Dear Florida School Superintendent:

    We have learned that your school district may be engaged in illegally discriminatory school admissions. Specifically, we understand that you are using guidelines offered by the Florida State Department of Education known as ”Plan B.”

Plan B allows a school district to use a lower IQ test threshold for self-identified Native American, black and Hispanic students in admission to gifted and talented programs. As you may know by now, Plan B has been discontinued in Hillsborough and Pinellas Counties because of litigation brought on behalf of aggrieved parents by Mr. William Helfand of Magenhiem, Bateman and Helfand, a law firm based in Houston Texas. Mr. Helfand currently has litigation pending against Miami-Dade School District and has recently reached a settlement agreement with the State of Florida Department of Education to revise the State's eligibility standards.

    Plan B is, in our opinion, likely to be ruled unconstitutional. Perhaps the best evidence of the recognition of the patent unconstitutionality of this race-based program is the prompt settlement by each of the schools districts sued for their use of Plan B as well as the State's agreement to "fast track" its regulation changes to abandon the use of race in selection criteria as soon as legally possible. The Supreme Court has made clear repeatedly in recent years that any government use of racial or ethnic classifications is presumptively illegal and will be subjected to “strict scrutiny” by the judiciary.  This scrutinization can be successfully met only if the state is able to point to a compelling governmental interest, and only if there is essentially no other way for the state to achieve that interest except by the use of  racial and ethnic classifications (i.e., the program must be “narrowly tailored”).  See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).  We think it very unlikely that any court would find a compelling government interest in your assumption that black children and white children cannot be held to the same intelligence standards, or that whatever interest you purport to have could not be better served by less stereotypical and unfair means.

    In fact, newspaper accounts have reported that the state of Florida’s DOE is on the verge of amending Plan B to eliminate the racial preferences and classifications from future consideration.

    Therefore, we believe that your school district should immediately desist from using race, ethnicity and national origin in selecting students for your gifted and talented program and any other program you have in place. We are regularly contacted by parents throughout Florida who are offended by this racially discriminatory practice and fully intend to advise any aggrieved parents within your district of the status of ongoing litigation regarding this issue unless your District acts promptly and responsibly to discontinue its use of race in its evaluation of students for participation in your District's gifted student programs.

    Before referring this matter to Mr. Helfand, we would like your response to this issue. We look forward to your reply.

                                                        Sincerely yours,

                                                        Roger Clegg