Good Intentions are Not Enough

FOREWORD

You may have heard or read something about the school desegregation plan for the Twin Cities metropolitan area that has been winding its way through state government for the last few years. But then, again, perhaps you haven’t.

Or even if you have heard a report here or there, chances are you haven’t heard much about the plan’s details. And almost surely, you haven’t heard much about its implications. It’s hard to imagine how such a potentially immense change in Minnesota education and finance could have provoked so little coverage and commentary by journalists, politicians, educators and others. But it has.

Let me be direct and not the least bit hyperbolic: The two new “rules” proposed by the Minnesota State Board of Education, in the good name of desegregation and better serving minority children, have no chance whatsoever of succeeding. Instead, they are jammed with potentially giant educational, social, legal and financial risks, as well as an unknowable number of perverse incentives and disincentives.

Here are two quick examples of the plan’s inefficacy and danger, as explained by Katherine A. Kersten in this brilliant monograph.

The plan — originated by the state-appointed, approximately 50-member “Desegregation Roundtable” — “requires” school districts throughout Minnesota to quickly reduce or eliminate the “learning gap” between white and black children, under pain of state sanction. Unfortunately, I know of no major school district in the whole of the United States which has yet succeeded in doing this.

Sad fact is, we don’t know how to equalize the educational performance of all groups as called for by the plan, as such differences have more to do with often radically different social and familial environments than with school policies. And most definitely, years of scholarly research provides no reason to believe that the kind of massive, supposedly voluntary busing called for by the plan would do the job, either.

That’s an example of the plan’s ineffectiveness. One of its severest dangers is that instead of reducing the possibility of courts stepping in to run Minnesota public schools (as billed), the plan does the exact opposite. By codifying impossible goals, it sets the stage for future plaintiffs to argue as so down a not-distant road:

“Look, the State of Minnesota promised that large-scale busing would lead to requisite percentages of minority and majority students in school districts throughout the metropolitan region; and the state promised that black kids and white kids throughout the state, in just a few years, would do equally well on standardized tests — plus participate similarly in honors classes in physics, drop out of school at similar rates, and so on.

“But the State of Minnesota,” future plaintiffs almost certainly will continue to argue, “has failed to meet this promise, and as a result, courts and judges must substitute themselves for local school boards.” Make that “democratically elected” local school boards.

Starkly put, the SBE’s two proposed metro-wide desegregation and learning gap rules pose the greatest existing legal, social and financial danger to Minnesota education. Fiscally, they can wind up costing taxpayers hundreds of millions of dollars annually.

In such frightening light, Good Intentions Are Not Enough is the most important document about public education in Minnesota in at least a decade, as it is the sole study challenging the plan’s unacceptable means and untenable goals. Do I have a vested interest in claiming this, insofar as Ms. Kersten is my long-time colleague in American Experiment? Sure I do. But it’s also true.

Kathy Kersten is vice chairman of Center of the American Experiment and a lawyer by training. She received her law degree from the University of Minnesota, her MBA from Yale, and her B.A., in philosophy, from Notre Dame. Rather than practicing law over the last several years, she has been a stay-at-home mom, and along with her husband, Mark Johnson (also an attorney) has been raising their four young children. She also has somehow managed to find the time to take on a wide array of civic activities — and to write frequently.

She has asked that I note that she is not a trained “expert” in education, national desegregation policies and the like. Yes, that’s true, in a narrow academic sense. But there is simply no one who better understands the profound, Minnesota-rooted questions at hand. This is an meticulously researched contribution, for which I am very grateful.

A final point, if I might, before explaining how to order additional copies.

Almost certainly, one of the main reasons why the SBE’s plan has generated so little public criticism is the same reason why racial issues, more generally, are debated so poorly in this state and nation: Very few people relish opening up the morning paper and seeing themselves called nasty names, including racist. Will some folks spit such epithets at Ms. Kersten and American Experiment because of this monograph? No doubt. But at the risk of sounding inescapably defensive, let me say this:

My colleagues and I in the Center are as offended and terrified as anyone by the many failures of American education, especially as they hurt millions of minority children. But the overriding truth, as Ms. Kersten demonstrates, is that there is no reason to believe that the mammoth exercise in children moving and social engineering proposed by the State Board of Education could ever work. The evidence, in fact, is overwhelmingly in the opposite direction. Meaning that once again, poor children in particular will be disserved.

Copies of Good Intentions Are Not Enough: The Peril Posed by Minnesota’s New Desegregation Plan are $10 for American Experiment members and $12.50 for nonmembers. Bulk discounts are available for schools, civic groups and other organizations. Please note our phone and address on the first page of the Executive Summary for membership and other information, including a listing of other Center publications and audio tapes.

Thanks very much and I welcome your comments.

Mitchell B. Pearlstein
President
March 1995

(I) The Danger

1. Minnesota’s State Board of Education (SBE) is preparing to adopt a metro-wide “desegregation” plan of a scope unique in the nation. Though still in formation, the plan has two components:

• It will require every school district in the seven-county metro area (including those as far as New Prague and Forest Lake) to “desegregate” schools in Minneapolis and St. Paul.
• It may require every school district in the state to reduce or close the racial “learning gap” on four measures: academic performance, dropout rates, rates of suspension and expulsion, and rates of participation in remedial and honors classes.

2. Despite the good intentions that spawned them, the proposed rules are likely to prove disastrous for Minnesota.

• Around the country, costly programs designed to raise minority performance have done little to help poor minority children. In cities such as Kansas City, San Francisco, Detroit, Little Rock and Austin, Texas, racial gaps remain very wide, despite the expenditure of immense amounts on special compensatory programs.
• The SBE claims that the proposed rules will forestall a successful suit against the State of Minnesota and/or suburban districts. In fact, the rules will create grounds for such a suit and greatly increase plaintiffs’ chances of success. The stakes are high. A judge recently ordered the State of Alabama to increase education spending by up to $1 billion a year in order to ensure every child a constitutionally mandated “adequate” education. The Minneapolis School District has retained a well-known plaintiffs’ desegregation law firm to consider such an educational “adequacy” suit against the State of Minnesota. The State of Missouri has spent over $2 billion in the last 10 years on court-inspired “desegregation” plans.
• The proposed rules will vastly expand state control over local school operations. By making racial “numbers juggling” a top priority, they may create perverse incentives that encourage school officials to take actions that are not in the best interests of children. By injecting racial considerations into nearly every aspect of school life, the rules may undermine racial harmony rather than promote it.

3. It is no surprise that the proposed rules seem adverse to the State of Minnesota’s interests.

• In its final report to the Legislature, the SBE’s Desegregation Roundtable named “consultants” it had used to “fully address the legislative mandated issues.” Among those listed were David Tatel, then of the Washington, DC law firm of Hogan & Hartson — the very firm the Minneapolis School District has retained for purposes of its potential suit; and Gary Orfield, a nationally known advocate of race-based busing who often serves as an expert witness for plaintiffs in desegregation cases. Thus, plaintiffs who may sue the State of Minnesota may well bring suit under rules their own advocates helped to shape.

(II) Background

1. For years, Minnesota policy makers have assumed that racial balance in the schools is the key to improving minority performance. 

• In 1973, in the wake of a suit against the Minneapolis School District, the SBE passed the “15-percent rule,” which states that no school may have a minority enrollment more than 15 percentage points greater than the district-wide minority enrollment. [Minn. R. 3535.0200, subp. 4]
• Though Minneapolis and St. Paul have bused students for racial balance for over 20 years, they have little to show for it but large tax bills. Minority test scores have not appreciably improved — indeed, black scores have declined sharply in Minneapolis in the last five years. And Minneapolis’ own studies show that minority academic gains are only weakly related to racial balance in schools.

2. Demographic trends have brought the urban education crisis to a head. 

• Since 1973, when mandatory busing began, Minneapolis’ minority enrollment has grown from 17 percent to nearly 62 percent, and St. Paul’s from 13 percent to about 52 percent. Both districts are having growing difficulty complying with the 15-percent rule. Disillusioned with busing, Minneapolis Mayor Sharon Sayles Belton — like black mayors in St. Louis, Denver, Seattle and Cleveland — wishes to return to neighborhood schools.

(III) The Proposed Rules

1. In 1993, the Minnesota Legislature appointed a Desegregation Roundtable to consider changing the 15-percent rule. The Roundtable proposed new rules that would institute a vast expansion of failed race-based busing to the entire seven-county Twin Cities metro area. The Roundtable gave two reasons:

• Minnesota has a legal obligation to ensure racial balance — or “desegregation” — in all metro area school districts. If the state does not pass such rules, a court will impose a more costly and coercive solution — or so the Roundtable argued.
• Inter-district racial balance — along with well-funded programs to close the racial learning gap — will improve minority academic performance and enhance race relations (or, in current parlance, prepare students for a “globally diverse society”).

2. In February 1994, the SBE unanimously endorsed the Roundtable’s proposed rules. These rules had two parts:

• Metro Desegregation. The metro-wide desegregation rule defined as impermissibly “segregated” all metro districts with a minority enrollment greater than 31 percent or less than 10 percent. (The rule defined “segregation” in terms of metro-wide, rather than district-wide, minority enrollment.) The busing plan it required was portrayed as mandatory for school districts, but voluntary for families. Under the rule, minority students could transfer into overcrowded suburban districts closed for open-enrollment purposes. Schools that failed to achieve racial goals would face reduction of state aid.
• The Learning Gap. The rules also required all districts with more than 30 minority students to close the racial learning gap within four years. Currently, in Minneapolis, black students perform far below white students, and their scores are dropping. Black students drop out, and are suspended, much more frequently than white students. Yet schools which fail to reduce this gap would face “reconstitution” (i.e., a change of faculty and administration) and then state takeover.

3. In May 1994, after reviewing the rules, the Legislature granted the SBE enabling authority to adopt new desegregation rules. 

• In February 1995, the SBE voted to proceed with discussion of a modified version of these rules. The 1995 rules would require metro school districts to achieve inter-district desegregation “to the greatest extent possible.” Though the learning gap portion remains incomplete, the rules seem to favor a socioeconomic, rather than an exclusively racial definition of the gap.

(IV) Consequences

1. The State Board seems in tent on spending vast sums to maximize metro-wide racial balance and to fund “learning gap” programs. Yet both research and long experience demonstrate that, though extremely costly, neither race-based busing nor learning gap programs are likely to improve minority performance.

• In the last 20 years, black students nationally have reduced the academic learning gap by half on reading and math, though progress seems to have stalled recently. Nevertheless, the gap remains large: In 1990, black 17-year-olds performed about 3.5 years behind whites in both reading and math. Research suggests that differentials are largely a function of socioeconomic factors beyond schools’ control.
• Busing for “desegregation” purposes appears to have little, if any, reliable effect on minority achievement. A wealth of evidence supports this conclusion. Data from the National Assessment of Educational Progress, which has analyzed education trends since 1971, indicate that black students in predominantly black schools have done as well as their black peers in more racially balanced schools. A 1984 National Institute of Education literature review concluded that “desegregation” does not appreciably improve black performance. Wilmington, Delaware’s schools have been almost perfectly racially balanced for 12 years, yet the racial gap there mirrors the national gap.
• Though some voluntary busing programs claim to improve minority performance, gains may well reflect self-selection by talented and motivated students.
• In San Francisco, a program intended to create “equity” in academic performance, discipline rates, and participation rates in special education classes has operated for 10 years at a cost of over $225 million. Though Gary Orfield helped develop this plan, in 1992 he found little progress: “huge gaps” remain, and “African American and Hispanic students still face devastating levels of educational failure,” he reported. Large expenditures on “staff development” did not close the gap on measures such as discipline rates and special education assignment.
• In Kansas City, where a judge nearly doubled local property taxes to fund a $1 billion-plus magnet school program, a large racial gap persists. Orfield was involved in the Kansas City case, and recently pronounced himself “disappointed” with its “modest” results. In 1994, Orfield’s Harvard Project on School Desegregation studied four large districts that attempted to “address segregation by pouring money into special programs for schools with large minority populations.” The study concluded that, “there is no evidence whatsoever that the expensive programming and extra money” has improved minority performance.
• Both busing and learning gap programs often involve wasteful and inefficient expenditures of tax dollars. Inter-district busing programs require large sums for transportation and “incentives” (double payments) to suburban schools. In 1993, St. Louis spent $52 million for these purposes, including $2 million for taxis to chauffeur white students to city schools. In Milwaukee, both home and transfer districts are allowed to count transfer students in state aid calculations, significantly increasing the cost of educating these students.

2. Paradoxically, the proposed rules will greatly increase the chances of a successful suit against the State of Minnesota. 

• The State Board claims that it has a legal duty to adopt a metro-wide “desegregation” plan. It insists that this duty arises from two sources: (1) Brown v. Board of Education, the 1954 cornerstone of desegregation law; and (2) the 1983 order dismissing the Booker case, in which a federal judge had found the Minneapolis School District illegally segregated.
• The State Board is wrong on both claims. Neither the State nor suburban school districts have a legal obligation to ensure racial balance between city and suburban schools. In fact, the new rules create such a duty.
• The State Board creates a duty to “desegregate” by radically altering the legal meaning of “segregation.” Federal law does not prohibit racial “imbalance”; it prohibits racial imbalance caused by intentional government discrimination. However, the proposed rules define “segregation” as “intentional or unintentional lseparation” of students of different races “within a school district” or even “a school building” [emphasis added]. Thus, the rules render most metro school districts “segregated” by the stroke of a pen. Even “desegregated” schools may be labeled “segregated” if racial groups are not proportionally represented in all classes and activities (“resegregation”).
• By requiring school districts to reduce or close the learning gap to the Commissioner of Education’s satisfaction, the proposed rules create yet another enforceable legal obligation.

3. More specifically, these new legal requirements — probably unique in the nation — greatly increase potential plaintiffs’ chances of success in the following ways:

• In federal court. The 1974 Supreme Court case of Milliken v. Bradley made comprehensive inter-district desegregation orders very difficult for plaintiffs to win. The new rules, however, will create grounds for a successful suit by removing the element of intent, and requiring metro districts: (a) to meet specific racial quotas (1994 version); or (b) to “desegregate” to the “greatest extent possible” (1995 version) — a vague and essentially unattainable standard. Voluntary transfers alone are very unlikely to bring districts into compliance with these requirements. Minnesotans can expect a suit calling for mandatory busing to ensure compliance with the new rules.
• In state court. Currently, if plaintiffs sued the State of Minnesota in state court they would have to use new and relatively untested legal theories. But the proposed rules would ease plaintiffs’ task. In a state court suit, plaintiffs will focus on the learning gap, seeking to prove either: (a) that it is a function of “segregation”; or (b) that it indicates that poor urban students do not receive a constitutionally mandated “adequate” education. In the first instance, plaintiffs would probably seek a metro-wide desegregation order, as well as state funds. In the second, they would probably seek money alone, claiming that poor urban students need much more money to achieve an “adequate” education.
• By making reduction of the gap a legal obligation (and by doing so whether the gap is caused by racial separation or socioeconomic factors), the new rules will lay the foundation for plaintiffs’ case. Hogan & Hartson, the Minneapolis School District’s attorneys, successfully made a claim of this kind in the recent Yonkers case, and is currently representing the Kansas City School Board against the State of Missouri in a similar claim.
• The Minneapolis School District is investigating an educational “adequacy” suit against the State of Minnesota. In such a suit, Minnesota’s eventual new graduation rule will serve as a standard of what constitutes an “adequate education.” Hogan & Hartson advises “education advocates” to “watch closely and attempt to influence the development of such standards . . . .”
• Even truly voluntary inter-district busing plans can increase the likelihood of litigation. In 1975, Wisconsin sought to address Milwaukee’s growing minority enrollment by creating the Chapter 220 program, which permitted voluntary city-suburb transfers. Claims of discrimination grew out of this program, and Wisconsin settled the resulting suit. In 1994, the State spent nearly $100 million on an expanded Chapter 220 program.
• The proposed rules increase grounds for litigation against individual school districts, as well as the State. For example, they require local school boards to “maximize” desegregation when building new schools or remodeling existing ones. Such requirements — along with requirements to move toward racial parity on discipline rates and special education assignment — will render districts vulnerable to litigation on a host of new grounds.

4. By injecting racial considerations into many aspects of school life, the new rules will create perverse incentives, strip schools of local control and greatly expand state control.

• The racial gap appears to be caused largely by socioeconomic factors beyond the control of schools. Yet the new rules impose serious penalties on schools that fail to reduce or close the gap to the Commissioner’s satisfaction. The 1994 rules require reconstitution for such schools after four years, and state takeover after seven, while the 1995 rules provide for reconstitution, and possibly loss of block grants. Such penalties may create perverse incentives for administrators to take actions that are not in children’s best interests. Educators who wish to keep their jobs and their staffs may make their first priority juggling racial numbers to “look good.”
• The learning gap rule may require schools to obtain state approval for plans covering nearly every aspect of school life. The rule’s definition of “segregation” as “unintentional separation” of students and staff “in a school building” could conceivably be interpreted to require proportional racial representation on sports teams, in physics classes, in bands and orchestras, and in extracurricular activities like language clubs. Hogan & Hartson recommends that “segregated” schools give attention to racial representation on all these measures.
• Rules that require parity in discipline rates may lead administrators to subordinate student safety to racial considerations. Rules that require parity in honors and remedial courses may encourage administrators to drop “elitist” courses, or assign students to classes on the basis of race, rather than individual merit and need.
• To the extent the rules’ requirements are phrased in terms of closing a gap, the cheapest and most reliable way to comply is by lowering the performance of high-achieving students. In San Francisco, high-achieving Chinese-American students have paid a price for administrators’ struggle to achieve racial “equity.”
• If busing remains truly voluntary — yet suburban schools are required to close the gap — they will hesitate to encourage urban minority transfers. By accepting students who tend to have higher dropout and discipline rates, they will simply be creating problems for themselves.

(V) Conclusion

1. There is no clear public policy route for adequately improving the educational performance of poor minority children, as families’ socioeconomic status is consistently more influential than specific school strategies. However, we must work to find effective methods to help these children learn. Three promising methods include:

• First, neighborhood schools must be an option for parents of poor minority children, as such schools can provide stability, contribute to a sense of community, and make it easier for parents to become involved in their children’s education.
• Second, Minnesotans should take full advantage of the innovative educational environment in this state. We should create “small educational laboratories” in which we can do “R &D” on what works best for poor minority children. We should also consider expanding school choice to include religious and other private schools.
• Third, in all we do, we must uphold high standards and expectations. We must focus on the content of the curriculum, ensuring that it is information-laden and well-grounded in basic skills.

2. In sum, Minnesota faces a financial crisis. Both our youngest and oldest groups will grow faster than the ability of the work force to support them. Minnesota cannot afford a costly, counterproductive program that will do little to assist the very children we seek to help.

ACKNOWLEDGMENTS

I would like to thank those whose help has been indispensable on this project.

David Armor’s visit to the Twin Cities in June 1994 first alerted many Minnesotans to the shortcomings of the “harm-benefit” thesis, and the failure of race-based busing as a vehicle for improving minority academic performance. David’s great knowledge and broad experience are an asset to all who are interested in these important matters. His assistance in helping me grasp the “big picture” has been invaluable.

Abigail and Stephan Thernstrom’s research has also been very useful.

I want to thank Barbara Thomson Bucha for her excellent research assistance, and Peter Zeller for his tireless technical help. Thanks, too, to the many people who read this very long text and provided thoughtful comments.

My husband, Mark Johnson has, as always, provided essential insight and support, and my children — Will, Julia, Alex and Emma — have been consistently patient with their mother as she strove to do four things at once.

I appreciate everyone’s help, but I, of course, bear sole responsibility for the content of this monograph.

Katherine A. Kersten
March 1995

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