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Charters strike back in desegregation suit

Mike Mosedale//December 24, 2015

Charters strike back in desegregation suit

Mike Mosedale//December 24, 2015

Daniel Shulman
Daniel Shulman

Three charter schools have waded into a pending school-desegregation lawsuit against the state of Minnesota, saying that the potential remedies pose an existential threat to the concept of parental choice and the very future of charter schools.

In a counterclaim and answer filed Tuesday afternoon, the three interveners — Higher Ground Academy in St. Paul, Friendship Academy of the Arts in Minneapolis, and Paladin Career and Technical High School in Blaine — ask Hennepin County District Court Judge Susan Robiner to reject the class action designation sought by the plaintiffs.

The charter schools also want “a declaration of both the constitutionality and statutory validity” of the state law that exempts charters from desegregation rules that apply to all other public schools.

John Cairns, an attorney for the intervenors and a longtime charter school advocate, said his clients had little choice but to enter the fray because of the potential ramifications.

“The only remedy they [the plaintiffs] can eventually secure is some sort of government-mandated enrollment to remix the kids,” said Cairns. “That flies in the face of public school choice, which is the cornerstone of the charter school option in Minnesota.”

“Any compromise on parental choice is going to be a real problem for charter schools,” added Cairns, who helped draft the 1991 legislation that created charter schools and now focuses his practice exclusively on charter school-related law.

Daniel Shulman, one of the attorneys for the plaintiffs in the desegregation suit, said he will oppose the charters’ efforts to squeeze in on the case, saying that would only “complicate and delay” the litigation.

“The issue in our case is whether the state of Minnesota can lawfully create government schools segregated by race and socioeconomic status under the Minnesota State Constitution,” said Shulman, a principal at the firm of Gray Plant Mooty.

“The law of this country for more than 60 years says separate is not equal, and we believe that an unequal education, which is what the State has created and permitted in its government schools, is by definition inadequate, as well as by any objective measure,” he added.

Shulman, who was the lead counsel in the NAACP’s 1995 desegregation suit against the state, said he does not believe that any remedies would necessarily be fatal to charter schools in the event his arguments prevail.

“What’s going to happen to charter schools? Who knows? But this is not a case that is focused solely or exclusively on charter schools,” Shulman said.  “There are some success stories in charter schools and perhaps when we get to the remedy, some of the things that those schools are doing should be part of it.”

However, he also challenged the oft-repeated claims that charter schools produce better educational outcomes than traditional public schools.

“The intervenors in this case are the so-called successful charters. But they’re a small minority of the charters in the metro area. The vast majority can make no claim that they’re providing an adequate education,” Shulman said.

Bill Wilson, the executive director of Higher Ground Academy, disputed that claim. He also said he doesn’t know how some charters — especially those that cater to specific cultural or ethnic groups — could remain in operation without the exemption. Compliance would be particularly difficult at Higher Ground, where 100 percent of the student body is non-white and 97 percent qualifies for free or reduced-cost lunch.

Among charter school officials, he said, the possibility of losing the exemption is widely viewed as “a major threat.”

“What we’re looking at now is not intentional discrimination. That’s illegal and there are laws against it,” Wilson said. But the racial imbalances in contemporary charter schools are fundamentally different from the “the government-sponsored” segregation in schools that the U.S. Supreme Court addressed in Brown v. Board of Education.

Because the concentrations of minority students in many Twin Cities schools reflects demographic changes and housing patterns, he said, any governmental mandate to address those imbalances would likely mean that students of color “would be uprooted and dispersed.”

“At the end of the day, I think we should be careful about not allowing people to go to school in the cities where they live,” Wilson said.

The courts aren’t the only venue where the charter schools and their critics are duking it out.

Wilson said he is particularly worried about what he described as a push at the Minnesota Department of Education (MDE) to strip charters of their exemption through an administrative rule-making process.

Attorney Jack Perry of Briggs and Morgan, co-counsel for the three intervening charter schools, said that MDE is overstepping its statutory authority. He said the Legislature would have to authorize the removal of the charter school’s exemption.

Shulman also attacked the MDE over the pending revisions to its desegregation rules, writing in the lawsuit that the agency is “currently preparing to repeal even the weakened remedial measures” of its existing desegregation plan.

According to Shulman, the replacement rule “would virtually ensure that segregation by race and socioeconomic status will continue to increase.”

In an interview, Shulman bristled at the intervenors’ request for attorney fees, saying the Minnesota Supreme Court has twice ruled against the awarding of attorney fees in declaratory judgment actions. If the demand isn’t withdrawn, Shulman said, he will seek sanctions.

Perry disagreed with that interpretation on the relevant case law. He said the issue hasn’t been settled in the current context and he would not withdraw the demand.


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