Most readers of this blog have probably heard about the new Arizona law that, depending on whom you ask, “bans ethnic studies“, “rein(s) in ethnic studies“, or “curbs chauvanism (sic) in ethnic studies“.
I thought it might be a useful exercise, though, to tamp down the rhetoric and just look at the actual text of the provisions. So here we go:
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.
This isn’t an active part of the law — it’s just the declaration of policy. Courts might take a look at this as part of their determination of whether there’s some sort of nefarious, impermissible legislative intent at work, but it’s mostly just for show. Still, nothing objectionable here. I think pretty much everyone agrees that hating races or classes of people is bad, unless you’re talking about child molesters, businessmen, Nazis, clowns, communists, Republicans, terrorists, or the Jews. (People seem to disagree about hating those classes of people.) Moving on.
A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:
1. Promote the overthrow of the United States government.
While it’s certainly politically protected speech to advocate the future (though perhaps, depending on context, only nonviolent) overthrow of the United States government, there’s a very big difference between the government’s prohibiting speech on the one hand, and the government’s producing its own speech on the other. I can’t see that this provision is really problematic.
2. Promote resentment toward a race or class of people.
This seems horrifically vague to me. What is a “class” of people? I don’t see it in the definitions for Title 15 of the Arizona Revised Statutes… though perhaps it’s defined elsewhere.
Now, we might think that promoting resentment is never a good idea, towards any group of people whatsoever. But that just puts us in a further bind: what’s “resentment”? One would hope that the law would be interpreted by courts not to require the actual word “resentment” to show up in a lecture or textbook in order for the offending course to qualify. But beyond that, I have a hard time imagining how a jurist could make a determination that a course was promoting resentment.
3. Are designed primarily for pupils of a particular ethnic group.
This seems problematic, also. Good pedagogy might demand that certain courses be designed for certain ethnic groups. Now, later on we are assured by section (E)(2) that the law does not prohibit:
The grouping of pupils according to academic performance, including capability in the English language, that may result in a disparate impact by ethnicity.
But there’s more to a course designed for a particular ethnic group than language issues. I’m imagining something like a group of immigrants moves to Arizona and their kids start attending school and it turns out that what they really need is a primer on existing in a society with television and electronic media. So the principal designs a quick and dirty course for these immigrants to help them through the culture shock they are experiencing.
Sorry. Can’t do that!
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.
I can only assume that the person who wrote this provision was either a moron or was just being careless. Imagine that I made the following illegal: “Persons shall not smell flowers instead of baking pies.” Anyone arrested for smelling flowers would, rightly, complain that they weren’t not baking pies by virtue of the fact that they were smelling flowers, so they can’t be said to be doing one instead of the other. Likewise, one can easily imagine that it is possible to advocate ethnic solidarity while at the same time advocating the treatment of pupils as individuals (whatever that means).
After a few passages relating to procedural issues, we come to the other substantive part of the provision: things that aren’t prohibited.
E. This section shall not be construed to restrict or prohibit:
1. Courses or classes for native American pupils that are required to comply with federal law.
Necessary to avoid federal preemption, I think.
2. The grouping of pupils according to academic performance, including capability in the English language, that may result in a disparate impact by ethnicity.
3. Courses or classes that include the history of any ethnic group and that are open to all students, unless the course or class violates subsection A.
WHAT THE BLOODY BLUE BLAZES? If I am reading this statute correctly, the ONLY place a course can be prohibited is in subsection A. So… a course is not prohibited under this section, unless it’s…. prohibited under this section. Is that it?
I’m going to pray that the actual law that was signed by the governor had this problem fixed.
4. Courses or classes that include the discussion of controversial aspects of history.
Ah… finally. The release valve from all of our problems. Classes might be prohibited. But not if they include a discussion of the controversial aspects of history! Let’s count the number of things wrong with this provision.
First, there’s no requirement that the discussion of controversial history have anything to do with the material that led to the course’s being prohibited under Subsection A in the first place. In other words, I can have a course entitled “Why Mexicans should slaughter all those oppressive white people” and as long as I include a discussion of a controversial aspect of history, I’m in the clear. Now, I’m being somewhat facetious. Presumably a court is going to read some sort of requirement into this provision that the controversial aspect be what brought it under scrutiny in the first place. Let’s hope so.
Second, though, one might think that because the sorts of things that are being banned here are inter-racial grievances, and because most grievances happened, you know… in history, and because most grievances require, you know… disagreement about the characterization of such past acts, that every course that qualifies for prohibition under this section is going to do so in great part because of its discussion of “controversial” aspects of “history.”
I’m just sayin’.
So there we are. That’s the text of the law. And as much as I might sympathize with the sentiment behind it….. my verdict is this: sloppy, sophomoric, and not long for this world.