Is ETHS Breaking the Law?

Did Evanston District 202 Break the Law in Offering an AP Calculus class only for Black/Latinx Kids?

District 202 (the Evanston Township High School District) recently made the national news for a story involving course descriptions for an AP Calculus AB class. The original course description contained the below language:

They’ve subsequently changed the last sentence to

While open to all students, this optional section of the course is intended to support students who identify as Black

Equity politics aside, I’ve been wondering - is this legal? What does “legal” even mean in this context? Who has authority do take action if this is not legal?

But first, let’s take a detour into a subject area I’m more familiar with.

The District 65 “Letter of Finding”

Back in January 2021, the Southeastern Law Center (I’ve written about them previously) published a letter they obtained via FOIA. It is undated, unsigned letter written by a career staffer at the Department of Education Office of Civil Rights (Letter OCR #05-19-1395). As far as I can tell, this letter is authentic - it was cited in an amicus filed with the Supreme Court and it does appear to have been confirmed by the Office of Civil Rights;

"OCR can confirm, however, that it previously opened an investigation of a complaint on the basis of race against the Evanston/Skokie School District (IL) for possible violation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin in programs or activities receiving federal financial assistance," the agency said in a statement to Fox.

The letter alleges the District violated the following regulations; (34 C.FR §§ 100.3(a), (b)(1)(ii) and (b)(l)(iii). Specifically regulations from title 34 (Education) of the federal code, which pertains to School Districts receiving federal funds;

§ 100.3 Discrimination prohibited.

(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.

(b) Specific discriminatory actions prohibited.

     (1) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:

          (ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;

           (iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

My initial thought when I first saw the letter was something like, “Late-era Trump Administration letter admonishing the District? Surely the author is Charlie Kirk’s cousin or something.” That would be wrong, though. The author of the letter is a serious lawyer and Department of Education staffer. I reached out to her for comment but she never responded, however she did accept my LinkedIn request.

The specific violations stem from the following claims;

• separating administrators in a professional development training in August 2019 into two groups on the basis of race - white and non-white and held one cabinet meeting that similarly separated participants on the basis of race in approximately March 2019.

• offering various racially exclusive affinity groups that separated students, parents, and community members by race.

• implementing a Discipline Policy that includes an explicit direction to staff to consider a student's race when evaluating a behavioral/disciplinary situation.

• carrying out a "Colorism Privilege walk activity" with students during a "racial equity summit" at King Arts, in March 2019, that treated students differently and separated students solely based on their race and color.

The alleged violations predate Dr. Horton and occurred during Dr. Goren’s tenure as superintendent.¹ Some of the violations stem from professional development sessions, offered by Pacific Educational Group, which offers the Beyond Diversity Training program.

After inauguration in January 2021, the letter basically ceased to exist. The Department of Education OCR office “revoked” the letter after an early Biden-era executive order. It was entirely removed from their website. The only supporting evidence is a FOX News article from the time but in it, the District confirms the letter’s existence and revocation;

The Evanston-Skokie School District confirmed to Fox News that the investigation had been put on ice.

"In January, the proceedings were suspended by OCR pending its reconsideration of the case in light of the executive orders on racial equity issued by President Biden," a spokesperson for the school district told Fox News. "At this time, there is no final decision in place."

I submitted a FOIA to the Department of Education for information pertaining to the removal of the letter and got a “20-day letter” thirty days ago, so I’m not optimistic about finding out more on the story.

So, is it legal?

Circle back to District 202, which feels like an echo of the above. The district offers a class which separates students by race, participation is optional, and services rendered are likely not equal, which is the very point of equity vs equality. This is not “separate but equal” it is something else entirely. I think of it as is “separate and unequal but specifically unequal in an attempt to reconcile a previous unequal thing.”² Is that illegal? I don’t know!

I’m not the only confused person; from the SCOTUS amicus cited above;

OCR’s recent Evanston investigation further illustrates the wild fluctuations in the Executive Branch’s response to race-conscious educational activities.

My read is that the legality depends on a lot of things, including who the current resident of the White House. I agree with the amicus, it seems bad that we have laws where the very meaning of those laws depends on the current political order. This problem is greater than the education business, but right now seems most prurient in education.

It isn’t surprising that education is the center of this debate, consider this language from the Brown vs Board of Education ruling (1954), which ended “separate but equal” segregation in schools;

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

In that case, the Justices came to the conclusion (bold is mine)

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

The word “minority” in that last sentence is doing a lot of work. I’m sure there is a whole area of legal scholars that understand that clause better than I do. If you are that person, please reach out to me - I’m searching for any 14th amendment scholar who might be interested in chatting, please comment or email me.

For now, it seems completely unclear to me whether this type of action is legal or not. The answer seems political, not legal, even though it’s fundamentally about the law.

However, there is a line in the sand somewhere, consider what Dr. Horton said to the Daily Northwestern in March 2021 regarding student prioritization in return to school plans;

In an interview with The Daily, D65 Superintendent Devon Horton said the RoundTable article had misrepresented how students would be prioritized in reopening plans. “In every priority group we have on our website, we don’t have Black and brown students anywhere,” he said.  “We know that’s illegal.”

1. In 2019, District 65 paid Pacific Education $56,866.00 and last year, $43,437.50.

2. I’m not making any political statement pro or con when I make this statement, simply that this is how I interpret this, not whether I agree or disagree.