Appeals court's "ethnic studies" ruling fortifies students' rights to receive information

A recent federal appeals-court ruling establishes that students have a constitutional interest in the curriculum they receive in public schools, and that school officials cannot remove material from the curriculum solely to advance their personal ideological agendas.

The ruling came in a constitutional challenge to Arizona’s 2010 “ethnic studies” statute that prompted the Tucson school district, where more than half the students are of Latino descent, to cancel courses in Mexican-American studies and remove seven “banned” books from school shelves. (The district later rescinded the prohibition, and The Atlantic has just published a detailed accounting of how the failed ban may have provided fuel for a growing nationwide movement to offer high school courses in Latino culture.)

On July 7, a three-judge panel of the Ninth Circuit U.S. Court of Appeals ruled that the ethnic studies law, HB 2281, could be challenged on the grounds that it (a) constituted government-sanctioned viewpoint discrimination, which the First Amendment almost categorically forbids, and (b) was overly broad in violation of the Due Process Clause. The panel agreed with a U.S. district judge that the law was overbroad because it banned courses “designed primarily for pupils of a particular ethnic group,” even if there was no proof the courses contributed to ethnic disharmony or were otherwise harmful.

The decision, written by Circuit Judge Jed S. Rakoff, is noteworthy for its application of the Supreme Court’s Hazelwood School District v. Kuhlmeier, a case about schools’ authority to regulate student-produced media in the laboratory-class setting. In Hazelwood, the Court held that censorship of students’ journalistic work did not violate the First Amendment so long as the school’s motivation was “reasonably related to legitimate pedagogical concerns.”

The Ninth Circuit decided that Hazelwood‘s “pedagogical concern” standard is also the proper legal yardstick for judging a school’s decision to withhold or discontinue curricular materials to which students demand access. That is an intriguing and not necessarily intuitive extension of the Hazelwood doctrine. That a student has a constitutional right to create and distribute her own speech in the school setting does not necessarily imply that the student has an equivalent stake in school-purchased books written by others — but the Ninth Circuit’s Arce decision now finds such a right implicit in the First Amendment right to receive information.

What’s more, the Ninth Circuit chose the Hazelwood standard as a more muscular check on school authority than the alternative advocated by lawyers defending HB 2281. Lawyers for the state’s former school superintendent, John Huppenthal, said courts should overturn schools’ choice of classroom materials only in the extreme case where “narrowly partisan or political” motives could be proven.

But the Ninth Circuit decided on a Hazelwood-based standard that the court described as affording students greater protection: “state 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.” 

This is a significant reimagining of Hazelwood that offers encouragement to students in the states encompassed by the Ninth Circuit that have not yet enacted statutes forbidding states from exerting the Hazelwood level of control over student media: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada and Washington. Although schools (and occasionally, judges) are prone to regard Hazelwood as a blank-check, anything-goes level of authority, the Ninth Circuit believes otherwise. Specifically, the Ninth Circuit believes that Hazelwood goes even further than prohibiting school censorship that is based on “narrowly partisan or political” motives — which means it goes at least that far.

That is a powerful potential tool for opposing school censorship decisions, many of which are demonstrably based on substituting the school administration’s own ideological preferences for those of the students. If a student can demonstrate that a school’s decision to confiscate a newspaper, rewrite a graduation speech or veto a student-chosen theatrical performance was based on political ideology, then (at least in the Western states subject to the Ninth Circuit’s jurisdiction) the student should prevail. 

The Arce case is headed back to U.S. district court to determine whether the state of Arizona violated the First Amendment by singling out selective courses for elimination based on viewpoint. However that remaining claim is resolved, the ruling has already fortified the legal standing of future student plaintiffs to challenge school censorship decisions — even those involving school-provided course materials.