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On Monday, Arizona’s 2010 ban on ethnic studies went before the 9th Circuit Court of Appeals. The federal court is considering the constitutionality of the entire law, as well as one of its provisions that was struck down by a federal judge in 2013.

The state’s attorney, Leslie Kyman Cooper, argued that the A3 provision of the law, found to be unconstitutional in 2013, should be reinstated. It prohibits courses that “are designed primarily for pupils of a particular ethnic group.” 

“The state is concerned that all of its students should receive the same foundational education, should be taught as individuals, should not be divided on the basis of groups, such as class or race,” Cooper said.

The judges expressed confusion over her explanation that a course cannot be intended for a specific ethnic group, but it can include the history about an ethnic group. 

The judges questioned how a course aimed at helping a particular group understand its history could be divisive, and reasoned that such a restriction could be discriminatory. The court referred to the federal judge’s decision in 2013 that struck down this particular provision on the grounds that it didn’t clearly add any reasonable substance to the law that was not already covered in other sections. 

“Therefore, it had the very great danger of either it was prohibiting something that constitutionally couldn’t be prohibited or it just invited over breath, invited vagueness, because it served no obvious purpose,” Judge Jed Rakoff contended. 

The plaintiffs’ Attorney Erwin Chemerinsky argued that it’s not just a single provision, but the entire law has been adopted and implemented with discriminatory purpose. He maintained that the law violates students’ First Amendment rights. 

“When a law is vague and overbroad and it has the tremendous sanctions that this law does, then it risks chilling a tremendous amount of speech and that interferes with what this court has recognized, and the Supreme Court has recognized, as a right of students to receive information,” Chemerinsky said. 

The court said the state does have the right to regulate what is taught in its classrooms.

Chemerinsky’s clients brought the case against the state in defense of a Mexican-American studies program in the Tucson Unified School District that was dismantled in 2012 as a result of the law. The district was at risk of losing millions in funding from the state if found in violation of the law.

On his last day in office, former state superintendent John Huppenthal sent TUSD a letter criticizing classes taught on African-American culture, once again threatening a loss of funding for the school system. 

Tucson’s superintendent H.T. Sanchez has said schools will continue offering ethnic studies courses in line with a 2013 federal court order. Sanchez met with new state superintendent Diane Douglas last week and the two have promised to work together to find a solution.