Sweeping lawsuit would create a general mess

An activist court ruling. Metrowide racial balancing of schools. An end to local control. Sum total? 

This Sunday Cover Op-ed appeared in the Star Tribune on October 7, 2018.

On July 25, the Minnesota Supreme Court issued a ruling with far-reaching and troubling consequences for K-12 education in our state. The court determined that a lawsuit titled Cruz-Guzman vs. State of Minnesota and whose plaintiffs seek court-ordered metrowide racial balancing in the Twin Cities region’s public schools, can go forward.

The case will now return to district court, where plaintiffs will push for a sweeping plan to sort metro-area students — including those in suburban districts and charter schools — into schools on the basis of their skin color. Expect the plan to require massive public funding, essentially end local control and entangle our state’s public schools with the courts for years to come.

It may also compel major shifts in school district and/or school attendance boundaries and result in the race-based busing of tens of thousands of metro-area students.

Cruz-Guzman vs. State of Minnesota “has the power to reshape school demographics across the metro area,” according to the Star Tribune.

“It’s a decision, I believe, people will be talking about decades from now,” said Dan Shulman, the Minneapolis attorney who filed the case, in an interview with MinnPost.

The Minnesota Supreme Court’s action exemplifies the sort of judicial activism that, over the past 60 years, has given courts a bad name.

Cruz-Guzman is a so-called “education adequacy” case. Generally, plaintiffs in these lawsuits allege that a state’s constitution requires that students receive an “adequate” education. Then they point to a racial academic achievement gap in the school system in question, portraying the gap as evidence that minority students are not receiving such an education. As a remedy, they seek a massive increase in public education funding.

Standard education-adequacy cases of this kind can be extraordinarily costly. Yet nowhere has a victory by plaintiffs produced a meaningful increase in poor and minority students’ academic performance.

In New Jersey, for example, adequacy litigation produced gigantic tax hikes and state borrowing and has led to a near citizen revolt over property taxes.

In 2011, Colorado Gov. John Hickenlooper declared that a victory by plaintiffs in an adequacy suit would require his state to raise taxes by at least 50 percent or devote 89 percent of its general fund budget to K-12 funding, thereby shortchanging Medicaid, public safety, higher education and transportation. Colorado was spared this when its supreme court overruled a district-court decision for plaintiffs in 2013.

The plaintiffs in Minnesota’s Cruz-Guzman case are taking a different and highly unusual tack. They claim that the racial achievement gap in the Minneapolis and St. Paul public schools is caused by racial and socioeconomic “segregation” of students. As a remedy, they are calling for court-ordered racial and/or socioeconomic balancing of students across the Twin Cities metro area.

“If the entire seven-county area is part of a remedy, there won’t be white flight,” Shulman told the New York Times in August. “Where are they going to go to?”

A racial balance plan from the University of Minnesota’s Institute on Race and Poverty (now called the Institute on Metropolitan Opportunity), proposed a few years before Cruz-Guzman was filed, called for creating either a single, seven-county “integration district” organized into “administrative regions” or five or so “super-districts.” The plan proposed busing as many as 20,000 students — in an area from Forest Lake and Hastings in the east to Orono and Chaska in the west, based on regional demographics at that time.

Though portrayed as voluntary, the plan’s racial-balance requirements would almost certainly require mandatory race-based reassignment of students.

As Cruz-Guzman wends its way through Minnesota’s judicial system, Minnesotans need to understand a crucial fact: The Minneapolis and St. Paul public schools are not racially “segregated,” as plaintiffs claim.

To find illegal segregation, a court must determine that racial separation in the schools is the result of deliberate, intentional government discrimination on the basis of race. Courts have never found racial imbalance alone — of the kind we see in Minneapolis and St. Paul — to justify a finding of illegal segregation.

Students in Minneapolis and St. Paul are not compelled to attend racially separate schools by deliberate, illegal government action, the way children were in the Jim Crow South. On the contrary, Twin Cities families have a multitude of educational choices. These include charters, open enrollment in suburban schools and — for older students — publicly funded postsecondary options at local colleges. Parents are free to select the school they believe best fits their child’s needs.

But the lawyers who filed Cruz-Guzman do not value this freedom of educational choice. Their goal is the opposite: court-ordered shuffling of students across the Twin Cities area on the basis of skin color.

To achieve this end, the Cruz-Guzman attorneys disingenuously label as “segregated” a school of choice like Friendship Academy of the Arts in Minneapolis. Friendship Academy is a high-performing, “beat-the-odds” K-6 charter school whose students are 96 percent black and 85 percent low income.

In 2017, the school’s students outperformed the state average in math and science on state standardized tests — with 69 percent proficient in math and a whopping 95 percent proficient in science, compared with state proficiency levels of 59 percent and 61 percent, respectively. No wonder minority parents are lining up to send their youngsters there. Children are thriving at this rigorous, “culturally affirming” school.

In fact, in the Star Tribune’s 2014 “Beating the Odds” Top 10 list of high-poverty schools with the “highest percentage of students at grade level or better” in reading, eight were what the Cruz-Guzman plaintiffs label racially and socioeconomically “hyper-segregated” charter schools, as were seven of the top 10 in math.

A victory by Cruz-Guzman plaintiffs would be likely to cripple schools such as Friendship Academy, and would do so by design. Nekima Levy-Pounds, former president of the Minneapolis NAACP, told MinnPost that the Minnesota Supreme Court’s decision to allow the case to go forward is “wiping away parent choice and autonomy, in terms of knowing what is in the best interest of our kids — as far as a school learning environment — and what is not.”

What can we expect if the Cruz-Guzman plaintiffs prevail, or even if the case is settled? Consider Hartford, Conn., the locus of Sheff vs. O’Neill. Sheff is the only other education-adequacy lawsuit in the nation where plaintiffs have sought metrowide racial balancing of students as a remedy.

In 2011, Shulman — the attorney who represents the Cruz-Guzman plaintiffs — told the Integration Revenue Replacement Advisory Task Force (a state body on which I served) that he planned to use Sheff as his model in the Minnesota-based education-adequacy case he intended to file. Shulman described John Brittain, one of the original Sheff attorneys, as his “hero.”

Sheff vs. O’Neill was filed in 1989. In 1996, the Connecticut Supreme Court ruled in favor of plaintiffs. Today, almost 30 years after the litigation began, courts still control the schools in the Hartford metro area.

The Sheff decision required the Connecticut Legislature to devise a plan to distribute students of various races among schools throughout the Hartford metro area. The plan relies on a Byzantine system of extraordinarily expensive magnet schools that turn kids of the “wrong” skin color away in the name of racial balance.

“Funding for magnets is based on a dizzying hodgepodge of financial arrangements that perplex educators, pit towns against one another, and stir a chorus of protest,” wrote the Connecticut Mirror in 2010. Sheff has “pushed state and local education budgets to the brink,” according to news reports.

Today, the race-based admissions scheme in Hartford schools is so perverse that it compels in-demand magnet schools to reject black and Hispanic students who apply for open seats if this would upset a 25 percent white student quota — which magnet schools must impose to get funding. As a result, popular magnets are at 60 percent of capacity. These schools now give preference to white and Asian students, while thousands of black and Hispanic students languish on waiting lists.

It’s ironic, though not surprising, that in recent years Hartford school district leaders and parents have actively worked against the racial balance remedy that was originally intended to benefit their district’s students. In 2011, the Hartford Public Schools launched a television, radio and print advertising campaign urging parents not to participate in a lottery for seats in suburban or regional magnet schools for their children. “It works against what we are trying to accomplish,” the chair of Hartford’s school board, told the Connecticut Mirror. “Why does Hartford have to lose kids?”

Meanwhile, Hartford students who transfer to suburban schools often face daunting obstacles. These can include lengthy bus rides, difficulty participating in after-school activities and insurmountable barriers to parental involvement.

After decades of trying, Sheff has failed to produce racial balance in the Hartford schools as promised, despite the expenditure of well over $3 billion on magnet schools. And tragically, a yawning racial academic achievement gap still exists in the area’s schools.

Now, the Sheff-inspired racial-balance plan is being challenged in federal court. In February of this year, seven black and Hispanic families from Hartford — represented by the Pacific Legal Foundation — charged that racial quotas for magnet schools violate black and Hispanic children’s civil rights under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The Minnesota Supreme Court’s 4-2 vote in Cruz-Guzman has opened the way to a Sheff-like remedy here. Unfortunately, students would likely sustain even greater harm than Hartford-area students have. That’s because any court-ordered or supervised racial-balance plan that results would probably severely constrain the school choice Twin Cities students currently enjoy.

In his dissent in Cruz-Guzman, Justice Barry Anderson lambasted the court’s ruling as an extraordinary example of judicial overreach. Minnesota’s Constitution gives the state’s Legislature, not its courts, authority over educational questions of the kind the case raises, he said. “The proper role for the judiciary … is not to second-guess the wisdom of policy decisions that the constitution commits to one of the political branches,” wrote Anderson, quoting a leading case on the issue.

“The task the court has now assigned to the judicial branch is inherently subjective, undefined, historically and textually the province of the Legislature, deeply political, and one for which the judiciary has no demonstrable expertise,” he added.

The majority’s decision in Cruz-Guzman is an egregious violation of the constitutional doctrine of “separation of powers,” which Anderson rightly described as a bulwark of liberty in our democracy. Minnesota parents, school leaders and citizens must understand that both students’ civil rights and their educational freedom are at stake in this case, and register their strong disapproval.

Katherine Kersten is a senior policy fellow at the Center of the American Experiment. She is at [email protected].