F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A Y A A R C E ; her father and nex t best friend, S E A

N A R C E , Plaintiffs-Appellants/ Cross-Appellees
,

v

.

D I A N E D O U G L

A S , Ariz ona Superintendent of Public Instruction, in her official capacity , A R I Z ON A S T A T E B O A R

D O F E D U C A T I ON , A

N D M E MB E R S O F T H E A R I Z ON A S T A T E B O A R D O F E D U C A T I ON , Defendants-Appellees/ Cross-Appellants

. Nos. 13-15657 13-15760

D.C. No. 4:10-cv-00623- AW T

OPI NI ON

On Appeal from the United States District Court

for the District of Ariz o na A. W allace Tashima, Senior Circuit Judg e, * Presiding

Argued and Submitted J anuary 12, 2015—San F rancisco, California

F iled J uly 7, 2015

* T h e Ho n orab le A

. W allace T ash i m a, Circu it J u d g e f o r th e U.S. Co urt

o f A p p eals f o r th e Nin th

Circu it, sittin g b y

d esig n atio n

.A R C E V

. D O U GL

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B efore: J ohn T. Noonan and Richard R. Clifton, Circuit J udg es, and J ed S. Rakoff, District J udg e. * *

Opinion by

J u dg e Rakoff; Partial Concurrence and Partial Dissent by J udg e Clifton

SUMMARY * * *

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judg ment, and remanded in an action

c halleng ing Ariz ona revised statutes §§ 15-111 and 15-112, which were sponsored and implemented by the Ariz ona state superintendent o f education, a nd w hich eliminated the Me x ican American Studies p r og ram in Tucson public schools.

Pursuant to §§ 15-111 an d 1 5-112, a school district o r charter school is prohibited from including in its prog ram of i n s t ruction any courses or classes that: (1) “Promote the overthrow o f t h e U nited States g overnment,” (2) “ Promote resentment toward a r ace or class of people,” (3) “A r e desig ned primarily for pupils of a particular ethnic g roup,” o r (4) “Advocate ethnic solidarity i n s tead of the treatment o f pupils as individuals.” The parties did not dispute that the

** T h e H o n o r a b l e Jed S. Rak o f f
, District J u d g e f

o r th e U.S. District Co urt f o r th e So u th ernDistrict o f New Yo rk , sittin g b y

d esig n atio n

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.A R C E V

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statute w as enacted al m o s t entirely with the Mex ican American Studies prog ram in mind, a n d that the prog ram was the first and only ethnic studies prog ram that has b een f ound to be in violation of § 15-112.

The p anel affirmed the district court’s ruling s that § 1 5

- 112(A)(3) is unconstitutional in violation o f the F irst Amendment but severable from the rest of the statu te; that §§ 15-112(A)(2) and (A)(4) are n ot overbroad in violation o f the F irst Am en d ment; and that §§ 15-112(A)(2) and (A)(4) are not vag

u e in violation of the Due Process Clause.

The panel reversed th e district court’s g rant of summary judg ment for defendants on plaintiffs’ equal protection claim and remanded that claim for trial. The panel held that there

were g enuine issues of fact reg arding w hether the enactment and/or enforcement of § 15-112 w as motivated at least in part by a d iscriminatory intent. F inally
, t h e panel remanded plaintiffs’ F irst Amendment viewpoint discrimination claim
to the district court for further proceeding s in accordance with its opinion.

C o ncurring in part and dissenting in part, J udg e Cl i f t o n did not ag ree with the majo r i t y ’s conclusion that the equal protection claim m ust be remanded for trial. J udg e Clifton stated that the equal p rotection claim should be remanded for further proceeding s, without precluding further consideration of summary

judg ment.A R C E V

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COUNSEL

Erwin Chemerinsky ( argued), University of California I rvine School o f L aw, I rvine, California; Richard M. Martinez
, L aw Off i c e o f Richard M. Martinez
, Tucson, Ariz ona; Anjana Malhotra, SUNY B uffalo L aw School, B uffalo, New Y ork; Sujal J . Shah, J ennifer MikoL evine, and Marcelo Quiñones, B ing ham McCutchen, L L P, San F r ancisco, California; L orraine B a

nnai, Robert S. Chang
, and Charlotte Garden, F red Kor e m a tsu Center for L aw and Equity
, Ronald A

. Peterson L a

w Clinic, Seattle University Schoo l of L aw, S ea t t l e , W a s h i n gt o n , f o r P l ai n t i ff

s

- A p p e l l a n t s / C r o s s

Appellees.

Thomas C. Horne, A riz ona Attorney General, J inju Park a nd L eslie Ky man Cooper ( argued), A ssistant Attorney s General, Office of the Ariz ona Attorney Gener a l, Phoenix
, Ariz ona, for Defendants-Appellees/Cross-Appellants.

Meriem Hubbard and Ralph Kasarda, Pacific L eg al F oundation, Sacrame n to, California, for Amicus Curiae Pacific L eg a l F oundation.

David Handz o, J ulie Ca

r p e nt e r , a n d E l i za beth B ullock, J enner & B lock L L P, W ashing ton, D.C., f or A mici Curiae F reedom
to Read F oundation, Ameri c an L ibrary Association, American B o oksellers F oundation f or F r ee Ex pres s i o n, Asian/Pacific American L ibrarians Association, B lack Caucus of t he American L ibrary Association, Comic B ook L eg al Defense F und, N ational Association for Ethnic Studies, National Coalition Ag ainst Censorship, National Council o f Teachers of Eng lish, and Reforma.A R C E V

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Samantha B levins, Ariz ona Education Association, Phoenix
, Ariz ona; Alice O’B rien, J ason W alta, and Kri s t e n Hollar, National Education Association, W a s h i n gt o n , D

. C

. , f o r A m i c i Curiae National Education Association a nd A r iz o na Education Association.

Charles Sipos, Nicholas Manheim, a nd David Perez
, Perkins Coie L L P, Seattle, W ashing ton, for Amici Curiae Chief Earl W a r ren I nstitute on L aw and Social Policy and t h e A n t iDefamation L eague.

B rian M a t s u i, J eremy Merkelson, L aura Heiman, and B etre Giz aw, Morrison & F oerster L L P, W ashing ton, D.C., for Amici Curiae Rodo l f

o Acuña, B ill B ig elow, Richard Delg ado, and J ean Stefancic.

Marie Quasius, B en Hellerstein, Tia Sarg ent, Raina W ag ner, and Theodore Ang e lis, K& L Gates L L P, S e a tt l e , W ashing ton; Steven B ender, Marc-Tiz oc Gonz ález
, and B eth L y o n, Coral Gables, F lorida, for Amicus Curiae L atina and L atino Critical L eg al Theory , I nc.

W a rr i ng ton Parker and Mary K elly Persy n, Orrick, Herring ton & Sutcliffe L L P, San F r a n cisco, California, for Amici Curiae 48 Public School Teachers.A R C E V

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OP INION

RAKOF F , District J udg e :

The children of the Tucson U nified School District (“TUSD”), a majority of whom are of Mex ican or other Hispanic descent, have a n at u r a l interest in knowing more about their cultural heritag e and that of their community —or

so the school boa r d of Tucson decided, inaug urating a Mex ican A merican Studies ( “ MAS”) p rog ram in the T u cson public schools. Ariz ona state superintendents of e ducation, in the belief that MAS was being perverted into a p r o gr a m for promoting ethnocentri sm and reverse racism, successfully sponsored and implemented leg islation that did away with the
prog r am. The issue this case presents is whether in so doing they and their colleagues violated the constitutional rig h ts o f TUSD students.

I n 2010, the Ariz ona leg islature passed H.B

. 2281, codified at Ariz ona Revised Statutes (“ A .R.S.”) §§ 15-111 and 15-112, which directly led to the elimination of the MAS
prog r am. The statute prohibits a s ch o ol district or charter school f r o m including in its prog ram of instruction any

courses or c lasses that: (1) “ Prom o t e the overthrow of the United States g overnment,” (2) “Promote resentment toward

a race or class of pe o p l e , ” (3) “Are desig ned primarily for pupils of a particular ethnic g roup,” or (4) “Advocate ethnic solidarity instead of the treatment of pupil s as individuals.” A.R.S. § 15-112(A). I f the st a te b oard of education or the superintendent of public instruction determines that a school district is in violation of the statute, the district has six ty day s to achieve compliance ( e.g. , b y e liminating the prog ram), failing which the state superintendent or state boar d m a y direct the department of e ducation to withhold ten percent o fA R C E V

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t h e district’s state funding

. A.R.S. § 15-112(B ). The part i e s do not d ispute that the statute wa s e n a c ted almost entirely with the MAS progr a m i n mind, a nd MAS was the first a

nd only e thnic studies prog ram that has been found to be in violation of § 15-112.

This case was orig inally filed on October 1 8
, 2010 by ten teachers and the d irector of TUSD’s MAS prog ra m

. The complaint was lat e r amended to add two TUSD students, May a Arce and Korina L opez , a nd their parents as nex t best friends. A third student, N icolas Doming uez , and his mother

as his n ex t best f

r i e n d intervened in the c ase. However, Nicolas D oming u ez a

nd Korina L opez voluntarily dismissed their appeals after g radu a t ing from hig h school, and the teachers’ and director’s claims were dismis sed for want o f standing in a

n Order dated J a

nuary 10, 2012 from which no appeal has been taken. Thus, the only remaining plaintiffs a re student May a A rce and her father and nex t best friend, Sean Arce

. Defendants are the Superintendent of Public I nstruction, Diane Doug las, 1 the Ariz o n a S tate B oard o f Education, and members of the B oard of Education.

Plaintiffs assert that § 15-112, as enacted and enf o r c e d
ag ainst the MAS prog ram, violates their constitutional rig hts under the F irst and F o urteenth Amendments. Relevant to this appeal are p l a i n

t i f f s ’ F ourteenth Amendment equal protection claim, F irst Amendment overbreadth and “vi e wpoint discrimination” claims, and F o u r t e e nt h A m e n dment void-forvag ueness claim. After § 15-112 was enacted and this lawsuit

was commenced
, p l a intiffs moved f or partial summary

1 Su p erin ten d ent Dian e D o u g las s u cceed ed f o rm er Su p erin ten d en t J o h n Hu pp en t h al, an d
, acco rd in g l y , h as been su b s titu t e d as a d ef

en d an t p ursu an t to Fed eral Ru le o f A p p ellate P ro ced ure 4 3

.A R C E V

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judg ment in their f

a v or on their F irst Amendment overbreadth and F ourteenth A mendment vag ueness c l ai m s , but did not

move for summary judg ment on their e qual protection or F irst Amendment viewpoint discrimination claims. Defendants cross-moved for summary j u d g ment in their f avor on all o f plaintiffs’ F irst Amendment a n d vag ueness claims. Subsequently
, after § 15-112 was enforced ag ainst TUSD a nd TUSD eliminated the MAS prog ram, plaintiff s f iled their second motion seeking a preliminary injunction and asserting irreparable harm and a lik elihood of success o n their overbreadth, vag ueness, equal protection, and viewpoint discrimination claims.

I n a Memorandum Order dated March 8, 2013, the district
court g ranted plaintiffs’ motion for summary judg ment with respect to § 15-112(A)(3) on Fi r s t A mendment overbreadth
g rounds, but d enied the motion wi t h r e spect to all other claims o n which plaintiffs had soug ht summary judg ment. T he court g ranted defendants’ summary judg ment motion with respect to all of plaintiffs’ remaining F irst Amendment claims. I t d enied plaintiffs’ motion for a preliminary injunction. F inally
, it sua sponte g ranted summary judg ment for d efendants on plaintif f s ’ equal protection claim. The net of a ll this was to allow f in a l j u d g ment to be entered, dismissing all of plaintiffs’ attacks on the statute and its appli c a t i on, ex cept for plaintiffs’ claim that § 15-112(A)(3)

was unconstitutionally overbroad. Since, moreover, the district c ourt d etermined that that section was severable from the other sections, the final judg ment invali d a t e d o nly § 15- 112(A)(3).

Plaintiffs now appeal t h e district court’s decision with respect to their equal protection claim, their F irst A mendment overbreadth claim with respect t o §§ 15-112(A)(2) a ndA R C E V

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(A)(4), their F irst Amendment v iewpoint discrimination claim, and their F ourteenth Amendmen t v a g ueness c laim. Defendants cross-appeal the district court’s decision that § 15-112(A)(3) is overbroad in violation of the F irst Amendment. W e affirm the district court’s decision in part,

reverse in part, a

n d remand for further proceeding s in accordance with this opinion.

Facts

The pertinent facts are as f o l l o w s

. As of April 20, 2011, six t y p e r cent of the children enrolled in the Tucson public schools were of Mex ican o r other Hispanic descent. The MAS progr a m was developed in 1998 and later e x panded

u nder a f ederally enforced deseg reg ation decree. See F i s h e r

v. Tucson U

nified Sch. Dist.
, 6 52 F .3d 1131, 1134 ( 9 t h C i r. 2011). The prog r am soug h t to provide a culturally relevant curriculum for students from kinderg arten to 1 2th g rade b y i n c o r porating historical and contempora r y M e xi c a n A m e r i c a n contributions into coursework and classroom studies.

Efforts to disband the MAS p rog ram beg an in 2007, a fter

a g roup of students walked out of a speech by the De p u ty Superintendent of Public Education, Marg aret Garcia Dug an. Ms. D ug an was g iving a speech that was intended to refute a prior alleg ation made t o t h e student body that “Republicans h ate L atinos.” I n an open letter to the City of T u cs o n following the speech, the then S up e r i ntendent of Public I nstruction, T o m Horne, asserted that “the students did not learn this rudeness at h om e , b u t from their Raz a teachers.” 2

2 T h e MA S p ro g r a m w as prev io u s ly called “ Mex ican A m erican /Raza Stu d ies.” P lain tif

f s assert th at “ L a Raza” m ore g en erally ref ers to Mex ican A m erican s. S

ee A m erican Heritag e Dictio n ary o f th e En g lish L an g u ag e,A R C E V

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I n t he letter, he advocated the elimination o f ethnic stud i e s prog r ams, specifically MAS. W h e n this informal e ffo r t f a i led, he became a force behind the e nactment of A.R.S. § 1 5-112.

The f o r mal bill, H.B

. 2281, 49th L eg ., 2d Sess. (Ariz

. 2010), p assed the state l e gi s l ature, and on May 11, 2010, Governor J a

n B rewer sig ned it into law w ith a n effective date of December 31, 2 010. Relev a n t aspects of the leg islative history are s u m mariz ed b elow in the analy sis of plaintiffs’ equal protection claim.

F ollowing the enactment o f 15-112, Horne suc c e ssfully

c a m p aig ned to become Ariz ona Attorney General. On December 30, 2010, his last day in office as the superintendent of public instruction and the day befor e t he
st a tute took effect, Horne p rematurely issued a finding that TUSD w as in violation of A.R.S. § 15-112 because of its MAS prog ram, and g ave TUSD six ty day s t o “ e liminate the Mex ican American Studies courses.” The finding noted that three e thnic studies courses “could be found in violation,” but that he had recei v ed complaints only about the MAS
prog r am.

J ohn Huppenthal succeeded Horne a s the superintendent of public instruction immediately after serving as an A riz o na stat e senator. On J anuary 4, 2 011—four day s after taking

o f fice a s superintendent—he issued a press release supporti n g Horne’s finding

. See Ariz o na D e p artment of Education, Superinte n dent of Public I nstruction J ohn Huppenthal’s

a v a i l a b l e a t ht t p : / / a h d i c t i o n a r y

. c o m / w o r d /search .h tm l? q =la+r a z a &

su b m it.x =0 & su

b m it.y =0 (last v isited J u

n e 9
, 2 0 1 5 ) (d ef

in i n g “ La R a z a ”

as “ Mex ican s o r Mex i can A m erican s co n s i d e r ed as a g ro u p , so m etim es

ex ten d in g to all Sp an ish

- s p eak i n g p eo p le o f th e A m ericas”).A R C E V

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Officia l Statement on TUSD Violation of A.R.S. § 15-112 (J an. 4, 2011), available at http://www.az ed .g o v/publicrelatio n s /files/2011/08/pr01-04-11.pdf (last visited J une 9, 2 0 1 5). 3 However, he chose not to enforce the fin d i n g imm e d i a tely but conducted his own investig ation of the
prog r am by retaining an i n dependent auditor, Cambium L earning , I nc.

On May 2, 2011, Cambium, a f ter visiting classes, conducting focus g roups, and rev i e w i n g c u r r i c u l u m materials, issued a report (the “Cambium Report”) that fou n d t hat “ no observable evidence was present to ind i c ate that any classroom within [ TUSD] is in direct violatio n of the law, A.R.S. 15-112(A). In most c ases, quite the opposite is true.” Huppenthal rejecte d t h e Cambium Report’s finding s a nd directed the Ariz ona Depart ment of Education (“ADE”) to make a separate investig ation o f the prog ram. On the basis o f that secon d i nvestig ation, Huppenthal found the MAS
prog r am in violation of A.R.S. §§ 15-112(A)(2), (A)(3), a nd (A)(4). TUSD appealed the decision, and a n a dministrative law judg e affirmed H uppenthal’s finding of violation. On J anuary 16, 2012, Huppenthal a ccepted the AL J ’s d e c i s ion and withheld ten percent of TUSD’s funds, retroactive to the

ex p iration of 6 0 day s from his initial finding of violation. F urther, he required TUSD to remove all MAS instructional materials from K-12 classrooms by F ebruary 29, 2012. F a ced with these sanctions, TUSD terminated the MAS prog ram on J anuary 10, 2012.

3 W e tak e j u d icial n o tice of th e p ress release, b ecau se it is a p u b l ic

r eco rd o n f

ile w ith th e A rizo n a State Bo ard o f Ed u catio n

. S ee F e d

. R

. Ev i d

. 2 0 1 (b ); Lee v. City o f Lo s An g eles
, 2 5 0 F.3 d 6 6 8
, 6 8 8

– 89 (9 th Cir. 2 0 0 1 ).A R C E V

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Discussion

This Court reviews de novo a district c ourt’s g rant o r denial of summary judg ment. B lue Lake Rancheria v. United States
, 653 F .3d 1112, 1115 ( 9 t h Cir. 2011); Arakaki v

. Hawaii
, 314 F .3d 1091, 1 0 9 4 ( 9 th Cir. 2002). Summary judg ment is appropriate w here “the movant shows there is no g enuine dispute as to any m a t e r ial fact and the movant is entitled to j u d gment as a matter o f law.” F e d. R. Civ. Pro. 56(a). I n reviewing a g rant of summary judg ment, the Court views “the evidence and infere n c e s therefrom in the lig ht
most f avorable to the p arty ag ainst whom the district court

ru l e d

. ” Allen v. A.H. Robins Co., Inc.
, 752 F .2d 1365, 1368 (9th Cir. 1985). A district court’s d ecision to g rant summary judg ment sua sponte is reviewed for abuse of discretion. See Corales v. Bennett , 567 F .3d 554, 570 (9th Cir. 2009).

W e beg in our discussion w ith plaintif f s’ claim that the
enactment and closely linked enforcement of § 15-112 denied them equal p r o t e c tion o f the law, in violation of the F ourteenth Amendment. I n its Memorandum Order dat ed March 8
, 2013, t h e d istrict court, sua sponte , g ranted
summary judg ment f

or d e f endants dismissing this c laim. W h ile it is within the p ower o f a district c o u r t to g rant summary judg ment s u a s ponte , see Norse v. City of Santa Cruz
, 629 F .3d 966, 9 71 (9th Cir. 2010), the court must first
g ive the parties notice a

n d time to respond, unless the par t y ag ainst which summary judg ment is g ranted has already had

a “full and f

air opportunity to ventilate the i s s u e s,” 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 g ive prior notice t o the parties, but found that “the mer i ts of [ this claim had] beenA R C E V

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fully a nd fairly vetted in c onnection with Plaintiffs’ sec o nd motion for preliminary injunction.” Acosta v. Huppenthal
, No. CV 1 0 -623-TUC-AW T, 2013 W L 871892, at * 3 (D. Ariz

. Mar. 8, 2013). W e have held, however, that despite the court’s power to g rant s ummary judg ment sua sponte , it is
g enerally inappropriate f o r a c ourt to issue such a final judg ment on the merits of a claim a t t h e preliminary injunctio n stag e, because it is unlikely that the merits o f a claim will be fully ventilated at the early stag e of a litig ation
at which a p r e l i m inary injunction is n ormally addressed. Univ. of Tex. v

. Camenisch
, 451 U.S. 390, 395 (1981). W e see

no ex c eption h ere. A p a r ty is not r equired to prove her case in full on p relim i n a ry injunction, but only such portions a s will e nable h e r t o obtain the injunction. Here, the district court, by not offering plaintiffs notice of its intent to convert the preliminary injunction motion i n t o b asis for g rant o f
summary judg ment, deprived plaintiffs of the opportunity to submit additional evidence and argum e nt on the merits o f their equal protection claim.

That decision was n ot harmless, g iven the evidence plaintiffs n o w represent they would have presented on summary judg ment had they been g iven opportunity

. Indeed, this evidence is in many respects relevant to our analy sis o f the merits o f the equal protection claim, in f r a , w here we conclude that there is a g e nuine issue of fact as to whether the
statute was e nacted and/or enforced with discriminatory intent. F or ex ample, plaintiffs refer us to leg islative hearing s and administrative documents ( discuss e d b elow) that a re relevant to a discriminatory intent analy sis. F urthermore, plaintiffs a ssert that, if g iven the o pportunit y , t hey would have presented emails of leg islators evincing discriminatory intent a nd information re g arding the historical backg r ound surrounding the passag e of H.B

. 2281, as well as additio nalA R C E V

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evidence w ith respect to H upp en thal’s rejection of the Cambium Report and c o m p l a i nts that the state had received

a b out other ethnic studies prog r ams that made t h e m indisting uishable from M AS. According ly
, we find that the district c ourt abused its d i s c retion in sua sponte g ranting
summary judg ment for defendants on plaintiffs’ equal protection claim.

That said, in lig ht of the evidence presented in the record and on a p p eal, we see no reason to remand the equal protection claim for ad d i tional briefing on summary judg ment, because, even on the record before us, we find that there a re g enuine issues of fact reg arding whether the
enactment and/or enforcement of § 15-112 was motivated at least in part by

a discriminatory

intent. W e therefore reverse the district court’s g rant of summary judg ment for defendants and remand the equal protection claim for trial.

W e reach this conclusion even thoug h we agree with the district court that the statute is not discriminatory on its face. Plaintiffs argue that § 15-112 is facial l y discriminatory because the leg islative history shows that the use of the term “ethnic” in § 15-112(A)(3) a n d (A)(4) refers specifically to ethnic minorities. See A.R.S. § § 1 5

- 1 1 2(A)(3) (prohibiting classes “des i g n ed primarily for pupils o f a particular ethnic
g roup”), (A)(4) (prohibiting cla s ses that “advocate ethnic solidarity ”). However, a review of leg islative h istory is only appropriate in a facial analy sis where the application of the plain meaning of a word is am b i gu o us 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.
, 4 30 F

. 3d 1036, 1045 (9th Cir. 2005). Here, the Merriam-W e bster D ictionary defines “ethnic” a s

“ of or relating to larg e g roups of people classed accord i n gA R C E V

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to common racial, national, tribal, relig ious, ling uistic,

or c ultural orig in or backg round

. ” Merriam-W ebster O n l i n e D i c t i o n a r y , h t t p : / / w w w

. m e r r i a m

- w e b s t e r

. c o m / dictionary /ethnic (las t v isited May 5, 2015). Given the declaration of policy in A.R.S. § 15-111 (“The leg isl a t ure finds a nd declares that public school pupils should be taug ht
t o treat a nd value each other as individuals and n o t t o b e taug ht to r esent or h ate other races or classes of people.”), the plain meaning o f “ethnic” in this contex t is not ambig uous,

nor does it lead to a n absurd r esult. O n its face, the statute implicates all ethnic backg rounds, n ot only ethnic minorities. According ly
, a review of the leg is l a t i v e history is inappropriate here, a n d w e d o 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 e n f o r c e ment ag ainst the MAS prog ram 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, 265–6 6 (1997). A p laintiff does not have to prove that the disc r i minatory purpose was the sole purpose of the challeng ed action, but only that it was

a “motivating f

a ct or.” Id. at 266. The Supreme Court articulated the following
, non-ex haustive factors that a court should consider in assessingwhether a defendant acted with d i s criminatory purpose: ( 1) the impact of the official acti o n and w hether it b e a r s more heavily on one race than another; (2) the historical backg round of the decision; (3) the specific
sequence of events leading to the challeng ed action; (4) the d e f e n d ant’s departures from n ormal procedures o r s u b s t a n t i v e conclusions; and (5) the r e levant leg islative or administrative history

. Id. at 266–68; P a c

. S h o res Props., LLC v. City of Newport Beach
, 730 F .3d 1142, 1158–59 (9th Cir. 2013).A R C E V

. D O U GL

A S 16

Moreover, when relying on Arlington Heights to demonstrate that an a ction was motivated by a d i s cr i m inatory purpose, a plainti ff need provide “very little such evidence to raise a g enuine issue of fact; any indication of discriminatory motive
may suffice to raise a q

u estion that can only be resolved by a fact-finder.” P ac. Sho r e s P rops. , 730 F .3d at 1159 (quoting Schindrig v. Columbia Mach., Inc. , 80 F .3d 1406, 1 409 (9th Cir. 1 996)) ( internal alternations omitted )

. H e re, while the action ultimately complained o f is th e f o r ced elimination o f the MAS prog ram pursuant to § 15-112, plaintiffs assert that this was the very purpose of the enactment of the statute, with

some of the key play ers involve d a t ev e ry stag e

. W h en the h i s t o r y of the enactment and its subsequent application a re vie w e d t og ether, plaintiffs further assert, there is at least a g enuine i s s u e of material f act as to whether the statute was enacted and en f

o r c e d w ith discriminatory intent. Apply ing the Arlington Heights factors, we ag ree.

W ith respect to the first Arlington Heights fac t o r— the impact of the official action and wheth er that bears more heavily on one race than a nother—it i s u n d i sputed that the
st a t u t e ’s enactment and enforcement h as had a disparate impact on Mex ican American students, such as plaintiff May a Arce. Not only were six ty percent o f all TU S D students o f Mex ican or other Hispanic descent, but a lso ninety percent o f students in t he MAS prog ram were such. Moreover, defendants concede t h at the statute w as enacted in response to complaints about the MAS prog r am and that the statute has been enforced only ag a inst the MAS pr og ram, even thoug h
two other ethnic studies prog rams in Ariz ona were alleg ed b y the state superintendent to seeming ly violate § 1 5-112. According ly
, the enactment and e nforcement of § 15-112 has had a disproportionat e i mpact on Mex ican American a nd other Hispanic students.A R C E V

. D O U GL

A S 17

I t is true, to jump ahead to the fifth Ar lington Heights factor—the relevant leg islative or administrative history

— that th e l e gi slative history contains o nly a f ew snippets o f overtly d iscriminatory e x pression. H owever, g iven that “officials acting in their official cap acities seldom, if e ver,

announce on the record that they are pursuing a part i c ular

cou r s e o f action because of their desire to d iscriminate
ag ains t a racial minority ,” we look to whether they have “camouflag ed” their intent. Smith v. Town of Clar kton
, 682 F .2d 1055, 1064, 1066 (4th Cir. 1 9 8 2 ). Here, the leg islative history of § 15-112 and the sequence of e vents (including the admi n i s t rative history) leading to its enactment reasonably
sug g est an intent to discriminate.

During hearing s rega rding H.B

. 2281, which w as later codified as § 1 5-112, the MAS prog ram was the sole targ et o f the leg islative effort. W hen introducing H .B

. 2281 before the H o u s e E d u c at i o n C o m m i t t e e , R e p r e s e n t a t i v e S t e v e Monteneg ro characteriz ed MAS as c reating “ racial warfare.” Hearing on H

.B. 2281, H. Comm. on Ed u c

. (“H.B

. 2281 House Educ. Comm. Hearing ”), 4 9th L e g. , 2d Sess., at 1:16:35 (2010) (statement o f Rep. Monteneg ro), available at h t t p://az leg .g ranicus

. c o m / M e d i a P l a y e r

. p h p ? v i e w

_ i d = 1 7 &c lip_id=6760 ( l a s t v i s i t e d J u n e 9
, 2 0 1 5 )

. 4 F o rmer Superintendent Horne, when testif y ing at both that h earing

a n d b e f o r e t h e S e n a t e C o m m i t t e e o n E d u c a t i o n Accountability and Reform, beg an his remarks by recounting the incident from 2007 where stu dents walked out of the speech g iven by his deputy . H.B . 2281 House Educ. Comm.

4 W e tak e j u d icial n o tice of leg islativ e h isto ry m aterials p ursu ant to Fed eral Ru les of Ev id en ce Ru le 2 0 1 (b ). S ee Ara ma rk Fa cility S

e r v s. v. S EIU, L o ca l 18 7 7
, 5 3 0 F.3 d 8 1 7
, 8 2 6 n .4 (9 t h Cir. 2 0 0 8 ); Zep h

yr v. S axo n Mo rtg . Servs. In c. , 8 7 3 F. Su pp . 2 d1 2 2 3 , 1 2 26 (E.D. Ca. 2 0 1 2 ).A R C E V

. D O U GL

A S 18

H earing at 1:25:48; Hearing on H .B. 2281, S. Comm. o n Educ. Accountability and Reform (“ H

. B

. 2281 S. Comm. Educ. Accountability and Reform Hearing ” ), 49th L e g

. , 2d Sess., at 2 :46:25 (2010) (statement of Superintendent Horne), available at h ttp://az leg .granicus.com/MediaPlaye r.php? view_id=17& clip_id=7405 ( last v i s i t e d J une 9, 2015). He stated that the MAS prog r am “promoted” the g r oup MeCHA, which he characteriz ed as a g roup “that among othe r t h i ng s say s that North America is a land f or the bronz e p e o p l e s

. ” H.B

. 2281 House Educ. Comm. Hearing at 1:34:39. He added that he saw a TUSD h ig h school librarian who was “wearing a MeCHA t-shirt.” Id.

Such statements, e s pecially when coupled with the administrative history (discussed b e low) that immediately preceded enact m e n t , raise at least a plausible inference that racial animus underlay passag e of th e leg islation. 5 Consideration of the administrative h i story also impacts

5 P l ain tif f s state th at if

th ey h ad b een g iv en th e o p p o rtun ity

to b rief th e eq u al p ro tectio n

claim s un d er a s um

m ary j u d g m en t an aly sis, th ey w ou ld h av e in tro du ced em ails f

ro m leg i slato rs ev in cin g an im u s ag ain st Mex ican A m erican s w

h ile ad v o catin g f

o r th is l eg i slatio n. T h o u g h su ch m aterial

w o u ld lik ely b e h i g h ly relev an t to th e Arlin g to n Heig h ts an aly sis, Vill. o f Arlin g to n He i

g h t s , 4 2 9 U.S. at 2 6 8
, t

h at m aterial is n o t b ef

o re u s. P lain tif f s also assert th at th ey w o u ld h av e p ro v id ed th e d istrict co urt w i th

ev id en ce o f th e h isto rical b ack g ro un d o f § 1 5

- 1 1 2, sp ecif ically w ith reg ard
t o th e relatio n s h ip b etw een th e State’ s an ti- im m ig ratio n ef

f o rts an d th e p assag e o f th is statute. T h ey assert th at t h is law an d th e co n tro v ersial an t iim m ig ratio n law
, S.B

. 1 0 7 0
, m o v ed th ro u g h th e A rizo n a leg islatu re at th e

sam e tim e an d w ere p assed in a clim ate ch arg ed w ith a n i m u s ag ain st Mex ican s a n d M e x i can A m erican s. A g ain
, w h ile all th is rein f

o rces our d eterm in atio n th at th e d istrict co u rt erro n eo u sly g r a n t ed su m m ary j u d g m en t su a sp o n te o n th i s claim
, w e d o n o t co n sid er it i n o ur fu r t h e r

co n clu sio n t

h at su m m ary j u dg m en t o n th is claim w as, in an y c ase,

w ro n g ly g ran t ed to d ef

en d an ts.A R C E V

. D O U GL

A S 19

evaluation of the second, third, and fourth Arlington Heights factors (the historical backg round of the d ecision, the specific
sequenc e o f events leading to the challeng e d action, and the de f e n d a nt s ’ d e p a r t u res from n ormal procedures or substantive conclusions). I ndeed, the leg islative and administrat i v e history are closely

intertwined.

At the time H.B

. 2 281 moved throug h the leg isl a t u r e, future Superintendent Huppenthal was a state senator and the Ch a i rman of the Senate Committee on Education Accountability

and Reform. S

ee H.B . 2281 S. Comm. Educ. Accountability and Reform Hearing

. About one month before Governor B r e wer sig ned H.B

. 2281 into law, Huppenthal introduced an amendment to the bill that g ranted authority to the state superintendent to determine whether a school district

was in violation o f the sta tute, an amendment which was adopted by the Senate and incorp o r a t e d in § 15-112. See Senate Amendments to H.B

. 2281, 49th L eg ., 2d Sess. (Ariz

. 2 0 1 0 )
, a v a i l a b l e a t h t t p : / / w w w

. a z l e g

. g o v / / Fo r m a t D o c u m e n t

. a s p ? i n D o c = / l e gt e x t / 4 9 l e g/ 2 r/ a d opted/s.2 281ed.doc.htm& Session_I D =93 (last visited J une 9, 2 015); F loor A mendment Ex planation, H.B

. 2281, 49th L e g ., 2d Sess. ( A riz

. 2010), available at http://www.az leg .g ov// F ormatDocument.asp? inDoc=/le gt e x t / 4 9 l eg /2r/adopted/228 1huppenthal808.do c.htm& Session_I D=93 (last visited J une 9, 2 015); see a lso H.B

. 2281 S. Comm. E duc. Accountability and Reform Hearing at 2 :50:38. Then, p rior to H

. B. 2281’s effective date, Huppenthal successfully ran to become state superintendent of p ublic instruction; in the p r o c e s s he aired radio campaig n advertisements w here he pledg ed to “stop L a Raz a” if elected. He was subsequently elected and took office immediately

after the statute went into effect.A R C E V

. D O U GL

A S 20

At the same time as Huppenthal r an for superintendent, former Superintendent Horne ran for the office of A riz o na Attorney General. On h is attorn e y g eneral election website, he stated in a video, “I foug ht h a r d to g et the leg islature to put a—to pass a law so that Ican put a stop to [ the Raz a Studies
prog r am]

. And as the attorney g eneral, I will g ive t h e leg al aid to the Department o f 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 b e fore Horne ceded his position of state superintendent to H uppenthal, Horne issued a (premature) “F inding ” that TUSD was in violation of the not-y et-effective § 15-112 a n d d irected TUSD to “eliminate the Mex ican American Studies courses” within six ty day s o r risk h aving
ten percent of its budg e t withheld. As the district c ourt found, “[ t] he timing of the F inding unde r s c o res Horne’s determination to do away with the MAS prog r am, and it also

means that H o rne necessarily applied the statute retroactively
, without any e ffort to show that the problematic materials

were in use at the time of the F inding

. ” Acos t a , 2013 W L 871892, at *14.

Upon assuming o f

f i c e as superintendent o n J anuary 4, 2 0 1 1
, Huppenthal immediately issued a press releas e supp o r t i ng Horne’s f

inding and stating that T USD had the responsibility “to ensure their p rog rams come into full compliance wi th A.R.S. § 15-112 within 60 day s o f Superintendent Horne’s official finding .” Nonetheless, Huppenthal did not immediately enforce Horne’s finding
, but instead commissioned Cambium L earning to audit the MAS
prog r am and determine whether t h e prog r am was in compliance w ith § 15- 1 1 2. Cambium audited MAS courses

over a period o f two months b y visiting classrooms,A R C E V

. D O U GL

A S 21

reviewing course materials, and holding focu s g roup i n terviews with various stakeholders. The auditors visit e d 39.5% o f hig h sch o o l M A S courses and spent about thirty minutes in each class. I n May 2011, Cambium releas e d i ts report, which found that there was no evidence that MAS was in violation of § 15-112. The auditors d id not obser ve any evidence that MAS courses promoted re s e ntment towards a

race or class of people, nor that they wer e n ecessarily desig ned f

o r p u pils of a particular ethnic g roup, a s all students were welcomed into the prog ram.

Nevertheless, in o n e of the most telling actions in this entire sag a, H upp e n t hal then rejected the conclusions of the Cambium study that he himself had commissioned, concludingthat, because the MAS department was aware of the audit, “na t u r a lly the auditors a re never g oing to observe [ the promotion of racism o r ethnic solidarity ] .” He ordered a new, separate ADE investig ation, which r eviewed only a selection of course materials and the MAS prog r am website. There are conflicting statements in the re c o r d as to whether ADE o f ficials even v isited classr o o m s as part o f the i n v e s t i g a t i o n

. Y e t , f

o l l o w i n g A D E ’ s i n v e s t i g a t i o n , Huppent h a l f

ound the MAS prog ram in violation of A .R.S. §§ 15-112(A)(2), (A)(3), and (A)(4).

I n reviewin g H u ppenthal’s finding of violation in the
contex t of plaintiffs’ equal p rotection claim, the district court held that deficiencies in the Ca m b i um Report, such as a limited number of classroom observati o n s a nd a supposed failure to obtain comprehensive information from the MAS department, g ave Huppenthal a reasonable basis to d isreg ard the Cambium Report. B ut these we re not the g rounds Huppenthal himself g ave f o r r e jecting the Report a

nd there

was certainly sufficient evidence for a reasonable f a ct-finderA R C E V

. D O U GL

A S 22

to infer o therwise. Whether the motivatio n behind Huppenthal’s r ejection of the Report was based on its alleg ed deficiencies, or whether it was based on a pred etermined intent to find the MAS prog ram in violation o f § 15-112, is a question for the fact-finder to decide.

I n short, applying the five Arlington Heights factors to the evidence of r e co r d

— t aken, as it must be for these purposes, most favorably to plaintiffs—there is sufficient evidence to raise a g e nuine issue of material fact as to whether the
enactment a

nd/o r enforcement of § 15-112 here challeng ed

was motivated, at least in part, by a n int e n t t o d iscriminate

a ga i n st MAS students on the basis o f their r ace or n ational orig in. 6 A ccording ly
, w e reverse the d istrict court’s g rant o f
summary judg ment for d e f e ndants on the e qual protection claim and remand it to the district court for trial. 7

6 P lain tif f s ad v an ce th e sep arate arg um en t th at § 1 5

- 1 1 2 s h o u ld b e stru ck d o w n b ecau se its en actm ent a nd e n fo rcem en t w as m o tiv ated b y a d esire
to d i s a d v an tag e a sp ecif i c, p o l itically un

po p u lar g ro u

p —th e stu den ts, teach ers, an d p aren ts w

h o su p p orted th e MA S p ro g ram

. T h o u g h th e d istrict co urt d idn o t ru le o n th is p articu lar issu e, w e f in dn o ev id en ce to

su p p o rt p lain t if

f s’ asse r tio n th at its en actm en t o r en f orcem en t in d ep en den tly targ eted su p p o rters o f th e MA S p ro g ram w ith ou t reg ard to th eir race o r n atio n al o rig in

.

7 P lain tif f s also p re s e n t a n a l t ern ativ e b asis f o r th eir eq u al p ro tectio n cl a im by in v o k i n g w

h at are k n o w n as th e “ p o litical stru ctu re” eq u al
p ro tectio n cases, Hu n ter v. Erickso n , 3 9 3 U

. S. 3 85 (1 9 6 9 ), an d Wa s h i n g ton v. S

ea ttle S ch o o l District No

. 1
, 4 5 8 U.S. 4 5 7 (1 9 8 2 ). S e e Co a l

. fo r Eco n

. Eq u ity v. W ilso n , 1 2 2 F

. 3d 69 2
, 7 0 4 (9 th Cir. 1 9 9 7 ). In Hu n ter an d W

a sh in g to n , th e Su

p rem e Co urt s tru ck d o w

n leg islatio n

th at p laced “ sp ecial b urd en s” o n racial m i n o rities w ith in th e g o v ern m en t al
p ro cess, m ak in g it m o re d if f icu lt f o r r a c i a l m in o rities “ to ach iev e l e g i s l atio n th at is in th eir in terest.” S ea ttle
, 4 58 U.S. at 4 7 0 (q u o tin g Hu n ter , 3 9 3 U.S. at 3 91
, 39 5 ). W e ag ree w i th th e d istrict co urt th at th ese

cases d o n o t ap p ly

h ere, as th e law s at issu e in Hu n ter an d S ea ttle “ dealtA R C E V

. D O U GL

A S 23

W e now turn to plaintiffs’ c laims under t he F irst Amendment. A s a g eneral matter, plaintiffs assert that their F irst Amendment rig h ts are implicated because the enforcement of § 15-11 2 impedes TUSD students’ rig ht 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). I n Pico
, a plurality of the Supreme Court recogniz ed that “t he rig ht to receive ideas is a necessary p redicate to the recipient’s meaning ful ex ercise o f his own r ig hts of speech, press, a n d political freedom,” a nd held, according ly
, that a school could not remove c ertain materials from its library because of a disag reement with the ideas in the book o r to impose upon the students a “political orthodox y .” Pico
, 4 57 U.S at 867, 875. In Montiero v. Tempe Union High School District
, 158 F .3d 1022 ( 9 th Cir. 1998),

we found that this rig ht ex tended to students’ rig ht to receive information in the contex t of the development of a school curriculum. Id. at 1 027 n.5. However, Montiero involved the

ex tent to which a third-party —a parent or g roup of parents— could attempt to limit the materials that a school furnishes to students and requires them to read. Id. at 1027–28. W e were

w ith p o litical o b stru ctio n s p laced in t h e w ay o f m in o rities s e e k i ng to

rem ed y id entif

i ed p attern s o f racial d iscrim in ati o n

. ” Va len cia v. Da vis
, 3 0 7 F.3 d 1 0 3 6, 10 4 0 (9 th Cir. 2 00 2 ). Here, w h ile th e MA S p ro g ram w as

exp an d ed an d i n co rp o rated in to T u cso n ’ s P o st Un itary Statu s Plan (“ P USP ” ) th at is p art o f an o n g o in g f ed erally en f

o rced d eseg reg atio n d ecree, s ee Fish er , 6 5 2 F.3 d at 11 3 4
, w e can n ot say th at th e p ro g ram w as d esig n ed to rem ed y past d iscrim i n atio n , as th e p ro g ram w as in i t ially d ev elo ped in 1 9 9 8
, o ve r ten y ears b ef o re th e P USP w as set in p lace. Fu rth erm o re, w e d o n o t f

in d th at § 15

- 1 1 2 set in p lace su bstan tial p o litical

o b stacles f

o r m in o rities to rem ed y p ast d iscrim in atio n

. T h e statute p laces lim itatio n s o n sch o o l curricu la w ith o u t s u b stan tially in terf

erin g w i th
p lain tif f s’ ab ility to seek relief th ro u g h t h e P USP o r th ro u g h th e state an d lo cal g o v ern m en t in itiativ es. A cco rd in g ly
, w e fi n d t h at th e eq u al
p ro tectio n

claim rests so lely

o n an Arlin g to n Heigh ts th eo ry

.A R C E V

. D O U GL

A S 24

not faced with the issue presented he r e , which involves the

ex tent to which a state superintendent can decide on the basis of his own evaluation to remove from a student’ s purview certain material other wi s e approved by the local school board. See id. at 1029.

Defendants argue that we should app l y our h olding in Downs v. L.A. Unified Schoo l D istrict
, 228 F .3d 1003 (9th Cir. 2000), a

nd the F ifth Circuit’s holding in Chiras v. Miller
, 432 F .3d 606 (5th Cir. 2005), both of which restricted speech in a school setting b ecause the sch ools’ actions were

c o n sidered g o vernment speech a nd were therefore immu n e from a forum o r viewpoint-discrimination analy sis. See Downs
, 228 F .3d a t 1 016–17; Chiras
, 432 F .3d at 612–17. However, neither o f these holding s involved a student’s F irst Amendment rig hts, and are accordingl y inapplicable to the i n stant c ase. In Downs
, we held that material that a teac h e r posted on a school b ulletin board wa s g overnment speech, and therefore the teacher h ad no F irst A m endment rig ht to challeng e regulation o f that material. Do w n s , 2 28 F

. 3d at 1005, 1011. I n Chiras
, the F ifth Circuit applied a g overnment speech analy sis to an author’s claim that the state’s rejection of his tex tbook for inclusion i n t h e classroom violated his F irst Amendment r ig hts. Chiras
, 432 F .3d at 607, 6 18. I n that

c o n t ex t , Chiras held that the selection of tex tbooks a nd development of c urriculum was g overnment speech and did
not cre a t e a p ublic forum in which the a uthor could a ssert a F irst Amendment rig ht. Id. at 6 1 8

. However, the court eng ag ed in an entirely separa t e a n aly sis (discussed below) with reg a rd to the other plaintiff, a hig h school student. Id. at 618 (“ T h e conclusion that no forum e x ists in this case does
not necessarily preclude” the student’s F irst Amendm e n t claim.). According ly
, w e find that the h olding s in Downs a ndA R C E V

. D O U GL

A S 25

Chiras
, at least with respect to their g o v ernment speech analy ses, are distinguishable from the instant case.

Therefore, we are tasked w ith determining the appropriate level of scru t i n y that applies to a state’s decision to restrict classroom materials presented as part of a c u rriculum approved by

a local school b o ard in lig ht of a student’s rig ht
to receive information and ideas. This analy sis necessarily implicates the delicate bala n c e b etween a student’s F irst A mendment rig h ts and a state’s authority in educatio n al
matters. See H

azelwood S

c h

. Dist. v. Kuhlmeier
, 484 U.S. 260, 266 (1988); Bethel Sch. Dist. No. 403 v

. Fraser
, 478 U.S. 6 75, 681 (1986); Pico
, 4 57 U.S at 866. Students do
not “shed their constitutional rig hts to freedom of speech o r

ex p ression at the schoolhouse g ate,” a nd, y et, these r ig hts must be applied “in lig ht 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 o ther c ircuits have g rappled with the breadth of a student’s F irst Amendment r ig ht s i n t h e contex t of the development of a school c urriculum, and they have developed
tests g ranting vary

ing leve l s o f leniency to the g overnment. F or ex ample, the Eleventh a nd Eig hth Circuits have developed tests that require scho o l s to provide leg itimate

reasons f or limiting students’ access to information. I n Virgil

v. S chool Board of Columbia C o u n ty , 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 K u h l m e ier
, the Court held that

a school could ex er c i s e editorial control over a student
newspaper, which w as f

o u n d t o be part of the curriculum, 484 U.S. at 271, “so long as [ the educators’] action s a re reasonably related to leg itimate pedag og ical concerns,” id. atA R C E V

. D O U GL

A S 26

2 7 3. I n Pratt v

. Indiana School District No. 831
, 670 F .2 d 771 ( 8th Cir. 1 982), the E ig hth Circuit held that “the [ school] board must establish that a substantial and reasonable
g overnmental interest ex ists for interfering with the students’ rig ht to receive informat i o n

. ” Id. at 777. There, the court found that a school board c o uld not remove a controv ersial film from its curriculum because a majority of its m e m b e rs objected to the film’s relig ious and ideolog ical content. Id. at 773.

The Seventh and Fi f

t h Circuits g ive the g overnment g reater scope in curtailing sch o o l c urricula. In Zykan v

. W arsaw Community School Corporation
, 631 F .2d 1300 (7th Cir. 1980), the Seventh Circuit found that “ n othing in the Constitution permits t h e courts to interfere with local educational discretion unti l local authorities b eg in to substitute rig id and ex clusive indoctrination for the mere

ex e r cise of their prerog ative to make p e dag o g ic choices
reg arding matters of leg itimate dispute

. ” Id

. at 1 3 06. The F ifth Circuit in Chiras limited a student’ s rig ht to receive information to materials available in th e s c h o ol library
, but stated arguendo that if the decis i on in Pico did apply in the
contex t of curricular decis i o nmaking
, the state’s discretion

was limited o nly if motivate d b y “ narrowly partisan o r 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 1 5 1 7
, a nd applied the Supreme Court’s Kuhlmeier test to plaintiffs’ F irst Amendment claims. Thoug h the facts in Kuhlmeier are somewhat distinct from this case in that it involved students’ rig ht to sp e a k a s opposed to rig ht t o r e c e ive, we ag ree with the district court that Kuhlmeier ’s reasoning can be read to establish that stateA R C E V

. D O U GL

A S 27

limitations on school curricula that restrict a student’s access to materials otherwis e a v a i lable may be upheld only where they are reasona

b l y related to leg itimate pedag og ical concerns—especially in a contex t such as this, whe r e the local school b o ard has already determined that the material at issue adds value to its l o c a l school curriculum. Granting wider d iscretion has the potential to substanti a l l y hinder a student’s a

bilit y to develop the individualiz ed insig ht a nd

ex p erience needed to meaning fully e x ercise her rig hts o f speech, press, and political f re edom. P ico
, 457 U.S. at 867. According ly
, we adopt the standard employ ed by the district

c o u r t and hold that the state may not remove materia l s otherwise available in a local classroom unless its actions a re reasonably r e l a ted to leg itimate pedag og ical concerns. Kuhlmeier , 484 U.S. at 273. 8

8 Def en d an ts arg u e, seem in g ly f or t h e f irst tim e o n ap p eal, t

h at th ey are

n o t resp o n sib l e f

o r th e elim in atio n of th e MA S cu rricu l um an d its

m aterials, b u t rath er th at T USD is. T h eref o re, th ey assert, th ey s h o u ld n o t b e liab le f

o r curricu lar d eci s i o n s o f th e sch o ol d istrict th at m ay h av e in f rin g ed o n p lain tif

f s’ First A m en d m en t rig h ts. T h is ch aracterizatio n o f th e cir c u m stan ces su

rro un din g t

h e rem o v al o f m aterial is artif icial an d ig n o res co m

p letely th e f

act th at f

o rm e r S u perin ten d en t H u

p p en th al d i r e c t l y cau sed
, i n d eed o rd ered
, T USD to rem ov e MA S- related b o o k s f ro m its curricu l um as p art o f h is f in d in g T USD w as n o t i n co m p lian ce

w ith § 1 5

- 1 1 2. S p e c i fically
, th e State n o t o n ly im p o sed a f in e o f ten p ercen t o f state f

un d in g un ti l T USD cam e in to co m p lian ce, b u t also
req u ired p ro o f t

h at all MA S in stru ctio n al m aterial h ad b een rem ov ed f ro m T USD classro o m s. Fo rm er Su p eri n ten d en t Hu

p p en t h al w as perso n ally
resp on s ib le f

o r m o n i to rin g co m

p lian ce w ith th is d em an d

. T h eref o re, ev en if d ef en dan ts h ad n o t w aiv ed th eir arg u m en t b y f ailin g to raise it belo w , w e f i n d th ere is n o g enu in e d isp u te th at th e d ef

en d an ts are resp o n s ib le f

or th e elim in atio n o f th e p ro g ram an d rem o v al o f m aterial f ro m th e classro o m an d are acco r d i n g ly su b j ect t o p lain tif

f s’ First A m en d m en t claim s.A R C E V

. D O U GL

A S 28

Having established the relevant scope of a student’s F irst Amendment rig h t in this contex t, w e t u r n to plaintiffs’ two specific claims that that rig ht is infring ed by § 15-112, to wit, that the statute is overbroa d a nd that it imparts viewpoint discrimination. Turning first to overbreadth, a law m a y b e invalidated under the F irst Amendment o verbreadth doctrine i f “ a s ub s t a n t i a l n u m b e r of its app l i c a t i o n s a r e unconstit u tional, judg ed in relation to the statute’s plainly leg itimate sweep.” United States v. Stevens
, 559 U

. S

. 460, 473 (2010) (quoting W

a sh. S t a t e G range v. W a sh. State Republican Party
, 552 U.S. 442, 449 n .6 (2008)); Comite de Jornaleros de Redondo Beach v. City of Redon d o B e ach
, 657 F .3d 936, 944 (9th Cir. 2011). The d octrine ex ists out o f

concern that the threat of enforcement of an overbroad law
may chill constitut i o n a lly protected speech. Comite de Jornaleros , 657 F .3d at 944.

The f irst step in an overbreadth analy sis is to construe the statute, as “ it is impossible to d etermine whet h e r a statute reaches too far without first knowing what the statute covers.” Id. at 945 (quoting United States v. W illiams
, 5 53 U.S. 285, 293 (2008))

. Using Ariz ona’s own rules of statutory construction o f its statutes, we look to the statute as a whole, and, where the lang u ag e of the statut e i s c l ear a nd unambig uous, we will not look bey ond that lang uag e but will

assume the leg islatur e m e a ns what it say s. Arizona D ep’t of Revenue v

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

. 2008); TDB Tucson G rp., L.L.C. v. City of Tucson
, 263 P.3d 669, 672 (Ariz . Ct. App. 2011). 9

9 Fed eral ru les o f statuto ry co n stru ctio n are th e sam e in th ese resp ects as A rizo n a’ s. S

ee Fo o d & D ru g Ad

min

. v. Bro w n & Wi llia mso n To b acco Co rp

. , 5 2 9 U.S. 1 2 0
, 1 3 3 (2 0 0 0); Aven d an o -Ra mirez v. Ash cro

ft
, 3 65 F.3 d 8 1 3 , 8 1 8 (9 th

Cir. 2 0 0 4 ).A R C E V

. D O U GL

A S 29

The district court fo u n d that the primary leg itimate
purpose of the statute, o n its face, is to prohibit courses that “promote racism,” and the like, a h o lding which neither party challeng es o n appeal. Cf. A. R.S. § 1 5-111 (“The leg islature finds and declares that public school pupils should be taug ht
to treat and value each other a s individuals and not be taug ht
to resent or hate o ther races or classes o f people.”). Apply ing the Kuhlmeier standard discussed above, the distri ct court assessed whether the statuto r y p rovisions of § 15-112 a re reasonably related to the leg iti m a t e pedag og ical interest o f reducing racism in schools. Plaintiffs appeal t h e d i strict court’s decision u

p holding § 15-112(A) g enerally
, and § 15- 112(A)(2) and (A)(4), specifically
, un der a F irst A mendment overbreadth analy sis. De f endants, in their cross-appeal, challeng e the district c o u r t’s determination that § 15- 112(A)(3) is overbroad.

Section 1 5-112(A) beg ins: “A school d i s trict or charter school in this state shall not include i n i t s p rog ram o f instruction a

ny c ourses or c lasses tha t i nclude any o f the f o l l owing : [ the four enumerated p rohibitions]. ” P l a i nt i f f s n o w argue that the p hrases “any cour s e s or classes” a nd “include
any ” are overbroad, because they r esult in onerous penalties

on the school distr i c t i f prohibited content is found in even

one course or class. W hile we are skeptical that this is a reasonable reading o f the statute as a who le g iven its provision of a 60-day “cure” pe r i o d that could easily deal with an isolated violation, we need not reach the issue, f or it

was not fairly raised below. I n deed, the district court, in its detailed opinion, did not ex p ressly make a f i nding with
reg ards to § 15-112(A) g enerally

. W e fi n d 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 challeng edA R C E V

. D O U GL

A S 30

as a whole on F ir s t Amendment overbreadth g rounds. According ly
, the issue is not properly before us here.

But there is no question that plaintiffs did chall e n ge subsections (A)(2), (A)(3), and (A ) (4 ) on overbreadth
g rounds, so we consider each in turn. Section 15-112 (A ) (2) prohibits any c ours es or classes that “[ p] romote resentment toward a race or class of people.” Plaintiffs’ challeng e to this provision stems from a fear that the s t at u te w ill be used to targ e t courses or classes that incidentally promote resentment towards a r ace or class o f people, even thoug h the course was not desig ned for that purpose but seeks to impart to students

a rang e of historical and cultural p e rspectives. F or ex ample,
t h e y are concerned that a discussion in an Eng lish c lass o f Mark Twain’s The Adventures o f Huckleberry Finn o r Richard Wrig ht’s Black Boy mig ht inadvertently bring about feeling s of resentment in some students and prompt a finding of violation.

Ho w e ver, we ag ree with the district c ourt that the provision on its face is n ot o verbroad in v iolation of the F irst Amendment, because the statute targ ets the desig n a nd implementation of c ourses and curricula and does not restrict individual student speech o r class d i s cussions. 1 0 As the district c ourt found: “[ T] he word ‘promote’ takes on a more intentional and active meaning in this contex t. I n this way , a g i v e n c l ass discussion could incidentally promote resentmen t , but to s ay that a course desig ned to teach about the oppression of Mex ican–Americans is automatically a class

10 W e w o u ld sh are p lain tif f s’ co n cern s in th e ev en t th e statute w ere u s ed
to cen so r m aterials th at in d i v idu ally
, an d in cid entally
, co u ld cau se f eelin g s

o f resen tm en t b u t th at are p laced w ith i n th e co n tex t o f an en tire co urse or

curricu lum in a m an n er th at creates an u n b i ased p resen tatio n o f m aterial.A R C E V

. D O U GL

A S 31

t hat ‘ promotes resentment toward a race’ would stretch th e plain meaning of ‘promote’ too f ar.” Acosta
, 2013 W L 871892, at *9.

The ex ceptions to the statu te also support the district court’s finding that the statute targ e ts the desig n of c o u rses and n ot individu al feeling s or class discussions, because the

ex c e ptions provide additional limitations on the s tatute’s reach. Section 15-112(F ) states that “[ n ] o thing in this section shall b e construed to restrict o r prohibit the instruction of the holocaust, a

ny other instan c e of g enocide, or the historical oppression of a particular g roup of people based on ethnicity
, race, o r class.” A.R.S. § 15-112(F ) (emphasis a d d ed). This instructs the state and the school districts that the statute should not b e construed in a manner that would prohibi t the objective inst ru ction o f historical oppression, r eg ardless o f whether that instruction incidentall y promotes resentment t owards a race or c lass of people. I t would be inapp r o p r i a t e for us to read the statute more broadl y t o find that this
p r o v i s i o n u n c o n s t i t u t i o n a l l y p r o h i b i t s c o u r s e s t h a t unintentionally promote resentment, as the provision i s readily susceptible to the more narrow construction we have identified. S

ee Stevens
, 559 U.S. at 481. A c c o r d ing ly
, we affirm the distric t court’s holding that § 15-112(A)(2) is not overbroad in violation of the F irst Amendment, because we cannot conclude that a substantial number o f its applications would not b e reasonably related to the state’s l e gi timate pedag og ical 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 o f pupils as individuals,” is not overbr o a d in violation of the F irst Amendment. Ag ain, we ag ree. Plaintiffs assert that thereA R C E V

. D O U GL

A S 32

is nothing inherently racist about “advocating ethn ic solidarit y ,” a

nd, therefore, the statute proscribes instruction that is not related to the state’s objective in reducing racism. However, we find that the statute, as w ritten, does not broadly prohibit courses that advocate ethnic solidarity
, but o n ly

courses that advocate e t h n i c solidarity instead of treating students as individuals, in e ffect another form o f racism. The latter half of the provision sufficiently limits the statute within constitutional bounds. F or ex ample, a c ourse that advocates ethnic solidarity and treats students as individuals would not violate the statute. According ly
, w e h old that, when reading the provision in its entirety and construing it in lig ht of the whole st at u t e , § 1 5-112(A)(4) is reasonably related to the state’s leg itimate p edag og ical interest in reducing racism, and affirm the district court’s decision that it is not overbroad in violation of the F irst Amendment.

The only provision the district cour t f ound to be constitutio n a l l y overbroad in the sense we have been discussing is § 15-112(A)(3), which pro h i bits courses a nd classes that “[ a] re desig ned primarily f or pupils of a particular ethnic g roup.” The court found that any leg itimate purpose thi s p r o vision could serve is a lready encompassed b y subsections ( A)(2) and (A)(4). I f a course desig ned p rimarily f o r p u pils of a particular ethnic g roup does not promote resentment towards other races or classes of people and does
not adv o c a t e ethnic solidarity instead of treating pupils a s individual s , the court questioned whether any leg itimate
purpose c o u l d b e served by forbidding such classes. W e ag ree. The very dang er we perceive w as corroborated, at oral
argument, when w e asked c ounsel for d efendants whether the
statute c ould be found to prohibit a publi c school course in S a n F rancisco on the topic o f Chinese history that was o p en to all students but w as desi gn e d in consideration of theA R C E V

. D O U GL

A S 33

substantial Chinese and Chinese A meri c a n s t u d e nt p o p u l ation there that m i gh t benefit from a g reater understanding o f its history

. Defendants a sserted that the c o urse could be found in violation. As indicated b y this ex ample, subsection (A )(3) thr eatens to chill the teaching of e thnic studies courses that
may offer g reat value to s t u d ents— y et it does so without furthering the leg itimate p edag og ical p urpose of reducing racism. W e t h e refore affirm the district court’s holding that (A)(3) is overbroad in violation of the F irst Amendment.

Turning nex t to plaintiffs’ other F irst A mendment challen ge t o § 15-112—namely
, that it imposes viewpoint discrimination—plaintiffs ag ain complain that t h e district
court prematurely e ntered summary judg ment ag a inst them

on this c laim. Plaintiffs raised a F irst Amendment viewpoint discrimination argument in their second mo t i o n for prelimi n ary injunction, b ut only moved for summary j u d g ment on their F irst Amendment overbreadth claim. Nevertheless, the district court g r ant ed summary judg ment for d efendants on all of plaintiffs’ F irst A m endment claims,

even thoug h the viewpoint discrimination claim had not been briefed by either of the parties i n t h e ir cross-motions for
summary judg ment. Moreover, in contrast to i t s sua sponte g rant of summary judg ment d i s c u s sing plaintiffs’ equal protectio n claim, here the order of the d istrict court did not

even review the evidence with respect to t h e v iewpoint discrimination claim. Accordingly
, we remand that claim to the district court for appropriate further proceeding s.

F inally
, we turn to plaintiffs’ claim that § 15-112 is v ag ue in violation of the F ourteenth Amendment Due Process Clause. As an initial matter, we must determine w het her plaintiffs have standing to pursue a due process challeng e to § 15-112. A s stated in a footnote t o i ts decision, the districtA R C E V

. D O U GL

A S 34

court assumed, witho u t deciding
, that the plaintiffs have standing for purposes of their vagu eness claim. It proceeded
to decide the merit s o f the claim and g rant summary judg ment for defendants. H owever, before we proceed to the merits, we must first establish that we have jurisdiction to consider the due process claim. 1 1

Defend a n ts argue that plaintiffs have only a g eneraliz ed interest in the validity o f the law and, therefore, lack standing
to pursue a v agu e ness c laim. See Hollingsworth v. Perry
, 133 S. Ct. 2652
, 2 6 6 2 (2013). They base this position on three arguments: (1) that plain t i f f s cannot challeng e 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 (9 t h C i r. 1984); (2) that plaintiffs cannot challeng e it as applied to them, because the
statute targ ets the conduct o f school districts a n d charter schools, not individuals, see United S t ates 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 challeng ed statute,

see Engquist v. Or. Dep’t of Agric.
, 478 F .3d 985, 996 (9th Cir. 2007).

However, where the effect o f a vag ue statute would infr i n ge upon a party ’s F irst Amendment r ig hts, standing requirements to challeng e the s t at ute under the F ourteenth Amendment Due Process C l a u se are broader than they

11 A s th e issu e o f stan d in g h ere is a q u estio n o f l a w , n o t fa c t, w e w i l l

assess w h eth er w e h av e j urisd i ctio n rath er th an rem an din g th e q u estio n to th e d istrict co urt. Cf. S teel Co

. v. Citizen s fo r a Better En vir o n m en t , 5 2 3 U.S. 83
, 10 9

– 1 0 ( 1 9 9 8 ) (assessin g f o r itself w

h eth er a p lain tif

f h ad
stan d in g b ef

ore en g ag in g inth e m erits o f th e lo w er co urt’ s d ecisio n ).A R C E V

. D O U GL

A S 35

otherwise mig ht be. S

ee Hynes v. M

ayor & Cou ncil of Borough o

f O radell
, 425 U.S. 610 ( 1976); M aldonado v

. Morales
, 556 F .3d 1 0 37 ( 9 t h Cir. 2009). I n Hynes
, a local ordinance required any o n e c a nvassing or calling house-tohouse for a charitable or political purpose to g ive advan ced

n o t i c e to the local police. 4 25 U.S. at 611. The Supreme Court found that th r ee r egistered voters could pursue a d ue process v a g u eness claim challeng ing the or d inance, even thoug h they

were not the individuals directly targ eted by

the
statute. The Court f

ound “[ the voters’] rig ht to receive information would be infring ed because persons canvassing for political causes would b e uncertain whether the ordinance covered them.” Id. at 620, 621 n.5. W e reached a similar
outcome in Maldonado
, where w e recogniz ed that “[ a] lthoug h plaintiffs are g enerally limited to enforcing their

own r ig h ts,” standing is broader where a p l a i n t i ff’s F irst Amendment rig hts are implicated. See 556 F .3d at 1044. “[ A] plaintiff alleg ing that a statute is void for vag ueness a nd overbreadth resulting in a chilling eff e ct on speech has standing even if the law is constitutional as applied to him.” Id. There, the plaintiff alleg ed constitutional chal leng es to a California statute that bars offsite c ommercial advertising on billboa r d s a long a landscaped freeway

. Id. at 1040. The plaintiff had been cited numerous times for using a billboard

on his property for offs i t e commercial advertising
, a nd his lawsuit challeng ed both p rovisions o f the statute that a pplied
to him and p rovisions that did not. Id. at 1044. W e found that he had standing to p roceed with his void-for-vag ueness claim

even with respect to the provisions that did not apply to him, because the statute’s alleg e d v a g ueness affected his F irst Amendment rig hts. Id. at 1044–46.

Here, as already sug g ested by our discussion of plaintiffs’ F irst A m e n d ment claims a bove, p laintiffs have a libertyA R C E V

. D O U GL

A S 36

interest g r ounded in their F irst A men d m e n t rig ht to receive information. See Krug v. Lutz
, 3 29 F .3d 692, 696–97 ( 9th Cir. 2003). I n Krug
, we held that a p r i s o n inmate had “a liberty interest in the receipt o f his subscription mailin g s sufficient
to trig g e r procedural due process g uarantees,” and that this liberty interest was r ooted in the inmate’s F irst A mendment rig hts. Krug
, 329 F .3d at 696–97. Similarly here, if the statute is found to be vag ue o n its f ace, or as applied to TUSD’s MAS prog ram, it will have a direct impact on plaintiffs’ rig ht
to receive information. Accordin gl y , we find that plaintiffs have standing t o c h a lleng e § 15-112 under the F ourteenth Amendment Due Process Clause. W e now proceed to the merits of this claim.

A statute is impermissibly vag ue if it “fai l s to provide a reasonable o pportunity to know what conduc t is prohibited,

o r i s so indefinite as to allow arbitrary and d iscriminat o r y enforcement.” United States v

. Mincoff
, 574 F .3d 1 186, 1201 (9th Cir. 2009). Plaintiffs argue that the phrases “ resentment toward a race or c lass of people,” A .R.S. § 15-112(A)(2), a nd “advocate ethnic solidarity instead of the treatment of pupils

as individuals,” A.R.S. § 15-112(A)(4), a r e vag u e because they have a

n insufficiently objective meaning and p o s e a dang er o f “ad hoc and subjective” enforceme n t

. Gr ayned v

. City of Rockford
, 408 U.S. 104, 109 (1972). The district court rejected these (and o ther vag ueness claims no t p ursued on appeal) b y noting t h at when these phrases are viewed in the
contex t of the entire statute, they provide a person of ordinary intellig ence f

air notice of what co n d u c t is prohibited. Id. at 108, 112.

W e a g ree. 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, 7A R C E V

. D O U GL

A S 37

(1947)). F or many of the same r easons discussed in the overbreadth analy sis ab o v e , and in lig ht of the statute’s
purpose to reduce racism in schools, see A.R.S. § 1 5-111, we find that the phrases here in issue sufficiently gi v e n o t i ce a s t o what conduct is p rohibited and do not inherently i n v i t e arbitrary enforcement.

Plaintiffs primarily r ely o n the case of T u c s o n W o man’s Clinic v. Eden
, 379 F .3d 531 (9th Cir. 2004), where we held
t hat a requirement that phy sicians treat patients “w i t h consideration, respect, and full recognition of t h e p atient’s dig nity a nd indivi du ality ” was vag ue in violation of d ue proce ss, because the terms “consideration,” “respect,” “dig nity ,” and “individuality ” had w idely va r y ing meaning s to different people. Id. at 5 5 4–55. 1 2 Unlike in Tucson W oman’s
, however, we do n ot find that the challeng ed phrases have widely vary ing meani ng s—especially in the
contex t of the entire statute. Thus, t h e phrase “promotes
resentment toward a race or class of peopl e” reasonably targ e ts classes or courses that a re desig ned with the intention to prom o t e resentment, or to invite racism in schools. Similarly
, the phrase “advocate e thnic solidarity instead o f
t h e t r e a t m e n t o f p u p i l s a s i n d i v i d u a l s ” i s n o t unconstituti o n ally vag ue, because “advocate” inherently implies a n affirmative act and intent, and t h e conduct o f advocating“ethnic solidarity” is prohibited only if it is done

12 Def en d an t s arg u e th at Tu cso n W o ma n’s is d istin g u ish ab le, b ecau se i t in v o lv ed a crim in al statut e t h at is su b j ect to stricter rev iew

. S

ee Vill. o f Ho ffma n Esta tes v. Flip s id

e , 4 55 U.S. 4 8 9
, 49 8

– 9 9 ( 1 9 8 2). Ho w ev er, Flip s id e also states th at “ [if

]

. . . th e law in terf

eres w ith th e rig ht o f f

ree sp eech o r o f asso ciatio n , a m o re strin g en t v a g u en ess test sh o u ld ap p l y .” I d

. a t 4 9 9

. A cco rd in g ly
, w e co n sid er plain tif f s’ claim un d er a m ore strin g ent test, g iv en th at th e resu l t o f o ur an aly sis w ill im p licate p lain tif

f s ’ First A m en dm en t rig h t to receiv e in f orm atio n

.A R C E V

. D O U GL

A S 38

instead of treati n g p u p i ls a s individuals. W e ag ree with the district court that t h e jux taposition of these phrases is sufficiently c lear so that a teacher or scho o l d i s t rict could tailor its conduct to conform to the statute. F or these reasons and the similar reasons in our discussion o f the F irst Amendment overbreadth claims above, we affirm the district court’s holding that subsections (A)(2) and (A)(4) a re not vag ue in violation of the F ourteenth Amendment. 1 3

F inally
, and notwithstanding our directions to remand the

e q u a l p ro t e c t i o n a n d F i r s t A m e n d m e n t v i e w p o i n t d iscrimination claims for f urther proceeding s, we mu s t

r e v iew the district court’s d ecision that § 15-112(A)(3) is severable from the rest o f the statute, as it is the one provision

we affirmatively have held to be unconstitutional. A statute’s severability is determined und e r s t a te law. See Dep’t of Treasury v. Fabe
, 5 08 U.S. 491, 509–10 (1 9 9 3 )

. Under Ariz ona law, severability “is a question of leg islative intent.” S t a t e v. Pandeli
, 161 P.3d 557, 573 (Ariz

. 2007). The question is whether the leg islature would h ave enacted the
statute w ithout the unconstitutional pro v i s i o n , if it knew o f the invalidity , or “as otherwise stated, [ whether] the valid or invalid parts are not so i n timately connected as to raise the

13 P l ain tif f s also f ail to sh o w th at § 1 5

- 1 12 is v ag u e as ap plied

. T h ey arg u e th at m aterial f

acts ex ist as to w

h eth e r t he s t a t u te’ s alleg ed lack of
stan d ard s allo w ed d ef

en d ants to en f

o rce th e statute in lin e w ith t h eir o w n p re- f o rm ed biases ab o u t t h e M A S p ro g ram

. Ho w ev er, t h ey co n f l ate th is
arg um en t w ith th eir eq u al p ro tectio n s electiv e en f o rcem en t arg um en t s, in th at th ey d o n ot ad eq u ately exp lain h o w th e alleg ed ly v ag u e w o rd s in th e statute allo w ed f

o r d iscrim in ato ry en f

o rcem en t in th is in stan ce. A rb itrary

o r d iscrim in ato ry en f

o rcem ent o f a statute d o es n o t n ecessarily m ean th at th e statute w as v ag u e. A cco rd i n g ly
, w e af f irm th e d istrict co urt’ s h o ld in g th at th e statu te is n o t v ag u e as ap p liedto th e MA S p ro g ram

.A R C E V

. D O U GL

A S 39

presumption that the leg islature woul d n o t have enacted the one without the other.” Id.

The district court held that “there appears to b e 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 leg islature would not have enac ted the
statute without subsection (A)(3).” Acosta
, 2013 W L 871892,
at *10. W e ag ree. Reviewing the statute on its face, the provisions of § 15-112 are not so intimately intertwined a s to create a presum p t i o n that the leg islature would not have enacted t h e statute without § 15-112(A)(3). Subsections (A)(1), (A)(2), a n d (A)(4) targ et d ifferent ty pes of conduct and are individually e nforceable without (A)(3). 1 4 Therefore,

we affirm the district court’s decision that § 15-112(A)(3) is severable from the rest of the statute.

I n sum, we affirm the district court’ s ru ling s that § 15- 112(A)(3) is unconstitutional in violation o f the F irst Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation o f the F irst Amendment; and that § § 15-112(A)(2) an d ( A)(4)

14 P lain tif f s also p o in t u s t o asp ects o f th e leg islativ e h isto ry w h ere th e sp o n so r o f th e b ill a n d f

orm er Su p erin ten d en t Ho rn e co m

m en t on th eir
g o als to s t o p g r o up i n g stu den ts b y race, an d to d raf ts o f § 1 5- 1 1 2 th at in d icate w

h en su bsectio n (A )(3 ) w as ad d ed to th e b ill. S ee H.B

. 22 8 1 S. Co m m

. Ed u c. A cco un tab ility an d R ef orm Hearin g at 2 :4 3 : 0 3

– 1 3 (statem en t o f Rep

. S tev e Mo nten eg ro ); H.B

. 2 2 8 1 Ho u se Ed u c. Co m m

. Hearin g at 1 :3 1 :1 8 (st a t e m e n t of Su p erin ten d en t Ho rn e); Mo n ten eg ro Flo o r A m en d m en t, H.B

. 2 2 8 1
, 4 9th L eg ., 2 d Sess. (A riz. 2 0 1 0 ), a va ila b le

a t h t t p : / / w w w

. a z l e g

. g o v / / F o r m a t D o c u m e n t

. a s p ? i n D o c = / l e g t e x t / 4 9 leg /2 r/ad o p ted / h

. 2 2 8 1 sm

. d o c

. h t m & S e s sio n

_ ID=9 3

. W e are n o t p ersu ad e d th at th ese iso lated asp ects o f th e l eg islativ e h isto ry sh ow th at th e leg islatu

re w o u ld n o t h av e en acte d § 15

- 1 1 2 w ith o u t su b sectio n (A )(3 ).A R C E V

. D O U GL

A S 40

are not vag ue in violation of the Due Pro c e s s C l ause. W e

r e v e r se the district court’s g rant of summary judg ment f o r defendants on plaintiffs’ equal p r o t ection claim and remand that claim f

or trial. L astly
, we remand plaintiffs’ F irst Amendment viewpoint discrimination claim to the district
court f or further p roceeding s in accordance with this opinion. Each party

shall bear its own costs on appeal.

AF F IRMED in part, REVERSED in p a r t , a nd REMANDED

.

CL I F TON, Circuit J udg e, c o ncurring in part and d i s s e n ting in part:

I ag ree w ith and c o n cur in most of the majority o p i n i o n, but I have one sig nificant disag reement that prevents me from

c oncurring in full. The majority opinion concludes, at 1 4
, t hat there a

re g enuine issues of fact reg arding whethe r t h e enactment and / o r enforcement of A.R.S. § 1 5 -112 was motivated at least in part by a discriminatory intent. I t thus orders that the equal protection claim be r e manded for trial. I a g ree that the equal protection claim should be remanded, but I cannot ag ree that Plaintiffs have already presented sufficient evidence to establish that there is a g enuine dispute of material fact on that issue. W e should simply remand for further proceeding s, without precluding further consideration of summary

judg ment.

The majority opinion c oncludes, s pecifically
, that sufficient evidence was presented to raise a g enuine disp u te

as to whether the enactment and/or enforcement of the statute “was m otivated, at least in part, by an intent to d iscriminateA R C E V

. D O U GL

A S 41

ag ainst MAS students on the basis of t h e i r r ace or n ational orig in.” Majority op. at 22. I n doing so, h o w e v e r, the majority o pinion conflates antipathy toward Tucson’s Me x ican American Studies prog ram (“MAS”) with animus toward Mex ican Americans more g enerally

. They are not the

same. The district court recogniz ed that difference when it concluded that “t h e evidence indicates that Defendants targ e ted the MAS prog ram, not L atino students, teachers, o r community members who supported or participated in the
prog r am.” The majority

opinion ig nores that distinction.

All of the evidence cited by the major i t y o p inion to support its conclusion p ertains specifically t o the T u cson MAS progr a m , not to g eneral hostility toward Mex ican Americans. The majority leans heavily , for ex ample, on the observation that statute was enacted in response to complaints about the Tucson MAS prog ram and h as been enforced only
ag ainst th at prog ram. Id. at 7 & 16. I t cites a leg islator’s
neg ative description of the T u cson MAS prog ram and attacks

on that prog ram by other politicians. Id

. at 1 9 –20. B u t what it doesn’t point to is evidence that s up p o rts the contention that the motivation for enacting o r enforcing the statute was ani m u s ag ainst Mex ican Americans. That there was

o p p o s ition to the Tucson MAS p rog ram does not prove th at 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 g iven the opportunity to brief t h e e q ual protection c laims under a summary judg ment a n a l y sis. I ag ree that Plaintif

f s s h o uld be g iven the opportunity to present that evidence, but we should not pretend that proof o f that proposition is a lready in the record. As the record standsA R C E V

. D O U GL

A S 42

n o w , t here is not enoug h to justify the majority opinion’ s conclusion.

There could have been go o d reasons for public officials
to oppose the Tucson MAS prog r am without any racial animus whatsoever. The Tucson school district appealed the finding s of Superintendent J o hn Huppenthal that the prog ram violated the statute, and following an evidentiary hearing
, an administrative law judg e f ound that t h e T u cson MAS
prog r am did, in fact, v iolate the statute. The judg e concluded that the prog ram had courses t hat v iolated § 15-112(A)(2) (promoting racial resentment) and (A)(4) (advocating ethnic solidarity instead of treating pupils as individuals). He concluded that the prog ram had “courses desig ned for L atinos

as a g roup that promote[ ] racial resentment ag ainst ‘W hites.’” He found that evidence at the hearing “dem o n s t r a te[ d] that MAS classes cause students to de v e lop a sense or racial
resentment toward the ‘ w hite oppressor’ or ‘dominant ’ g roup. The philosophy of ‘us ag ainst them’ is a persistent theme that

ex ists within the MAS prog ram.”

Those conclusions are not b e f o r e us for review, and I have no independent knowledg e or basis to say whether they

were a ccurate. B ut if a public official believed those charg e s to b e true, that officeholder’s opposition to the Tucson MAS
prog r am w ould not b e surprising and w o u l d not itself demonst rate a

ny discriminatory motivation. The majority
op inion ag rees with the district court’s conclusion that the
statute is not discriminato r y on its face, and I ag r ee a s well. I f so, then support for the statute, without any other proof of racial animus, does not prove discriminatory motivation.

I respectfully dissent fr o m that portion of the majority opinion.