MDE Proficiency Data Promotes False school district comparisons

Jvonkorff on education is taking a break from writing about the education clause to discuss a practice maintained by the Minnesota Department of Education (MDE) for many years that is designed to destroy the reputation of public schools that educate economically disadvantaged students.

The Department annually publishes comparative statistics showing the proficiency performance of schools and districts across the state.  The data is released with a tremendous amount of hoopla, or hand wringing, depending on the year.  Data in the hands of school districts is "embargoed" from publication, for months, so that the MDE can release it all at once, and so that only the Department's description of the data will be heard on the day of release.  The Department facilitates electronic release to the media, encouraging them to publish side by side data comparing schools so that the public can supposedly see which districts are doing well and which districts are doing poorly.  

But the fact is that the comparisons suggested by MDE are in many cases, just plain bunk.   Today's post provides an example of how this practice of side by side comparison can be deeply misleading, and contribute to the increasing racial and economic racial and economic isolation of our schools.  Let's take a look at two neighboring school districts where I live in Central Minnesota, St. Cloud and Sauk Rapids.

• Sauk Rapids is 87  percent white, 3.4 percent black,  32 percent free and reduced lunch eligible, with 1.1 perecent English Language Learners.  

• St. Cloud is 50 percent white, 33 percent black ( large proportion of which are English Language Learners), 60 percent free and reduced lunch eligible, with 23 percent English Language Learners.  

Both school districts have comparable special education populations.

Now in today's America, there are going to be a lot of parents who believe that they can be sure that Sauk Rapids is a "better" school system, because of course, everybody knows that demographics is destiny.   Many white parents, and many black parents, looking at the above demographic numbers, will right away jump to the conclusion that a district with St. Cloud's demographics must be inferior, well, just because........ An exodus from urban schools is under way.   Surely the Minnesota Department of Education doesn't want to accelerate that, do they?   They wouldn't report statistics that intentionally reinforced parents concerns about urbanizing school districts, would they?  Or, would they?  Suppose you are a parent wondering where you should live:  where your children should go to school.  

MDE reports that Sauk Rapids reading proficiency rates for all students is 56% and for St. Cloud 48 percent, thus reinforcing the predisposition (or prejudice) if you will, that some people have.  (Now keep in mind, that Sauk Rapids proficiency report includes a quite different mix of students). But the message that MDE is conveying--and its a completely false message--is that Sauk Rapids is eight percentage points superior to St. Cloud.  It's not an apples to apples comparison, but its almost impossible for the average parent to discover a valid comparison.  MDE reports data in a way that harms the public image of school districts educating disadvantage students.

Suppose you are a parent of a white student, or a free and reduced lunch eligible student, or suppose that you are the parent of a non Free and Reduced Lunch eligible student.  Here are the actual facts:

• In Sauk Rapids, reading proficiency percentage rates for white students (all) have fallen 8 points since 2014, and they now stand at 56%
• In St. Cloud, reading proficiency scores for white students (all)  have increased 7 points since 2014, and they now stand at 68%, 12 points higher than Sauk Rapids. 
• In Sauk Rapids the proficiency rates for White Free and Reduced Lunch students,  have fallen 9 points since 2014 and they stand at 48 percent.  
• In St.Cloud the proficiency rates for White Free and Reduced Lunch students have increased by seven points and they now stand at 52%, four points higher than Sauk Rapids. 
• In Sauk Rapids the proficiency rates for White Non Free and Reduced Lunch students have fallen 7 points since 2014, and they now stand at 64%.
  In St. Cloud, the proficiency rates for White non Free and Reduced Lunch students have increased seven points, and they now stand at 75%. 

Both of these school districts are fine school districts.  But if a parent merely looked at the all district proficiency data they would mistakenly assume that the district with more challenging demographics must be doing worse in reading, but in fact, for each demographic group, the district with the more challenging demographics is doing significantly better.  MDE's reporting is actually encouraging students to make school choices on misleading data. 

Ok.  So now you complain, I'm only talking about white students, but I can't compare demographics apples to apples with a school district that hardly has any minority students.  But here is what I can tell you about St. Cloud.  We have a long way to go, but here are some encouraging statistics, I think:

Non FRL Students

·        73 percent of our non FRL students meet or exceed the state proficiency cutoff, compared to 71 percent statewide.

FRL-Non ELL Students

·        43 percent of our FRL-non ELL students meet or exceed the state proficiency cutoff, compared to 42% of FRL-non ELL students statewide.  Here too, our performance scores are slightly superior to the state’s for the same demographic group. 

Hispanic Students

·        Non ELL Hispanic students reading proficiency rate rose 12 percentage points in three years (to 47.7%).   In 2014 the rate was 15 points behind the state proficiency rate.  It is now only 4 percentage points behind. 

Black Students

·        Non ELL Black reading proficiency rates have risen by 7 points in four years, more than double the rate of increase statewide for demographic peers.  

We have a school choice system in Minnesota, one of the first in the country to encourage school choice.  The theory behind school choice is that parents should have the information that they need ot make sound choices.  Unfortunately, MDE doesn't take its responsibility to provide that data in a statistically sound way, and as a consequence it is inadvertently encouraging racial and economic segregation.

Appellate Court Mangles the Law in Cruz Guzman Decision Part 2

In the our last post,  Jvonkorff on Education continued a series on one of the most important education issues to face Minnesota's Courts in this century -- whether Minnesota's Education Clause is enforceable, and if so, under what circumstances.   The issue arises in the recently decided Cruz-Guzman case, in which plaintiffs are trying to force the state to integrate racially isolated metropolitan schools.    The Court of Appeals decision will soon be reviewed by the Minnesota Supreme Court, and the outcome could reaffirm, or destroy, one of Minnesota's most important constitutional rights.  

Fundamental Right to an adequate education that meets all state standards.   In Skeen v State the Minnesota Supreme Court affirmed that the Education Clause of Minnesota’s constitution provides a fundamental right to an education, including the right to “what is necessary to provide an adequate level of education which meets all state standards."    The Court did not order any relief in that case, because the Skeen plaintiffs did not contend that students in their school districts were failing to receive an education which met state standards, as they existed at the time Skeen was decided.   In November, 2015, several plaintiffs contended that students in racially isolated Minneapolis and St. Paul were receiving an inadequate education, but they did not identify the state standards that were not being met.   When the District Court refused to dismiss the case -- allowing the case to be prepared for a trial on the merits -- the State of Minnesota (Governor Dayton, Commissioner Casellius, and Attorney General Swanson) appealed..  They argued, among other things, that the plaintiffs' claim that they were receiving an inadequate education was not "justiciable."  

Justiciability:  Rights Protected by the Courts.   Jvonkorff on Education has previously written on the concept of justiciability here.    Its a complicated concept, but basically the state was asking the  Supreme Court to hold that enforcement of the state constitutional education clause in this particular case could not be decided by the courts, but was a matter entirely between the legislature and he voters at the polls.  Suppose for example, the legislature passed a law prohibiting citizens from saying prayers in the public square.    The First Amendment certainly protects that right, but if a Court wanted to avoid protecting that right, it could claim that the authors of the Constitution didn't want the Courts to protect First Amendment rights, since the First Amendment simply says that the Congress shall make no law ....prohibiting the free exercise [of religion].  Now, you would say, that is ridiculous:   the constitution uses the word "shall."  Surely the authors of the constitution intended that citizens could prevent the Congress from making a law that directly contradicts the first amendment, and of course you would be right.   Free speech is a fundamental right:  and if the Congress acted to prohibit its free exercise, the Courts would certainly step in and protect citizens against that law.

But the right to an adequate education stems from the Education Clause which also uses mandatory language.  In fact, the Minnesota Supreme Court has twice indicated that the Education Clause contains mandates which may be enforced.  In 1913,  the Supreme Court, in discussing the Education Clause, pointed out that other language also in the Constitution already gave the legislature power to operate a system of public education.   If the drafters of the Constitution merely wanted to give the legislature powers, without a mandate,  they had no need to add the Education Clause. The Education Clause did more than merely grant the power, it mandated that the legislature actually establish a system of public education whether it wanted to or not.  Writing for the Court, Justice Hallam wrote that the education clause  was not merely a discretionary grant of power, but was a mandate.  The Education Clause

"were not [merely] a grant of power to the Legislature, for all the powers there mentioned would have existed without such grant. They were inserted as a mandate to the Legislature, prescribing as a duty the exercise of this inherent power." 

Then again, in the Skeen case, mentioned above, the Supreme Court in 1993 once again  explicitly stated that the rights under the Education Clause were a mandate of the highest order, one that created a fundamental right, just like freedom of speech.  

Cruz-Guzman Court Holds that Plaintiffs' Case is "Not Justiciable"    So that brings us back to the Court of Appeals decision in Cruz-Guzman.   As we said, the plaintiffs claimed that a racially isolated education is, by its very nature,  an inadequate education, and therefore under the Education Clause, the Minneapolis and St. Paul schools, traditional publics and charters, should be required to integrate in some fashion.  But the plaintiffs did not identify any state standard that the Court could identify as being violated.   

Now, in response, the Court of Appeals might have said, "look, desegregation is not a right under the Education Clause.  It is an equal protect issue, and the courts have never forced school districts to integrate under the equal protection clause."   Or, it might have said, "we see no basis for holding that a racially isolated schools are inadequate, as long as they are delivering an education that meets state standards."   Either of these decisions would have been reasonable and founded on  past precedent.  But instead, the Court of Appeals said, in effect, adequacy is solely a matter for the legislature, and the Courts should not interfere, because its up to the legislature to deliver an adequate education, and if it fails to deliver that education, its not an issue for the judicial branch.   In the course of arriving at that decision, the Court of Appeals adopted a rather strange train of logic. 

We'll discuss the Court of Appeals rather tortured logic in the next JvonKorff on Education post.

Cruz-Guzman Decision Part 1   
Minneapolis Black Families Lead the Way in Fleeing to Other Schools
Past Series on Education and Constitutional law:

McCleary v. State, Part I   McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
Minnesota's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Cruz Guzman Court of Appeals Decision Mangles the Constitutional Education Clause

In the last several blog posts Jvonkorff on Education has been writing about one of the most important education issues to face Minnesota's Courts in this century -- whether Minnesota's Education Clause is enforceable, and if so, under what circumstances.   The issue arises in the recently decided Cruz-Guzman case, in which plaintiffs are trying to force the state to integrate racially isolated metropolitan schools.    The Court of Appeals decision will soon be reviewed by the Minnesota Supreme Court, and the outcome could reaffirm, or destroy, one of Minnesota's most important constitutional rights.

The Cruz-Guzman plaintiffs are using the "Education Clause" of our constitution to require the state to unwind the growing racial isolation of many of our urban schools. Our Education clause requires the legislature to create a uniform, general thorough and efficient system of public education.

The issues in Cruz-Guzman are complicated, and frankly, the Court of Appeals decision in Cruz-Guzman contains what Jvonkorff on Education regards as series of critical errors.  But the issue is so complex, it may take me a few posts to develop a full understanding of what the Court said, and why.    

By now, some of you are already asking why a court would still be considering an effort to integrate racially unbalanced schools more than 50 years after the Supreme Court held that racial segregation in public education was a violation of the equal protection clause of the fourteenth amendment.  Wait a minute, you say, I though that the school integration issue was resolved back in 1954 in Brown v. Board of Education.   And that would certainly be correct, but Brown v. Board of Education dealt with what we lawyers call "de jure" segregation, that is segregation by law.
 

In each of the cases considered by the Supreme Court in Brown, as the court explained:

  "minors of the Negro race,had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race."

The plaintiff children's schools refused to admit them, because of their race, even though they lived geographically in the attendance area for the school to which they were denied admission.   The Supreme Court recognized that using the law to deny children admission to a school because of their race, was a public statement alleging that they are inferior.  "To separate them from others of similar age and qualifications solely because of their race," the court stated,  "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."  The Court continued:

The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

Brown v. Board of Education found that when the state or its instrumentalities use the law to separate the races, or keep kids from enrolling in a school based on race, that this is a violation of the 14th amendments "equal protection clause", which states:

No state shall ….deny to any person within its jurisdiction the equal protection of the laws

.Thus, the fact that segregation was enforced by law had really two influences on the Brown court.   First, the Court found that separation of the races using the force of law was inherently unequal, because of the impact it had on children who were being intentionally separated.  Second, state action was required in order to trigger the fourteenth amendment, under the language of that amendment.    If a private school segregates, there is no state action, and so that would not be actionable under the fourteenth amendment.   (That's why state and federal laws have been enacted to bar racial discrimination in commerce: to remedy racial segregation in the private sphere.)   But to fall under the 14th amendment, state action is required.  As the law of Brown v Board of Education developed, federal courts refused to apply the Brown decision to schools that are racially isolated, but not as a result of the action of the state or its instrumentalities.

    That explains, then, why the plaintiffs in the Cruz-Guzman case decided to use the Minnesota constitutional Education Clause as a hook to try to combat the growing racial isolation of metropolitan area public schools.   The Education Clause states:

The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.

    The problem with using this clause to force school districts to "desegregate" racially isolated schools, is that there is no direct language that naturally lends itself to extending the Brown v. Board of Education decision to schools that are racially isolated not by law, but by socio economic forces, or by choice.  The racially isolated schools targeted by Cruz-Guzman do not deny admission based on race.  So, the plaintiffs in Cruz-Guzman hit on the idea of alleging that the Education Clause requires Minnesota schools to provide all students with an adequate education, and that racially isolated schools fail to do that, because they are racially isolated. 

Their arguments had two elements.   First, they argued that racially isolated schools inherently provide an inadequate education, because diversity is a constitutionally required component of an adequate education.   Second, they argued that there is a cause and effect relationship between racial isolation and the educational outcomes of students:  that if you move a student from a racially isolated school to a diverse school, that student's education is more likely to be adequate.

    So now we have laid the foundation for understanding how the District Court and the Court of Appeals handled this claim, and why, in the course of deciding this issue, the Court of Appeals came to some rather remarkable and terribly wrong conclusions.   For that, we will have to wait for the next post in the series.  The answer involves a failure by the plaintiffs to found their claim on actual state standards in law, and a rather remarkable, and totally indefensible application of some careless language taken from a decision of Justice Scalia in a gerrymandering case. 

Cruz Guzman Decision Part 2 

Past Series on Education and Constitutional law:

McCleary v. State, Part I   McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
Minnesota's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV