MAY IT PLEASE THE COURT, I WOULD LIKE TO RESERVE FIVE MINUTES FOR REBUTTAL. STATE AND LOCAL GOVERNMENTS HAVE TREMENDOUS DISCRETION IN SETTING THE CURRICULUM OF PUBLIC SCHOOLS. THE SUPREME COURT HAS REPEATEDLY MADE CLEAR THAT THERE ARE CONSTITUTIONAL LIMITS. THIS IS THE EXCEPTIONAL CASE WHERE THE STATE HAS VIOLATED THOSE LIMITS BY A LAW THAT PROHIBITS SPEECH AND IT DOES SO IN TERRIBLY OVERBROAD AND VAGUE LANGUAGE. IT IS ALSO A LAW THAT HAS MOTIVATED AND IS IMPLEMENTED WITH A DISCRIMINATORY ANIMUS TOWARD MEXICAN-AMERICANS. THE DISTRICT COURT CORRECTLY FOUND THAT SECTION A3 WAS UNCONSTITUTIONALLY OVERBROAD. IT PROHIBITS COURSES OR CLASSES DESIGNED PRIMARILY FOR MINORITY STUDENTS. ALL TEACHERS TRY TO ENGAGE THEIR STUDENTS. A TEACHER IN A CLASS OF PRIMARILY AFRICAN-AMERICAN OR LATINO STUDENTS WOULD OF COURSE BE EXPECTED TO TEACH MATERIAL DESIGNED TO APPEAL TO THEM. AN ENGLISH TEACHER WHO CHOSE TO TAKE THE WORKS OF MY A ANGELO OR TONI MORRISON -- OR A MUSIC TEACHER WHO BROUGHT IN RAP LYRICS OR HIP-HOP TO AFRICAN-AMERICAN-LATINO STUDENTS WOULD VIOLATE THE STATUTE. BUT THE SAME NOTES OF A2 AND A4, ARE ALSO OVERBROAD. SECTION A2 SAYS A CLASS ON THE BASEMENT OF RACE IS PROHIBITED. LAST WEEK WE FILED THE JUDICIAL NOTICE, A LETTER SENT ON JANUARY 2, NOTIFYING THE TUCSON UNIFIED SCHOOL DISTRICT THAT IT IS IN VIOLATION. THE EXAMPLE HE GIVES IN THAT LETTER IS A QUESTION THAT A TEACHER ASKED WHETHER AMERICAN SLAVERY IS PARTICULARLY BRUTAL, HOW THEN IS IT POSSIBLE TO TEACH SLAVERY IN A MATTER THAT MIGHT NOT PROVOKE -- PROMOTE RESENTMENT BASED ON RACE TREATED HOW MIGHT A TEACHER TEACH ABOUT FERGUSON OR POLICING IN A MATTER THAT MIGHT NOT PROMOTE RESENTMENT ON THE BASIS OF RACE. >> SECTION -- SECTION A4 PROHIBITS COURSES OR CLASSES THAT ADVOCATE ETHNIC SOLIDARITY, INSTEAD OF TREATING PEOPLE AS INDIVIDUALS. I'M NOT SURE WHAT THAT MEANS BUT I WOULD FOCUS ON THE EXAMPLES WHERE THE SUPERINTENDENT A WEEK AGO FRIDAY FOUND THAT TUCSON WAS IN VIOLATION. ONE WAS A CLASS THAT SIMPLY SAID IT WOULD TEACH HIP-HOP MUSIC. ANOTHER WAS A CLASS THAT SAID IT WOULD LOOK AT MEXICAN AND MEXICAN-AMERICAN HISTORY. DOES IT PROMOTE ETHICS SOLIDARITY AT THE EXPENSE OF INDIVIDUALITY? DOES PATRIOTISM? A STANCE THAT IS FAKE AND OVERBROAD VIOLATES THE STUDENT'S FIRST AMENDMENT RIGHT. IF YOU LOOK AT THE ADMINISTRATIVE LAW THAT JUDGES ORDER, HE TALKS ABOUT HOW THE LOOK IS AT STUDENT WORK AND DECIDE IF IT HIGHLIGHTS. THE LETTER ON JANUARY 2 TALKS ABOUT LOOKING AT STUDENT WORK. NICHOLAS DOMINGUEZ, ON >> HE TALKS ABOUT AS A STUDENT, HE CHANGE THE WEIGH WROTE IN ESSAYS BECAUSE OF KNOWLEDGE OF THE LAW. THIS SHOWS WHAT TEACHERS TEACH, AND THAT INTERFERES WITH THE RIGHT STUDENTS TO RECEIVE INFORMATION. THE THIRD QUARTER -- THERE ARE DECORATIONS IN THE RECORD FROM TEACHERS. YOU HAVE DECORATIONS FROM CURTIS, FROM LORENZO LOPEZ. IN VOLUME EIGHT FROM SARA RUSK, THAT IT CHANGED WHAT THEY DID AS TEACHERS. >> IT WAS SUPPOSED TO CHANGE WHAT THEY DID AS TEACHERS. >> YES, YOUR HONOR, AND A STATE MAY DO SO, BUT WHEN A LAW IS VAGUE AND OVERBROAD AND IT HAS THE TREMENDOUS SANCTIONS THIS LAW DOES, THEN IT RISKS CHILLING A TREMENDOUS AMOUNT OF SPEECH AND THAT INTERFERES WITH THE RIGHT OF STUDENTS TO RECEIVE INFORMATION. >> YOU AGREE I TAKE IT THAT THE STATE DOES HAVE THE POWER -- THE TEACHING IS GOVERNMENT ACTIVITY AND THE STATE HAS THE POWER TO DIRECT WHAT IS TO BE TAUGHT? >> YES, YOUR HONOR. ...

BUT WHEN A LAW LIKE HERE IS ENFORCED BY LOOKING AT STUDENT WORK, THEN IT GOES BEYOND REGULATING SPEECH. IF YOU LOOK AT ADMINISTRATIVE LAW, AND THE SUPERINTENDENT'S LETTER FROM JANUARY 2ND, BOTH EMPHASIZED THE NEED TO LOOK AT STUDENT WORK. THAT IS CHILLING STUDENT FASHION. >> IT DOESN'T TELL THE STUDENT THAT HE HE CAN'T SPEAK IN ...

A CERTAIN IT REFLECTS WHAT THE STUDENT IS TAUGHT. >> THAT IS WHY THE VAGUENESS AND GROIFER BREAD THIS OF THE STATUTE IS IMPORTANT. WHEN IS A STUDENT GOING TO KNOW THAT AN ESSAY IS REFLECTIVE OF WHETHER OR NOT A TEACHING IS PROMOTING RACIAL REISN'TMENT. >> THERE IS NO SANCTION BEING TAKEN AGAINST THE STUDENT. IT IS TAKEN AGAINST THE COURSE. THAT IS, A COURSE THAT PRODUCES THIS KIND OF STUDENT WORK IS SUSPICIOUS. >> THAT DRAWS A DISTINCTION BETWEEN A SANCTION BETWEEN THE SCHOOL DISTRICT AND WHERE THE STUDENT SUFFERS. ...

HERE THE SCHOOL DISTRICT LOSES 10% OF ITS FUNDS A MONTH.

THOSE WHO WOULD SUFFER ARE THE STUDENTS. >> ONLY IF WHAT THEY ARE BEING TAUGHT ISN'T SOMETHING THEY ARE ENTITLED TO RECEIVE. LET'S TAKE THE FIRST ONE WHICH IS NOT AT ISSUE HERE. ...

PROMOTE THE OVERTHROW OF THE UNITED STATES GOVERNMENT. IS ARIZONA ALLOWED TO ENACT THAT THAT PROVISION? >> YOUR HONOR, I THINK THIS, TOO, WOULD BE UNCONSTITUTIONALLY OVERBROAD. HERE, TOO, THE EXAMPLE FROM THE SUPERINTENDENT LETTER IS SO IMPORTANT. NOTICE IN HIS LETTER OF JANUARY 2 THE EXAMPLE HE PICKS WITH VIOLENCE IS HAVING LYRICS FROM THE GROUP RAGE AGAINST THE MACHINE TAUGHT HOW COULD ANY TEACHER KNOW THAT A SINGLE SONG WOULD DO THAT? ONE OF THE KEY PROBLEMS IS LANGUAGE IS TAKEN OUT OF CON TEXT FROM SONGS, FROM TEXTBOOKS, AND IT IS THEN USED FOR VIOLATION. ...

ONE OF THE THINGS THE SUPREME COURT -- >> I'M CONCERNED HERE. IS THIS AN ATTACK ON THE ADMINISTRATIVE LAW JUDGE DECISION? THE JUDGE POINTED TO THE A.L.J. 'S DECISION AS PERHAPS THE SOLUTION TO THE OVERBREAD THIS PROBLEM. ...

WHAT DO YOU FAULT IN THE ADMINISTRATIVE LAW JUDGE DECISION? >> WELL, THE ADMINISTRATIVE LAW JUDGE ATTEMPTED TO NARROW THE STATUTE, AND THE JUDGE REFERRED TO IT AS SENSIBLE. IT IS IMPORTANT TO LOOK AT THE EXACT LANGUAGE. THE JUDGE SAID THIS IS GOING TO BE NARROWED TO INSTANCES WHERE IT IS BIASED, POLITICAL OR EMOTIONALLY CHARGED. YOUR HONOR, I WOULD HOPE THAT TEACHING AT ALL LEVELS IS EMOTIONALLY CHARGED. I DON'T KNOW HOW TO TEACH ABOUT SLAVERY OR RACISM AND POLICING THAT IS NOT SO OFTEN BIASED IN THE EYES OF THE BEHOLDER. SO THE NARROWING HERE IS JUST AS OVERBROAD AND VAGUE. ONE OF THE PRISONS IS VAGUE AND OVERBROAD LAWS LEAD TO DISCRIMINATORY ENFORCEMENT. THAT IS WHAT WE HAVE HERE. IN ANSWER TO YOUR QUESTION, JUDGE, THIS IS BOTH A FACIAL CHALLENGE TO THE STATUTE AND ALSO AN AS APPLIED CHALLENGE, WHICH INCLUDES THE ADMINISTRATIVE LAW JUDGE DECISION. AS LONG AS THE ADMINISTRATIVE LAW JUDGE DECISION IS THERE, IT TOO WILL HAVE A TREMENDOUS CHILLING EFFECT ON SPEECH OF STUDENTS AND OF TEACHERS. THE OTHER KEY ISSUE HERE GOES TO EQUAL PROTECTION. THE ESCORT ERRORED BY GRANTING SOME REJUDGMENT WITH REGARD TO EQUAL PROTECTION IN VIOLATION OF RULE 56-F OF THE FEDERAL RULES OF CIVIL PROCEDURE. PERHAPS FOR THIS REASON, THE ESCORT -- THE DISTORT APPLIED THE WRONG STANDARD. THIS COURT SET -- SAID IN PACIFIC SHORES VERSUS THE CITY OF NEW PORT. IT IS FROM 7 PO F- 3 AND 114 IT. VERY LITTLE EVIDENCE IS NECESSARY TO RAISE AN ISSUE OF MATERIAL FACT. ANY INDICATION OF A DISCRIMINATORY MOTIVE SUFFICIENT TO RAISE A QUESTION BARES UP ONLY BY THE FACT FINDER, I WOULD SUGGEST THAT THE EVIDENCE IN THIS CASE MORE EXCEEDS THAT. TO BEGIN WITH, HE CAMPAIGNED FOR THIS LAW BY SAYING THAT HE WANTED TO "STOP LARAZA." YOU FIND THAT QUOTE ON PAGE 1288 OF THE RECORD. IF YOU LOOK AT THE DICTIONARY AS QUOTED ON FOUR OF OR APPLIED BRIEF, IT IS A SYNONYM FOR THE MEXICO-AMERICAN PEOPLE. FOR A KEY OFFICIAL WITH REGARD TO LAW, IF THEY WANT TO STOP THE MEXICAN-AMERICAN PEOPLE BY THIS LAW, THAT CLEARLY IS ENOUGH TO GO TO THE TRIER OF FACT. >> WAS HE USING IT TO MEAN THE MEXICAN-AMERICAN PEOPLE? >> YOUR HONOR, I CANNOT KNOW WEIGH MEANS. ...

BUT WHEN YOU LOOK AT WORDS, IT IS COMMON TO LOOK AT THE DICTIONARY DEFINITION. WE QUOTE A STANDARD DICTIONARY IN FOOTNOTE TO PAGE FOUR OF THE APPLIED BRIEF. OF COURSE THAT IS NOT THE ONLY EVIDENCE OF DISCRIMINATORY INTENT IN THIS CASE. WHEN HE WAS SECRETARY, WARREN SAID THAT THREE OF THE FOUR ETHNIC STUDY COMPANIESES LIKELY VIOLATED THE STATUTE. THE ENFORCEMENT PROCEEDINGS WERE BROUGHT ONLY AGAINST MEXICAN-AMERICAN STUDIES. SECOND HORNE BEFORE LEAVING OFFICE FOUND THAT THE ENTIRE TUSCON PROCEDURE VIOLATED THE STATUTE. UNDER THE VILLAGE OF ARLINGTON HEIGHTS, NOT FOLLOWING PROPER PROCEDURES IS NOT KEY EVIDENCE. UNDER ARLINGTON HEIGHTS, DISCRIMINATORY IMPACT IS RELEVANT. 9% OF THE STUDENTS IN THIS PROGRAM WERE MEXICAN-AMERICAN. >> I AM NOT SURE THE ARLINGTON HEIGHTS IS A CLOSE ONE. ...

THE CONCERN IN ARLINGTON HEIGHTS IS THE USE OF SURROGATES OR SUBTERFUGE IN ORDER TO ACCOMPLISH A GOAL OF NOT HAVING CERTAIN PEOPLE LIVE THERE. IN THIS CASE IT IS NOT A CASE WHETHER AMERICAN-AMERICAN STUDENTS ARE GOING TO BE EDUCATED IN TUSCON SCHOOLS, BUT WHAT PROGRAM IS OFFERED TO THEM. >> BUT THAT IS IT THE LEADING SUPREME COURT CASE THAT OUTLINES WHAT EVIDENCE IS RELEVANT WITH REGARD TO DISCRIMINATORY INTENT. THE PACIFIC SHORES CASE AND THE LANGUAGE I QUOTED SAYS IN IMPLEMENTING ARLINGTON HEIGHTS, VERY LITTLE EVIDENCE IS NECESSARY. >> WHAT IS THE ...

DISCRIMINATION? IT IS NOT THAT THERE IS NOT GOING TO BE EDUCATION OFFERED TO AMERICAN-AMERICAN CHILDREN. IT IS THAT PARTICULAR PROGRAMS SHOULDN'T BE OFFERED? >> NO. ...

YOUR HONOR. THE POINT IS THE REASON WHY THE LEGISLATURE ADOPTED THIS AND WHY THEY FOUND VIOLATION WAS A DISCRIMINATORY AND MUSS AGAINST MEXICAN-AMERICANS. THE DISTRICT COURT SAID SECRETARY HORNE'S NOT FOLLOWING PROCEDURES RAISED SPARKS AND RED FLAGS OF DISCRIMINATORY AND MUSS. WE SUGGEST IT IS MUCH MORE THAN THAT WHEN YOU LOOK AT THE RECORD HERE. IT IS ALSO NOTABLE THAT WHEN THE SUPERINTENDENT TOOK OFFICE, HE COMMISSIONED HIS OWN STUDY. THAT STUDY FOUND NO EVIDENCE OF VIOLATION OF THE STATUTE, FOUND THAT THE COURSES WERE RIGOROUS AND VERY EFFECTIVE. HE THEN IGNORED THE REPORT AND FOUND HIS OWN VIOLATIONS. AFTER THAT AN ADDITIONAL STUD WAS DONE BY THE SPECIAL MASTER IN THE DESEGREGATION CATION. BOTH STUDIES FOUND THAT THIS COURSE WAS TREMENDOUSLY EFFECTIVE FROM AN EDUCATIONAL PERSPECTIVE. THE STATISTICS HERE I POINT YOU TO ON PAGE 202 AND 203 OF THE REPORT FROM THE CABRERA REPORT, STUDENTS WHO PARTICIPATE IN THE PROGRAM HAD 108% GREATER CHANCE OF GRADUATING THAN THOSE WHO DIDN'T. THEY FOUND IN 2008 THOSE WHO PARTICIPATED IN THE PROGRAM PASSED THE STANDARD MATH TEST 144% MORE, THE WRITING TEST, 162% MORE, THE READING TEST, 168% MORE. THE QUESTION IS, IN LIGHT OF THOSE STATISTICS, IS THERE ANYTHING THAT EXPLAINS THIS OTHER THAN DISCRIMINATORY AND MUSS. THERE IS POTENTIALLY TWO EXPLANATIONS OF WHAT HAPPENED HERE. A BENIGN EXPLANATION, AN EXPLANATION ABOUT DISCRIMINATORY AND MUSS. ALL I HAVE JUST CITED THAT THE TIER OF FACT COULD HAVE CONCLUDED THE LATTER. UNDER PACIFIC SHORES, THEY SHOULD HAVE GONE TO THAT TRIER OF FACT. >> WHO WOULD THE TRIER OF FACT BE? >> A JUDGE BECAUSE THIS IS A CASE SEEKING INJUNKETIVE AND DECLARE TORE RELIEF. >> IS THERE REALLY ANY DIFFERENCE? IF YOU HEARD FROM THE SAME PERSON WHO IS THE TRIER OF FACT, WHAT CHANGES? >> IN THIS CASE, AN ENORMOUS AMOUNT. THE ...

JUDGE ERRED BY GRANTING SUMMARY JUDGE. THE RULES OF CIVIL PROCEDURE SAY BEFORE A JUDGE GRANTS A MOTION, THERE SHOULD BE NOTICE TO THE PARTIES. HERE THERE IS A GREAT DIFFERENCE BETWEEN THE EVIDENCE THAT WOULD BE PRODUCED ON A MOTION FOR PRELIMINARY JUNCTION. I WILL GIVE YOU EXAMPLES. THE DISTRICT COURT SAYS THERE IS NO EVIDENCE OF THE REPORT BEING DISREGARDED. OF COURSE THERE WAS NO EVIDENCE. THERE WAS NO KNOWLEDGE THAT SUMMARY JUDGMENT WAS GOING TO BE PRODUCED. HE REFERS ONLY TO THE COMPLAINTS. I RESERVE MY TIME FOR REBUTTAL. >> I HAVE A COUPLE OF QUESTIONS. >> SURE, JUDGE. >> YOU KNOW THAT THE JUSTICE HAS BEEN A COLLEAGUE OF MINE FOR A GOOD MANY YEARS, AND I KNOW HIM AS A VERY FAIR-MINDED ...

PERSON. AND OF COURSE HE HIMSELF HAS EXPERIENCED CONSIDERING RACIAL DISCRIMINATION IN WORLD WAR 23R -- WORLD WAR II. I CAN'T BELIEVE HE CAME WITH ANY RACIAL ANIMUS. I TEND TO LOOK AT A STARTING POINT WHAT WAS THE JUDGE LIKE? DO YOU WANT TO COME IN ON THAT? >> YES, OF COURSE. ...

IN NO WAY DO I ATTRIBUTE ANY RACIAL ANIMUS TO THE JUDGE. IT IS ABOUT THE ARIZONA LEGISLATURE AND THE SECRETARIES OF EDUCATION WHO IMPLEMENTED THE LAW. HOWEVER, YOUR HONORS, ALTHOUGH THE JUDGE IS YOUR COLLEAGUE, YOU HAVE TO GIVE DEVON NOVO REVIEW. HERE I BELIEVE THE JUDGE WAS CORRECT IN FINDING A-3 WAS UNCONSTITUTIONALLY OVERBROAD AND VAGUE, BUT BY THE SAME REASONING, SO WERE A-2 AND A-4. THE JUDGE MADE A MISTAKE. HE DIDN'T FOLLOW ...

RULE-56-F OF THE RULES OF CIVIL PROCEDURE. AND MAYBE BECAUSE OF THAT REASON HE APPLIED THE WRONG STANDARD. >> I WANTED TO ASK YOU WHAT IS THE PRESENT SITUATION? HAS THIS PROGRAM CONTINUED DEFACTO EVEN THOUGH IT HAS BEEN ATTACKED BY THE SUPERINTENDENT? IS IT STILL IN PLACE? >> YOUR HONOR, THE MEXICAN-AMERICAN STUDIES PROGRAM WAS ELIMINATED AFTER THE ADMINISTRATIVE LAW JUDGE DECISION BECAUSE TUSCON DIDN'T WANT TO RISK LOSS OF FUNDS. ...

BUT THE STATUTE REMAINS IN EFFECT. THAT IS WHY THE LETTER FROM THE SECRETARY FROM JANUARY 2, 2015 IS SO IMPORTANT. LOOK AT THE THINGS THAT HE SAID CURRENTLY ARE VIOLATING THE STATUTE. THEY SO POWERFULLY SHOW THE VAGUENESS OF THE LAW. >> THE PROGRAM WAS ABANDONED, BUT WHAT IS HE OBJECTING TO NOW? >> I AM SORRY, YOUR HONOR. I DIDN'T HEAR. >> I'M SORRY. AS I UNDERSTAND, YOU ARE SAYING THE SCHOOL DISTRICT ABANDONED THE PROGRAM, BUT THE SUPERINTENDENT IS STILL OBJECTING TO SOMETHING? >> YES. >> WHAT IS HE OBJECTING TO? >> THE MEXICAN-AMERICAN STUDIES PROGRAM WAS ELIMINATED, BUT THE LAW REMAINS IN EFFECT. I FILED A LETTER LAST TUESDAY IN THIS COURT ASKING THAT YOU TAKE JUDICIAL NOTICE OF A LETTER FROM FROM THE SECRETARY ISSUED JANUARY 2, 2015, FINDING THAT TUSCON IS CURRENTLY IN VIOLATION OF THE STATUTE. THAT LETTER SHOWS THAT THIS STATUTE CONTINUES TO HAVE GREAT EFFECT, AND THAT LETTER SHOWS BETTER THAN ANY HYPOTHETICALS HOW TREMENDOUSLY OVERBROAD AND VAGUE THE STATUTE IS. I WILL SAFE THE REST OF THE TIME FOR REBUTTAL. THANK YOU. >> ...

MAY IT PLEASE THE COURT, MY NAME IS LESLIE COOPER, AND I AM HERE ON PAVON OF THE STATE DEFENDANTS. I WOULD FIRST LIKE TO ADDRESS THE JANUARY 2, 2015 LETTER FROM THE SUPERINTENDENT. IT IS NOT PART OF THE RECORD AND SHOULDN'T BE. AND IF IT IS, IT SHOULD BE VIEWED IN CONTEXT AS PART OF A CONVERSATION WITH TUSD THAT BEGAN WITH TUSD AGREEING TO DISBAND THIS MEXICAN-AMERICAN STUDIES PROGRAM AFTER THE SUPERINTENDENT ADOPTED THE A.L.J. 'S DECISION. IT IS A LONG LETTER AND RECOUNTS IN GREAT DETAIL THE CIRCUMSTANCES IF THE COURT IS INCLINED, WHICH IT SHOULD NOT BE, TO READ ALL OF IT. SECONDLY, REGARDING STUDENT ACHIEVEMENT AND THE PURPORTED EFFECT OF THESE PROGRAMS ON STUDENT ACHIEVEMENT. THAT EVIDENCE IS IRRELEVANT HERE. IN ANY EVENT, THE SPECIAL MASTER'S STUDY IS NOT PART OF THE RECORD. IT WAS PRESENTED TO THE JUDGE JUST A FEW WEEKS BEFORE HE ISSUED HIS DECISION LONG AFTER THE CASE WAS BRIEFED AND ORAL ARGUMENT HEARD. THE STATE DEFENDANT ANTS OBJECTED TO IT, AND THERE IS NO SIGN THAT THE JUDGE CONSIDERED THAT EVIDENCE AS PART OF THE RECORD. ...

MOVING TO THE STUDENTS FIRST AMENDMENT -- >> WOULDN'T IT POTENTIALLY BECOME PART OF THE RECORD OR WHATEVER EVIDENCE LAY BEHIND IT IF IN FACT SUMMARY JUDGMENT HAD BEEN DENIED? I UNDERSTAND THE ARGUMENT BEING MADE IS THAT THE CASE SHOULDN'T HAVE BEEN RESOLVED AT THE TIME IT WAS BECAUSE THERE WAS RELEVANT EVIDENCE THAT COULD HAVE BEEN SUBMITTED AND COULD HAVE BEEN CONSIDERED BY THE COURT BUT FOR THE FACT OF THE SUMMARY JUDGMENT BEING GRANTED. >> WELL, I'M NOT SURE. THE COURT SHOULD HAVE BEEN REJECTED THAT EVIDENCE EVEN IF IT HAD BEEN TIMELY SUBMITTED. >> BECAUSE? >> BECAUSE THE EVIDENCE OF STUDENT ACHIEVEMENT IS IRRELEVANT IN THIS SITUATION. >> WHY? >> THE STATE HAS PLENARY AUTHORITY TO CURRICULUM FOR ITS PUBLIC SCHOOL STUDENTS. THE SUPREME COURT HAS RECOGNIZED THIS. >> THAT DOESN'T MAKE IT IRRELEVANT. ...

IF IT IS DEMONSTRATED THAT A GIVEN PROGRAM PRODUCES BETTER RESULTS IN TERMS OF STUDENT ACHIEVEMENT AND THAT PROGRAM IS OUTLAWED, IT WOULD SEEM TO SUPPORT AN INFERNOS OF DISCRIMINATORY INTENT IF IN FACT EDUCATIONAL ACHIEVEMENT IS MORE SUCCESSFULLY ATTAINED THROUGH THE PROGRAM. >> THE QUESTION HERE IS IN FACT THE STATE'S AUTHORITY TO SET ITS CURRICULUM. >> THE STATE HAS THE AUTHORITY. BUT IF THE STATE REJECTS A PROGRAM THAT IS MORE EFFECTIVE IN EDUCATING CHILDREN, DOESN'T THAT SUGGEST OR STRENGTHEN THE INFERNOS THE REASON THE STATE IS ACTING NOT BECAUSE IT WANTS TO PRODUCE BETTER EDUCATED CHILDREN? IT SEEMS TO MLB THAT THE STATE'S REGULATION IS INTENDED WITH DISCRIMINATORY INTENT TO HOLD BACK A GIVEN GROUP OF THE STUDENT POPULATION. >> I THINK THEN YOU NEED TO LOOK AT THE DISTRICT COURT'S DECISION BELOW AND ITS REVIEW OF THE EVIDENCE IN TERMS OF THE EQUAL PROTECTION CLAIM. THE COURT CAREFULLY REVIEWED THAT EVIDENCE USING THE STANDARD SET OUT IN ARLINGTON HEIGHTS, AND HE CONCLUDED THERE WAS NO EVIDENCE OF DISCRIMINATORY ANIMUS AGAINST A GROUP OF PEOPLE BUT ABOUT A PROGRAM. >> LET ME ASK YOU ABOUT THE PIECE OF THE STATUTE THAT WAS STRUCK DOWN BY THE DISTRICT COURT AS OVERBROAD. >> YES. >> DESIGNED PRIMARYLY FOR PUPILS OF A PARTICULAR ETHNIC GROUP. WHY DOESN'T THAT BY ITSELF SUGGEST DISCRIMINATORY ANIMUS? >> THE NUDE TO LOOK AT THE STATUTE IN ITS ENTIRETY. ...

YOU NEED TO LOOK AT THE PURPOSE AS SET OUT IN 15:111. >> THE STATUTE SPECKS IN THE -- SPEAKS IN THE ALTERNATIVE, RIGHT? THESE COURSES ARE PROHIBITTED IF THEY FIT ONE, TWO, THREE OR FOUR, RIGHT? >> YES, THEY DO. >> SO WHY SHOULDN'T WE FOCUS THEN ON EACH INDIVIDUALLY? >> YOU CAN FOCUS, BUT YOU STILL MUST LOOK AT THE STATED PURPOSE IN FOCUSING ON EACH INDIVIDUAL PRONGER. AND YOU MUST ALSO LOOK AT 112 :E:3 THAT SPECIFICALLY PERMITS CLASSES ABOUT THE HISTORY OF AN ETHNIC GROUP AS LONG AS THEY ARE OPEN TO AND FOR ALL STUDENTS. SO WE CAN HAVE THE TEACHING ABOUT AN ETHNIC GROUP. IT IS THE DIVISIVE, SEGREGATIVE, SEPARATIONIST TEACHING FOR ONE GROUP THAT THIS STATUTE IS DESIGNED TO PROHIBIT. >> BUT IT DOES HAVE SUB-PART THREE. >> YES, IT DOES. >> WHICH DOESN'T SPEAK AT ALL ABOUT THE CONTENT OF THE COURSE. IT ASSEMBLY SPEAKS OF WHO THE PUPILS ARE GOING TO BE. IT IS NOT HARD TO FIGURE OUT THAT SOME CLASSES ARE MORE ATTRACTIVE THAN OTHERS. NOBODY WOULD BE SURPRISED THAT A MEXICAN STUDIES PROGRAM MIGHT ATRACT MORE MEXICAN-AMERICAN STUDENTS. THAT DOESN'T MEAN THE CONTENT OF THAT PROGRAM HAS TO BE OFFENSIVE OR CONTRARY TO THE PURPOSE THE STATE HAS SET OUT IN OTHER PROVISIONS OF ITS STATUTES. BUT THIS STATUTE, 12 -- 112 SAYS YOU CAN'T HAVE A COURSE DESIGNED FOR PUPILS OF A PARTICULAR ETH NICK GROUP. >> THAT IS WHY YOU DON'T THINK YOU COULD GIVE TOO MUCH WEIGHT TO THE ETHNICITY OF THE STUDENTS IN THE CLASS WHEN DECIDING HOW THE DISTRICT HAD DESIGNED THE CURRICULUM. ...

THE STATUTE PROHIBITS COURSES OR CLOSES WHICH ARE DESIGNED FOR STUDENTS OF ONE ETHNIC GROUP WHILE SIMULTANEOUSLY RECOGNIZING THAT COURSES THAT INCLUDE THE HISTORY OF AN ETHNIC GROUP ARE FINE. IT PROHIBITS CLASSES FOR AN ETHNIC GROUP, NOT CLASSES ABOUT AN ETHNIC GROUP. ...

THIS IS CONSISTENT WITH THE PURPOSE OF STATUTE AS STATED IN 15-111 -- >> THE SUBSECTION YOU ARE REFERRING TO SAYS CLASSES THAT INCLUDE THE HISTORY OF A SUBGROUP. THAT WOULD SUGGEST A CLASS IN MEXICAN-AMERICAN HISTORY. THAT IS NOT JUST INCLUDING, BUT ABOUT THAT. AND IT IS LIKELY MOST OF THE STUDENTS WOULD SIGN UP FOR THAT WOULD BE MEXICAN-AMERICANS, AND THAT SEEMS TO RUN AFOUL OF SUBPART THREE. >> I DON'T THINK IT RUNS AFOUL OF SUBPART THREE UNLESS IT IS DESIGNED FOR THE PURPOSE OF SEPARATING OUT THOSE STUDENTS AND TEACHING A SEPARATE HISTORY THAT IS NOT APPLICABLE TO ALL THE STUDENTS IN THAT SCHOOL OR THAT ...

DISTRICT. >> I AM NOT MAYBE NOT FOLLOWING YOU, AND IT MAY BE MY FAULT. WHAT IS AN EXAMPLE OF A COURSE THAT WOULD NOT VIOLATE ONE, TWO OR FOUR BUT WOULD VIOLATE THREE AND THEREFORE WOULD BE PROHIBITED? >> IF YOU HAD A CLASS THAT IS DESIGNED FOR ONE ETHNICITY FOR THE PURPOSE OF SEPARATING THEM OUT, THE IRISH, THE GERMANS, JEWS, ASIANS, BUT IS NOT ABOUT THAT GROUP. >> I'M NOT QUITE SURE WHAT YOU MEAN BY "PURPOSES OF SEPARATING THEM OUT" UNLESS YOU ARE TALKING ABOUT NUMBER FOUR, ADVOCATING ETHNIC SOLIDARITY. ...

WHAT THE JUDGE SAID WAS HE COULDN'T SEE WHAT WAS PROHIBITED BY THREE THAT WASN'T PROHIBITTED BY THE OTHER PROVISIONED, AND THEREFORE IT HAD THE VERY GREAT DANGER IT WAS PROHIBITING SOMEDAY THAT CONSTITUTIONALLY COULDN'T BE PROINLTED, OR IT INVITED OVERBREADTH OR VAGUENESS BECAUSE IT SERVED NO OBVIOUS PURPOSE. I'M STILL NOT HEARING AN EXAMPLE FROM YOU OF WHY THAT ISN'T TRUE? >> I THINK YOU COULD HAVE A CLASS THAT WAS FOR AN ETHNIC GROUP THAT DIDN'T NECESSARILY TEACH ETHNIC SOLIDARITY THAT WOULD BE IN VIOLATION OF THE STATUTE. BUT IF THE COURT IS INCLUDED TO AGREE WITH THE JUDGE -- >> WHAT IS THAT? I AM TRYING TO IMAGINE WHAT IT WOULD BE? YOUR CROSS APPEAL ARGUES THAT THREE SHOULD BE REINSTATED. IT SHOULDN'T BE STRUCK DOWN AS OVERBROAD. ...

YOU WANT THAT TO BE IN THE STATUTE. WHY? WHAT WOULD THAT ACCOMPLISH? AND HOW WOULD IT ACCOMPLISH SOMETHING THAT WOULDN'T SUGGEST DISCRIMINATORY ANIMUS? >> WELL, THE DISCRIMINATORY ANIMUS THAT IS ALLEGED HERE IS AGAINST LIT NO, SIR OR MEXICAN-AMERICANS. SO IF THE CLASS WERE FOR SOME OTHER GROUP THE EVIDENCE THAT IS OFFERED HERE OF COURSE ABOUT WOULD NOT BE PERTINENT TO THAT. YOU COULD PERHAPS HAVE A CLASS IN JAPANESE STUDIES THAT WOULD BE DESIGNED SOLELY FOR JAPANESE ...

STUDENTS, PERHAPS NOT -- TO NOT ADVOCATE ETHNIC SOLIDARITY, BUT WOULD NONETHELESS BE FOR THEM AND NOT ABOUT, AND THAT BY A VIOLATION OF THE STATUTE. >> AND WHAT WOULD WOULD BE THE STATE'S PURPOSE IN INACTING THAT? >> THE STATE IS CONCERNED THAT ALL OF ITS STUDENTS SHOULD RECEIVE THE SAME FOUNDATIONAL EDUCATION, SHOULD BE TAUGHT AS INDIVIDUALS NOT DIVIDED ON THE BASIS OF GROOMS SUCH AS CLASS OR RACE. >> SO IF YOU HAVE A CLASSROOM OF STUDENTS, SOME OF WHICH HAS COMMAND OF THE ENGLISH LANGUAGE BECAUSE THAT IS WHAT THEIR HOUSEHOLD HAS SPOKEN THEIR WHOLE LIKES AND SOME OF WHICH WHO DON'T, AND THE FACT THAT DIFFERENTIAL IS LEICHTLY REFLECTED IN ETHNIC DIFFERENTIAL, THE STATE OF ARIZONA WANT TO MAKE SURE THAT PEOPLE WHO NEED EXTRA HELP IN ENGLISH DON'T GET IT? >> WELL, THERE IS A SPECIFIC PROVISION THAT RELATES IN TERMS OF ENGLISH LANGUAGE LEARNERS. ...

I AM NOT SURE I UNDERSTAND. >> TRY SOME OTHER CLASS. >> SUPPOSING YOU HAD A COURSE IN THE PUBLIC SCHOOLS OF SAN FRANCISCO IN CHINESE HISTORY. IT WAS THEORETICALLY OPEN TO EVERYONE, BUT LO AND BEHOLD IN DESIGNING IT, THE DESIGNERS SAID WITH THE SUBSTANTIAL CHINESE POPULATION IN CERTAIN PARTS OF SAN FRANCISCO, WE THINK THIS WILL BE ESPECIALLY EFFECTIVE IN HELPING CHINESE STUDENTS TO UNDERSTAND THEIR HISTORY. ...

IF THAT WERE IN ARIZONA, WOULD THAT BE FORBIDDEN BY THE STATUTE? >> IT COULD BE, YES, YOUR HONOR. >> AND WHY? HOW DOES THAT NOT SUGGEST DISCRIMINATORY ANIMUS? WE DON'T WANT MINORITIES TO DEVELOP ANY KIND OF ETHNIC PRIDE? >> I'M NOT ...

SURE THAT THE PURPOSE -- THAT THE PUBLIC SCHOOL'S PURPOSE NEEDS TO BE TO DEVELOP ETHNIC PRIDE. IN SOME OF THE LEGISLATURE HEARINGS THAT THE PLAYOFFS ASKED THE COURT TO TAKE JUDICIAL NOTICE OF, SOME PARENTS NOTED THAT IT WAS THE ROLE OF PARENTS TO INCULLCATE THOSE VALUES. I DON'T KNOW THAT THERE IS A CONSTITUTIONAL RIGHT TO CLASSES THAT WOULD PROMOTE THAT ETHNIC PRIDE. >> BUT THEN YOU'VE GOT A PROBLEM WITH THE POTENTIAL INFERENCE THAT THE INTENT OF THE STATUTE IS TO MAKE SURE THAT CERTAIN GROOMS DON'T EE -- CERTAIN GROUPS DON'T EMERGE. WHY COULDN'T THAT BE IN CERTAIN FORMS OF DISCRIMINATORY ANIMUS? >> WE NEED TO LOOK AT THE PURPOSE OF THIS. ...

THE STATEMENTS THAT WERE MADE BY THE LEGISLATORS THAT WERE MADE AT THE TIME THIS STATUTE WAS PASSED, CONCERN ABOUT A PROGRAM THAT WAS DIVISIVE, AND SEPARATIVE, AND TOOK STUDENTS AWAY, THAT TAUGHT VALUES THAT THE LEDGE SLAVES BELIEVED ...

WERE ANTETHETICAL OF STATE VALUES. >> I HEAR THAT AS A JUSTIFICATION FOR SUBPARTS TWO AND FOUR. I DON'T UNDERSTAND HOW THAT IS A JUSTIFICATION FOR SUBPART THREE UNLESS THERE IS A BROADER ANIMUS AGAINST THE MINORITY POPULATION. >> THERE IS NOT SUFFICIENT EVIDENCE, AS THE JUDGE FOUND, OF THAT BROADER ANIMUS TOWARDS THE MINORITY POPULATION. ...

THE CONCERN THAT IS STATED BY THOSE WHO ARE IN FAVOR OF THIS LAW IS IN REGARD TO A PROGRAM, NOT A PEOPLE. IF I MAY THEN ADDRESS THE QUESTION OF WHETHER OR NOT IT WAS CORRECT FOR THE JUDGE TO GRANT SUMMARY JUDGMENT ON THE EQUAL PROTECTION CLAIM, IN ORAL ARGUMENT ON THE MANY MOTIONS AND CROSS MOTIONS, PLAINTIFFS COUNSEL SAID THE RECORD IS COMPLETE WITH RESPECT TO THE DIFFERENTIAL TREATMENT, THE EQUAL PROTECTION. I THINK WITH THAT AND WITH THE SUBSTANTIAL EVIDENCE THAT HAD BEEN PRESENTED BY THE PLAYOFFS ON SUPPORT OF THAT CLAIM AND OTHERS, IT WAS CORRECT FOR THE JUDGE TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE STATE ON THE EQUAL PROTECTION CLAIM. >> WOULDN'T THE NORMAL COURSE IN A DISTRICT COURT BE -- IF THE JUDGE WAS THINKING OF CONVERTING SOME OTHER MOTION TO SUMMARY JUDGMENT, TO ANNOUNCE THAT TO THE PARTIES, GIVE THEM AN OPPORTUNITY TO SAY WHETHER THERE WAS ADDITIONAL EVIDENCE THAT THEY WANTED TO PRESENT ON SUMMARY ...

JUDGMENT AND HAVE THEM FLESH OUT THE RECORD OR NOT AS THE CASE MAY BE? THAT IS THE NORMAL COURSE, YES? >> YES, THAT IS THE NORMAL

COURSE. >> WHAT WAS THE JUSTIFICATION FOR NOT FOLLOWING THAT NORMAL COURSE HERE? >> I THINK FIRST OF ALL, THE JUDGE COULD HAVE PREDICATED THAT THE RECORD WAS COMPLETE. >> WAS THAT SAID ...

IN THE CONTEXT OF THE ENTIRE CASE OR JUST SAID IN THE CONTEXT OF THE PARTICULAR MOTION BEFORE THE JUDGE? >> THEY PUT A NUMBER OF MOTIONS IN FRONT OF THE JUDGE. >> ALL THE MORE REASON. IT WAS NOT UNAMBIGUOUS. WASN'T THAT STATEMENT AMBIGUOUS? >> NO, I DON'T THINK SO. >> DID THE JUDGE SAYING -- MAYBE HE DID, I DON'T KNOW DID HE SAY, COMPLETE FOR ALL PURPOSES IN ALL MOTIONS NOW AND FOREVER THIS CASE? >> THERE WAS NO, BY THE JUDGE. >>-- ...

NO COMMENT BY THE JUDGE. >> I HAVE THOUGHT ABOUT FUTURE MOTIONS. >> HE WAS BEFORE THE COURT ON A MOTION FOR PRIMARY INJUNCTION. A VERY HIGH STANDARD OF PROOF PRESENTED SUBSTANTIAL EVIDENCE, LENGTHY ARGUMENT, 22 PAGES ON THE EQUAL PROTECTION CLAIM ALONE. YOU WILL FIND IT IN E.R. 3 911-33. IT WAS APPROPRIATE FOR THE JUDGE TO CONCLUDE THAT THE ISSUES HAD BEEN FULLY VENTILATED. AND FRANKLY, I THINK YOU CAN LOOK AT THE KIND OF EVIDENCE THEY BELIEVE THAT THEY WOULD INTRODUCE AND TO FURTHER SUPPORT TECHNICAL PROTECTION CLAIM AND CONCLUDE THAT -- SUPPORT THE EQUAL PROTECTION CLAIM AND CONCLUDE THAT THAT WAS NOT THE CONCLUSION THAT THE JUDGE WOULD HAVE CLAIMED. THEY ARE REACHING TO EARLIER VERSIONS THAT WERE SUBSTANTIALLY DIFFERENT AND EVEN TO STATEMENTS THAT WERE MADE IN CONNECTION WITH OTHER BILLS. THERE IS NO WAY TO TIE THOSE STATEMENTS, THOSE SNIPPETS, THOSE CHERRY PICKED LITTLE PIECES, TO THE LEGISLATIVE INTENT THAT ANIMATED THIS BILL AND NO REASON YOU SHOULD LOOK BEHIND THE PURPOSE THAT IS STATED IN 15111 THAT REPRESENTS THE COLLECTIVE STATEMENT OF THE ARIZONA, THE COLLECTIVE INTENT OF THE ARIZONA LEGISLATURE IN PASSING THIS BILL. IF I MAY BRIEFLY ADDRESS THE FIRST AMENDMENT RIGHT. STUDENTS RIGHT TO RECEIVE INFORMATION WAS ACKNOWLEDGED BY THE SUPREME COURT. BUT THE SUPREME COURT -- THAT WAS A PLURALITY DECISION, NOT A MAJORITY. THE SUPREME COURT THERE ALSO SAID THE PETITIONERS MIGHT WELL DEFEND THEIR CLAIM OF ABSOLUTE DISCRETION IN MATTERS OF CURRICULUM BY RELIANCE UPON THEIR DUTY TO INCULCATE COMMUNITY VALUES. EVEN MORE IMPORTANTLY, THE SUPREME COURT NOTED THAT REMOVAL FROM THE LIBRARY OF A BOOK BASED SOLELY UPON THE EDUCATIONAL SUITABILITY WOULD BE "PERFECTLY PERMISSIBLE." THAT IS WHY THINK THIS COURT SHOULD BE GUIDED BY ITS DECISION IN DOWNS WHERE IT RECOGNIZE THAT CURRICULUM IS GOVERNMENT SPEECH. AND A FIFTH CIRCUIT DECISION FROM 2005 WHERE THEY RECOGNIZE THAT CURRICULUM IS GOVERNMENT SPEECH AND THE GOVERNMENT NEED NOT SHARE HIS PODIUM WITH ANOTHER SPEAKER. THE COURT IS TO BE GUIDED AS WELL BY EPPERSEON,ON, THE CASE INVOLVING THE TEACHING AND ARKANSAS OF EVOLUTION. THE STATUE THAT PROHIBITED THAT TEACHING. THERE, THE SUPREME COURT FOUND THAT THE RESTRICTION ON CURRICULAR SPEECH CONSTITUTED AN INDEPENDENT CONSTITUTIONAL VIOLATION OF THE FREE EXERCISE IN ESTABLISHMENT CLAUSE AND STRUCK IT DOWN. HERE WE HAVE NO INDEPENDENT VIOLATION OF ANY STUDENTS RIGHT TO RECEIVE INFORMATION. ARE THERE ANYMORE QUESTIONS? >> IF WE WERE TO CONCLUDE THAT THE THIRD PRONG ...

IS UNLAWFUL, IS IT SEVERABLE OR NOT? >> YES, IT IS. >> WHY? >> WHY? BECAUSE -- AS YOU NOTED, THE STATUTE IS LISTED IN THE DISJUNCTIVE. OR, OR, OR.

YOU DO NOT NEED TO FIND ALL OF THE

PRONGS HAVE BEEN VIOLATED BEFORE THE SUPERINTENDENT TO CONSIDER BRINGING -- >> AS YOU TOLD ME PREVIOUSLY, WE HAVE TO LOOK AT THE WHOLE STATUTE? IT WAS DESIGNED TO BE A SINGLE, COORDINATED APPROACH TO WHAT WAS PERCEIVED AS A PROBLEM. WITH EACH SECTION TAKING MEANING FROM THE OTHERS AND FROM THE OVERALL PURPOSE. I THOUGHT THAT WAS YOUR ARGUMENT A FEW MINUTES AGO? >> IT WAS DESIGNED-- -- >> SO, MAYBE THAT SUGGEST THE LEGISLATURE DID NOT VIEW THIS AS SEVERABLE. THEY VIEWED IT AS A COORDINATED PACKAGE. IF IT TURNS OUT ONE PROVISION WAS UNCONSTITUTIONAL, THE SENSIBLE THING IS TO HAVE THEM RECONSIDER THE ENTIRE STATUTE RATHER THAN OUR ...

CHERRY PICKING? >> I THINK THE LEGISLATURE COULD WANT THE STATUTE TO BE VIEWED IN ITS ENTIRETY, BUT COULD WRITE T HE STATUTE IN SUCH A WAY THAT IF ONE PRONG WERE STRUCK DOWN, IT WOULD STILL BECAUSE ATTRITION -- STILL BE CONSTITUTIONAL. IT MAY NOT ACHIEVE EVERY SICKLE PURPOSE OF THE LEGISLATURE BUT IT STILL FUNCTIONS. FOR THAT REASON, THIS COURT SHOULD AGREE THAT IT IS SEVERABLE AND THE REST OF THE STATUTE STANDS. >> THANK YOU. >> ...

MR. CHEMERINSKY. THERE IS NO DOUBT THAT STATE CAN SET THE CURRICULUM, BUT THIS IS A LAW THAT PROHIBITS SPEECH BY LOOKING AT WHAT THE STUDENTS EACH IS. A-3 WAS PROPERLY FOUND BY THE DISTRICT COURT TO BE VAGUE AND OVERBROAD. IF THERE'S EVEN A CLASS THAT IS PRIMARILY DESIGNED FOR PEOPLE OF A PARTICULAR ETHNIC GROUP, IT VIOLATES THE LAW. IF THEY TAUGHT A CLASS TO APPEAL TO THEM, THAT WOULD VIOLATE THE STATUTE. YOU ASKED THE QUESTION OF SEVERABILITY. WE BELIEVE EACH OF DEPOSITIONS AT UNCONSTITUTIONAL AND OVERBROAD. THERE IS NO SEVERABILITY CLAUSE IN THE STATUE. THE QUESTION OF SEVERABILITY IS ONE OF ARIZONA LAW. THER ARIZONA COURT SAID THE -- SEVERABILITY CLAUSE IS RELEVANT. IT IS NOT DETERMINATIVE. WOULD THE LEGISLATURE HAVE ADOPTED THE POSITION WITHOUT THE OFFENDING SECTION? WE BELIEVE THATEY WOULD NOT HAVE ...

ADAPTED? >> IS THAT SO CLEAR? WHAT THE JUDGE FOUND IN EFFECT WAS THAT THE OTHER PROVISIONS OF THE STATUTE WERE LAWFUL, SEARCH THE LEGISLATIVE PURPOSE. THIS ONE HE FOUND IN EFFECT WAS NOT ONLY UNLAWFUL BUT SPECIFICALLY DID NOT SERVE THE LEGISLATIVE PURPOSE IN WAYS OTHER THAN WERE A COP WISH BY THE OTHER PROVISIONS. ...

SO, IF HE IS RIGHT ABOUT THAT, DOES IT SEVERABILITY MAKE PERFECT SENSE? >> NO. A-3 WAS AT THE CORE OF THE STATUE. IF YOU START WITH THE EARLIEST VERSIONS OF THE LAW, THIS IS A L AW THAT WOULD NOT HAVE BEEN ADOPTED WITHOUT A-3. IF I MAY TAKE ONE MORE MOMENT TO ADDRESS THE SECOND ISSUE? THE SECOND ISSUE IS THAT THE STATUTE IS UNCONSTITUTIONAL VIOLATING EQUAL PROTECTION BECAUSE THE DISCRIMINATORY ANIMUS AND ITS ADOPTION IMPLANTATION. WE MADE THE POINT HERE THAT THE JUDGE ERRED UNDER RULE 56. THE ADVISORY COMMITTEE -- AD APTED IN 2010 SAY THE JUDGE WANT TO DO THE SUMMARY JUDGMENT AND INVITE THE PARTIES TO MAKE SUCH A MOTION. THAT WAS NOT DONE HERE. THERE IS A TREMENDOUS DIFFERENCE BETWEEN BRIEFING FOR MOTION FOR PLENARY JUNCTION AND SUMMARY JUDGMENT. IN FACT, THE SUPREME COURT AND UNIVERSITY OF TEXAS IN THE SECOND CIRCUIT MADE THIS POINT. I WOULD CONCLUDE TOBY SAYING THERE IS SO MUCH EVIDENCE THAT INDICATES THAT THERE WAS A DISCRIMINATORY ANIMUS, INCLUDING A LAMINATING A PROGRAM THAT WAS PROVEN TO BE TREMENDOUSLY SUCCESSFUL -- ELIMINATING A PROGRAM THAT WAS PROVEN TO BE SUCCESSFUL. THAT WAS ENOUGH TO PROVE THAT THE SHOULD OF GONE -- SUMMARY JUDGMENT WAS WRONGLY GRANTED. THANK YOU SO MUCH. >> WE THANK BOTH COUNSEL FOR BOTH ARGUMENTS FOR THE CASE IS COMMITTED. THE FINAL CASE ON THE ARGUMENT CALENDAR IS CAMP VERSUS NEVIN. I SUSPECT THAT WE WILL HAVE A LOT OF PEOPLE MOVING AROUND. WE WILL SIT IN PLACE AS YOU REASSEMBLE. >> ...