Cruz Guzman--What does it Mean Part 3

As I talk to friends and colleagues about the Cruz-Guzman case and the Supreme Court's decision, the most common question I get focuses on the relationship between Brown versus Board of Education, the federal constitutional suit, and this new Cruz-Guzman suit.   In a nutshell, Brown v. Board of Education relies on the 14th Amendment of the United States Constitution.   Cruz-Guzman relies instead on the Minnesota constitution as a hook to try to attack racially isolated public schools.   "I thought that was taken care of by Brown," people say.   So this post is going to wade in to that question at a surface level.  The topic is legally, sociologically, and educationally more complex than a few blog posts can do justice to.  

The cause of racially isolated schools in the Twin Cities is complex.   One theory is the urban "death spiral" theory that works this way:  as a school or district experiences a larger and larger enrollment of lower income or other students with statistically lower educational performance, the school becomes less attractive.  The parents in the neighborhood have less and less political power.   Realtors steer families away from the neighborhood.  More and more students who need higher cost programs to thrive create financial pressures, and the school starts to decline in perception, and that accelerates the decline.   Teachers avoid the school and use their seniority to transfer to other schools, or migrate to other districts, and that cycle feeds on itself.   In a charter school environment, some parents transfer to an attractive charter school, leaving less motivated parents behind.  

One way to combat this downward spiral would be somehow to force students and families back into the school, against their will.   Another way to combat this downward spiral would be to rebuild the school's reputation with better leaders, more resources, better curriculum, and a spirit of high expectations.  The downward spiral is fed in part by perception and in part by reality. 

Another theory of racial isolation is propounded by the godfather of racial isolation theory in Minnesota, Myron Orfield.  If you want to understand how housing, education, and governmental policy interface, take a look at the Orfield Stancil article in the William Mitchell Law Review, which you can read on the web here:  Why are the Twin Cities so Segregated.?  Orfield and Stancil argue that the twin cities has formed a "Poverty Education Complex" (PEC) that is reinforced by the Poverty Housing Industry (PHI) each of which fosters policies that make segregation worse.   "As a result of segregation," the argue, "city schools declined,

which gave momentum to a “school choice”movement that sought to implement free-market ideas in the education system. These so-called “education reformers” would become the PEC.Its policies have increased and preserved thegrowth of educational segregation.

Now, you don't need to buy into this theory, to be concerned about racial isolation.   There is a learning value to going to school with persons who have a different life story and a different life perspective.   But at the core of the Cruz-Guzman claims is the assertion that racially isolated schools causes subpar educational performance.  In fact, the claim is that a racially isolated school is per se unconstitutionally inadequate, and evidently, even if the students at that school are doing well. 

How might that be true?:  one view, which I do not share, is that when black students sit in chairs next to white students, they learn better.  Another view is that we live an a white privileged society, or a economic privileged society,  one which operates to deprive schools attended predominantly by low income and black students from the best teachers, the best principals, a quality curriculum, and the motivating force of high standards and high expectations.   (If this is true, one might ask, is the solution to move kids to white dominated schools, or to bring a constitutional litigation  to force Minnesota to stock these racially isolated schools with high quality leaders and a strong curriculum).  

We are zoning in now, on an important question: Why have the Cruz-Guzman plaintiffs equated racial isolation with constitutional inadequacy--- why not attack it with the Brown v Board of Education theory.  Part of the answer is the growing difficulty of convincing a federal court to find the kind of segregation that is prohibited by the Fourteenth Amendment.  We'll come back to that after we take a look at the Cruz-Guzman allegations. 

The Cruz-Guzman complaint contains a series of detailed allegations regarding the two cities racially isolated schools and their impact.  For example:

The Minneapolis and Saint Paul Public Schools have been in the past and currently are segregated on the basis of both race and socioeconomic status, such that plaintiffs and other school-age children attend schools the enrollment of which is disproportionately comprised of students of color and students living in poverty, as compared with a number of neighboring and surrounding schools and districts. The plaintiffs are therefore confined to schools that are separate and segregated in terms of both racial and socioeconomic composition.

The Complaint alleges that racially and economically isolated schools are unequal, no matter how the come to be racially isolated.

As a matter of both law and fact, such schools are not equal to neighboring and surrounding whiter and more affluent suburban schools. Because such schools are separate and unequal, the education the students receive is per se inadequate within the meaning of the Education Clause, the Equal Protection Clause, and the Due Process Clause of the Minnesota Constitution.

"Schools within Minnesota concentrate students by poverty and race," the Complaint continues. "These students so concentrated in certain Minneapolis and Saint Paul schools are capable of learning and performing at an adequate educational level, as measured by widely accepted standards. The educational environment in which they are placed, however, with the high degree of segregation based on race and socioeconomic status and the negative effects incident thereto, depresses their educational opportunities and achievement."

With the knowledge and consent of the defendants, [the Governor, Commissioner and State legislature] the Minneapolis public school district has also established and permitted the formation of numerous hyper-segregated schools, in which children of color and/or children receiving free or reduced lunch constitute close to or more than 80 percent of the enrollment

The existence of segregation causes students education to be inadequate, the Complaint alleges.

The segregation and hyper-segregation described in the foregoing tables have been the result of boundary decisions by the Minneapolis and Saint Paul School Districts, made with the knowledge and consent of defendants (the State), which have had both the purpose and effect of creating and increasing segregation of the Minneapolis and Saint Paul public schools by race and socioeconomic status.

Now let's return to this question, how does it happen that Cruz-Guzman had to go to state  court to integrate racially unbalanced schools more than 50 years after  the United States 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 thought 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 in Brown 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.  And that is one of the challenges faced by the Cruz-Guzman plaintiffs and their lawyers.  They must have felt that they could not convince the current federal court hierarchy that racial isolation in Minneapolis was truly the product of state action of a kind that the federal courts regard as invidious.   And, they may have felt that the kinds of remedies available in federal court would not be sufficient. 

This entire area is a mine field of difficulties.   There are many who believe that integrated schools are critical to prepare students for the diverse society in which we live, and that racially isolated schools deprive students of the experience they will need as America becomes ever more diverse.  But there are also advocates who believe that racially isolated schools necessarily result in poor educational results.  But there are even barriers to voluntarily moving kids from school to school in order to promote racial balance. 

In Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) the United States Supreme Court struck down a voluntary diversity school enrollment program because it granted racial preferences when necessary to diversify enrollment. This and other federal cases has discouraged civil rights lawyers from using the federal courts to attack racially isolated schools.   Faced with increasing hostility to desegregation suits in the federal courts, civil rights lawyers  began to look for hooks to attack racially isolated schools based on state causes of actions. 

The Cruz-Guzman plaintiffs decided to attack racial isolation under the state constitution, arguing instead that racially isolated schools deny students equal protection of the laws under Minnesota's uniformity clause, and arguing as well, that students in racially isolated schools were receiving an inadequate education as a direct result of the racial isolation itself. 

This is how Cruz-Guzman arrived in the Supreme Court.  The court of appeals rejected the plaintiffs claim for relief based upon inadequate education entirely.   Basically, the Court of Appeals said, adequate education is entirely a legislative matter: the courts have nothing to do with it.   It wouldn't have mattered under the court of appeals decision if the plaintiffs had said that our students were getting an inadequate education because of poor funding, or poor teaching, or unconscionably low expectations.  As it arrived in the Supreme  Court, the case had been dismissed simply because a panel of three judges had said the right to an adequate education is simply none of our business.

Now that the Supreme Court has rejected this remarkable thesis, we still have a question in Minnesota:  does it make sense to try to connect racial isolation alone to inadequate education, or do we need to look at something more ambitious?  We'll visit that question in future posts.