The Volokh Conspiracy

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Race Discrimination

Apparent Unconstitutional Race Discrimination in School Reopening Plan

at the West Contra Costa Unified School District (Northern California).


From the Memorandum of Understanding, which I'm told was just approved Friday:

Our tenets for spring reopening are grounded in strong pedagogy aligned with the Multi Tiers of Student Supports (MTSS) model: …

2. Targeted, high needs students first. Wholesale return to in person instruction for the full day for all students is not possible within the county public health mandates at this time and the social distancing constraints ….

6. Identified High Needs Students are the first focus

a. Definitions
i. For the purposes of identification for this program, "high need students" are defined by the district, based upon the roster of students on March 15th, 2021 as Preschool through 12th grade students who fall into one or more of the following categories:
1. Homeless
2. Foster Youth
3. English language learners
4. African American students
5. Students unable to access online learning due to a lack of internet or connected device
6. Pupils with disabilities, including Transition-aged youth
a. Students with IEPs in Self Contained Classes (ESN and MMSN) or Full Inclusion
b. Students needing in-person evaluation for special education
c. Students with Section 504 Plans
7. Students who chronically absent/disengaged
8. Students at risk for abuse, neglect, or exploitation
9. Students identified as having severe social emotional needs, as determined by CARE / COST / SST / IEP, history of Risk Assessment and/or hospitalizations …

8. Additional support for non-high need students
a. In the event that there are additional cohort spaces above and beyond what is needed to support district-identified high need students, school sites shall assess the remaining available space and staffing capacity and invite students in PS-12 to participate in the additional support program

Black students are thus expressly preferred, even entirely apart from any other factor (such as homelessness, foster youth status, poverty, or anything else). A black student with none of the other factors is eligible for the early reopening; a white, Hispanic, or Asian student with none of the other factors is not.

This is likely unconstitutional under the Equal Protection Clause, I think, as well as illegal under Title VI of the Civil Rights Act of 1964. Though the Court has allowed certain kinds of race classifications under these provisions if they are "narrowly tailored" to a "compelling government interest," I doubt that this sort of system—under which one's race, by itself, creates eligibility for a benefit—would pass that quite demanding standard. (Several parents had pointed this out, but the school district was unmoved.)

And it's clearly unconstitutional under the California Constitution, which categorically provides,

The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

The California Legislature had asked California voters to vote on repealing this provision last November, but the voters preserved it, by a 56-44% margin.