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Are Charter Schools the New Separate But Equal?

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A lawsuit in Minnesota claims they are, effectively arguing that their existence is discriminatory to children of color, even when the charters specifically target those students.

Alex Cruz-Guzman, who came to the United States from Mexico as a teenager, lives in a poor, minority neighborhood in St. Paul, Minnesota. Determined to provide his five children with a quality education, he and his wife were able to send their two oldest daughters—who are now in college—to desegregated St. Paul schools. But it’s become more difficult to find such schools in St. Paul today, and the Cruz-Guzmans were told they would likely be unable to send their three younger children to integrated institutions, even when they offered to transport their kids themselves.

So Cruz-Guzman became a plaintiff in a lawsuit—one that may shape the future of American education. Filed against the state of Minnesota by two veteran civil-rights attorneys, Daniel Shulman and his son John Shulman, the suit accuses the state of allowing schools with high concentrations of poor and minority students to proliferate. A 2015 Minneapolis Star Tribune analysis found that elementary school students in the Twin Cities attend more racially segregated schools than they have in a generation. Children who attend such schools, the lawyers argue, achieve far less than their peers in integrated institutions. The lawyers also say that the growth of charter schools, which are even more racially segregated than traditional public schools, have exacerbated these trends.

The Shulmans are seeking a metro-wide integration plan to satisfy what they argue is the state’s constitutional obligation to prevent segregated schooling. They cite the state constitution’s education clause, equal protection clause, due process clause, and the Minnesota Human Rights Act to make their case.

Not everyone agrees that this kind of integration is legally necessary or the best way to meet children’s needs. Some see the suit as a threat to parents’ right to choose the schools that would best serve their children. This is particularly true for parents of color, who sometimes send their children to charters in the hopes of avoiding what they see as hostile traditional schools.

John Cairns, one of the most experienced charter school attorneys in the nation, is working against the lawsuit. “If the state is going to do anything, then they’d have to attack parental choice,” says Cairns. “While the plaintiffs are inexplicit about what their remedy would be, in our view, they’re explicit that their remedy would address charter school enrollments. The only way they could do that is to have some conclusion that parental choice is unconstitutional.”

Daniel Shulman sees in this argument an echo of Plessy v. Ferguson. He thinks charter school advocates are arguing, in effect, that separate schools can be equal. “We don’t think that’s true or the law. If they follow the law, they’ll say separate is not equal, and not equal is inadequate,” he says. “All the data will support that … test scores, graduation rates. School segregation is a national tragedy and disgrace.”

This is an extremely controversial issue because by saying that charter schools should be included under school integration laws, it would undermine ethnically or religious-based charters. That would upset a lot of parents of color, especially in an area with very high Hmong and Somali populations. The evidence that students in integrated schools perform better than students in schools where poverty is concentrated, including charter schools, is pretty high. The NAACP is mixed on this, welcoming the lawsuit but unsure where to stand. And of course this has led to the rise of all-white charter schools as well.

In other words, is it the state’s duty to ensure diversity with mixed-race and mixed-income classrooms? Or should people be able to opt out in self-segregation through private and charter schools? I rather strongly favor the former as a personal choice but I’m not sure entirely how to legislate it, especially given the favorability of the charter option among some parents of color desperate to avoid public schools. Certainly this is a tougher and more complex issue than the usual union-busting and privatization issues around charters.

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