I have been writing about the difficulties facing public higher education for some time–mostly from the perspective of erosion of shared governance (see generally here), but also with an eye toward the transformation of post secondary education to a value added factory model increasingly bent to the tasks of inserting human factors of national production most efficiently within national labor markets. (see, e.g., here, here, and here). That transformation of education, and the contradiction between education as a source of civic and political education on the one hand and as a tool for efficient construction and deployment of human capital within production chains has a global dimension as well. I have suggested some of the comparative dimensions in recent work: Larry Catá Backer, Order, Discipline and Exigency”: Cuba’s VIth Party Congress, the Lineamientos (Guidelines) and Structural Change In Education, Sport and Culture?, in Papers and Proceedings of the Twenty-First Annual Meeting of the
Association for the Study of the Cuban Economy (ASCE) 21:148-170 (2011); available http://www.ascecuba.org/c/wp-content/uploads/2014/09/v21-backer.pdf.
René Gómez Manzano is a lawyer and an independent journalist in Cuba who writes original and provocative commentary on issues of interest to those who follow events in Cuba. He has recently written on the emergence of a similar crisis in post secondary education within the specific context of the Cuban political and economic situation. His essay, Indefiniciones en la educación superior cubana, which was published in CubaNet, appears below. Beyond the insights it provides on the ideology of education in Latin American Marxist Leninist societies, it provides a useful point of comparison between the nature of the transformation of education in the United States and that in Cuba.
When I first heard Mr. Trump was running for president I thought it was a joke. When I heard his inflammatory announcement speech I thought he was an embarrassment to this great nation; however, when he continues his non-stop hate tour across the country I think he poses a threat to all of us. He continues to use terms such as “illegals and anchor babies” because he has nothing positive or of substance to offer this nation. His hate and ignorance prevent him from realizing no human being is illegal, our actions might be, but we can never be. He also, quite conveniently, fails to tell his followers that what he calls anchor babies are U.S. citizen forced to leave their land in order to avoid being torn from their parents’ arms.
Mr. Trump is exploiting the frustration that already exists in our nation, the frustration of not having enough money to feed our families in spite of working 2-3 jobs. Mr. Trump claims Mexican leaders are extremely intelligent and taking advantage of us, but a quick glance at President Enrique Peña Nieto will reveal that that is a lie. He claims immigrants are criminals and rapists, but the fact is that immigrants are just humans. We are flawed just like anyone else. We have some good and some bad apples in the bunch; however given our lack of status we are less likely to commit a crime than a U.S citizen since we are afraid of coming into contact with law enforcement. Mr. Trump goes on to say that we are stealing American jobs, something he will correct, yet he has his clothing line made in Mexico.
Furthermore he employs a lot of us undocumented immigrants, so I guess we are bad, but we are good enough to be his employees as long as we make him money. Mr. Trump claims we are the cause of all that is bad in this country when in fact it is him and greedy people like him who fail to pay decent wages to their employees to survive on. As long as his account keeps growing he does not care who gets hurt by his transactions.
You probably think I’m not going to say anything positive about Mr. Trump, but I will. Mr. Trump is right about the problems in Washington. He is right we are all sick and tired of career politicians up for sale. He is also right when he says he has bought some himself and that would be ok if he said he did it to prevent them for harming his fellow Americans, but he did it to benefit himself, to gain business favors in the future. Mr. Trump is also right when he says our immigration system needs to be fixed.
It needs to be fixed, but not by separating families and causing more human suffering. It needs to be fixed by removing the financial incentive for private prisons that lobby for the status quo. We need to have a fair system that flows without forcing some to remain in limbo for a quarter of a century while others can exit it in six months. We need to have a fair and efficient, but mainly a humane immigration system.
However Mr. Trump’s hate prevents him from having any humanity towards those less fortunate than him. Mr. Trump has never felt the cold of the streets our homeless feel, he has never felt what it is to be hungry and not have anything to eat the way our poor families have, he does not know what it is to work until exhaustion and still not make enough to care for our families. He has never felt sick and been without money or insurance to pay for his care. Mr. Trump does not want to make America great again, he wants to make himself greater than he already believes he is and that is why he is wrong and WRONG FOR OUR COUNTRY.
On July 17, 2015, a panel of the United States Circuit Court for the Ninth Circuit affirmed in part and reversed in part the United States District Court for the District of Arizona, in Arce v. Douglas, 2015 WL 4080837 (9th Cir. 2015) – the Arizona Ethnic Studies case.
Arce involves a constitutional challenge to H.B. 2281, 49th Leg., 2d Sess. (Ariz. 2010), codified at Arizona Revised Statutes §§ 15-111 and 15-112, which prohibits certain public education courses of ”Ethnic Studies” and was enforced solely against the Tucson Unified School District’s Mexican American Studies Program (“the MAS Program”).
While the Ninth Circuit opinion has received some popular , mainstream, and legal media coverage, as well as law professor commentary, the most important result of the Ninth Circuit’s opinion, the remand for an equal protection trial, merits further consideration.
Evaluating the plaintiffs’ claim of intentional discrimination against the predominantly (90% according to the court) Mexican American students enrolled in the MAS Program under the factors established by the United States Supreme Court in Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) factors, the Ninth Circuit panel concluded, two-to-one, that:
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. 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.
Arce, slip op. at 22.
For any student of United States constitutional jurisprudence, the remand for an equal protection trial based on the Arlington Heights factors should feel astonishing. Following Justice White’s opinion in Washington v. Davis, 426 U.S. 229 (1976), to prove a violation of constitutional equal protection has required a showing of intentional discrimination. As the Washington Court held:
Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U. S. 184 (1964), that racial classifications are to be subjected to the strictest scrutiny, and are justifiable only by the weightiest of considerations.
Id. at 242. Restating the Arlington Heights factors, the Ninth Circuit explained:
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.
Arce, slip op. at 15 (citing Vill. of Arlington Heights, 429 U.S. at 266-68; Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158-59 (9th Cir. 2013)).
The Ninth Circuit then carefully considered the limited circumstantial and direct evidence of intent that was available on the record before it. See Arce, slip op. at 15-22. The record was notably sparse because the appellate opinion derived from the district court’s 2013 Memorandum Order on the parties’ cross motions for summary judgment on the plaintiffs’ First Amendment claims, where the district court sua sponte granted summary judgment to the defendants on plaintiffs’ equal protection claim, which they therefore had not briefed). See Arce, slip op. at 8. Notwithstanding the limited record before it, the Ninth Circuit analyzed the Arlington Heights factors in great detail. For example:
- Undisputed evidence showed that the statute’s enactment and enforcement had a disparate impact on the students of Tucson Unified School District (“TUSD”), where 60% of them were of Mexican or other Hispanic descent (as were 90% of the MAS Program students). Moreover, the defendants conceded that the statute was enacted in response to complaints about the MAS Program and enforced only against it, despite the fact that the state superintendent of public instruction alleged that two other TUSD ethnic studies programs violated the law.
- The court opined that evidence of the anti-Mexican animus expressed by Arizona legislators around their enactment of the ostensibly anti-immigrant law, S.B. 1070, which Arizona enacted in the same year as HB 2281, was relevant to the historical background of H.B. 2281.
- The court considered this factor under the fifth factor (below).
- The court considered this factor under the fifth factor (below).
- The statute’s intertwined legislative and administrative history raised the plausible inference that racial animus underlay its enactment. The legislative history included testimony at state house and senate committee hearings, where various bill proponents asserted that the MAS Program created “racial warfare,” prefaced their support of the bill by referencing a 2007 MAS Program student protest, and impugned the MAS Program for promoting MEChA (el Movimiento Estudiantil Chicano de Aztlán, a student organization created in April 1969 at a conference held at the University of California, Santa Barbara during the Chicano Youth Power Movement). (Chapters of MEChA persist today on many campuses, where they variously advocate for critical race consciousness, cultural pride, and community empowerment). The administrative history included the 2010 anti-Latino campaign rhetoric of two Arizona politicians who were deeply implicated in the law’s enactment and enforcement, Tom Horne (the state superintendent of public instruction who purported to enforce the law before its effective date on his last day in office, before assuming his newly elected office as Arizona Attorney General), and John Huppenthal (a state senator who chaired the education committee that heard the bill, amended it to grant authority to the state superintendent to determine whether the statute had been violated, and then directly succeeded Tom Horne as the new superintendent of public instruction). In his new office, Huppenthal quickly commissioned a study to determine whether the MAS Program violated the statute, and then immediately rejected its findings — that the MAS Program complied with the new law. He then ordered a second evaluation and on the basis of its report found multiple violations of the law.
See Arce, slip op. at 15-22.
In other words, despite a paucity of evidence, relative to what we can expect formal discovery to uncover, the plaintiffs succeeded in persuading the Ninth Circuit that they should have their day in court in order to prove at law what may seem like common sense to many: in outlawing the MAS Program, Arizona discriminated unconstitutionally against its students of Mexican heritage by denying them the opportunity to learn from a curriculum that was designed and proven effective in improving their performance on standardized tests and rates of high school graduation.
THE LATCRIT AMICUS BRIEF
Beyond focusing attention to this important aspect of the case, below I share my reflections on co-authoring one of the six amicus curiae briefs that were filed in the case. As an officer of the board of Latina and Latino Critical Legal Theory, Inc. (“LatCrit”), I joined with Steven W. Bender (Seattle Law) and Beth Lyon (Cornell Law, formerly at Villanova Law) to form an ad hoc committee of the LatCrit directors that was charged with obtaining pro bono representation in order to submit an amicus brief in support of the Arce plaintiffs. Thanks to Steve Bender’s advocacy and liaising, Seattle-based K&L Gates LLP attorneys Marie Quasius, Ben Hellerstein, Tia Sargent, Raina Wagner, and Theodore J. Angelis skillfully represented LatCrit pro bono in this matter.
We worked throughout 2013, forming the committee in the spring; outlining the issues, discussing them, and drafting our arguments over the summer; and finalizing our arguments in the autumn. Our attorneys filed the brief on Nov. 25, 2013.
In my view, the collaboration was splendid: each participant contributed what we were best qualified to do, and everyone appreciated our team members’ distinctive talents. Central to my dilemma was how to distill the extraordinary and deep scholarship on Chicana/o, Mexican American, and other Latina/o struggles for education into part of a succinct brief that the judges (and their clerks) might read and find persuasive.
In particular I recalled that one of the unsuccessful school desegregation cases brought on behalf of Mexican American children was an Arizona case, and I thought that framing the LatCrit brief with this case could bolster our arguments respecting the doctrinal issues in Arce.
ARIZONA 1925: THE FIRST SUCCESSFUL CASE OF MEXICAN AMERICAN SCHOOL DESEGREGATION?
Notwithstanding my prior study of Mexican American school desegregation litigation, my research for the LatCrit amicus brief informed me that the first successful school desegregation case on behalf of Mexican American children was in fact litigated in Arizona. Romo v. Laird, No. 21617, Maricopa County Superior Court (1925), resolved in favor of the plaintiff schoolchildren.
As those of us who have studied Mexican American school desegregation know, Romo precedes the cases that we previously understood to be the earliest such cases (e.g., Alvarez v. Board of Trustees of the Lemon Grove School District, San Diego County Superior Court (1931), in which the Mexican American students prevailed (as described by historian Robert R. Alvarez, Jr., who is also the son of the named plaintiff in Alvarez), and Independent School District v. Salvatierra, 33 S.W. 2d 790 (Tex. Civ. App. 1930), cert. denied, 284 U.S. 580 (1931), in which the plaintiffs lost because the courts held that Mexican American school children could be lawfully segregated on the bases of (1) their presumed linguistic needs as Spanish speaking (2) migrant farmworker children).
Professor George A. Martínez had written about these 1930 cases in his excellent article, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. Davis L. Rev. 555 (1994), and I believed that they were understood to be the earliest Mexican American school desegregation cases—preceding by over a decade the now-renowned Mendez v. Westminster, 64 F.Supp. 544 (S.D. Cal. 1946), aff’d, 161 F.2d 774 (9th Cir. 1947) (en banc), which outlawed the educational segregation of Mexican American students in California. (Thanks to the advocacy of individuals, including inter alia, Santa Clara County Supervising Deputy District Attorney Christopher Arriola, author Philippa Sturm, filmmaker Sandra Robbie, and Mendez plaintiff Sylvia Mendez the idea that Mendez should be understood as a prelude to Brown v. Board of Education, 347 U.S. 483 (1954) has gained some traction.)
In 2008, however, Richard R. Valencia published his Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality (NYU Press), which Michael A. Olivas reviewed in his The Arc of Triumph and the Agony of Defeat: Mexican Americans and the Law, 60 J. Legal Educ. 354 (2010). In turn I recalled Olivas’s review of Valencia’s book, and then consulted both texts in order to refresh my recollection and to deepen my understanding of how certain scholars, some affiliated with LatCrit, had worked over the decades to increase our collective knowledge about Mexican American school desegregation efforts. These texts led me to the work of historian Laura K. Muñoz, who wrote about Romo in her article, Separate But Equal? A Case Study of Romo v. Laird and Mexican American Education, 15 OAH Magazine of History 28, 28-35 (2001), and her Ph.D. dissertation, Desert Dreams: Mexican American Education in Arizona, 1870-1930.
Ultimately, these scholars’ work inspired me to suggest that we use Romo to frame the LatCrit amicus brief, which opens by reminding the court that Arizona’s long struggle to provide educational equality for its Mexican American schoolchildren, briefly won in 1925, is ongoing. The brief begins:
Arizona has a long history of discriminating against Mexican-American students. The first Mexican-American desegregation case was Romo v. Laird, No. 21617, Maricopa County Superior Court (1925). In Romo, the Superior Court granted plaintiff’s request to enroll his Mexican-American children in the Tenth Street School (which allowed only white children and had higher quality teachers) rather than the Eighth Street School for Mexican-American students. Laura K. Muñoz, Separate But Equal? A Case Study of Romo v. Laird and Mexican American Education, 15 OAH Magazine of History 28, 28-35 (2001).
Despite this early advance, Arizona continued to segregate Mexican-American students for decades. See Gonzales v. Sheely, 96 F. Supp. 1004, 1007 (D. Ariz. 1951) (holding that segregating Mexican-American children in separate buildings with inferior facilities was discriminatory and illegal, depriving children of constitutional rights of due process and equal protection). The Gonzales court reasoned that segregation of Spanish-speaking children retarded their English language skills, fostered antagonism between children, and suggested inferiority where none existed. Id.
To close, I thank everyone who has helped to create, and sustain, a body of critical sociolegal scholarship, what some call critical outsider jurisprudence, about our diverse communities’ past struggles against injustice under the color of law.
Histories about Mexican American school desegregation may be understood as part of a larger, multi-colored, story about the efforts of diversely racialized groups of people, often cognized in terms of ethnic identity. Countless individuals, who almost always affiliated with diversely racialized ethnic identities, have crossed national borders in their (our) lifetimes of struggle, measured in decades (and intergenerationally, in centuries), in order to obtain decent lives and a modicum of social, or at least formal, equality within United States society.
I term such stories critical ethnic legal histories and invite scholars, and students, across the disciplines of knowledge, to collaborate in our efforts to unearth them, attend to them carefully, and make them matter today.
Associate Professor of Law
St. Thomas University School of Law
Appendix. Legal scholarship on earlier stages of Arce includes, inter alia:
- Kristi L. Bowman, The Government Speech Doctrine and Speech in Schools, 48 Wake Forest L. Rev. 211 (2013);
- Richard Delgado, Precious Knowledge: State Bans on Ethnic Studies, Book Traffickers (Librotraficantes), and A New Type of Race Trial, 91 N.C. L. REV. 1513 (2013);
- Richard Delgado, Waiting for A Second Cargo Shipment: Public Education as a Great Equalizer, 50 Wake Forest L. Rev. 219 (2015);
- Mari J. Matsuda, Only We Can Free Ourselves, 18 Asian Pac. Am. L.J. 5 (2013);
- Preston C. Green, III, David Brown & Sara Ney, An Analysis of the Constitutionality of Arizona’s Ethnic Studies Law, 39 Rutgers L. Rec. 86, (2012), http://lawrecord.com/files/39_Rutgers_L_Rec_86.pdf;
- Ronald L. Mize, The Contemporary Assault on Ethnic Studies, 47 J. Marshall L. Rev. 1189 (2014);
- Francis J. Mootz, III & Leticia M. Saucedo, The “Ethical Surplus” of the War on Illegal Immigration, 15 J. of Gender, Race & Justice 257 (2012);
- Lupe Salinas, Arizona’s Desire to Eliminate Ethnic Studies Programs: A Time to Take the “Pill” and to Engage Latino Students in Critical Education About Their History, 14 Harv. Latino L. Rev. 301 (2011);
- Jean Stefancic, Reflections on Reform Litigation: Strategic Intervention in Arizona’s Ethnic Studies Ban, 47 J. Marshall L. Rev. 1181 (2014); and
- Kevin Terry, Note, Community Dreams and Nightmares: Arizona, Ethnic Studies, and the Continued Relevance of Derrick Bell’s Interest-Convergence Thesis, 88 N.Y.U. L. Rev. 1483 (2013).
Normalization of relations between the U.S. and Cuba will likely continue to have profound implications for each polity. For the United States it will substantially affect its tilt toward Latin America, assuming it ever comes with any seriousness and consistency. For Cuba the effects will be more immediate–it exposes the crucial need for the state apparatus to defend and naturalize, this after more than half a decade, its political system. The pressures on the state and its ideological apparatus have been growing. And now that travel is easier to the United States, it sets up a pattern familiar to Cuban politics and history–the overflow of internal Cuban politics into the United States and its commonwealths.
Evidence of these movements have emerged recently with the publication of the San Juan Declaration–the fruits of efforts of a large number of individual and institutional actors from within and outside of Cuba who met in August in San Juan. The value and effects of the San Juan Declaration is left to others. The Declaration follows:
René Gómez Manzano is a lawyer and an independent journalist in Cuba who writes original and provocative commentary on issues of interest to those who follow events in Cuba. The following was recently published on Cuba.net treats one of the most important operational issues around normalization of relations with Cuba–the lack of adequate legal structures for the proteciton of foreign investment. For Gómez Manzano, that protection starts not just with a well staffed and professional judicial system, but also with a professional lawyer class whose principal obligation is the protection of the interests of their clients, rather than of the state. While it is possible to reconcile both in Marxist Leninist States–China has moved a long way in that direction–classical European Marxist Leninism, of the sort still current to some extent in Cuba, is grounded on the principle that the needs of the state, as expressed by the Communist Party, must supersede even transient loyalty to the interests of clients, if those interests are adverse. While the principle may be plausibly applied to matters of politics, it is now difficult to reconcile with micro-economic disputes between the state and investors relating to the peculiarities of specific economic activity grounded in contract.
Gómez Manzano’s essay, Restablecer el libre ejercicio de la abogacía en Cuba, follows: