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:

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?"