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For the Record

April 9, 2014

[Public comments to School District U-46 Board of Education March 3, 2014]

America is progressing.

In Grutter vs. Bollinger, the Supreme Court grappled with the question of “Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.”  While Grutter was a case concerning admission to public university, I believe the principle applies.

Quoting Justice Powell from the 1978 Supreme Court case Regents v. Bakke, “When governmental decisions touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of [a] selected ethnic group that can justify the use of race. Rather, the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

Is your recruitment program narrowly defined in such a manner as to base your hiring process upon race as only one component of a range of broader qualifications?  Or are you in conflict with past Supreme Court decisions using a specified percentage of the student body to set a quota for hiring a specified number and type of teacher?  If so, you are headed back into a legal minefield which has already cost the taxpayers of U46 over $12 million.  So I ask, what is the compelling government interest here?

Justice Sandra Day O’Conner stated, “When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.”  What is that “narrow-tailoring requirement” or justification for this policy?  What are the educational benefits that flow from a diverse teaching body?  Upon what studies do you base your premise?  While institutions of higher education may have the latitude to foster a robust exchange of a diversity of opinion, I would caution you as to that being a justifiable basis for K through 12 compulsory public education.

Justice O’Conner continues, “The purpose of the narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

In conclusion Justice O’Conner states,

 We are mindful, however, that a core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race. Accordingly, race-conscious … policies must be limited in time.  This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious … programs from the requirement that all governmental use of race must have a logical end point. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.  [Emphasis added]

With that in mind, I hope you will tread carefully on the recruitment path you are about to embark upon, lest the taxpayers of U46 find ourselves embroiled in yet another costly lawsuit because of actions laden with the best of intentions, but fraught with potential pitfalls.

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