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School desegregation case: My advice? Move directly to settlement discussions

Steven Liss
Steven Liss

It was déjà vu all over again. Dan Shulman talking about a desegregation lawsuit, recently reinstated by the Minnesota Supreme Court (Cruz-Guzman). Was this 2018? It could have been 1995 when Dan and his associates brought a similar suit against the state. As an assistant attorney general, I was part of the team defending the state. The litigation was hard-fought, with exceptional lawyers on both sides, lasting five years, and costing hundreds of thousands, if not millions, of dollars. Eventually, working in good faith, with the help of school officials and policymakers, we were able to resolve the case through a comprehensive settlement. The heart of that agreement is still in effect, voluntarily continued after court supervision ended in 2005.

What lessons can we take from that earlier case, as we anticipate the current litigation? My advice is simple, though its execution would be complex: The parties should put the litigation on hold and move directly to settlement discussions. Having lived through the earlier litigation, I know how painful the process can be – and how ill-suited the courts are for crafting a viable solution. Rather than following the former path, I urge the incoming attorney general, together with the plaintiffs, to convene local educators, policymakers, community leaders, and other officials to develop a comprehensive solution that works for the children of Minnesota.

Question of ‘adequacy’

Early negotiations can short-circuit an expensive litigation process. This case, at its core, alleges that Minnesota’s system of education is not “adequate” under the state Constitution based on the segregation of students of color and students living in poverty in Minneapolis and St. Paul schools. Because the courts in Minnesota have never defined “adequacy” or looked at its intersection with segregation — intentional or not — the case will be lengthy and complex. As in the earlier case, we can expect a battle of highly paid experts, drawn out for years. (This case, for example, is just getting started after three years in “appellate suspended animation.”)

We do not need costly experts to debate whether students of color and students living in poverty are not well-served by our current system of education. Or a court to declare that Minnesota has one of the largest achievement gaps in the country. These are obvious truths, regardless of whether the state is meeting the constitutional threshold of providing an “adequate education.” To me, the time, money, and other resources spent in court would be better spent developing solutions that work for the children of Minnesota. As a side benefit, we might also avoid the acrimony that inevitably develops during litigation.

Early settlement discussions would not prejudice the families who brought the suit. Eventually, if the plaintiffs are successful, the case will likely be sent to the Legislature to craft a solution. As the Supreme Court made clear, courts are ill-suited to developing educational policy. Plaintiffs are quoted by the Court as consistently acknowledging “that it is not the court’s function to dictate to the Legislature the manner with which it must correct its correct its constitutional, violations.” Presumably, the Legislature will involve educators and other policy makers. My point is: “Why wait?”

The families who brought this action have a right to a place at the table (and now have some leverage based on their recent victory). So, too, do school districts that are not named in the litigation. Dan is quoted as saying they have a plan that they believe will work. The metropolitan school districts developed a plan, after a year engaging their communities, to better serve students of color and students living in poverty. Let’s bring the best ideas to the table and craft a comprehensive plan.

No magic bullets

After 25 years working in and around public education, including nearly 10 in the Minneapolis Public Schools, I believe in the dedication and good faith of the people who work on behalf of our children – whether they are teachers, administrators, parents, or plaintiffs’ attorneys. They all passionately fight to eliminate barriers to student success, including institutional racism, that pervade our schools and our society. Let’s use this collective energy and talents to come together to serve all students in Minnesota. There will be passionate disagreements. There are no magic bullets. (If there were, we would have solved the problem a long time ago.) But difficulty should not prevent us from trying. Our children deserve no less than our best efforts. They cannot afford our collective failure.

Steven Liss is a former general counsel for the Minneapolis Public Schools, retiring in 2015. He also served earlier as the district’s chief operating officer. For 16 years previously, he worked as an assistant attorney general, representing the Department of Education and the MnSCU System. In that role, he was part of the team representing the state in the prior desegregation litigation in the late 1990s.

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Comments (3)

  1. Submitted by John Webster on 08/23/2018 - 10:29 am.

    All Sentiment, No Substance

    Lots of harmonious sounding words here, but no bottom line substance. OK, move to settlement discussions. What would the particulars of the settlement be? Those of us who live in the suburbs know what is completely unacceptable to 99+% of suburban K-12 parents: forcing kids out of neighborhood public schools into Minneapolis or St. Paul. There are tens of thousands of parents who once lived in those cities who moved to the suburbs when their oldest child neared kindergarten age – they were deliberately fleeing those cities’ public school systems. I personally know several couples here and elsewhere who vote straight Democratic, who loathe Trump, and who recite all the politically correct ideas – and who fled to the suburbs in time for their kids to avoid big city schools.

    If kids from the suburbs aren’t forced into the big city schools, what solution is left to achieve desired racial goals for the student bodies at each school? Will thousands of minority kids from Minneapolis and St. Paul be bused to suburban public schools? How many additional students can those schools accommodate? And what happens to the public schools in Minneapolis and St. Paul: are they left empty?

    We all know what’s being implied in this call for “settlement discussions”: massive involuntary busing of suburban kids into Minneapolis and St. Paul schools, and of MSP kids into suburban schools. For many reasons, that wouldn’t improve education for the vast majority of kids who come from challenging family circumstances. It would, however, infuriate suburban Democrats and turn Minnesota into a majority Republican state. Politically incorrect to say so, but true.

  2. Submitted by Pat Terry on 08/23/2018 - 10:53 am.

    Poverty

    If you are serious about reducing the achievement gap, you have to get serious about combating poverty. Because that’s the real problem. Its not tenure or bad teachers. Its poverty.

    The irony of all of this is that if you start firing teachers for bad student test scores in impoverished schools, you will disincentive teachers from going to those schools. If I’m a teacher and my job evaluation is going to depend on the affluence of the families of the students I teach, that will influence where I go.

    • Submitted by John Webster on 08/23/2018 - 11:24 am.

      Not so easy

      If only ending poverty were the magic bullet to reduce the achievement gap. I support the concept of a Universal Basic Income that is high enough to eliminate poverty. But by itself that program wouldn’t improve education. There are huge cultural forces at work here, too, especially the anti-education stigma of “acting white” when black kids try to succeed academically, and parents who can’t be bothered to supervise their kids, even when parents aren’t overwhelmed by life circumstances (lots of white parents fall in that category, even many affluent ones).

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