On its face, OPRF High School’s new achievement gap policy violates the Equal Protection clause of the 14th Amendment. To understand why, Ralph Lee, the board member who sponsored the policy, may want to sit in on the high school’s own AP Government class, where such things are covered. Any student or parent can file a complaint with the U.S. Department of Justice, to which they will receive a response – more of that later.

The issue
Consider two students, both similarly situated. One is black and another Hispanic. Both have a well-above-average IQ of 115, but only a D+ grade point average and clearly could be doing much, much better. Under the policy, the black will receive special help. The school, however, can deny the Hispanic that same help, and even degrade his or her support from today’s level of help, if the degradation is not “substantial.” That clearly fails the “strict scrutiny” test on equal protection, which applies in matters of racial classifications by public bodies.

Rational relationship test
Lee points out that the school differentiates between students in offering its music and athletic programs, which are costly. So what? That kind of differentiation only has to pass the “rational relationship” test for equal protection. Do these programs bear a rational relationship to “a legitimate governmental interest?” Of course they do: fostering appreciation for the arts, rounding out people’s education, building school spirit, and the like. Rational relationship tests are easy to meet.

Strict Scrutiny Test
When racial classifications are involved, however, any grouping is automatically “suspect,” and “strict scrutiny” is the test. The governmental interest must be “compelling,” the program must be “narrowly tailored,” and there must be no “viable alternatives” that are less intrusive. This is where the policy fails. There is no “compelling interest” to aid black students alone, and not similarly situated others. The program is not narrowly tailored. “Narrowly tailored” might be something like allowing groups such as APPLE or BOSS, racially identifiable groups, to use school facilities as they already have, to foster student confidence and parental involvement, in a way that does not hurt others who are not black. Instead, this is a sweeping program to aid only black students, as the highest priority of the school, bar none, with a willingness to neglect everyone else, and even allow for the deterioration of those others. Furthermore, this program harms “historically vulnerable” classes, such as Asian Americans and Hispanic Americans, by excluding them from the special classification. There are viable alternatives that do not involve racial classifications: Supt. Attila Weninger’s initial plan on achievement was such an alternative.

There are a few cases where strict scrutiny has not been the standard in racial classifications brought before the U.S. Supreme Court, or where the decision was outrageous. One was the notorious Korematsu case, where the court upheld the World War II internment of Japanese-Americans. That was a deep stain on the court’s record, just as Plessy v. Ferguson was, where it allowed “separate but equal” (a precedent since overturned by Brown v. Board of Education). The other few exceptions involve occasional racial set-asides in government contracts, affirmative action in government hiring, and racial preferences in admissions to public colleges and universities.

These, however, usually involve targeted programs to compensate for specific, identifiable victims of past discrimination by state and local governments, and do not intend to convey permanent, group entitlements. No court or public agency has ever found OPRF High School to practice racial discrimination against its students. This other level is “intermediate scrutiny.” For the layperson to understand some of these matters, the Oak Park Public Library has West’s Encyclopedia of American Law, with its article on “Equal Protection”. Any good text on American government will also explain these things. You can also ask your neighbor the lawyer, since all lawyers have to take a course on Constitutional Law.

Racial hiring preferences
Supt. Weninger has announced that he has considered racial targets in hiring faculty, to start to match the racial composition of the student body. The Supreme Court has indicated that such policies also violate the 14th Amendment. OPRF ran into a related problem about a dozen years ago, when it had racial preferences in its layoff policy, which violated the Wygant decision. After I pointed that out, the school removed the preferences. Now we are back to square one. To borrow a line from Talleyrand about the Bourbon royalty of France: “They have learned nothing, and they have forgotten nothing.”

Filing a complaint
Any parent or student affected can file a complaint with the U.S. Department of Justice, under the United States Code, 42 USC 2000 c-6 (a librarian can help you find this at the OPPL). You can also find out more by Googling “U.S. Department of Justice Equal Protection”, which should lead you to a page on DOJ’s website. If DOJ finds the complaint to be meritorious, and DOJ finds that you (such as a student) lack the resources to take OPRF to court, fear retaliation, and the like, DOJ can take on the matter itself. It can keep your identity confidential, since it would be the accuser in any court action, after investigating on its own. There is little to investigate, since the policy speaks for itself. The factual matters are clear, and this is primarily a matter of law. DOJ could persuade OPRF to rescind the policy. Failing that, it could seek a permanent injunction prohibiting the implementation of the discriminatory policy.

If OPRF is smart, it will rescind the policy now, and avoid the stigma of having a federal court enjoin it as a racially discriminatory public school. The board could ratify Supt. Weninger’s initial policy proposal. All of us Americans – blacks, Hispanics, people of Asian descent, whites, and others – can benefit. In the words of Dr. Martin Luther King Jr., we can then be judged by the content of our character, and not by the color of our skin. Anyone who wants to learn more may contact me by e-mail at oprfgap@aol.com.

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