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The Desegregation War in Minnesota Heats Up, as State Judge Hands Charter School Advocates Key Win

March 28, 2016

Talking Points

Minnesota judge hands charter advocates victory in battle over desegregation rules - but war is just beginning

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The judge who recently handed Minnesota’s charter schools a decisive victory noted not once but 19 times that education officials contradicted state law and exceeded their authority when they attempted to include the independent public schools in a controversial desegregation program.
“The tail does not wag the dog when it comes to lawmaking,” Administrative Law Judge Ann C. O’Reilly wrote. “Accordingly, all references and applicability to charter schools must be deleted from the rules.”
Charter leaders say the rule would have had a disastrous effect on some of Minnesota’s most successful high-poverty schools, many of which have attracted large numbers of students of a single race or ethnicity. Legal protection for parents who choose these schools would have been eliminated.
Meanwhile, mainline district schools in very wealthy communities that are exclusively or nearly all-white would remain untouched. Only schools where 20 percent or more of students are nonwhite must take steps to integrate.
Hearings on the proposed rules in January had to be extended an extra day because so many school leaders and parents showed up to testify that the definition of segregation being enshrined was backwards. Dozens more personally wrote letters to the judge.
“People are trying to use the civil rights laws to say that those are segregated schools, and that to me is a false analysis,” says University of St. Thomas Law School Professor Nekima Levy-Pounds, who also heads the Minneapolis NAACP. “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.”
Nor was a University of Minnesota professor who has argued vociferously that charter schools exacerbate segregation, Myron Orfield, happy with the proposed rule. Charter schools and Minnesota’s open enrollment laws, which allows students to enroll in any district with space, “have enabled racial ‘sorting,’” he says. “Parents who don’t like integrated schools can take their children to a segregated school, and under the current rule, that school is exempt from any desegregation requirement.”
Charter school advocates throughout the country have been tracking the debate over the state rule and a separate class-action lawsuit over the same issues, which they view as a two-pronged assault on the legitimacy of parental choice. The actions come at a time when charter schools are under assault — much of it organized by teachers unions — in Boston, Chicago, Philadelphia, Los Angeles and Washington state, among other places.
Many observers note it is not entirely clear that the lawsuit — or the now-disapproved state rule — would actually result in classroom diversity. The high-poverty charter schools that would be harmed — among the state’s most successful — typically serve children whose alternatives are much lower performing, virtually single-race district schools.
Atop all of this is the difficulty of explaining why moves billed as integration efforts would actually harm students of color.
Minnesota’s 25-year-old charter school law, the nation’s first, says state laws and rules do not apply to the schools until the legislature specifically states so. School choice advocates have long complained that they repeatedly have to turn to the courts to reinforce this autonomy. “In the past six years that I have been representing charter schools and authorizers, the Minnesota Department of Education has cost schools and therefore taxpayers hundreds of thousands of dollars in time and money attempting to do away with charter schools by crushing regulatory fiat,” says Cindy Lavorato, a former assistant state attorney general and one of the attorneys who prepared the case against the rule.
The state has long defined segregation as the exclusion of a particular group and not as the result of parents choosing a school that affirms their children’s identities. Public charters can’t discriminate and those that have more applicants than seats must admit students via race- and ability-blind lotteries.
The rule, which the judge also deemed impermissibly vague, did not specify how the schools were to balance both the requirement to admit all comers and a mandate to diversify. Because the law does not cover charters, the schools will not receive state funding for integration activities.
The state Department of Education can now appeal the decision or start over. The only way it can challenge the exemption of charters is to take the question to the state Court of Appeals. If it chooses to start over, education policymakers speculate that no serious effort will be made to tackle the explosive issue until after the November election.
And so attention has turned to a second desegregation effort, a class-action lawsuit filed last fall accusing the state of denying students a quality education by allowing segregation. The rise of charters has made integration impossible, the suit claims.
Its chief author, attorney Daniel Shulman, has also leaned on civil rights movement language by referring to public charters as “segregation academies”—a reference to the whites-only private schools that sprung up in the deep south in the wake of court-ordered integration.
Indeed while the complaint in the suit doesn’t specify a remedy, Shulman has spoken publicly about creating a metro-wide district that’s so large as to prevent white flight. To accomplish this, presumably Minneapolis, St. Paul and other districts would be dissolved and systems serving large “wedges” of the Twin Cities would be established.
It remains to be seen whether families of any race would support this kind of integration. Minneapolis Public Schools in the late 1990s stopped using busing to integrate schools because students were being transported from one corner of the city to another in a state of constant flux as individual schools tried to maintain balance.
In January the attorneys behind the suit asked the state court judge overseeing the lawsuit to deny a request by Minnesota’s charter school operators to join the suit as “intervenors,” or interested parties. Agreeing that the litigation could have a major impact on their schools, the judge granted the charter advocates’ request.
A motion to dismiss the suit will be heard April 14 in Minneapolis. If the case goes forward, the law requires mediation.
Which would be an ironic turn. Twenty years ago Shulman filed a similar suit that was resolved after several expensive years in mediation. Many of the parents who agreed to be named plaintiffs were ultimately furious with the deal negotiated behind closed doors.
Under the terms of the settlement impoverished students in some parts of Minneapolis could receive busing to suburban schools. The legislation to make this possible was carried by Orfield, then a state representative.
Twin Cities schools were very different places 20 years ago. The metro area was much whiter and the charter sector was in its infancy. It would be another 15 years before there were more than a couple of high-poverty public charters that outperformed their district neighbors.
Which raises the same question lawmakers wrestled with in 2013 when they debated the law that state officials were attempting to fulfill with the recently rejected rule: If we agree — and legislators did — that integration is a worthy goal in and of itself, what do we do about students denied a quality education until we achieve it?
Sen. Terri Bonoff, a Democratic Farmer Labor Party lawmaker who represents a western Twin Cities district addressed the same question head-on in a letter to the judge who rejected the proposed rule: “If a high performing charter school that has as its mission to provide curriculum integrated with a language and cultural immersion theme happens to attract more protected students than the nearest charter school or district school, should that school be forced to change its focus because of this proposed rule?” she asked. “I would assert the answer is ‘no.’ This public charter school has increased student academic achievement, created an equitable educational opportunity, and reduced academic disparities. They have met the intention and purpose of our broader mission, educating each and every child to their fullest potential.”