Teacher going on offensive to attack ethnic studies law
Reporter: Sergio Avila
TUCSON (KGUN9-TV) - Back in October of 2010 eleven teachers with TUSD filed a lawsuit against Superintendent Tom Horne challenging the constitutionality of HB2281. That's the law that restricts ethnic studies courses.
The teachers are being represented by Richard Martinez.
Tom Horne's surprised Martinez last week by filing a legal answer to their suit. In it, Horne goes line by line and denies all the substantial accusations made by the teachers. That includes accusations that HB2281 violates both the first and fourteenth amendments.
In his answer to the suit Tom Horne states his affirmative defenses:
"As his first affirmative defense, Defendant states that Plaintiffs lack standing to bring this action.
As his second affirmative defense, Defendant states Plaintiffs' claims are not ripe and are moot.
There may be other affirmative defenses contemplated by Rule 8 and 12 of the Federal Rules of Civil Procedure, the facts of which are currently unknown to Defendant, and, therefore, the Defendant reserves the right to assert such defenses as these facts become available."
Martinez believes Horne's first offense is unfounded because the teachers stand to lose now that HB2281 has gone into effect.
"They're the ones who are in the classrooms. It's their jobs that are on the line. They're the ones who develop and teach this curriculum. They're the ones who deliver this service to the students." Martinez said.
As for the second affirmative defense Martinez tells KGUN 9 News the claims are ripe and not moot since the law is already in effect and Horne has found TUSD in noncompliance. He claims that all their claims real.
Martinez feels it's the teachers' to go on the offensive by eliminating Horne from the picture as much as possible. They're next move is to amend the lawsuit so it replaces Tom Horne as a defendant with newly elected State Superintendent John Huppenthal.
Then they'll go after the law.
"We'll come up with a schedule that we agree upon to get a preliminary injunction motion into the court. Responded to by the state before the 60 days are up," Martinez said.
Horne himself was prepared for the name switch. In his filings he also writes, "Defendant will be represented in this matter by the office of the Attorney General." That's the office Horne was sworn into January 3rd.
Martinez tells KGUN 9 News the court battle is the only hope for ethnic studies because he knows the district will get rid of the program instead of facing the dire consequences of being found out of compliance. In a news conference Monday night new TUSD Superintendent Dr. John Pedicone stopped short of saying they'll get rid of the program. Pedicone was apparently more straight forward with the teachers.
"Pedicone, the new superintendent for TUSD repeatedly told the plaintiffs in a meeting yesterday afternoon that if TUSD faces the 10 percent sanction, that TUSD is going to shut down the program," Martinez said.
Martinez tells KGUN 9 News a lot is going to happen between now and March 4th. That's when TUSD's 60 days are up. It'll be up to a judge to decide if it goes further depending on wether or not that law is placed on hold while the judge decides the law's constitutionality.
If that preliminary injunction is not granted then TUSD will face that 10 percent reduction in state funding and at that point Martinez tells us it's almost certain TUSD will eliminate the program.