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January 4, 2016

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EDlection 2016 is The Seventy Four's ongoing coverage of state-level education news, issues and leaders in the run up to 2016 elections. (Among our previous stories in this series, coverage from Connecticut, Iowa, Maryland, Missouri, Nevada, New Mexico, Ohio, Oklahoma and Pennsylvania. See the latest stories here). Minnesota’s caucuses are scheduled for March 1.

Bill Wilson did not set out to open a school that caters to East African immigrants. But soon after he started Higher Ground Academy in 1999, the grapevine in Minnesota’s Somali and Oromo communities began buzzing with stories about the school and its results.

Incoming Higher Ground students might start out behind, but the K-12 charter school, located in a converted industrial building in a working-class neighborhood in St. Paul, sets a high bar. The student body may come from impoverished households, but classrooms are orderly and test scores impressive. In order to graduate, students must earn admission to college — even if they speak no English when they enrolled, and even if their first exposure to school was Higher Ground. While achievement is actually falling in nearby St. Paul Public Schools, the Higher Ground program has landed on U.S. News & World Report’s Best High Schools list three times in recent years.

As parents spread the word about the school, Wilson soon had a student body that was almost entirely of African descent, a long waiting list and a steady stream of visiting educators eager to learn how the school succeeds where so many fail.

“We set that bar high because we know the headwinds these kids face,” says Wilson. “I have not gone out one day knocking on doors to recruit. Our accomplishments do our recruiting.”

And yet despite all this success — or perhaps precisely because of it — today Wilson finds himself defending Higher Ground from what he and other Minnesota charter school leaders see as a two-pronged assault on parental choice.

A class-action suit filed in November accuses the state of Minnesota of depriving students of a quality education by allowing segregated schools. The rise of charter schools, the suit claims, has made integration impossible.

At the same time, state officials have proposed requiring charters to participate in the state’s desegregation program. Right now the independent schools must admit whoever applies, with a lottery when there are more applicants than seats. The proposed desegregation rule is scant on details, but what’s clear is charters that keep their color-blind, random lotteries would have to come up with a way to put their students in integrated settings.

In short, compliance would run roughshod over their autonomy. And many charter leaders say it’s precisely that sort of autonomy — which gives flexibility in staffing and allows for longer school days, for example — that is fundamental to their academic success.

“Why can’t people go to the schools they want to? Why take that choice away?” asks Wilson. “There’s an interest in closing down schools like this. We bust a myth” that students from low-income backgrounds can’t excel in school.

School choice proponents throughout the country would be advised to pay close attention to this Midwestern legal fight. The challenges come at a time when charter opponents — chief among them teachers’ unions — have turned up the political heat by claiming the schools compound inequity in education.

Black Lives Matter and high-profile initiatives like President Barack Obama’s My Brother’s Keeper have propelled equity to the forefront of the education agenda. Proponents of differing education policies have raced to claim that their philosophy or initiative is the one that will deliver for children of color.

Questions of equity are at the heart of debates about expanding charter sectors in Boston, Los Angeles, Chicago and other cities. And they are behind efforts to ensure disadvantaged students have the same access to the best teachers.

A recent and controversial New York Times story about suspensions by New York City’s Success Academies charter network overshadowed coverage of the Obama Administration’s ongoing push to reduce yawning racial disparities in discipline in traditional school districts.

Hillary Clinton fanned the flames further, claiming at a November African American candidate forum that charter schools frequently turn away the most challenged students.

That claim enrages Wilson, who served as Minnesota’s commissioner of human rights and as a member of the St. Paul City Council. His efforts to advocate for African American youth in both positions left him profoundly discouraged about traditional schools’ ability to serve students of color.

He opened Higher Ground to take in the exact students Clinton was talking about because he knew better was possible. Wealthy white families could also enroll their children if they wanted, but their kids are doing pretty well in neighboring schools, where their culture is the dominant one.

69 percent of white students in St. Paul Public Schools read at or above grade level, while just 25 percent of black children score proficient. Numbers are slightly better for Latino and Asian American students, but fall to 15 and 17 percent for special education students and those learning English, respectively.

By contrast Higher Ground’s students, all of them black and impoverished, are on par with statewide averages. Half can read at grade level, and nearly 60 percent can do math at grade level.

To call the school segregated is to fundamentally misinterpret the history of racial inequities in U.S. schools, Wilson says. Segregation is the practice of stopping a person or group from enrolling in a school, not what happens when families choose a program that protects and celebrates their children’s heritage.

University of St. Thomas Law School Professor Nekima Levy-Pounds, who also heads the Minneapolis NAACP, agrees. “People are trying to use the civil rights laws to say that those are segregated schools, and that to me is a false analysis,” she says. “I send my children to an all-black charter on purpose so they will be affirmed, so that their history would be brought forward in the classroom, so they would feel like a whole human being and not inferior.”

The man behind a Minnesota controversy

At the center of the controversy is a University of Minnesota Law School professor who has authored a number of reports decrying charter schools as ineffective and a major barrier to integration. The director of the university’s Institute on Metropolitan Opportunity, Myron Orfield has been a vocal proponent of integrating schools by creating metro-wide school districts.

The brother of noted integration scholar Gary Orfield, a professor at the University of California Los Angeles Graduate School of Education, Myron Orfield began decrying school choice in an era of starkly different school demographics. In 1991 when the first charter school law was passed, more than 90 percent of Minnesota students were white. Today, three-fourths of Minneapolis and St. Paul students are children of color.

As demographic shifts have put integration further out of reach, policymakers have focused on improving the quality of impoverished schools. As the shift has accelerated, Orfield’s work has become increasingly strident and ideological. Last year he was forced to concede that half the funding for a marquee report came from teachers unions, which used it to push anti-charter policies.

In one of his most recent reports, Orfield describes the rise of a “poverty education complex,” which he asserts is a “lucrative private education sector” with a financial interest in reversing desegregation efforts.

White flight in the 1990s, he wrote, caused re-segregation in Twin Cities neighborhoods and schools. “This triggered a decline in test scores, which was used by self-styled ‘school reformers’ as evidence of the failure of central city public education,” he wrote last spring. “School reformers argued that Minnesotans needed more ‘choice’ in education: both the ability to choose which public school district to attend, and also the option to choose between traditional public and independent ‘charter’ schools.”

What Wilson and other school leaders see as efforts to provide culturally relevant programming, Orfield depicts as deliberate attempts to thwart integration efforts.

“While legally mandated segregation is forbidden, charters have found [an] effective workaround, one that skirts as close as possible to the enforced separation of the Jim Crow era,” he writes. “A large number of charters are ‘culturally focused’ and overwhelmingly composed of a single racial group, ensuring that students from any other group will remain isolated.”

A few months prior, Orfield released a study largely financed by three Illinois teachers unions titled “Charter Schools in Chicago: No Model for Education Reform.” In it, he claimed that the city’s traditional district schools outperformed its charters. The conclusion called for a moratorium on new charters as well as legislation curtailing their expansion, positions the unions were lobbying for at the Capitol.

The Illinois Network of Charter Schools fired back quickly, noting that Orfield made a number of errors, including inflating district schools’ graduation rate from 63 percent to 83 percent, and cherry-picking research that supported his contentions.

Orfield’s own colleagues have questioned the soundness of his research, with another University of Minnesota faculty member decrying a recent study as “highly suspect” and “unworthy of the label ‘university research.’”

Two other Twin Cities scholars, one of them an attorney who has represented charter schools, were so frustrated with errors and inaccurate depictions in a widely circulated 2009 Orfield report, “A Missed Opportunity: Minnesota’s Failed Experiment with Choice-Based Integration,” they authored a 69-page rebuttal published in the same journal, the William Mitchell Law Review. Among their assertions: Orfield omitted research conducted by his own brother that contradicted the study’s hypothesis.

(More from The Seventy Four: Read Myron Orfield's response to this article)

A new law, a new battle tactic

After years of painful debate, in 2013 Minnesota lawmakers passed an overhaul of the program that provides school districts with money to be used for voluntary integration efforts. The move followed a protracted conversation over the relationship between integration and academic achievement and whether the money — $173 million annually — might better be directed toward closing the achievement gap.

After the new law was adopted, it fell to the state’s Education Department to create the rules governing the program. Orfield was a member of the task force assigned to draft the first version. In February 2014, he dissented from its recommendations, which again suggested schools should make voluntary efforts to expose students to kids from other races and cultures.

Instead, Orfield asked for a series of sweeping changes. He demanded the removal of a provision that said a school is not segregated if its enrollment is the result of parent or student choice. He also pushed for the addition of clauses that would ban the creation of new schools that might have an effect on segregation. At a minimum, the changes would make it nearly impossible to open an alternative to an underperforming traditional school.

When the state didn’t bite, Orfield asked the city of Brooklyn Center, an impoverished first ring suburb of Minneapolis, to petition a judge to order the change. Months later, after a hearing had been scheduled in the case, the Minnesota Association of Charter Schools sent out an e-mail asking its members to voice their concerns about the rule change.

“The effect of the Brooklyn Center/Orfield Amendment would be to create ‘super school districts’ which would include charters,” an alert to members warned. “It would allow the state to define differences in programs, staffing, facilities, etc. that may exist between school districts or schools as acts of ‘legal segregation.’ A finding of legal segregation could require students to be placed in other schools, staff to be transferred to other buildings and even schools to be closed — all to implement a particular vision of the world.”

Brooklyn Center decided to drop its petition shortly before the scheduled hearing. Officially, they said it was because another organization with more resources and a stronger case came forward. But public records suggest city officials were surprised to learn the implications of the petition.

As it happened, a member of the Brooklyn Center City Council also served on the board of a local charter school. According to Odyssey Academy meeting minutes, as the hearing drew near she suggested school representatives might want to let city officials know the negative impact the proposed change would have.

And e-mails between city and school officials obtained under open-records laws by MinnCAN, an education advocacy group, show city officials asked Orfield about the school’s concern and were told the rule change was “not likely” to have an adverse effect.

The charter community was also concerned about the state’s proposed revision of the rule, but for a different reason. Minnesota law deliberately exempts charters from many regulations, granting autonomy in exchange for accountability.

State officials would be circumventing the law by deciding to apply the desegregation rule to their schools, charter leaders say. That precedent could set the stage for the return of regulations lawmakers intended the schools to be exempt from when they wrote the original charter legislation.

Nor would including the schools actually result in the kind of mixed student bodies most people think of when they hear the word integration. Until recently Minnesota encouraged schools and districts to voluntarily come up with ways to expose students to other cultures. For years, integration funds were spent on staff diversity training, after school activities and even in some places ethnic art.

When they rewrote the law two years ago, legislators decided the money should be tied to efforts to close academic achievement gaps like the ones in St. Paul. Integration should still be a goal, they said, but not at the expense of achievement.

Orfield now says he will testify at an early January hearing on the proposed new state law only if he feels there aren’t enough others pushing for traditional integration. For radically different reasons, he is as opposed to the new rule as charter leaders.

“The present rule is abandoning the field,” he says. “People need to start over at ground zero.”

He believes the matter ultimately will be settled in the courts. The attorney behind the recently filed class-action suit, Daniel Schulman has suggested the ultimate aim is to dismantle the Twin Cities’ current school systems and replace them with several metro-wide districts in which all schools would be balanced by race.

Orfield acknowledges his work undergirds the suit and says he has spoken to the lawyers behind it but is not formally involved.

A decision on the state rule is expected in coming weeks. The lawsuit, meanwhile, will take years to wend its way through the courts.

Which means Wilson and other charter and civil rights leaders are in for a long battle to educate the public and policymakers on the dangers of eliminating parental choice, albeit in the name of integration.

“It’s the difference between democracy and autocracy,” says Wilson. “In a democracy, every person has a chance, has a choice. You can choose who to vote for. With charter schools, people vote with their feet.”

And he finds it offensive that the central argument behind both the proposed new rule and the lawsuit is that integration is the only solution to the achievement gap. “It’s saying the only way a black child can learn is in the presence of a white one,” Wilson says. “And that’s very troubling.”

If the lawsuit goes forward, doubtless one of the central questions would be whether schools chosen by parents of color can be defined as segregated. And the years of legal challenges that would ensue could have sweeping, national implications.

Not the least of which is whether today’s civil libertarians are right that it’s not “segregation” to offer parents a high-quality alternative in a school that is chosen predominantly by one race. Instead, they argue, segregation is the process of locking children out of opportunity — denying them choices — because of their identity.

“At the end of the day, I do believe in the Beloved Community,” says law professor Levy-Pounds. “I also believe in the importance of differentiating between schools that are designed with kids of color in mind to try to protect them and affirm their identity in a land that is hostile to difference.”

Beth Hawkins is an award-winning education writer for Education Post and a contributor to The Seventy Four