State poised to enter a legal danger zone

Minnesota is heading straight toward a legal buzz saw. Our state faces a looming "educational adequacy" lawsuit that threatens both the quality of our public schools and our cherished tradition of school choice -- and may bankrupt the state treasury in the process.

Though the suit will be brought in the name of improving education, it will have the opposite effect. If successful, it will likely burden our teachers with impossible mandates and lower our academic standards, while astronomically increasing the cost of K-12 education.

Here's the kicker: Below the radar, our own Minnesota Department of Education and other taxpayer-funded educational institutions are working to lay the legal groundwork for a court victory by plaintiffs that will usher in this educational and fiscal debacle.

In December 2011, a phalanx of lawyers emphasized the threat of such a suit to the Integration Revenue Replacement Advisory Task Force, of which I was a member. The task force's mission was to develop recommendations to repurpose state funds now used to promote interracial contacts in many school districts.

One well-known attorney -- Dan Shulman of the Minneapolis firm of Gray Plant Mooty -- told the Star Tribune then that he is already "prepared" to sue the state of Minnesota." I just need clients," he declared.

"Education adequacy" lawsuits are a reflexive response by litigious elements in our society to the racial and income learning gap that bedevils schools both in Minnesota and across the nation. On average, black and Hispanic students perform far below their white peers, as a result of socioeconomic and family risk factors.

In adequacy suits, plaintiffs portray the learning gap as evidence that a state is not providing all students with the "adequate" education its Constitution requires. As a remedy, they seek billions of dollars in new K-12 funding and sometimes a school busing plan to distribute students metrowide on the basis of race.

Take New Jersey, where a court victory by adequacy plaintiffs led to the largest sales- and income-tax hike in the state's history, and sparked a virtual revolt by property taxpayers. Today, low-income districts like Asbury Park spend up to a budget-busting $30,000 per pupil per year. Yet on national tests, New Jersey's black students still score at about the same relative level they did in 1992.In Colorado, plaintiffs won an adequacy suit in December 2011. The state's Democratic governor has warned that their demand for up to $4 billion a year in additional K-12 spending and up to $17 billion for capital improvements to schools may bankrupt the state or provoke a 50 percent tax hike, while siphoning huge sums from other priorities like public safety and higher education.

If education adequacy litigation doesn't raise student achievement, why do courts continue to rule for plaintiffs in these suits? In part, because of the unique plaintiff/defendant dynamics involved. Though state education officials are nominal defendants in adequacy litigation, they frequently share plaintiffs' goal of massive new K-12 funding. As a result, these officials often operate in concert with plaintiffs to increase chances of a victory against the state.

A notorious example of such collusion occurred in New York in the mid-1990s.

There, education commissioner Thomas Sobol operated a study group -- ostensibly to examine the learning gap -- under his department's auspices. However, he acknowledged its real purpose was to generate data that could later be used in an adequacy suit against the state. At trial, Sobol -- named as a defendant -- asked to switch sides and testified on behalf of plaintiffs.

Today in Minnesota, the state Department of Education and two state-funded education organizations are advancing learning-gap-related plans that -- if adopted by the Legislature or as education policy -- would embed legal architecture that would set the state up for a catastrophic loss in an adequacy suit.

The plans -- taken together -- include radical new policy provisions that a court would likely adopt as a framework to determine whether Minnesota students are receiving an "adequate" or "equitable" education under our state's Constitution. This framework would have two central elements, as I explain in a report titled "Our Immense Achievement Gap," recently released by Center of the American Experiment.

First, it would redefine educational "equity" in a way that would shift the focus of fairness in our schools from equal opportunities to equal academic outcomes on the part of all racial and ethnic groups. Schools that failed to produce equal outcomes would -- by definition -- be operating in a discriminatory and unconstitutional way.

The Minnesota Department of Education has announced plans to partner with an activist group -- the Education Equity Organizing Collaborative (EEOC) -- to create standards and metrics that would enforce a new "equity" regime of this kind. The EEOC maintains that "equity" requires all Minnesota schools to close the learning gap on four measures: academic performance, graduation rates, suspension and expulsion rates, and rates of participation in special-education and advanced classes.

The new "equity" framework would also set the legal stage for metrowide, race-based busing in the Twin Cities. The three state-funded education organizations named above call for designating school "integration" as a "compelling" state interest in Minnesota. "Compelling interest" is a legal buzzword of profound significance. The term does not refer to promoting racial balance through voluntary measures -- an educational good that virtually everyone favors. Instead, it opens the way for court mandates that entail apportioning students among schools on the basis of race.

In this connection, Myron Orfield, director of the Institute on Race and Poverty, has called for a single, metrowide "integration district" (or five "super districts") -- with racial ceilings and floors -- that could require up to 20,000 students to change schools on the basis of race. Such a plan would begin as voluntary, but could well become mandatory. It could threaten Minnesota's cherished tradition of open enrollment and the independence of our charter schools by subjecting both to racial balance requirements.

But be careful what you wish for. New state K-12 funding may come with unattainable, draconian mandates that would undermine educational quality for all students.

If adopted, the proposed "equity" framework just described would place intense legal and political pressure on teachers and schools to guarantee equal academic outcomes by students of all racial and income groups.

Educators would be evaluated on their ability to accomplish this objective -- which, sadly, has proven elusive almost everywhere.

Ironically, unreasonable mandates to have all children achieving at the same "proficient" levels are precisely why many teachers oppose the No Child Left Behind law -- and why the Minnesota Department of Education sought and won a waiver from its requirements.

The truth is, we can't mandate equal academic outcomes even for the children in our own families. Efforts to ensure such outcomes will inevitably result in lower academic standards for all. Something like this has already happened in Minnesota with the new math test required for high school graduation and the new basic skills test for teachers. When many of those who take a test fail, pressure builds to delay or even waive rigorous requirements.

Minnesota's future vitality will depend, in large part, on effectively addressing the racial and income learning gap. The key is an intense focus on fundamentals, data-driven assessment and intervention, an orderly environment and high expectations -- as remarkable "beat-the-odds" schools like Minneapolis's Harvest Preparatory School have demonstrated.

But the lawsuit we face will take our state down a very different road -- one that will undermine education as we know it, do little to address the learning gap, and create a fiscal disaster in the process. Unfortunately, the legal architecture that will pave the way to this calamity is being urged upon us by the Minnesota Department of Education and other state-financed education organizations.

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