M. Isabel Medina (Loyola-New Orleans) on "Why Arizona’s Prohibition of Ethnic Studies Violates Equality"...

M. Isabel Medina (Loyola-New Orleans)

M. Isabel Medina (Loyola-New Orleans)

M. Isabel Medina (Loyola-New Orleans), Silencing Talk About Race:  Why Arizona’s  Prohibition of Ethnic Studies Violates Equality, 45 Hastings Constitutional Law Quarterly 47 (2017).

This article from Isabel Medina should be read in conjunction with Maxwell Stearns’ piece on the five (not three) tiers of Equal Protections scrutiny.  The level of scrutiny is triggered by the use of race in statutes.  However, the question lingers what scrutiny to apply when the state seeks to foreclose the use of race in government.  Here, Arizona bans ethnic studies as representations of ‘racial hatred’.  Except, ethnic studies do not teach racial hatred, they improve educational outcomes and provide for a fuller more accurate historical pedagogy.

Medina argues that the Arizona statute should receive strict scrutiny, even though it does not reference a particular race the consequences it seeks are clearly racial in nature.  Maxwell Stearns might argue that ‘strict scrutiny’ is unnecessary, that the Court can scuttle laws it doesn’t like under “rational basis with teeth”, i.e., an inquiry into whether the law actually accomplishes its stated goal or whether the goal itself is stupid.  Here, the Court could very well hold that Arizona legislature had no rational basis to believe that ethnic studies courses inspire racial hatred.  The Court has recently engaged in similar legislative second-guessing in the Voting Rights Act case, Shelby v. Holder.

I offer a third route, upon which the Court scrutinizes the law to determine the extent the law remedies imperfections in the structure of the free market (proffered by the government defendant), including those relating to race, versus the extent the law creates or maintains asymmetries in the market relating to race.  With respect to education, the supposed free market depends on everyone having complete and correct information.  To the extent information provided in public school about or available to people of color is less accurate and less available, the market fails to deliver goods and services on a meritocratic basis.  Ethnic studies courses, therefore, fix rather impair the structure of the free market. 

Because the Arizona law against ethnic studies does not fix any serious imperfection in the marketplace (asymmetrical or otherwise), it must be set aside to the extent it is designed and will have the effect of exacerbating misinformation in the commercial market place, and asymmetrically so as it comes to people of color.

From the article:

Ethnic studies, or “culturally relevant pedagogy,” have proved successful at bridging educational gaps between minority students and their white cohorts.6 Black and Hispanic eighth-grade students are significantly behind their white peers in mathematics; are substantially overrepresented among students with learning disabilities; and have double the dropout rates than white students. However, a recent Stanford study concluded that the ethnic studies program in use in some San Francisco high schools increased student attendance significantly, student grade point average by 1.4 grade points, and the number of credits earned...

Despite their success with student populations, ethnic programs have proved controversial because of their focus on race. In 2010, the state of Arizona enacted a statute prohibiting such programs. Subsequently, the state superintendent of education ordered the dismantling of the Tucson Unified School District No. 1's Mexican-American Studies (“MAS”) ethnic or “race related” program because it violated the statute. Arizona justified its actions on the grounds that the programs promoted racial hatred...

This Article examines the development and function of ethnic studies, their role as a desegregation remedy and in crafting a more accurate and informed view of history. This Article contends that ethnic studies are a vibrant and vital educational tool to explore and challenge established historical and cultural orthodoxies that adversely affect formation of individual and group identity, and encourage and develop critical thinking about race and ethnicity in student populations. The Article explains how the Court's intolerance for the use of race conscious measures, even as desegregation remedies, renders ethnic studies programs a race conscious method available to public school districts to enhance student diversity and promote multiracial understanding and acceptance. Paradoxically, the Court's tolerance for state-initiated bans on race conscious measures reflects its adherence to color blindness or race neutrality as a positive constitutional value. The Court's approach frames as neutral initiatives that treat all races or ethnicities alike, regardless of their impact on minority races or of the overt or covert amount of racism in the community that produced the initiatives. In this framing, neutrality functions to hide or protect racism and allows courts to avoid identifying whether the political initiative furthers equality between the races or continues to subordinate one race or ethnicity.  This Article contends that state efforts to prohibit ethnic studies programs are constitutionally infirm and should engage strict scrutiny under the Equal Protection Clause because they classify and prohibit curricular content and offerings on the basis of race or ethnicity to silence and subordinate non-majority racial and ethnic groups...

in 2014, in Schuette v. Coalition to Defend Affirmative Action, the Court upheld a state referendum in Michigan that prohibited the use of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting.Yet, it was the University of Michigan, the state's flagship school, which had produced the cases that led the Court to uphold the use of race as one of many factors in achieving the interest of diversity in higher education. Michigan voters, in essence, rejected the Court's earlier holding in Grutter v. Bollinger,and thereafter adopted a state constitutional amendment that banned the University from using race conscious measures in admissions.In Schuette, a badly splintered Court upheld the constitutional amendment with no opinion drawing a majority of justices, but a majority rejecting a view of the amendment as a race-based measure that required strict scrutiny...

In Milliken v. Bradley (Milliken II), the Supreme Court upheld use of ethnic studies program as one of the possible remedies that district courts could impose on public school districts found to have intentionally discriminated on the basis of race in the operation of their schools...

This author joins the many who have argued that a rigid constitutional norm requiring formal racial neutrality or blindness in fact perpetuates structural racial inequalities.From this perspective, statutes that prohibit ethnic studies, with some exceptions, are not racially neutral, but instead subvert and subordinate the racial identities of individual members of nonmajority groups.