted plaintiffs’ motion for summary judgment with

respect to § 15-112(A)(3) on First Amendment overbreadth

grounds, but denied the motion with respect to all other

claims on which plaintiffs had sought summary judgment.

The court granted defendants’ summary judgment motion

with respect to all of plaintiffs’ remaining First Amendment

claims. It denied plaintiffs’ motion for a preliminary

injunction. Finally, it sua sponte granted summary judgment

for defendants on plaintiffs’ equal protection claim. The net

of all this was to allow final judgment to be entered,

dismissing all of plaintiffs’ attacks on the statute and its

application, except for plaintiffs’ claim that § 15-112(A)(3)

was unconstitutionally overbroad. Since, moreover, the

district court determined that that section was severable from

the other sections, the final judgment invalidated only § 15-

112(A)(3).

Plaintiffs now appeal the district court’s decision with

respect to their equal protection claim, their First Amendment

overbreadth claim with respect to §§ 15-112(A)(2) and
ARCE V. DOUGLAS 9

(A)(4), their First Amendment viewpoint discrimination

claim, and their Fourteenth Amendment vagueness claim.

Defendants cross-appeal the district court’s decision that

§ 15-112(A)(3) is overbroad in violation of the First

Amendment. We affirm the district court’s decision in part,

reverse in part, and remand for further proceedings in

accordance with this opinion.

Facts

The pertinent facts are as follows. As of April 20, 2011,

sixty percent of the children enrolled in the Tucson public

schools were of Mexican or other Hispanic descent. The

MAS program was developed in 1998 and later expanded

under a federally enforced desegregation decree. See Fisher

v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1134 (9th Cir.

2011). The program sought to provide a culturally relevant

curriculum for students from kindergarten to 12th grade by

incorporating historical and contemporaryMexicanAmerican

contributions into coursework and classroom studies.

Efforts to disband the MAS program began in 2007, after

a group of students walked out of a speech by the Deputy

Superintendent of Public Education, Margaret Garcia Dugan.

Ms. Dugan was giving a speech that was intended to refute a

prior allegation made to the student body that “Republicans

hate Latinos.” In an open letter to the City of Tucson

following the speech, the then Superintendent of Public

Instruction, Tom Horne, asserted that “the students did not

learn this rudeness at home, but from their Raza teachers.”2

2 The MAS program was previously called “Mexican American/Raza

Studies.” Plaintiffs assert that “La Raza” more generally refers to Mexican

Americans. See American Heritage Dictionary of the English Language,
10 ARCE V. DOUGLAS

In the letter, he advocated the elimination of ethnic studies

programs, specificallyMAS. When this informal effortfailed,

he became a force behind the enactment of A.R.S. § 15-112.

The formal bill, H.B. 2281, 49th Leg., 2d Sess. (Ariz.

2010), passed the state legislature, and on May 11, 2010,

Governor Jan Brewer signed it into law with an effective date

of December 31, 2010. Relevant aspects of the legislative

history are summarized below in the analysis of plaintiffs’

equal protection claim.

Following the enactment of 15-112, Horne successfully

campaigned to become Arizona Attorney General. On

December 30, 2010, his last day in office as the

superintendent of public instruction and the day before the

statute took effect, Horne prematurely issued a finding that

TUSD was in violation of A.R.S. § 15-112 because of its

MAS program, and gave TUSD sixty days to “eliminate the

Mexican American Studies courses.” The finding noted that

three ethnic studies courses “could be found in violation,” but

that he had received complaints only about the MAS

program.

John Huppenthal succeeded Horne as the superintendent

of public instruction immediately after serving as an Arizona

state senator. On January 4, 2011—four days after taking

office as superintendent—he issued a press release supporting

Horne’s finding. See Arizona Department of Education,

Superintendent of Public Instruction John Huppenthal’s

available at http://ahdictionary.com/word/search.html?q=la+raza&

submit.x=0&submit.y=0 (last visited June 9, 2015) (defining “La Raza”

as “Mexicans or Mexican Americans considered as a group, sometimes

extending to all Spanish-speaking people of the Americas”).
ARCE V. DOUGLAS 11

Official Statement on TUSD Violation of A.R.S. § 15-112

(Jan. 4, 2011), available at http://www.azed.gov/publicrelations/files/2011/08/pr01-04-11.pdf (last visited June 9,

2015).3 However, he chose not to enforce the finding

immediately but conducted his own investigation of the

program by retaining an independent auditor, Cambium

Learning, Inc.

On May 2, 2011, Cambium, after visiting classes,

conducting focus groups, and reviewing curriculum materials,

issued a report (the “Cambium Report”) that found that “no

observable evidence was present to indicate that any

classroom within [TUSD] is in direct violation of the law,

A.R.S. 15-112(A). In most cases, quite the opposite is true.”

Huppenthal rejected the Cambium Report’s findings and

directed the Arizona Department of Education (“ADE”) to

make a separate investigation of the program. On the basis of

that second investigation, Huppenthal found the MAS

program in violation of A.R.S. §§ 15-112(A)(2), (A)(3), and

(A)(4). TUSD appealed the decision, and an administrative

law judge affirmed Huppenthal’s finding of violation. On

January 16, 2012, Huppenthal accepted the ALJ’s decision

and withheld ten percent of TUSD’s funds, retroactive to the

expiration of 60 days from his initial finding of violation.

Further, he required TUSD to remove all MAS instructional

materials from K-12 classrooms by February 29, 2012. Faced

with these sanctions, TUSD terminated the MAS program on

January 10, 2012.

3 We take judicial notice of the press release, because it is a public

record on file with the Arizona State Board of Education. See Fed. R.

Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir.

2001).
12 ARCE V. DOUGLAS

Discussion

This Court reviews de novo a district court’s grant or

denial of summary judgment. Blue Lake Rancheria v. United

States, 653 F.3d 1112, 1115 (9th Cir. 2011); Arakaki v.

Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). Summary

judgment is appropriate where “the movant shows there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a). In reviewing a grant of summary judgment, the Court

views “the evidence and inferences therefrom in the light

most favorable to the party against whom the district court

ruled.” Allen v. A.H. Robins Co., Inc., 752 F.2d 1365, 1368

(9th Cir. 1985). A district court’s decision to grant summary

judgment sua sponte is reviewed for abuse of discretion. See

Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009).

We begin our discussion with plaintiffs’ claim that the

enactment and closely linked enforcement of § 15-112 denied

them equal protection of the law, in violation of the

Fourteenth Amendment. In its Memorandum Order dated

March 8, 2013, the district court, sua sponte, granted

summary judgment for defendants dismissing this claim.

While it is within the power of a district court to grant

summary judgment sua sponte, see Norse v. City of Santa

Cruz, 629 F.3d 966, 971 (9th Cir. 2010), the court must first

give the parties notice and time to respond, unless the party

against which summary judgment is granted has already had

a “full and fair opportunity to ventilate the issues,” United

States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989); Albino

v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014).

Here, the district court did not give prior notice to the

parties, but found that “the merits of [this claim had] been
ARCE V. DOUGLAS 13

fully and fairly vetted in connection with Plaintiffs’ second

motion for preliminary injunction.” Acosta v. Huppenthal,

No. CV 10-623-TUC-AWT, 2013 WL 871892, at *3 (D.

Ariz. Mar. 8, 2013). We have held, however, that despite the

court’s power to grant summary judgment sua sponte, it is

generally inappropriate for a court to issue such a final

judgment on the merits of a claim at the preliminary

injunction stage, because it is unlikely that the merits of a

claim will be fully ventilated at the early stage of a litigation

at which a preliminary injunction is normally addressed.

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). We see

no exception here. A party is not required to prove her case

in full on preliminary injunction, but only such portions as

will enable her to obtain the injunction. Here, the district

court, by not offering plaintiffs notice of its intent to convert

the preliminary injunction motion into basis for grant of

summary judgment, deprived plaintiffs of the opportunity to

submit additional evidence and argument on the merits of

their equal protection claim.

That decision was not harmless, given the evidence

plaintiffs now represent they would have presented on

summary judgment had they been given opportunity. Indeed,

this evidence is in many respects relevant to our analysis of

the merits of the equal protection claim, infra, where we

conclude that there is a genuine issue of fact as to whether the

statute was enacted and/or enforced with discriminatory

intent. For example, plaintiffs refer us to legislative hearings

and administrative documents (discussed below) that are

relevant to a discriminatory intent analysis. Furthermore,

plaintiffs assert that, if given the opportunity, they would

have presented emails of legislators evincing discriminatory

intent and information regarding the historical background

surrounding the passage of H.B. 2281, as well as additional
14 ARCE V. DOUGLAS

evidence with respect to Huppenthal’s rejection of the

Cambium Report and complaints that the state had received

about other ethnic studies programs that made them

indistinguishable from MAS. Accordingly, we find that the

district court abused its discretion in sua sponte granting

summary judgment for defendants on plaintiffs’ equal

protection claim.

That said, in light of the evidence presented in the record

and on appeal, we see no reason to remand the equal

protection claim for additional briefing on summary

judgment, because, even on the record before us, we find that

there are genuine issues of fact regarding whether the

enactment and/or enforcement of § 15-112 was motivated at

least in part by a discriminatory intent. We therefore reverse

the district court’s grant of summary judgment for defendants

and remand the equal protection claim for trial.

We reach this conclusion even though we agree with the

district court that the statute is not discriminatory on its face.

Plaintiffs argue that § 15-112 is facially discriminatory

because the legislative history shows that the use of the term

“ethnic” in § 15-112(A)(3) and (A)(4) refers specifically to

ethnic minorities. See A.R.S. §§ 15-112(A)(3) (prohibiting

classes “designed primarily for pupils of a particular ethnic

group”), (A)(4) (prohibiting classes that “advocate ethnic

solidarity”). However, a review of legislative history is only

appropriate in a facial analysis where the application of the

plain meaning of a word is ambiguous or otherwise leads to

absurd or futile results. See United States v. Am. Trucking

Assocs., 310 U.S. 534, 543 (1940); Milne ex rel. Coyne v.

Stephen Slesinger, Inc., 430 F.3d 1036, 1045 (9th Cir. 2005).

Here, the Merriam-Webster Dictionary defines “ethnic” as

“of or relating to large groups of people classed according
ARCE V. DOUGLAS 15

to common racial, national, tribal, religious, linguistic,

or cultural origin or background.” Merriam-Webster

Online Dictionary, http://www.merriam-webster.com/

dictionary/ethnic (last visited May 5, 2015). Given the

declaration of policy in A.R.S. § 15-111 (“The legislature

finds and declares that public school pupils should be taught

to treat and value each other as individuals and not to be

taught to resent or hate other races or classes of people.”), the

plain meaning of “ethnic” in this context is not ambiguous,

nor does it lead to an absurd result. On its face, the statute

implicates all ethnic backgrounds, not only ethnic minorities.

Accordingly, a review of the legislative history is

inappropriate here, and we do not find the statute to be

discriminatory on its face.

Even if § 15-112 is not facially discriminatory, however,

the statute and/or its subsequent enforcement against the

MAS program would still be unconstitutional if its enactment

or the manner in which it was enforced were motivated by a

discriminatory purpose. Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 265–66 (1997). A plaintiff

does not have to prove that the discriminatory purpose was

the sole purpose of the challenged action, but only that it was

a “motivating factor.” Id. at 266. The Supreme Court

articulated the following, non-exhaustive factors that a court

should consider in assessing whether a defendant acted with

discriminatory purpose: (1) the impact of the official action

and whether it bears more heavily on one race than another;

(2) the historical background of the decision; (3) the specific

sequence of events leading to the challenged action; (4) the

defendant’s departures from normal procedures orsubstantive

conclusions; and (5) the relevant legislative or administrative

history. Id. at 266–68; Pac. Shores Props., LLC v. City of

Newport Beach, 730 F.3d 1142, 1158–59 (9th Cir. 2013).
16 ARCE V. DOUGLAS

Moreover, when relying on Arlington Heightsto demonstrate

that an action was motivated by a discriminatory purpose, a

plaintiff need provide “very little such evidence to raise a

genuine issue of fact; any indication of discriminatorymotive

may suffice to raise a question that can only be resolved by a

fact-finder.” Pac. Shores Props., 730 F.3d at 1159 (quoting

Schindrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th

Cir. 1996)) (internal alternations omitted). Here, while the

action ultimately complained of is the forced elimination of

the MAS program pursuant to § 15-112, plaintiffs assert that

this was the very purpose of the enactment of the statute, with

some of the key players involved at every stage. When the

history of the enactment and its subsequent application are

viewed together, plaintiffs further assert, there is at least a

genuine issue of material fact as to whether the statute was

enacted and enforcedwith discriminatoryintent. Applying the

Arlington Heights factors, we agree.

With respect to the first Arlington Heights factor—the

impact of the official action and whether that bears more

heavily on one race than another—it is undisputed that the

statute’s enactment and enforcement has had a disparate

impact on Mexican American students, such as plaintiff Maya

Arce. Not only were sixty percent of all TUSD students of

Mexican or other Hispanic descent, but also ninety percent of

students in the MAS program were such. Moreover,

defendants concede that the statute was enacted in response

to complaints about the MAS program and that the statute has

been enforced only against the MAS program, even though

two other ethnic studies programs in Arizona were alleged by

the state superintendent to seemingly violate § 15-112.

Accordingly, the enactment and enforcement of § 15-112 has

had a disproportionate impact on Mexican American and

other Hispanic students.
ARCE V. DOUGLAS 17

It is true, to jump ahead to the fifth Arlington Heights

factor—the relevant legislative or administrative history—

that the legislative history contains only a few snippets of

overtly discriminatory expression. However, given that

“officials acting in their official capacities seldom, if ever,

announce on the record that they are pursuing a particular

course of action because of their desire to discriminate

against a racial minority,” we look to whether they have

“camouflaged” their intent. Smith v. Town of Clarkton, 682

F.2d 1055, 1064, 1066 (4th Cir. 1982). Here, the legislative

history of § 15-112 and the sequence of events (including the

administrative history) leading to its enactment reasonably

suggest an intent to discriminate.

During hearings regarding H.B. 2281, which was later

codified as § 15-112, the MAS program was the sole target of

the legislative effort. When introducing H.B. 2281 before the

House Education Committee, Representative Steve

Montenegro characterized MAS as creating “racial warfare.”

Hearing on H.B. 2281, H. Comm. on Educ. (“H.B. 2281

House Educ. Comm. Hearing”), 49th Leg., 2d Sess., at

1:16:35 (2010) (statement of Rep. Montenegro), available at

http://azleg.granicus.com/MediaPlayer.php?view_id=17&c

lip_id=6760 (last visited June 9, 2015).

4 Former

Superintendent Horne, when testifying at both that hearing

and before the Senate Committee on Education

Accountability and Reform, began his remarks by recounting

the incident from 2007 where students walked out of the

speech given by his deputy. H.B. 2281 House Educ. Comm.

4 We take judicial notice of legislative history materials pursuant to

Federal Rules of Evidence Rule 201(b). See Aramark Facility Servs. v.

SEIU, Local 1877, 530 F.3d 817, 826 n.4 (9thCir. 2008); Zephyr v. Saxon

Mortg. Servs. Inc., 873 F. Supp. 2d 1223, 1226 (E.D. Ca. 2012).
18 ARCE V. DOUGLAS

Hearing at 1:25:48; Hearing on H.B. 2281, S. Comm. on

Educ. Accountability and Reform (“H.B. 2281 S. Comm.

Educ. Accountability and Reform Hearing”), 49th Leg., 2d

Sess., at 2:46:25 (2010) (statement of Superintendent Horne),

available at http://azleg.granicus.com/MediaPlayer.php?

view_id=17&clip_id=7405 (last visited June 9, 2015). He

stated that the MAS program “promoted” the group MeCHA,

which he characterized as a group “that among other things

says that North America is a land for the bronze peoples.”

H.B. 2281 House Educ. Comm. Hearing at 1:34:39. He added

that he saw a TUSD high school librarian who was “wearing

a MeCHA t-shirt.” Id.

Such statements, especially when coupled with the

administrative history (discussed below) that immediately

preceded enactment, raise at least a plausible inference that

racial animus underlay passage of the legislation.5

Consideration of the administrative history also impacts

 

5 Plaintiffs state that if they had been given the opportunity to brief the

equal protection claims under a summary judgment analysis, they would

have introduced emails from legislators evincing animus against Mexican

Americans while advocating for this legislation. Though such material

would likely be highly relevant to the Arlington Heights analysis, Vill. of

Arlington Heights, 429 U.S. at 268, that material is not before us.

Plaintiffs also assert that they would have provided the district court with

evidence ofthe historical background of § 15-112, specificallywith regard

to the relationship between the State’s anti-immigration efforts and the

passage of this statute. They assert that this law and the controversial antiimmigration law, S.B. 1070, moved through the Arizona legislature at the

same time and were passed in a climate charged with animus against

Mexicans and Mexican Americans. Again, while all this reinforces our

determination that the district court erroneously granted summary

judgment sua sponte on this claim, we do not consider it in our further

conclusion that summary judgment on this claim was, in any case,

wrongly granted to defendants.
ARCE V. DOUGLAS 19

evaluation of the second, third, and fourth Arlington Heights

factors (the historical background of the decision, the specific

sequence of events leading to the challenged action, and the

defendants’ departures from normal procedures or substantive

conclusions). Indeed, the legislative and administrative

history are closely intertwined.

At the time H.B. 2281 moved through the legislature,

future Superintendent Huppenthal was a state senator and the

Chairman of the Senate Committee on Education

Accountability and Reform. See H.B. 2281 S. Comm. Educ.

Accountability and Reform Hearing. About one month before

Governor Brewer signed H.B. 2281 into law, Huppenthal

introduced an amendment to the bill that granted authority to

the state superintendent to determine whether a school district

was in violation of the statute, an amendment which was

adopted by the Senate and incorporated in § 15-112. See

Senate Amendments to H.B. 2281, 49th Leg., 2d Sess. (Ariz.

2010), availabl e at http://www.az l eg.gov//

FormatDocument.asp?inDoc=/legtext/49leg/2r/adopted/s.2

281ed.doc.htm&Session_ID=93 (last visited June 9, 2015);

Floor Amendment Explanation, H.B. 2281, 49th Leg., 2d

Sess. (Ariz. 2010), available at http://www.azleg.gov//

FormatDocument.asp?inDoc=/legtext/49leg/2r/adopted/228

1huppenthal808.doc.htm&Session_ID=93 (last visited June

9, 2015); see also H.B. 2281 S. Comm. Educ. Accountability

and Reform Hearing at 2:50:38. Then, prior to H.B. 2281’s

effective date, Huppenthal successfully ran to become state

superintendent of public instruction; in the process he aired

radio campaign advertisements where he pledged to “stop La

Raza” if elected. He was subsequently elected and took office

immediately after the statute went into effect.
20 ARCE V. DOUGLAS

At the same time as Huppenthal ran for superintendent,

former Superintendent Horne ran for the office of Arizona

Attorney General. On his attorney general election website,

he stated in a video, “Ifought hard to get the legislature to put

a—to pass a law so that I can put a stop to [the Raza Studies

program]. And as the attorney general, I will give the legal

aid to the Department of Education to be sure that we do put

a stop to it.”

On December 30, 2010, the day before § 15-112 went into

effect and just before Horne ceded his position of state

superintendent to Huppenthal, Horne issued a (premature)

“Finding” that TUSD was in violation of the not-yet-effective

§ 15-112 and directed TUSD to “eliminate the Mexican

American Studies courses” within sixty days or risk having

ten percent of its budget withheld. As the district court found,

“[t]he timing of the Finding underscores Horne’s

determination to do away with the MAS program, and it also

means that Horne necessarilyapplied the statute retroactively,

without any effort to show that the problematic materials

were in use at the time of the Finding.” Acosta, 2013 WL

871892, at *14.

Upon assuming office as superintendent on January 4,

2011, Huppenthal immediately issued a press release

supporting Horne’s finding and stating that TUSD had the

responsibility “to ensure their programs come into full

compliance with A.R.S. § 15-112 within 60 days of

Superintendent Horne’s official finding.” Nonetheless,

Huppenthal did not immediately enforce Horne’s finding, but

instead commissioned Cambium Learning to audit the MAS

program and determine whether the program was in

compliance with § 15-112. Cambium audited MAS courses

over a period of two months by visiting classrooms,
ARCE V. DOUGLAS 21

reviewing course materials, and holding focus group

interviews with various stakeholders. The auditors visited

39.5% of high school MAS courses and spent about thirty

minutes in each class. In May 2011, Cambium released its

report, which found that there was no evidence that MAS was

in violation of § 15-112. The auditors did not observe any

evidence that MAS courses promoted resentment towards a

race or class of people, nor that they were necessarily

designed for pupils of a particular ethnic group, as all

students were welcomed into the program.

Nevertheless, in one of the most telling actions in this

entire saga, Huppenthal then rejected the conclusions of the

Cambium study that he himself had commissioned,

concluding that, because the MAS department was aware of

the audit, “naturally the auditors are never going to observe

[the promotion of racism or ethnic solidarity].” He ordered a

new, separate ADE investigation, which reviewed only a

selection of course materials and the MAS program website.

There are conflicting statements in the record as to whether

ADE officials even visited classrooms as part of the

investigation. Yet, following ADE’s investigation,

Huppenthal found the MAS program in violation of A.R.S.

§§ 15-112(A)(2), (A)(3), and (A)(4).

In reviewing Huppenthal’s finding of violation in the

context of plaintiffs’ equal protection claim, the district court

held that deficiencies in the Cambium Report, such as a

limited number of classroom observations and a supposed

failure to obtain comprehensive information from the MAS

department, gave Huppenthal a reasonable basis to disregard

the Cambium Report. But these were not the grounds

Huppenthal himself gave for rejecting the Report and there

was certainly sufficient evidence for a reasonable fact-finder
22 ARCE V. DOUGLAS

to infer otherwise. Whether the motivation behind

Huppenthal’s rejection of the Report was based on its alleged

deficiencies, or whether it was based on a predetermined

intent to find the MAS program in violation of § 15-112, is a

question for the fact-finder to decide.

In short, applying the five Arlington Heights factors to the

evidence of record—taken, as it must be for these purposes,

most favorably to plaintiffs—there is sufficient evidence to

raise a genuine issue of material fact as to whether the

enactment and/or enforcement of § 15-112 here challenged

was motivated, at least in part, by an intent to discriminate

against MAS students on the basis of their race or national

origin.6 Accordingly, we reverse the district court’s grant of

summary judgment for defendants on the equal protection

claim and remand it to the district court for trial.7

6 Plaintiffs advance the separate argument that § 15-112 should be struck

down because its enactment and enforcement was motivated by a desire

to disadvantage a specific, politically unpopular group—the students,

teachers, and parents who supported the MAS program. Though the

district court did not rule on this particular issue, we find no evidence to

support plaintiffs’ assertion that its enactment or enforcement

independently targeted supporters of the MAS program without regard to

their race or national origin.

7 Plaintiffs also present an alternative basis for their equal protection

claim by invoking what are known as the “political structure” equal

protection cases, Hunter v. Erickson, 393 U.S. 385 (1969), and

Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). See

Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 704 (9th Cir. 1997). In

Hunter and Washington, the Supreme Court struck down legislation that

placed “special burdens” on racial minorities within the governmental

process, making it more difficult for racial minorities “to achieve

legislation that is in their interest.” Seattle, 458 U.S. at 470 (quoting

Hunter, 393 U.S. at 391, 395). We agree with the district court that these

cases do not apply here, as the laws at issue in Hunter and Seattle “dealt
ARCE V. DOUGLAS 23

We now turn to plaintiffs’ claims under the First

Amendment. As a general matter, plaintiffs assert that their

First Amendment rights are implicated because the

enforcement of § 15-112 impedes TUSD students’ right to

receive information and ideas. See Bd. of Educ., Island Trees

Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866–67

(1982) (plurality opinion). In Pico, a plurality of the Supreme

Court recognized that “the right to receive ideas is a

necessary predicate to the recipient’s meaningful exercise of

his own rights of speech, press, and political freedom,” and

held, accordingly, that a school could not remove certain

materials from its library because of a disagreement with the

ideas in the book or to impose upon the students a “political

orthodoxy.” Pico, 457 U.S at 867, 875. In Montiero v. Tempe

Union High School District, 158 F.3d 1022 (9th Cir. 1998),

we found that this right extended to students’ right to receive

information in the context of the development of a school

curriculum. Id. at 1027 n.5. However, Montiero involved the

extent to which a third-party—a parent or group of parents—

could attempt to limit the materials that a school furnishes to

students and requires them to read. Id. at 1027–28. We were

with political obstructions placed in the way of minorities seeking to

remedy identified patterns of racial discrimination.” Valencia v. Davis,

307 F.3d 1036, 1040 (9th Cir. 2002). Here, while the MAS program was

expanded and incorporated into Tucson’s Post Unitary Status Plan

(“PUSP”) that is part of an ongoing federally enforced desegregation

decree, see Fisher, 652 F.3d at 1134, we cannot say that the program was

designed to remedy past discrimination, as the program was initially

developed in 1998, over ten years before the PUSP was set in place.

Furthermore, we do not find that § 15-112 set in place substantial political

obstacles for minorities to remedy past discrimination. The statute places

limitations on school curricula without substantially interfering with

plaintiffs’ ability to seek relief through the PUSP or through the state and

local government initiatives. Accordingly, we find that the equal

protection claim rests solely on an Arlington Heights theory.
24 ARCE V. DOUGLAS

not faced with the issue presented here, which involves the

extent to which a state superintendent can decide on the basis

of his own evaluation to remove from a student’s purview

certain material otherwise approved by the local school

board. See id. at 1029.

Defendants argue that we should apply our holding in

Downs v. L.A. Unified School District, 228 F.3d 1003 (9th

Cir. 2000), and the Fifth Circuit’s holding in Chiras v. Miller,

432 F.3d 606 (5th Cir. 2005), both of which restricted speech

in a school setting because the schools’ actions were

considered government speech and were therefore immune

from a forum or viewpoint-discrimination analysis. See

Downs, 228 F.3d at 1016–17; Chiras, 432 F.3d at 612–17.

However, neither of these holdings involved a student’s First

Amendment rights, and are accordingly inapplicable to the

instant case. In Downs, we held that material that a teacher

posted on a school bulletin board was government speech,

and therefore the teacher had no First Amendment right to

challenge regulation of that material. Downs, 228 F.3d at

1005, 1011. In Chiras, the Fifth Circuit applied a government

speech analysis to an author’s claim that the state’s rejection

of his textbook for inclusion in the classroom violated his

First Amendment rights. Chiras, 432 F.3d at 607, 618. In that

context, Chiras held that the selection of textbooks and

development of curriculum was government speech and did

not create a public forum in which the author could assert a

First Amendment right. Id. at 618. However, the court

engaged in an entirely separate analysis (discussed below)

with regard to the other plaintiff, a high school student. Id. at

618 (“The conclusion that no forum exists in this case does

not necessarily preclude” the student’s First Amendment

claim.). Accordingly, we find that the holdings in Downs and
ARCE V. DOUGLAS 25

Chiras, at least with respect to their government speech

analyses, are distinguishable from the instant case.

Therefore, we are tasked with determining the appropriate

level of scrutiny that applies to a state’s decision to restrict

classroom materials presented as part of a curriculum

approved by a local school board in light of a student’s right

to receive information and ideas. This analysis necessarily

implicates the delicate balance between a student’s First

Amendment rights and a state’s authority in educational

matters. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 266 (1988); Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 681 (1986); Pico, 457 U.S at 866. Students do

not “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,” and, yet, these rights

must be applied “in light of the special characteristics of the

school environment.” Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 506 (1969).

At least four other circuits have grappled with the breadth

of a student’s First Amendment rights in the context of the

development of a school curriculum, and they have developed

tests granting varying levels of leniency to the government.

For example, the Eleventh and Eighth Circuits have

developed tests that require schools to provide legitimate

reasons for limiting students’ access to information. In Virgil

v. School Board of Columbia County, 862 F.2d 1517, 1522

(11th Cir. 1989), the Eleventh Circuit applied the standard set

forth by the Supreme Court in Hazelwood School District v.

Kuhlmeier, 484 U.S. 260. In Kuhlmeier, the Court held that

a school could exercise editorial control over a student

newspaper, which was found to be part of the curriculum,

484 U.S. at 271, “so long as [the educators’] actions are

reasonably related to legitimate pedagogical concerns,” id. at
26 ARCE V. DOUGLAS

273. In Pratt v. Indiana School District No. 831, 670 F.2d

771 (8th Cir. 1982), the Eighth Circuit held that “the [school]

board must establish that a substantial and reasonable

governmental interest exists for interfering with the students’

right to receive information.” Id. at 777. There, the court

found that a school board could not remove a controversial

film from its curriculum because a majority of its members

objected to the film’s religious and ideological content. Id. at

773.

The Seventh and Fifth Circuits give the government

greater scope in curtailing school curricula. In Zykan v.

Warsaw Community School Corporation, 631 F.2d 1300 (7th

Cir. 1980), the Seventh Circuit found that “nothing in the

Constitution permits the courts to interfere with local

educational discretion until local authorities begin to

substitute rigid and exclusive indoctrination for the mere

exercise of their prerogative to make pedagogic choices

regarding matters of legitimate dispute.” Id. at 1306. The

Fifth Circuit in Chiras limited a student’s right to receive

information to materials available in the school library, but

stated arguendo that if the decision in Pico did apply in the

context of curricular decisionmaking, the state’s discretion

was limited only if motivated by “narrowly partisan or

political” considerations. 432 F.3d at 619–20 (quoting Pico,

457 U.S. at 870–71).

Here, the district court followed the Eleventh Circuit’s

decision in Virgil, 862 F.2d 1517, and applied the Supreme

Court’s Kuhlmeier test to plaintiffs’ First Amendment claims.

Though the facts in Kuhlmeier are somewhat distinct from

this case in that it involved students’ right to speak as

opposed to right to receive, we agree with the district court

that Kuhlmeier’s reasoning can be read to establish that state
ARCE V. DOUGLAS 27

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—especially in a context such as this, where the

local school board has already determined that the material at

issue adds value to its local school curriculum. Granting

wider discretion has the potential to substantially hinder a

student’s ability to develop the individualized insight and

experience needed to meaningfully exercise her rights of

speech, press, and political freedom. Pico, 457 U.S. at 867.

Accordingly, we adopt the standard employed by the district

court and hold that the state may not remove materials

otherwise available in a local classroom unless its actions are

reasonably related to legitimate pedagogical concerns.

Kuhlmeier, 484 U.S. at 273.8

8 Defendants argue, seemingly for the first time on appeal, that they are

not responsible for the elimination of the MAS curriculum and its

materials, but rather that TUSD is. Therefore, they assert, they should not

be liable for curricular decisions of the school district that may have

infringed on plaintiffs’ First Amendment rights. This characterization of

the circumstances surrounding the removal of material is artificial and

ignores completely the fact that former Superintendent Huppenthal

directly caused, indeed ordered, TUSD to remove MAS-related books

from its curriculum as part of his finding TUSD was not in compliance

with § 15-112. Specifically, the State not only imposed a fine of ten

percent of state funding until TUSD came into compliance, but also

required proof that all MAS instructional material had been removed from

TUSD classrooms. Former Superintendent Huppenthal was personally

responsible for monitoring compliance with this demand. Therefore, even

if defendants had not waived their argument by failing to raise it below,

we find there is no genuine dispute that the defendants are responsible for

the elimination of the program and removal of material from the

classroom and are accordingly subject to plaintiffs’ First Amendment

claims.
28 ARCE V. DOUGLAS

Having established the relevant scope of a student’s First

Amendment right in this context, we turn to plaintiffs’ two

specific claims that that right is infringed by § 15-112, to wit,

that the statute is overbroad and that it imparts viewpoint

discrimination. Turning first to overbreadth, a law may be

invalidated under the First Amendment overbreadth doctrine

if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.” United States v. Stevens, 559 U.S. 460,

473 (2010) (quoting Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 n.6 (2008)); Comite de

Jornaleros de Redondo Beach v. City of Redondo Beach,

657 F.3d 936, 944 (9th Cir. 2011). The doctrine exists out of

concern that the threat of enforcement of an overbroad law

may chill constitutionally protected speech. Comite de

Jornaleros, 657 F.3d at 944.

The first step in an overbreadth analysis is to construe the

statute, as “it is impossible to determine whether a statute

reaches too far without first knowing what the statute covers.”

Id. at 945 (quoting United States v. Williams, 553 U.S. 285,

293 (2008)). Using Arizona’s own rules of statutory

construction of its statutes, we look to the statute as a whole,

and, where the language of the statute is clear and

unambiguous, we will not look beyond that language but will

assume the legislature means what it says. Arizona Dep’t of

Revenue v. Action Marine, Inc., 181 P.3d 188, 190 (Ariz.

2008); TDB Tucson Grp., L.L.C. v. City of Tucson, 263 P.3d

669, 672 (Ariz. Ct. App. 2011).9

9 Federal rules of statutory construction are the same in these respects as

Arizona’s. See Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000); Avendano-Ramirez v. Ashcroft, 365 F.3d

813, 818 (9th Cir. 2004).
ARCE V. DOUGLAS 29

The district court found that the primary legitimate

purpose of the statute, on its face, is to prohibit courses that

“promote racism,” and the like, a holding which neither party

challenges on appeal. Cf. A.R.S. § 15-111 (“The legislature

finds and declares 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.”). Applying

the Kuhlmeier standard discussed above, the district court

assessed whether the statutory provisions of § 15-112 are

reasonably related to the legitimate pedagogical interest of

reducing racism in schools. Plaintiffs appeal the district

court’s decision upholding § 15-112(A) generally, and § 15-

112(A)(2) and (A)(4), specifically, under a First Amendment

overbreadth analysis. Defendants, in their cross-appeal,

challenge the district court’s determination that § 15-

112(A)(3) is overbroad.

Section 15-112(A) begins: “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: [the four enumerated prohibitions].”Plaintiffs now

argue that the phrases “any courses or classes” and “include

any” are overbroad, because they result in onerous penalties

on the school district if prohibited content is found in even

one course or class. While we are skeptical that this is a

reasonable reading of the statute as a whole given its

provision of a 60-day “cure” period that could easily deal

with an isolated violation, we need not reach the issue, for it

was not fairly raised below. Indeed, the district court, in its

detailed opinion, did not expressly make a finding with

regards to § 15-112(A) generally. We find nothing in

plaintiffs’ occasionally broad rhetoric below that fairly put

either the district court or defendants on notice that the entire

statute, either on its face or as applied, was being challenged
30 ARCE V. DOUGLAS

as a whole on First Amendment overbreadth grounds.

Accordingly, the issue is not properly before us here.

But there is no question that plaintiffs did challenge

subsections (A)(2), (A)(3), and (A)(4) on overbreadth

grounds, so we consider each in turn. Section 15-112(A)(2)

prohibits any courses or classes that “[p]romote resentment

toward a race or class of people.” Plaintiffs’ challenge to this

provision stems from a fear that the statute will be used to

target courses or classes that incidentally promote resentment

towards a race or class of people, even though the course was

not designed for that purpose but seeks to impart to students

a range of historical and cultural perspectives. For example,

they are concerned that a discussion in an English class of

Mark Twain’s The Adventures of Huckleberry Finn or

Richard Wright’s Black Boy might inadvertently bring about

feelings of resentment in some students and prompt a finding

of violation.

However, we agree with the district court that the

provision on its face is not overbroad in violation of the First

Amendment, because the statute targets the design and

implementation of courses and curricula and does not restrict

individual student speech or class discussions.10 As the

district court found: “[T]he word ‘promote’ takes on a more

intentional and active meaning in this context. In this way, a

given class discussion could incidentallypromote resentment,

but to say that a course designed to teach about the

oppression of Mexican–Americans is automatically a class

10 We would share plaintiffs’ concerns in the event the statute were used

to censor materials that individually, and incidentally, could cause feelings

of resentment but that are placed within the context of an entire course or

curriculum in a manner that creates an unbiased presentation of material.
ARCE V. DOUGLAS 31

that ‘promotes resentment toward a race’ would stretch the

plain meaning of ‘promote’ too far.” Acosta, 2013 WL

871892, at *9.

The exceptions to the statute also support the district

court’s finding that the statute targets the design of courses

and not individual feelings or class discussions, because the

exceptions provide additional limitations on the statute’s

reach. Section 15-112(F) states that “[n]othing in this section

shall be construed to restrict or prohibit the instruction of the

holocaust, any other instance of genocide, or the historical

oppression of a particular group of people based on ethnicity,

race, or class.” A.R.S. § 15-112(F) (emphasis added). This

instructs the state and the school districts that the statute

should not be construed in a manner that would prohibit the

objective instruction of historical oppression, regardless of

whether that instruction incidentally promotes resentment

towards a race or class of people. It would be inappropriate

for us to read the statute more broadly to find that this

provision unconstitutionally prohibits courses that

unintentionally promote resentment, as the provision is

readily susceptible to the more narrow construction we have

identified. See Stevens, 559 U.S. at 481. Accordingly, we

affirm the district court’s holding that § 15-112(A)(2) is not

overbroad in violation of the First Amendment, because we

cannot conclude that a substantial number of its applications

would not be reasonably related to the state’s legitimate

pedagogical interest in reducing racism.

Skipping ahead to subsection (A)(4), the district court

held that § 15-112(A)(4), which prohibits courses and classes

that “[a]dvocate ethnic solidarity instead of the treatment of

pupils as individuals,” is not overbroad in violation of the

First Amendment. Again, we agree. Plaintiffs assert that there
32 ARCE V. DOUGLAS

is nothing inherently racist about “advocating ethnic

solidarity,” and, therefore, the statute proscribes instruction

that is not related to the state’s objective in reducing racism.

However, we find that the statute, as written, does not broadly

prohibit courses that advocate ethnic solidarity, but only

courses that advocate ethnic solidarity instead of treating

students as individuals, in effect another form of racism. The

latter half of the provision sufficiently limits the statute

within constitutional bounds. For example, a course that

advocates ethnic solidarity and treats students as individuals

would not violate the statute. Accordingly, we hold that,

when reading the provision in its entirety and construing it in

light of the whole statute, § 15-112(A)(4) is reasonably

related to the state’s legitimate pedagogical interest in

reducing racism, and affirm the district court’s decision that

it is not overbroad in violation of the First Amendment.

The only provision the district court found to be

constitutionally overbroad in the sense we have been

discussing is § 15-112(A)(3), which prohibits courses and

classes that “[a]re designed primarily for pupils of a particular

ethnic group.” The court found that any legitimate purpose

this provision could serve is already encompassed by

subsections (A)(2) and (A)(4). If a course designed primarily

for pupils of a particular ethnic group does not promote

resentment towards other races or classes of people and does

not advocate ethnic solidarity instead of treating pupils as

individuals, the court questioned whether any legitimate

purpose could be served by forbidding such classes. We

agree. The very danger we perceive was corroborated, at oral

argument, when we asked counsel for defendants whether the

statute could be found to prohibit a public school course in

San Francisco on the topic of Chinese history that was open

to all students but was designed in consideration of the
ARCE V. DOUGLAS 33

substantial Chinese and Chinese American student population

there that might benefit from a greater understanding of its

history. Defendants asserted that the course could be found in

violation. As indicated by this example, subsection (A)(3)

threatens to chill the teaching of ethnic studies courses that

may offer great value to students— yet it does so without

furthering the legitimate pedagogical purpose of reducing

racism. We therefore affirm the district court’s holding that

(A)(3) is overbroad in violation of the First Amendment.

Turning next to plaintiffs’ other First Amendment

challenge to § 15-112—namely, that it imposes viewpoint

discrimination—plaintiffs again complain that the district

court prematurely entered summary judgment against them

on this claim. Plaintiffs raised a First Amendment viewpoint

discrimination argument in their second motion for

preliminary injunction, but only moved for summary

judgment on their First Amendment overbreadth claim.

Nevertheless, the district court granted summary judgment

for defendants on all of plaintiffs’ First Amendment claims,

even though the viewpoint discrimination claim had not been

briefed by either of the parties in their cross-motions for

summary judgment. Moreover, in contrast to its sua sponte

grant of summary judgment discussing plaintiffs’ equal

protection claim, here the order of the district court did not

even review the evidence with respect to the viewpoint

discrimination claim. Accordingly, we remand that claim to

the district court for appropriate further proceedings.

Finally, we turn to plaintiffs’ claim that § 15-112 is vague

in violation of the Fourteenth Amendment Due Process

Clause. As an initial matter, we must determine whether

plaintiffs have standing to pursue a due process challenge to

§ 15-112. As stated in a footnote to its decision, the district
34 ARCE V. DOUGLAS

court assumed, without deciding, that the plaintiffs have

standing for purposes of their vagueness claim. It proceeded

to decide the merits of the claim and grant summary

judgment for defendants. However, before we proceed to the

merits, we must first establish that we have jurisdiction to

consider the due process claim.11

Defendants argue that plaintiffs have only a generalized

interest in the validity of the law and, therefore, lack standing

to pursue a vagueness claim. See Hollingsworth v. Perry,

133 S. Ct. 2652, 2662 (2013). They base this position on

three arguments: (1) that plaintiffs cannot challenge the

statute facially, because they have failed to show that the law

is unconstitutional in every application, see Schwartzmiller v.

Gardner, 752 F.2d 1341, 1346–47 (9th Cir. 1984); (2) that

plaintiffs cannot challenge it as applied to them, because the

statute targets the conduct of school districts and charter

schools, not individuals, see United States v. Backlund,

689 F.3d 986, 997 (9th Cir. 2012); and (3) that plaintiffs have

not identified any liberty or property interest that is protected

by the Constitution and implicated by the challenged statute,

see Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 996 (9th

Cir. 2007).

However, where the effect of a vague statute would

infringe upon a party’s First Amendment rights, standing

requirements to challenge the statute under the Fourteenth

Amendment Due Process Clause are broader than they

11 As the issue of standing here is a question of law, not fact, we will

assess whether we have jurisdiction rather than remanding the question to

the district court. Cf. Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 109–10 (1998) (assessing for itself whether a plaintiff had

standing before engaging in the merits of the lower court’s decision).
ARCE V. DOUGLAS 35

otherwise might be. See Hynes v. Mayor & Council of

Borough of Oradell, 425 U.S. 610 (1976); Maldonado v.

Morales, 556 F.3d 1037 (9th Cir. 2009). In Hynes, a local

ordinance required anyone canvassing or calling house-tohouse for a charitable or political purpose to give advanced

notice to the local police. 425 U.S. at 611. The Supreme

Court found that three registered voters could pursue a due

process vagueness claim challenging the ordinance, even

though they were not the individuals directly targeted by the

statute. The Court found “[the voters’] right to receive

information would be infringed because persons canvassing

for political causes would be uncertain whether the ordinance

covered them.” Id. at 620, 621 n.5. We reached a similar

outcome in Maldonado, where we recognized that

“[a]lthough plaintiffs are generally limited to enforcing their

own rights,” standing is broader where a plaintiff’s First

Amendment rights are implicated. See 556 F.3d at 1044. “[A]

plaintiff alleging that a statute is void for vagueness and

overbreadth resulting in a chilling effect on speech has

standing even if the law is constitutional as applied to him.”

Id. There, the plaintiff alleged constitutional challenges to a

California statute that bars offsite commercial advertising on

billboards along a landscaped freeway. Id. at 1040. The

plaintiff had been cited numerous times for using a billboard

on his property for offsite commercial advertising, and his

lawsuit challenged both provisions of the statute that applied

to him and provisions that did not. Id. at 1044. We found that

he had standing to proceed with his void-for-vagueness claim

even with respect to the provisions that did not apply to him,

because the statute’s alleged vagueness affected his First

Amendment rights. Id. at 1044–46.

Here, as already suggested by our discussion of plaintiffs’

First Amendment claims above, plaintiffs have a liberty
36 ARCE V. DOUGLAS

interest grounded in their First Amendment right to receive

information. See Krug v. Lutz, 329 F.3d 692, 696–97 (9th Cir.

2003). In Krug, we held that a prison inmate had “a liberty

interest in the receipt of his subscription mailings sufficient

to trigger procedural due process guarantees,” and that this

liberty interest was rooted in the inmate’s First Amendment

rights. Krug, 329 F.3d at 696–97. Similarly here, if the statute

is found to be vague on its face, or as applied to TUSD’s

MAS program, it will have a direct impact on plaintiffs’ right

to receive information. Accordingly, we find that plaintiffs

have standing to challenge § 15-112 under the Fourteenth

Amendment Due Process Clause. We now proceed to the

merits of this claim.

A statute is impermissibly vague if it “fails to provide a

reasonable opportunity to know what conduct is prohibited,

or is so indefinite as to allow arbitrary and discriminatory

enforcement.” United States v. Mincoff, 574 F.3d 1186, 1201

(9th Cir. 2009). Plaintiffs argue that the phrases “resentment

toward a race or class of people,” A.R.S. § 15-112(A)(2), and

“advocate ethnic solidarity instead of the treatment of pupils

as individuals,” A.R.S. § 15-112(A)(4), are vague because

they have an insufficiently objective meaning and pose a

danger of “ad hoc and subjective” enforcement. Grayned v.

City of Rockford, 408 U.S. 104, 109 (1972). The district court

rejected these (and other vagueness claims not pursued on

appeal) by noting that when these phrases are viewed in the

context of the entire statute, they provide a person of ordinary

intelligence fair notice of what conduct is prohibited. Id. at

108, 112.

We agree. Due process “does not require ‘impossible

standards’ of clarity.” Kolender v. Lawson, 461 U.S. 352, 361

(1983) (quoting United States v. Petrillo, 332 U.S. 1, 7
ARCE V. DOUGLAS 37

(1947)). For many of the same reasons discussed in the

overbreadth analysis above, and in light of the statute’s

purpose to reduce racism in schools, see A.R.S. § 15-111, we

find that the phrases here in issue sufficiently give notice as

to what conduct is prohibited and do not inherently invite

arbitrary enforcement.

Plaintiffs primarily rely on the case of Tucson Woman’s

Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004), where we held

that a requirement that physicians treat patients “with

consideration, respect, and full recognition of the patient’s

dignity and individuality” was vague in violation of due

process, because the terms “consideration,” “respect,”

“dignity,” and “individuality” had widely varying meanings

to different people. Id. at 554–55.12 Unlike in Tucson

Woman’s, however, we do not find that the challenged

phrases have widely varying meanings—especially in the

context of the entire statute. Thus, the phrase “promotes

resentment toward a race or class of people” reasonably

targets classes or courses that are designed with the intention

to promote resentment, or to invite racism in schools.

Similarly, the phrase “advocate ethnic solidarity instead of

the treatment of pupils as individuals” is not

unconstitutionally vague, because “advocate” inherently

implies an affirmative act and intent, and the conduct of

advocating “ethnic solidarity” is prohibited only if it is done

12 Defendants argue that Tucson Woman’s is distinguishable, because it

involved a criminal statute that is subject to stricter review. See Vill. of

Hoffman Estates v. Flipside, 455 U.S. 489, 498–99 (1982). However,

Flipside also states that “[if] . . . the law interferes with the right of free

speech or of association, a more stringent vagueness test should apply.”

Id. at 499. Accordingly, we consider plaintiffs’ claim under a more

stringent test, given that the result of our analysis will implicate plaintiffs’

First Amendment right to receive information.
38 ARCE V. DOUGLAS

instead of treating pupils as individuals. We agree with the

district court that the juxtaposition of these phrases is

sufficiently clear so that a teacher or school district could

tailor its conduct to conform to the statute. For these reasons

and the similar reasons in our discussion of the First

Amendment overbreadth claims above, we affirm the district

court’s holding that subsections (A)(2) and (A)(4) are not

vague in violation of the Fourteenth Amendment.13

Finally, and notwithstanding our directions to remand the

equal protection and First Amendment viewpoint

discrimination claims for further proceedings, we must

review the district court’s decision that § 15-112(A)(3) is

severable from the rest of the statute, as it is the one provision

we affirmatively have held to be unconstitutional. A statute’s

severability is determined under state law. See Dep’t of

Treasury v. Fabe, 508 U.S. 491, 509–10 (1993). Under

Arizona law, severability “is a question of legislative intent.”

State v. Pandeli, 161 P.3d 557, 573 (Ariz. 2007). The

question is whether the legislature would have enacted the

statute without the unconstitutional provision, if it knew of

the invalidity, or “as otherwise stated, [whether] the valid or

invalid parts are not so intimately connected as to raise the

13 Plaintiffs also fail to show that § 15-112 is vague as applied. They

argue that material facts exist as to whether the statute’s alleged lack of

standards allowed defendants to enforce the statute in line with their own

pre-formed biases about the MAS program. However, they conflate this

argument with their equal protection selective enforcement arguments, in

that they do not adequately explain how the allegedly vague words in the

statute allowed for discriminatory enforcement in this instance. Arbitrary

or discriminatory enforcement of a statute does not necessarily mean that

the statute was vague. Accordingly, we affirm the district court’s holding

that the statute is not vague as applied to the MAS program.
ARCE V. DOUGLAS 39

presumption that the legislature would not have enacted the

one without the other.” Id.

The district court held that “there appears to be no reason

to conclude that the other provisions of the statute could not

be enforced without subsection (A)(3), nor is there any

indication that the legislature would not have enacted the

statute without subsection (A)(3).” Acosta, 2013 WL871892,

at *10. We agree. Reviewing the statute on its face, the

provisions of § 15-112 are not so intimately intertwined as to

create a presumption that the legislature would not have

enacted the statute without § 15-112(A)(3). Subsections

(A)(1), (A)(2), and (A)(4) target different types of conduct

and are individually enforceable without (A)(3).14 Therefore,

we affirm the district court’s decision that § 15-112(A)(3) is

severable from the rest of the statute.

In sum, we affirm the district court’s rulings that § 15-

112(A)(3) is unconstitutional in violation of the First

Amendment but severable from the rest of the statute; that

§§ 15-112(A)(2) and (A)(4) are not overbroad in violation of

the First Amendment; and that §§ 15-112(A)(2) and (A)(4)

 

14 Plaintiffs also point us to aspects of the legislative history where the

sponsor of the bill and former Superintendent Horne comment on their

goals to stop grouping students by race, and to drafts of § 15-112 that

indicate when subsection (A)(3) was added to the bill. See H.B. 2281 S.

Comm. Educ. Accountability and Reform Hearing at 2:43:03–13

(statement of Rep. Steve Montenegro); H.B. 2281 House Educ. Comm.

Hearing at 1:31:18 (statement of Superintendent Horne); Montenegro

Floor Amendment, H.B. 2281, 49th Leg., 2d Sess. (Ariz. 2010), available

at http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/

49leg/2r/adopted/h.2281sm.doc.htm&Session_ID=93. We are not

persuaded that these isolated aspects of the legislative history show that

the legislature would not have enacted § 15-112 without subsection

(A)(3).
40 ARCE V. DOUGLAS

are not vague in violation of the Due Process Clause. We

reverse the district court’s grant of summary judgment for

defendants on plaintiffs’ equal protection claim and remand

that claim for trial. Lastly, we remand plaintiffs’ First

Amendment viewpoint discrimination claim to the district

court for further proceedings in accordance with this opinion.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.

CLIFTON, Circuit Judge, concurring in part and dissenting

in part:

I agree with and concur in most of the majority opinion,

but I have one significant disagreement that prevents me from

concurring in full. The majority opinion concludes, at 14,

that there are genuine issues of fact regarding whether the

enactment and/or enforcement of A.R.S. § 15-112 was

motivated at least in part by a discriminatory intent. It thus

orders that the equal protection claim be remanded for trial. 

I agree that the equal protection claim should be remanded,

but I cannot agree that Plaintiffs have already presented

sufficient evidence to establish that there is a genuine dispute

of material fact on that issue. We should simply remand for

further proceedings, without precluding further consideration

of summary judgment.

The majority opinion concludes, specifically, that

sufficient evidence was presented to raise a genuine dispute

as to whether the enactment and/or enforcement of the statute

“was motivated, at least in part, by an intent to discriminate
ARCE V. DOUGLAS 41

against MAS students on the basis of their race or national

origin.” Majority op. at 22. In doing so, however, the

majority opinion conflates antipathy toward Tucson’s

Mexican American Studies program (“MAS”) with animus

toward Mexican Americans more generally. They are not the

same. The district court recognized that difference when it

concluded that “the evidence indicates that Defendants

targeted the MAS program, not Latino students, teachers, or

community members who supported or participated in the

program.” The majority opinion ignores that distinction.

All of the evidence cited by the majority opinion to

support its conclusion pertains specifically to the Tucson

MAS program, not to general hostility toward Mexican

Americans. The majority leans heavily, for example, on the

observation that statute was enacted in response to complaints

about the Tucson MAS program and has been enforced only

against that program. Id. at 7 & 16. It cites a legislator’s

negative description of the Tucson MAS program and attacks

on that program by other politicians. Id. at 19–20. But what

it doesn’t point to is evidence that supports the contention

that the motivation for enacting or enforcing the statute was

animus against Mexican Americans. That there was

opposition to the Tucson MAS program does not prove that

the opposition was ethnically animated.

The majority opinion notes Plaintiffs’ statement that they

would have introduced evidence to support that proposition

if they had been given the opportunity to brief the equal

protection claims under a summary judgment analysis. I

agree that Plaintiffs should be given the opportunity to

present that evidence, but we should not pretend that proof of

that proposition is already in the record. As the record stands
42 ARCE V. DOUGLAS

now, there is not enough to justify the majority opinion’s

conclusion.

There could have been good reasons for public officials

to oppose the Tucson MAS program without any racial

animus whatsoever. The Tucson school district appealed the

findings of Superintendent John Huppenthal that the program

violated the statute, and following an evidentiary hearing, an

administrative law judge found that the Tucson MAS

program did, in fact, violate the statute. The judge concluded

that the program had courses that violated § 15-112(A)(2)

(promoting racial resentment) and (A)(4) (advocating ethnic

solidarity instead of treating pupils as individuals). He

concluded that the program had “courses designed for Latinos

as a group that promote[]racial resentment against ‘Whites.’” 

He found that evidence at the hearing “demonstrate[d] that

MAS classes cause students to develop a sense or racial

resentment toward the ‘white oppressor’ or ‘dominant’ group. 

The philosophy of ‘us against them’ is a persistent theme that

exists within the MAS program.”

Those conclusions are not before us for review, and I

have no independent knowledge or basis to say whether they

were accurate. But if a public official believed those charges

to be true, that officeholder’s opposition to the Tucson MAS

program would not be surprising and would not itself

demonstrate any discriminatory motivation. The majority

opinion agrees with the district court’s conclusion that the

statute is not discriminatory on its face, and I agree as well. 

If so, then support for the statute, without any other proof of

racial animus, does not prove discriminatory motivation.

I respectfully dissent from that portion of the majority

opinion.