State Court School Desegregation Cases: The New Frontier

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• What Brown said: separate is not equal; “all deliberate speed” • Brown worked, achievement gap halved—Rucker Johnson, Sean Ritter • De jure v. de facto • Is there a difference—”The Color of Law,” Richard Rothstein • Milliken v. Bradley, 418 U.S. 717 (1974) • How do you prove intent? • From Reagan to Trump: the federal judiciary, Is separate now equal?

2 SEGREGATION IN MINNESOTA

• Highly segregated—huge gaps between Blacks and Whites • 11th largest educational achievement gap • 9th largest earning disparities • Sixth largest employment disparities • Second largest poverty & home ownership gaps https://www.nytimes.com/2020/06/03/opinion/george-floyd-minneapolis- segregation.html?searchResultPosition=1

3 NEW YORK TIMES JUNE 3, 2020

• “Today, Minnesota has some of the largest black-white welfare gaps in the nation, in education, income and employment. The state has America’s 11th-largest educational achievement gap, ninth largest earning disparities, sixth largest employment disparities and the second largest gaps in poverty and homeownership.” • “Segregated cities are more likely to produce racism not just within the police force but throughout any political or civic institution with power.” https://www.nytimes.com/2020/06/03/opinion/george-floyd-minneapolis- segregation.html?searchResultPosition=1

4 WASHINGTON POST 6-5-20

• The Twin Cities’ numbers tell the story. The black poverty rate is five times higher than for white residents. A quarter of black residents own their homes compared with three- quarters of whites. Only 57 percent of black students in Minneapolis and 70 percent of black students in St. Paul complete high school in four years, compared with around 85 percent of their white peers. Black youth represent 11 percent of the under-18 population but more than 30 percent of those detained in the juvenile justice system. https://www.washingtonpost.com/opinions/2020/06/04/its-hard-hear-minnesota-nice- without-undertones-irony- despair/?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=newslet ter&wpisrc=nl_headlines

5 FAILURE TO ACHIEVE RACIAL PROGRESS

• 2016 WalletHub Report on States’ Racial Progress: Minnesota rankings: overall 51; gap in median annual income, 50; gap in home ownership rate, 50; gap in poverty rate, 49; gap in residents with at least H.S. diploma, 51; racial progress, 50 • 2020 WalletHub States with the Most Racial Progress: Minnesota rankings: racial integration, 45; median annual income gap, 49; home ownership gap, 48; poverty rate gap, 48; high school diploma gap, 50; racial progress, 45 • https://wallethub.com/edu/states-with-the-most-and-least-racial-progress/18428/

6 BOOKER V. SPECIAL SCHOOL DISTRICT 1

• Booker v. SPECIAL SCHOOL DIST. NO. 1, MINNEAPOLIS, MINN., 351 F. S u p p. 799 (D. Minn. 1972) • Filed 1971, claiming deliberate segregation Minneapolis public schools • “The record clearly indicates that the defendant has been aware of the existence of residential segregation, and the discrimination which underlies it.” • As result of the actions of the defendant set out above and the wide-spread racial segregation in housing within the District, the public school students of Special School District # 1 have been segregated on account of race • Busing within city ordered to desegregate

7 THE SUCCESS OF BOOKER

• https://www.nytimes.com/2020/06/03/opinion/george-floyd-minneapolis- segregation.html?searchResultPosition=1 • Severe segregation in the Twin Cities region is a relatively recent phenomenon. In the 1960s and 1970s, the Minneapolis region was one of the most racially integrated in the nation. • “carefully designed ‘fair share’ program that required all municipalities within the region to develop affordable housing within their borders, preventing suburbs from effectively barring low-income residents…” • “Minneapolis also operated an aggressive school desegregation plan.” • 1978: MDE deseg. rule: State can regulate de facto segregation • By early 1980’s, no racially identifiable schools

8 MINNEAPOLIS RESEGREGATES I

• Based on State Bd of Ed assurance, Court dissolves Booker injunction—6/8/83 • Minneapolis demographics shift; 1988, 45% students of color, rising • April ‘89: Legislature creates Deseg Policy Forum; DPF task force urges inter-district deseg to remedy de facto segregation—creates & proposes new deseg rule in ’94 • New proposed rule gets legislative OK to go to formal rule-making • PROCESS HIJACKED BY THE RIGHT—more to come

9 MINNEAPOLIS RESEGREGATES II

• But beginning in the 1990s, Minneapolis and St. Paul began abandoning the integration model under pressure from parents and political groups that argued that there was “no compelling government interest in K-12 education absent intentional discrimination.” Instead, the schools moved to a system based on open enrollment and the promise of increased funding for lower-income schools. • It was an extreme example of a trend that has taken hold elsewhere — a shift toward segregation in schools, in housing, in elder care and early childhood education. https://www.washingtonpost.com/opinions/2020/06/04/its-hard-hear-minnesota-nice- without-undertones-irony- despair/?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=newslet ter&wpisrc=nl_headlines

10 RETURN TO STATE COURTS

• No federal constitutional right to an education: San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973) • State Constitutions all contain education clauses • Minnesota Const. Art. XIII, § 1: UNIFORM SYSTEM OF PUBLIC SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state. • Typical of stronger education clauses

11 SHEFF V. O’NEILL

• State court education clauses cases building momentum for years, mostly about funding, but also defining adequate education

• Pauley v. Kelly, 255 S.E.2d 859 (W.Va. 1979); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989); Hornbeck v. Somerset Cnty. Bd. of Educ., 458 A.2d 758 (Md. 1983); Board of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982); Seattle Sch. Dist. No. 1 of King Cnty. v. State, 585 P.2d 71(Wash. 1978); Kukor v. Grover, 436 N.W.2d 568 (Wis. 1989)

• 1989: Sheff filed: Hartford, Conn., area children sue State over funding & segregation • The floodgates open nationally

12 WHY & WHY NOT STATE COURTS

WHY: • State Constitution Education Clauses • State Court Judges • Not bound by post-Brown federal court decisions • Precedents from other states WHY NOT: • The remedy problem • “the law’s delay” • Local politics

13 SKEEN V. STATE, 505 N.W.2D 299 (MINN. 1993)

• A fundamental right to an adequate education • Strict scrutiny v. rational basis • An adequate education defined: Board of Educ. of Sauk Centre v. Moore, 17 Minn. 412, 416 (1871) (Education Clause is meant “to ensure a regular method throughout the state whereby all may be enabled to acquire an education which will fit them to discharge intelligently their duties as citizens of the republic.”) • Incorporates eight elements of adequate education in Pauley v. Kelly, 255 S.E.2d at 877 • Not dictum: sufficiency of funding requires adequacy of education

14 MINNEAPOLIS NAACP, XIONG V. STATE OF MINNESOTA

• How I got involved • By 1995, schools in Minneapolis had resegregated since Booker ended in 1983 • Demographics, MDE inattention & delay, Mpls school board inaction • Logical extension of Brown v. Board: segregation=separate; separate=unequal; unequal=inadequate; inadequate=violation fundamental constitutional right • Filed in 1995 • Motion to dismiss denied; interlocutory Supreme Court appeal denied • Settled in 2000

15 POLITICS, POLITICS, POLITICS

• 1995: Republican Gov. Arne Carlson, Democrat Atty. Gen. • 1999: Ind. Gov. , Democrat Atty. Gen. • Old guard out at Mpls. NAACP—from integration to jobs; kids to adults • Direct action too effective for new regime • “you need to control your son” • Along comes Xiong • Along comes the rightward drift of national and local politics

16 NAACP, XIONG SETTLE

• Interest based mediation: stakeholders, issues, interests; win-win; FALT plans • Why we settled—the remedy problem, “the law’s delay” • The Choice Is Yours: 500 FRL Mpls kids to suburbs for four years for K-HS • State pays transportation • Easier intra-district transfers • Improved parent information • Greater accountability • A meaningful first step to desegregation—or so we thought

17 HOW THE SCHOOLS RESEGREGATED

• Over time, housing and school desegregation “programs broke down under pressure from special interests and were substituted for by less politically troublesome programs.” https://www.nytimes.com/2020/06/03/opinion/george-floyd-minneapolis- segregation.html?searchResultPosition=1 • 1995: Gov. Carlson goes after the Integration Task Force • The AG’s office takes over the drafting of the new Deseg Rule • By 1999, the Rule has completely changed—with resegregation in mind • The rise of charter schools • The return to neighborhood schools

18 THE NEW SEGREGATION RULE

• Segregation defined as intentional only • Intent defined as impossible to prove • No compulsory inter-district desegregation • Charter schools exempted from Rule • SONAR mischaracterized and omitted applicable law allowing actions by States to desegregate: Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971); Green v. Cty. Sch. Bd. of New Kent Cty., Va., 391 U.S. 430, 439-441 (1968) • Effort to insulate State from liability • Resegregation foreseeable and actually foreseen

19 THE NEED FOR CRUZ-GUZMAN

• Conditions in Minneapolis and St. Paul Schools worse than in 1995 • By 2015: Mpls 27 schools ≥ 80% children of color; 11 schools ≥ 60% white St. Paul 31 schools ≥ 80% children of color; 8 schools ≥ 60% white Metro charter schools 41 ≥ 95% children of color; 28 schools ≥ 80% white FRL figures generally correspond with % color, % white Large gaps in state-wide graduation rates, test scores Even larger gaps compared to metro suburban schools

20 CRUZ-GUZMAN V. STATE OF MINNESOTA

• The search for Plaintiffs • Filed November 5, 2015, Hennepin County District Court • Plaintiff parents and one organization; filed as class action for Mpls & St. Paul • Claims for violation of State Constitution Education Clause, Equal Protection Clause, Due Process Clause, & MN Human Rights Act • Son of Xiong, NAACP: same Brown-based theory • Relief requested • Charter schools intervene • Motions to dismiss denied

21 THE STATE APPEALS

• Interlocutory appeal of right based on claim of no subject matter jurisdiction • Discretionary review denied on other claims and charter petition • Oral argument focuses almost exclusively on non-justiciability; not briefed in district court or Court of Appeals, not argued orally in district court • Reversed, ordered dismissed as non-justiciable, Cruz-Guzman v. State, 892 N.W.2d 533 (Minn. App. 2017) • Courts cannot define adequate education • As of decision, 22 States Supreme Court plus Minnesota had defined it; none cited in opinion; Court cites only five States in agreement with it, all with weaker Ed. Clauses

22 THE SUPREME COURT REVERSES

• Cruz-Guzman v. State, 916 N.W.2d 1 (Minn. 2018) • “We hold that separation-of-powers principles do not prevent the judiciary from ruling on whether the Legislature has violated its duty under the Education Clause or violated the Equal Protection or Due Process Clauses of the Minnesota Constitution. … We therefore reverse the decision of the court of appeals.” Id., at 5 • FN 6: “It is self-evident that a segregated system of public schools is not ‘general,’ ‘uniform,’ ‘thorough,’ or ‘efficient.’” • Complete victory, landmark decision

23 EDUCATION CLAUSE V. EQUAL PROTECTION

• The problem of proving intent • Equal protection: the Government must do something to deny equal protection • Education Clause: the Government must fail to do what it has an affirmative duty to provide—a general, uniform, thorough, and efficient system of public schools • Intent doesn’t matter. The Government had to provide something; it didn’t; who cares what the reason or intent was? • Can there be any justification for not doing so? • Perhaps only act of God

24 THE CASE REVIVES

• Class is certified for Minneapolis and St. Paul students • Plaintiffs defeat charter school motion for summary judgment that their exemption from deseg rules and requirements is constitutional • Plaintiffs’ opposition to charter school motion lays out how MDE intentionally allowed Twin Cities schools to resegregate • Case initially set for trial in 2020 after remand

25 MORE POLITICS

• From 2015 to 2019, Minnesota Attorney General • AG’s office fights us tooth & nail on everything; if we want it, they don’t • November, 2018: elected AG, first African American MN AG • January, 2019, sworn in; asks if we are willing to mediate • Parties agree on mediators, conditions of mediation • Interest-based mediation commences in March • Still proceeding, but the end may be in sight after 15 months

26 OBJECTIVES OF THE MEDIATION

• What are the goals: integration, equity, inclusion, achievement • Comprehensive educational reform in Minnesota • Closing the achievement gap and improving life outcomes • Introducing and continuing best practices in education • Addressing multi-dimensional nature of problem and solution • Learning from all stakeholders • Community acceptance

27 MEANS TO THE END

• Inter-district desegregation—mandatory for districts, voluntary for parents, State paying transportation • Network of excellent magnet schools • Seat set-asides for FRL students—ID’d by tiering based on census tratcs • Increasing and retaining teachers of color • Pre-K • Full service schools • Culturally relevant curriculum • Equitable discipline • No second level segregation • Etc., etc., etc.

28