by Steve Timmer

Dec 15, 2022, 12:30 PM

Some parents like segregated schools, so what’s the problem?

Update, 12/29/22: Charter school champions, not parties to the Cruz-Guzman lawsuit, have requested leave of the Supreme Court to file an amicus brief in support of affirmance of the Court of Appeals decision described below. In their request, they state that segregation of charter schools is the public interest, saying the quiet part out loud:

Applicants have a strong public interest in this case. They are profoundly concerned with the idea that race—and race alone—is a proxy to measure educational adequacy under the Minnesota Constitution. A school that serves predominantly—or even exclusively—students of color is not inherently “inadequate.” In fact, in many schools that predominantly serve students of color, those students perform significantly better than state and district averages for those students. [factually incorrect]

Remarkably, the applicants did not cite Plessy v. Ferguson as a precedent for their position. They also neglect the fact that the plaintiffs in Cruz-Guzman are traditional public school students, not charter students. It is the inadequacy of the system as a result of charter segregation that’s the problem. The charter proponents make a facile argument here, but it’s also factually incorrect.

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Many of you will remember that the Minnesota Court of Appeals issued a decision in Cruz-Guzman v. Minnesota in September of this year with this syllabus:

An imbalance in the racial composition of schools within a school district or school system is not a per se violation of the Education Clause of the Minnesota Constitution, unless the imbalance is caused by intentional, de jure segregation of the type described in Brown v. Board of Education, 347 U.S. 483 (1954).

You will be excused if you don’t remember, so here is a really brief history of the case. Cruz-Guzman has a protracted procedural history — which you can read about in the opinion at the link above; it’s never been tried, just argued on motions and appeals.

The case was commenced in 2015 — a mere seven years ago — by the parents of public school children in Minneapolis and St. Paul who complained that charter schools (which are public schools receiving public money), and their exemption from state integration mandates, violated the plaintiffs’ children’s equal protection rights and their rights under the Education Clause of the Minnesota Constitution, Article XIII, Clause 1. It is a provision in the Minnesota Constitution that has existed from the moment of statehood.

There were charter schools that intervened in the case, and their position from then until now has been, paraphrasing only a little, We know that the charter school system with its integration exemptions has led to highly segregated charters, receiving tons of public money, but some parents like them, so what’s the problem?

(I watched a lawyer for the charters make that exact argument in a Zoom hearing.)

What’s the problem, indeed. The white people who objected to Ruby Bridges attending an integrated public school with their kids didn’t like integration much, either. (As an aside, Ruby Bridges was one of the most courageous little girls in the history of little girls.)

In Minnesota we have white parents, Black parents, Hispanic parents, and Hmong parents who want to wall their kids off from kids with a different race or ethnicity. It seems clear that the “seg charters” would vaporize if they had to comply with the integration mandates that other public schools must observe. The charters intervened in the case because they realize that Cruz-Guzman is an existential threat to them.

The case is now headed to the Supreme Court, where it has been once before. In a decision in 2018, the Supreme Court heard the case after an earlier pro-charter school Court of Appeals decision that the Supreme Court reversed, and in sending the case back to the trial court, said,

“It is self-evident that a segregated system of public schools is not ‘general, ”uniform,’ ‘thorough,’ or ‘efficient.” [Words from the Minnesota Constitution, Article XIII, Clause 1. Written in the middle of the 19th Century, they remain genius.]

The charters have spent the last four years, maintaining in mediation and trying to convince the lower courts, including the Court of Appeals, that the Minnesota Supreme Court didn’t mean what it said.

Remarkably, and discouragingly, up until now, they’ve been successful.

Parenthetically, after protracted mediation failed, the Cruz-Guzman plaintiffs moved for summary judgment based on the Supreme Court decision, including the quoted language; the trial court certified a question to the Court of Appeals about the necessity of a finding of de jure segregation; the Court of Appeals issued the September opinion answering that question: yes, the Cruz-Guzman plaintiffs would have to prove de jure segregation.

Brown v. Board of Education, the landmark of landmark education cases, held that the de jure — there’s that word, again — regime of “separate but equal” was inherently unequal. It was an Equal Protection Clause case under the federal constitution, but its argument applies with equal force to the state’s Education Clause; that’s what the Minnesota Supreme Court said in its 2018 opinion.

The distinction between Brown and Cruz-Guzman that the Court of Appeals seeks to draw is that the segregation of the charters is not required by law; it is merely permitted. Since the segregation is not required, let the chips — and the students — fall where they may, says the Court of Appeals.

But that argument is too clever by half. At the request of the charters, the state has given them an exemption from its integration mandates, and it pays them a lot of money, too. Hmong College Prep Academy, in the news recently for financial improprieties by its former superintendent, for example, receives in excess of $20 million from the state each year.

The segregated charter regime that the state has set up and supports financially is obviously a system of de jure segregation; it can’t be just charged off to benign state neglect. It is certainly a system that has been imposed on the Cruz-Guzman plaintiffs to their detriment and to the detriment of all traditional public schools.

Here’s the Supreme Court order for review of the Court of Appeals decision. You’ll note that the ACLU and a regiment of law professors are going to be filing briefs on behalf of  the Cruz-Guzman petitioners.