I applaud Minneapolis schools Superintendent Bernadeia Johnson’s desire to end all racial discrimination resulting in black, Hispanic or American Indian students being suspended from Minneapolis public schools (“Schools need OK to suspend,” Nov. 8). Unfortunately, the means that she has chosen — providing additional review by her office of any suspension of black, Hispanic or American Indian students for nonviolent behavior — is likely unconstitutional.

Here’s why: When a government entity, such as a school district, develops a policy that discriminates between racial groups, a court will strike down that policy as unconstitutional unless it is justified by a compelling government interest, is narrowly tailored to achieve that interest and is the least restrictive means of achieving that interest. This is called the strict scrutiny test. It is the most stringent standard that courts apply, and it applies regardless of whether the racial discrimination in question is reverse racial discrimination.

The new policy in the Minneapolis public school system expressly discriminates between racial groups by providing additional review of proposed suspensions of black, Hispanic and American Indian students for nonviolent behaviors.

Even if we assume that the new policy furthers a compelling government interest, the policy is neither narrowly tailored nor is it the least restrictive means available.

Providing review of all suspensions for racial bias or training teachers on unconscious bias are two examples of other ways to address the problem without the school district resorting to institutionalizing reverse racial discrimination.

The district risks having its new policy crumble as soon as the first Asian-American or white student suspended for nonviolent behavior challenges that suspension in court as unconstitutional, with, of course, the support of a special-interest legal defense fund.

The district will then need to expend public dollars on attorney’s fees to fight a losing battle perhaps all the way up to the U.S. Supreme Court. That money would be better spent on teachers.

 

Tom Corbett, of Stillwater, is an attorney.