Maya Arce v. John Huppenthal

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MAYA ARCE; her father and next Nos. 13-15657
best friend, SEAN ARCE, 13-15760
Plaintiffs-Appellants/
Cross-Appellees, D.C. No.
4:10-cv-00623-
v. AWT

DIANE DOUGLAS, Arizona OPINION
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.

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/Cross-
Appellees.

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, and Elizabeth 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., for Amici
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 Anti-
Defamation 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&L Gates 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 away with 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,1 the 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 Fourteenth Amendment void-for-
vagueness 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 their favor 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 contemporary Mexican American
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, specifically MAS. When this informal effort failed,
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/public-
relations/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 or substantive
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 Heights to 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 discriminatory motive
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 enforced with discriminatory intent. 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 (9th Cir. 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 of the historical background of § 15-112, specifically with 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 anti-
immigration 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.
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. go v / /
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, “I fought 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 necessarily applied 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 incidentally promote 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-to-
house 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 WL 871892,
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.