Tom Horne's White Flag in Oral Arguments on Tucson's Ethnic Studies Program

The sections of ethnic studies ban that are at issue read, thus:

15-111, Declaration of policy

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.

15-112, Prohibited courses and classes; enforcement

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. 2. Promote resentment toward a race or class of people. 3. Are designed primarily for pupils of a particular ethnic group. 4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

There are also some exceptions built into the law, but these are wide open to interpretation as well.

Though the law was drafted for the purpose of wiping out MAS -- a purpose it has achieved for the time being  -- the statute could apply to any course or class taught in Arizona's public schools, which opens it up to all kinds of abuse. 

Take the first prohibition, that a course or class cannot "promote the overthrow of the United States government." 

As Martinez has observed on numerous occasions, even the Declaration of Independence could, hypothetically, run afoul of this provision, since it says of people living under despotism that, "it is their right, it is their duty, to throw off such government."

That's just one example. Martinez picks apart each part of the law in his motion for summary judgment, which you can read, here. There are other issues with the application of the law, which also has been subjective and discriminatory.

In the motion, Martinez expertly argues that the law is fatally flawed because of its lack of specificity.  The law "punishes people for behavior they could not know was illegal" and allows for "arbitrary and discriminatory enforcement by government officers." Moreover, since the law deals with the regulation of speech, it has "a chilling effect on the exercise of First Amendment freedoms."

At the beginning of oral arguments on Martinez's motion and a counter-motion by the defendants, Judge Tashima noted that "overbreadth and vagueness" were Martinez's "best grounds," instructing him to stick to those issues with the law. 

Whenever Martinez strayed off topic, Tashima put him back on track. But, significantly, Tashima did not ask Martinez any questions either during his argument or after it.

Regarding section A(2), which prohibits promoting "resentment toward a race or class of people" in the classroom, Martinez observed that "you don't know what would promote resentment toward a race or class of people." So one "can't be on notice about that."

In other words, a law has to tell you what is prohibited, specifically enough for the average person to understand. Otherwise, how can you be "on notice" about what is illegal?

Martinez noted that the other sections of the law are "incredibly ambiguous." Summing up, he tells the court that there is "no core of easily identifiable and constitutionally prescribable conduct" that's permitted under the statute.

"You just don't find the core, your honor," Martinez contended of the law. "You can't point to [it] in the statute [and say] this is what it means, this is what you can do, this is what you cannot do."

Horne followed Martinez. He did not have to argue the case himself. Two assistant state attorneys general are currently assigned to the case and are likely far more familiar with the issues involved. 

But as one attorney put it to me, "General Horne fancies himself a lawyer," a Harvard-educated lawyer at that. And like they say, you can tell a man from Harvard, but you can't tell him much.

During Horne's argument, Judge Tashima interrupted the AG at several points, asking him revealing questions, questions Horne did not adequately address.

Tashima inquired if the statute is "legitimately designed" to accomplish its stated purpose.

"For instance," Tashima told Horne, "if you take the phrase `promote resentment toward a race or class of people,' it's quite a subjective phrase and, you know, it's subject to all kinds of interpretation.

"I mean, for instance, wouldn't you say that the Occupy movement promotes resentment against a class of people or the Tea Party promotes resentment against a class of people? And, you know, so does that mean a school can't teach that because they -- about the Tea Party or the Occupy movement because they promote resentment against a class of people? It's an awfully vague command from a legislature, isn't it?"

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22 comments
Gerry_C
Gerry_C

Impotence on Parade.  Tom Horne is worthless as an AG.  Worse than worthless.  Does very little good and lots of harm.

Concerned Citizen
Concerned Citizen

'To Kill a Mockingbird' Turns 50| July 14, 2010| PBShttp://www.pbs.org/newshour...
Click here to download a PDF of this lesson. (1.8 MB)OverviewAfrican American history during the Jim Crow era includes encounters with poverty, racism, disrespect, and protest. Harper Lee develops all four of these themes in her famous 1960 novel, To Kill a Mockingbird. To help students understand these ideas, this lesson incorporates the blues and other literature of the time. Ultimately, students will be asked to consider both African American oppression and activism through a variety of lenses.Learning ObjectivesBy completing this lesson, the student will:Explore life for African Americans during the Jim Crow eraConsider terms of respect and disrespectAnalyze the effectiveness of different forms of cultural protest

alehound
alehound

Yep, this state would be so awesome if it were run by mexicans and naygroes....

Coz
Coz

what a goofy looking dimwit......

Coz
Coz

Another f-en nut case elected to office.
Once again, nice job retards voting for this bozo.

Anon
Anon

Mr. Lemons, Excellent investigative journalism. You are able to sort through all the snarled details of conflicted issues like no one else.

LD19 Resident
LD19 Resident

Looks like Elmer Fudd (Horne) just got hunted by that wascally wabbit (Judge Tashima.)

Bye-bye ARS 15-111 and 15-112. Don't let the door hit you on the ass on the way out.

teknik1200
teknik1200

who is more fool, the fool or the fool who follows the fool?

deuces_ak
deuces_ak

Ahhh Yesss. White people practicing their colonialism with its theft and murder, to change history so it does not reflect the theft and murder foisted on the people of color.

Jeff Farias
Jeff Farias

on some level I guess we should take some solace in the fact that these corrupt officials like Horne, Thomas and Pearce are also shockingly incompetent.  

GloobBleenl
GloobBleenl

Hey Drunkin'Dog get back to work lickin' them glory holes clean. That's one good thing about dogs, they like to lick themselves and will eat anything including their own feces.

LD19 Resident
LD19 Resident

Coz, our choices for Republican attorney general was this bozo or Candy Ass Thomas. If you were forced to pick a Republican, would you rather have someone who cries conflict of interest or someone who criminally abuses their power?

Personally, I think Rotellini should've won. 

L622
L622

I agree!  Mr. Lemons is the man!

hopi13
hopi13

That is still going on, just ask the Navajo and Hopi people about what most of them think of the Little Colorado Water Settlement that Kyl is now pushing.

david saint
david saint

kind of how TN lawmakers want to take slavery out of history text books because "they dont want to burden the founding fathers"...which led me to this question,,which founding fathers, the KKK founding fathers?!?

L622
L622

Jeff,
I whole heartedly agree.  Just like in the time of Nazi Germany, stupid people, and crminal types from the bottom of the barrel floated to the top to help Hitler commit otricities. Racism a lot of times speaks loudly about lack of intelligence and/or integrity.

GloobBleen
GloobBleen

That's Gomer Kyl, "Well golly Sargent McCain I was only trying to help screw the native people even more. That's what us Repuklicans do isn't it Sargeant McCain?"

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