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When school choice means choosing segregation

ST. PAUL, Minnesota — The Twin Cities German Immersion School occupies a former Roman Catholic church in the Como Park neighborhood of St. Paul. The pews were removed to make way for dozens of blond, bowl-cutted kids to run freely across what is now the school’s gym floor. German Immersion got its start in 2005, when local parents and teachers who met on Saturdays for German-language classes decided to form their own charter school with public funding. It has since grown from just kindergarten and first-graders to a full K-8 school serving more than 500 students. Nearly all of them are white.


About three miles away, in Union Park, is Higher Ground Academy, another charter school. The “peace pole” in the main hallway is inscribed with the Arabic greeting as-salamu aleikum, and young girls in yellow and orange hijabs walk along the pink-and-blue-painted halls. Bill Wilson, the school’s director, didn’t intend for Higher Ground to become a school geared toward St. Paul’s growing East African immigrant population when he opened it in 1999, but its 761 students are now almost entirely from Somali and Ethiopian families. All of the students are black.

Students at both schools perform well, and they are held up as examples of the benefits of school choice in the state that birthed the charter school movement in 1991. But they’re also examples of the growing segregation in all of Minnesota’s public schools, resulting in poor outcomes for black and Latino students, particularly in the Twin Cities (Minneapolis and St. Paul). Higher Ground’s kids score better on state evaluations than similar students in traditional public schools, earning the school the description of “beating the odds,” but they still lag far behind German Immersion’s. In the state overall, the achievement gap between white and minority students is among the worst in the country.

A lawsuit pending appeal with the state Supreme Court alleges the growing segregation in Minnesota’s schools denies an adequate education to poor and minority kids and is the logical and illegal conclusion of the state’s abdication of its responsibility to integrate. It also alleges the state has allowed segregated charter schools to proliferate: two-thirds of the nearly 100 “hypersegregated” schools in the Twin Cities metro area are charters. More broadly, the Minnesota case could address whether school choice is making our country’s public schools not only more segregated but also worse for poor and minority kids.


By and large, schools with large concentrations of poor or minority children (often the same children, since race and poverty are highly correlated in the U.S.) perform worse. “At scale, we have rarely been able to consistently produce high-quality schools in situations in which all of the kids are poor and minority,” said Rucker C. Johnson, a public policy professor at the University of California, Berkeley.

Integration has repeatedly been shown to improve educational outcomes for all students. Johnson’s longitudinal studies of black adults show just how important integration is for black students in particular. Those who attended integrated schools were more likely to go to college, have a higher-paying job, live longer, and avoid incarceration when compared with similar black adults who attended segregated schools. Desegregation efforts had no effects — positive or negative — on white students in his studies.

In Minnesota, the state says it’s done everything it can under the law to promote integration by offering open enrollment, transportation, magnet schools, and special funding. Without the ability to assign students to schools based on race, or the undoing of decades of residential segregation, the schools will reflect the makeup of their immediate communities. Charter advocates, for their part, are actively pushing back on the need to integrate at all.

“This is a policy conflict between the importance of integration and the importance of choice, and sometimes integration has to yield to parent choice,” said Cindy Lavorato, an attorney who joined the case on behalf of the state’s charter schools.


The plaintiffs, seven Minnesota families and a community organization, agree that it is a policy conflict, but they think integration should win out. They hope the lawsuit will force Minnesota to integrate all of its public schools — traditional and charter — in the name of providing an adequate education to all students.

“I would like to see this lead to the desegregation of our schools,” said Diwin O’Neal Daley, a plaintiff in the case and the father of two Minneapolis public school children. “And that we’re sincere about fixing it, and not putting a Band-Aid on it and walking away.”

The case turns on questions the courts have mulled for years about how the state should address segregation in public education: Is it the result of systemic discrimination, or an unsavory but unavoidable effect of individual choice?

These questions carry fresh relevance as Education Secretary Betsy DeVos continues her crusade for unrestricted school choice. In a speech late last month, DeVos compared school choice to ride-sharing apps. “People like having more options; they like being able to choose between UberPool, UberX, Lyft Line, Lift Plus, and many others,” she said. “Why do we not allow parents to exercise that same right to choice in the education of their child?”

But DeVos’ focus on market-based reforms largely ignores the fact that the individual choices of white, wealthy parents contribute to the isolation of poor, minority students. The recognition that charter schools skew segregated has prompted some states to implement controlled choice policies. Others, like Minnesota, are going to court to defend the right to unregulated school choice — even if that means choosing segregation.


Sixty-three years after Brown v. Board of Education, the percentage of white students attending majority-white schools has been cut in half. At the same time, however, the share of isolated poor and minority students has been steadily increasing: Almost a fifth of black and Latino students attend highly segregated schools — those that are less than 10 percent white — up from just 6 percent three decades ago.

The resegregation of America’s public schools is due largely to two decades of Supreme Court rulings that all but ended mandatory desegregation plans, but it has not been helped by the growing movement toward school choice. The national picture on charter schools’ impact on segregation is still not clear — charter enrollment is only about 3 percent — but several studies have shown that charter schools tend to be more racially and economically segregated than traditional public schools.

“I’d like to say that the evidence of integration is one of voluntary choice, but the record is very clear that the gains of integration happen through court orders,” Johnson said.

Schools in the Twin Cities metro area, where more than three-quarters of the state’s minorities live, are more segregated than they’ve been in two decades. More than a third of public school students in Minneapolis now attend segregated schools (those that are more than 80 percent nonwhite) as do more than half of kids in St. Paul. Ninety-three schools in the metro area are “hypersegregated,” or more than 95 percent nonwhite. Sixty-three of those are charters.


Integration wasn’t really on the table in Minnesota, which is still about 85 percent white, until 1972. A district court found Minneapolis public schools to be segregated and ordered the city to start busing students. The following year, the now-defunct state Board of Education implemented its first desegregation rule, which said schools’ student bodies had to roughly match the makeup of their district.

But these mandatory desegregation efforts were short-lived. Several U.S. Supreme Court rulings stretching into the early ’90s relaxed responsibility for states in integration efforts, and the Minnesota attorney general’s office said it could no longer support mandatory integration efforts because of the rapidly changing demographics in the Twin Cities.

Lavorato, working as an assistant to the attorney general at the time, helped rewrite Minnesota’s desegregation rule in 1999. The new rule got rid of the mandatory integration quotas and replaced them with voluntary efforts such as student exchanges, summer camps, or cultural competency training for teachers.

“The idea was that what we were looking for was not a white kid sitting next to a black kid, because you can do that and they can still not understand or like each other,” Lavorato said. “We were looking to raise awareness and racial consciousness. We wanted to put programs in place that helped facilitate that kind of understanding and acceptance of diversity.”


Curiously, the new rule also exempted the state’s then 53 charter schools from any of Minnesota’s new voluntary integration efforts. Choice was the reason given — parents chose to send their kids to charter schools, so the state argued it was “reasonable to exempt them from planning aimed at integrating standard school sites.” Minnesota is the only state in the country with such an exemption written out in the statute, although some states offer no guidelines at all.

As a result, “culturally affirming” charters have popped up in recent years to cater to communities as diverse as Russians and the Hmong. The state now counts about 200 charters, 149 of which are in the populous Twin Cities. Only 10 percent of students in the metro area attend charter schools, but Minnesota continues to authorize new schools and enrollment continues to surge, and critics worry that, if left unchecked, charters will only worsen the Twin Cities’ school segregation problem.

Administrators at the German Immersion school said they are trying to diversify their student body, but admission is based on who applies under the state’s lottery system. “Even if we have 30 kids from different backgrounds apply, we can’t give them preference,” said Tina Haarbusch, the school’s community relations coordinator.

Wilson, on the other hand, doesn’t see a problem with Higher Ground’s homogenous population if the school is improving outcomes for black children. “I’m not trying to make the case for separate schools, but parents make a choice that what we need to do first and foremost is educate,” he said.


In Minnesota, the Department of Education has acknowledged the persistent achievement gap between white students and students of color, but it has not put forward mandatory integration as a potential solution. In the latest National Assessment of Educational Progress, the country’s best comparative measure of students across states, Minnesota had some of the largest achievement gaps between white and minority students. (This analysis only includes black and Hispanic students since there was not enough data on Asian or American Indian students in about half of states.)

In the Minneapolis and St. Paul public school districts, the disparities between white students and students of color are even greater. In Minneapolis, 22 percent of black students and 27 percent of Hispanic students demonstrated proficiency in reading last year, compared with 77 percent of white students. In St. Paul the figures are similar: 25 percent of black students and 31 percent of Hispanic students are proficient in reading, compared with 72 percent of white students.

Despite promises to improve performance for minority students, charters have done little to close these gaps. Student performance drops at both traditional and charter schools with higher shares of nonwhite students, but only a handful of highly segregated charters — like Higher Ground — were able to “beat the odds” and outperform similarly segregated traditional public schools. Researchers from the University of Minnesota Law School’s Institute on Metropolitan Opportunity found that low-income, black, and Hispanic students in racially diverse or predominantly white schools showed higher proficiency in reading and math.


Wilson shrugged off any questions about what he’s done differently for black students. “There’s nothing magical about it: It’s just the old-fashioned putting in the work,” he said. But even Higher Ground is still far behind majority-white charters like German Immersion. On the state’s less-than-perfect school performance ratings, which measure proficiency, growth, and achievement-gap reduction (and graduation for its high schools) on a 75-point scale, German Immersion has a total score of 57 points. Higher Ground has 17.

The landmark ruling in Brown v. Board declared separate schools unequal, striking down the laws that forced black and white children to attend different schools, and sparking an era of mandatory desegregation efforts like busing. Beginning in the late 1970s, however, the Supreme Court slowly began to back away from court-ordered desegregation.

In a 1974 ruling in a case called Milliken v. Bradley, the court ruled that unless the segregation was shown to be intentional, school systems could not be held responsible for desegregating. It was the beginning of a federal distinction between de facto and de jure segregation, and signaled a shift in the court’s willingness to be involved with desegregating state school systems.

In a 1991 case, the court decided that “the vestiges of past de jure segregation had been eliminated to the extent practicable.” Four years later, in Missouri v. Jenkins, it overturned a lower court ruling that required the state of Missouri to fix de facto segregation. The final blow came in 2007, when the court declared the use of race in school placement unconstitutional.


This precedent is part of why Dan and John Shulman, the father-son civil rights attorney duo leading the Minnesota lawsuit, decided to sue in state rather than federal court. Doing so avoids the question of intent, they argue, since the state constitution guarantees a right to an adequate education — and the persistent achievement gap proves a segregated education is not adequate.

This reasoning has only been tested in a state court a few times. In a 1989 lawsuit, Sheff v. O’Neill, the Connecticut Supreme Court found the state had failed to provide an equal education in the de facto segregated Hartford-area schools. The state was ordered to desegregate them.

In Minnesota, the state’s case rests on the de facto vs. de jure distinction, while the Shulmans reject that such a distinction matters. “We don’t believe it is necessary to prove intent because we are dealing with a fundamental right,” Dan Shulman said.

Since the desegregation rule changed in 1999, Minnesota’s Department of Education has been doling out funding for voluntary integration efforts as part of its “Achievement and Integration Program.” But the voluntary efforts have left a lot to be desired.

The state has awarded the Minneapolis and St. Paul public school districts each about $20 million per year since 2001. But the districts have only become more segregated. Two separate state evaluations of the program found that it had no clear purpose or intended outcome and uncovered “questionable uses of revenue.”

After years of criticism by the legislature, the Minnesota Department of Education submitted a proposal to rewrite the desegregation rule for a third time last January to bring charter schools under the integration program for the first time. Charter advocates quickly challenged the new rule, and ultimately a judge said the department did not have the authority to bring charter schools under the program.

Now, Lavorato and the other charter advocates say the Shulmans’ lawsuit aims to do the same thing. “The Shulmans are trying to collaterally attack the exclusion of charter schools from the current rule by saying that it’s unconstitutional, and that it results in so-called segregated environments,” Lavorato said. She does not believe that the area’s charter schools are segregated. “Segregation means intentional action by a government entity or agent to assign students to schools based on race.”

Daron Korte, the assistant commissioner at the Department of Education, said they’re still waiting for the legislature to clarify whether they intend charter schools to be a part of the integration program. “We think they should be, but we don’t have the authority to make that call. In our opinion, the statute’s not clear,” he said. “But if the intent of the legislature is to improve academic outcomes for all children, why wouldn’t we include charter schools as well?”

So it may seem strange that the charters and the Department of Education are now fighting the Shulmans’ suit together. The state declined to comment on the pending case, but education commissioner Brenda Cassellius has said they are “committed to helping every student achieve academic success.” If the Shulmans win the case, the state would be forced to implement a metro-wide desegregation effort, which would likely involve the unpopular process of redrawing school district boundaries. Charter schools would also have to integrate for the first time.

Because ultimately mandatory integration would mean a lot more than student exchanges or cultural summer camps. The current integration program is largely ineffective because it expects single schools and districts in already segregated areas to solve their own segregation problems. In St. Paul, almost 80 percent of students in the district are students of color — how could the district possibly integrate its schools without looking elsewhere to find white students?

In March, an appeals court judge dismissed the Shulmans’ case, disputing the idea that the state constitution guarantees an adequate education. In other words, if the state doesn’t have to provide a good education, it doesn’t have to desegregate schools in the name of providing one. They’ve appealed the decision with the state Supreme Court and hope they’ll go to trial this year.

Regardless of whether the Shulmans’ case is heard, it has highlighted a state education policy at odds with itself: Integrating public schools isn’t possible without also integrating charter schools, and neither is possible without a court order to do so. In Minnesota and elsewhere, voluntary integration efforts are no match for unrestricted individual choice.