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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