“Ban Ethnic Studies” arguments revisited

by David Safier

I'm at sea when it comes to legal arguments and decisions, having nothing but my close reading skills to help me, unlike the crackerjack legal minds writing here at BfA. So I'm grateful to Stephen Lemons (AKA Feathered Bastard) at the Phoenix New Times for revisiting the oral arguments about the anti-Ethnic Studies law in front of Judge Tashima on March 19. [Note: I'm frequently grateful to Lemons for his irreverant and insightful pieces. Don't ever change, Stephen!]

Reading Lemons' summary of Richard Martinez's arguments against ARS 15-111 and 112, who said they should be struck down because they are "vague and overbroad," followed by Tom Horne's arguments saying the laws are just fine, gave me some hope for a favorable verdict. The judge seemed to like Martinez's points, and he picked away at Horne's. Toward the end, Horne's back was far enough against the wall, he was arguing "severability," meaning if the judge strikes down one part of the law, he can still leave other parts. The judge replied that there is no "severability clause" in the law as there is in other laws. The best Horne could answer was, well, it's kind of implied.

My understanding is, a judge has to have a damn good reason to strike down a law, so the hearing is weighted in Horne's favor. But if Tashima decides there is good reason to declare the law "vague and overbroad," he can strike it down.

It ain't over 'til it's over, folks.