After a Black Cop Was Convicted Of Killing a White Woman, Minnesota Activists Say Focus Should Be Police Reform

Originally published in The Intercept on May 2, 2019.
—–

ON WEDNESDAY EVENING, outside the Hennepin County government building in downtown Minneapolis, a few dozen community activists gathered in the cold to process the rare and polarizing conviction of Mohamed Noor, a Somali American and former police officer. A day earlier, a Hennepin County jury found 33-year-old Noor guilty of third-degree murder and second-degree manslaughter in the death of Justine Ruszczyk Damond, who had called the police to report a possible sexual assault in her neighborhood in the summer of 2017. Noor shot and killed her, and at trial, he claimed self-defense.

The case has galvanized local activists, some of whom embraced the verdict and others who say that, in a criminal justice system where cops are rarely held accountable for on-duty killings, Noor was unfairly targeted because he is a black man who killed a white woman.

At the rally, Leslie Redmond, the president of the Minneapolis branch of the NAACP, said the case was a “scapegoat” against a man of color to fool residents into thinking “the police force is in tact.” Nekima Levy Armstrong, a civil rights lawyer and local racial justice leader, said Noor’s conviction reveals how the court system treats white people differently compared to everyone else.

Family members of other police shooting victims gave speeches, including Kimberly Handy-Jones, a mother who lost her 29-year-old son to St. Paul police in 2017, and Don Amorosi who lost his 16-year-old son to Carver County deputies last summer. Activists held up signs for other local victims of police shootings, like Tycel Nelson, a 17-year-old shot and killed in Minneapolis in 1990, and Philip Quinn, a 30-year-old shot and killed by a St. Paul police officer in 2015.

Noor’s conviction marks the first guilty verdict for a fatal shooting by an on-duty cop in Minnesota in decades — something that brings both relief to advocates who seek greater accountability for police shootings but also anguish, as residents wrestle with the racial realities of the conviction. Meanwhile, in recent police killings of unarmed black men in the Twin Cities, white cops involved were either not charged at all or acquitted of charges. According to data compiled by the Star Tribune, Noor’s case marks the first conviction out of 179 police-involved deaths in Minnesota since 2000.

“There would have been no trial if Noor’s victim was African American or Native American, and I think the vast majority of people in our movement believe that,” said Jess Sundin, an activist with the Twin Cities Coalition for Justice4Jamar; the group is named after 24-year-old Jamar Clark, a black man shot to death by Minneapolis police in 2015 and whose killers faced no criminal charges. “There also would have also been no conviction if it was a white police officer.”

The July 2017 killing led to a number of shuffles within the police department. Following Damond’s death, then-Minneapolis mayor Betsy Hodges requested the city’s police chief step down, leading to the appointment of Medaria Arradondo, the city’s first African American police chief. Noor was fired shortly after being charged in March 2018.

In the wake of the verdict, a broad swath of activists are seeking to build on their multi-year efforts to reform the police and use Damond’s case as a way to highlight racial disparities in the criminal justice system. There has been global interest in the case because Damond was Australian, and the activists are leveraging that attention to make their concerns and demands known to a wider audience.

A GROUP OF Damond’s neighbors, who started organizing under the banner of Justice4Justine shortly after her death, planned the rally with the backing of local groups, including the Twin Cities Coalition for Justice4Jamar, Black Lives Matter Minnesota, and Communities United Against Police Brutality.

Todd Schuman, an activist with Justice4Justine, told The Intercept they planned the rally because “we’re not afraid to say that in the dozens of other examples where white officers shot black victims, there wasn’t anything close to the level of investigative rigor, anywhere close to the level of media coverage, or a result in a conviction.” Schuman emphasized that his group is “not afraid to name that disparity, and we want to create a space where families of police violence victims who did not receive justice have their opportunity to share their perspective.”

Noor’s guilty verdict has had reverberations throughout Minnesota, galvanizing not only the activists who held the Wednesday rally, but also prompting reactions from elected officials and the local Somali community.

Rep. Ilhan Omar, whose legislative district includes Minneapolis, released a statement on Wednesday morning calling Noor’s guilty verdict “an important step towards justice and a victory for all who oppose police brutality.” Omar also said it cannot be lost that Noor’s verdict comes in the wake of other acquittals for officers who took the lives of people of color, and called for “the same level of accountability and justice” for all officer-involved killings. Minneapolis Mayor Jacob Frey said in a statement that the city must come together, and that Minneapolis stands with both the Somali community and the local police. “Wherever a person’s beliefs may part ways with today’s decision, we should find comfort in knowing that not one person in Minneapolis hoped for what transpired that July night,” he said.

Other members of the local Somali community said Noor was wrongfully convicted. Community leader Omar Jamal told local news outlet WCCO that many Somali people had called him to say they feel Noor was innocent. Noor’s cousin, Goth Ali, told the Star Tribune that the decision was “shocking” and that he thought Noor “didn’t get a fair trial.”

The Somali American Police Association, or SAPA, released a statement saying it “believes the institutional prejudices against people of color, including officers of color, have heavily influenced the verdict of this case.” The “aggressive manner” taken by the Hennepin County Attorney’s Office, the group said, “reveals that there were other motives at play other than serving justice.” SAPA, which expressed condolences to Damond’s family, said it fears the “differential treatment” given to minority officers will “have a devastating effect on police morale and make the recruitment of minority officers all the more difficult.”

The incident is reminiscent in some respects to the 2014 killing of 28-year-old Akai Gurley, a black man shot by a Chinese American police officer while in a Brooklyn public housing complex. Gurley’s death came just four months after Eric Garner, another black New Yorker, was killed after being placed in a chokehold by a white police officer. In Gurley’s case, NYPD cop Peter Liang was indicted in 2015, a rarity for police-involved killings, and in 2016, a jury found him guilty of manslaughter — another extremely rare outcome. The charges sparked some of the largest Asian American protests in decades, as Liang’s supporters accused prosecutors of scapegoating Liang due to his race. (Two months after Liang’s conviction, a judge reduced the charges, sentencing him to just five years of probation and 800 hours of community service.)

Reached for comment, Minneapolis Police Union President Lt. Bob Kroll said his union “respects the legal process and the findings of the jury.” He said this has been an “extremely unfortunate situation for all involved” and that his union sends condolences to Ruszczyk’s family, and that “our thoughts are with former Officer Noor.” At the rally on Wednesday evening, activists said Kroll threw Noor under the bus by firing him and only nominally speaking up in support of him; they argued the union would have more vigorously defended a white officer. Justice4Justine criticized the police union’s statement on the verdict as “empty and vapid.”

The Minneapolis Police Department did not return request for comment, but Arradondo, the chief of police, released a statement on Tuesday to say he “respect[s] the verdict rendered” and will “ensure that the MPD learns from this case and we will be in spaces to listen, learn and do all we can to help our communities in healing.” Through collaboration and partnerships, he added, “I am hopeful that we will strengthen our community wellness and safety.”

WHEN JUSTICE4JUSTINE FIRST formed, neighbors focused primarily on supporting Justine’s grieving fiancé, Don Damond, and the Ruszczyk family, who are based in Australia. Over time, according to Schuman, the group began shifting their energies toward police reform and police violence more broadly.

“We have a lot of mixed feelings,” Schuman said of the verdict. “We said from almost day one that for us, this is more than just one trial and one verdict, and while we wanted a conviction, in this case, the real justice that we’re looking for is a comprehensive reform of the police. Our commitment is to a justice system where what Justine got is what everyone gets.”

One of the concrete policy changes racial justice organizations in the Twin Cities have pushed for is ending so-called “warrior-style” police trainings, which activists describe as a fear-based approach that encourages cops to believe they are always under threat. Last May, about four dozen people staged a protest outside the Mall of America in Bloomington, Minnesota, to call for the mall to stop sponsoring the trainings and for local police departments to stop using them.

Last month, in a victory for activists, Frey, the Minneapolis mayor, announced that the city’s police officers will no longer be allowed to use the warrior-style training. “Chief Medaria Arradondo’s police department rests on trust, accountability, and professional service,” the mayor said in his recent State of the City address. “Whereas fear-based, warrior-style trainings like ‘killology’ are in direct conflict with everything that our chief and I stand for in our police department. Fear-based trainings violate the values at the very heart of community policing.”

Sundin of the Twin Cities Coalition for Justice4Jamar told The Intercept that her group remains focused on prosecution for Jamar’s killers, hoping to see the case reopened. Sundin said her group is also focused on getting community control over the police through an elected board of community representatives. “Our experience has been that the mayor and the city council—both those presently in office and those before—have been unwilling to fire abusive police officers, and we want that to change,” she said. “We think the community has every right to decide who policies our communities and how.” Community control would go beyond just disciplining officers when something goes wrong, Sundin explained, and would also include “writing the rule book” for police officers and negotiating contracts.

When asked to reflect on how things have evolved since 2015, Sundin said she thinks there is a greater recognition of police brutality among residents of the Twin Cities and a deeper understanding from the media to not “parrot the police’s story without looking into it first.”

Sundin also says the Minneapolis police chief being asked to resign following Damond’s death marked a significant development, because a police chief “had never before been held accountable for the police killings that happen under their watch.” Arradondo replaced Janeé Harteau, who stepped down in July 2017.

The last difference, Sundin said, is that she thinks there’s a much greater awareness surrounding the “shoddy investigation work” conducted by the Bureau of Criminal Apprehension, a state agency that helps law enforcement agencies prevent and solve crimes. In December 2017, a video surfaced of Hennepin County Attorney Mike Freeman telling a group of union members that the BCA was doing a poor job of collecting evidence that could lead to charges against Noor. While Freeman later apologized for his remarks and said he didn’t know he was being recorded, he also extended the time for the BCA investigation, something Sundin says has never happened before.

“Every family we’ve ever talked to has had the experience of the BCA botching investigations, but in Justine’s case, it came to light because Mr. Freeman was caught on tape criticizing the BCA for its bad investigatory work,” Sundin said. During the trial, which was held in April, prosecutors also criticized the BCA for its initial handling of the investigation, citing things like waiting three days to interview the only witness and refusing to investigate the source of the screaming that prompted Damond to call the police in the first place. On Wednesday, Minnesota Gov. Tim Walz announced that his office was looking into the allegations surrounding the BCA’s investigation.

Chuck Laszewski, a spokesperson for Hennepin County Attorney Mike Freeman, told The Intercept his office is not taking individual interviews on the case until Noor is sentenced on June 7. At a press conference after the trial, though, when Freeman was asked about the allegations that he worked harder to charge a black officer who killed a white woman, Freeman denied that he would have behaved differently in the case of a black person shot by a white cop. “Race has never been a factor in making any decision and never will be,” Freeman said. “We have charged white cops with crimes, and we will again.”

When a Suburb Tries to Densify, Forget ‘Minnesota Nice’

Originally published in CityLab on June 21, 2018.
—–

In late April, some residents of Normandale Lake Estates, an apartment complex in Bloomington, Minnesota, just outside of Minneapolis, received a letter informing them that their leases were being terminated and they’d have to move out by June 1. New owners had recently bought the building and planned to upgrade the units. Existing tenants were told they could prequalify to return, but many suspect the new rents will be higher than they can afford. In the meantime, they’re scrambling to find new places to live.

For some of the displaced Bloomington renters, this isn’t the first time they’ve been forced out of their homes. A little over two years ago, in the nearby suburb of Richfield, new owners purchased an apartment complex called Crossroads at Penn. They renamed it Concierge, renovated the units, and priced out hundreds of families. Some of those Crossroads tenants, like Lisa Jones, who relies on a federal housing voucher for herself and her two grandchildren, and Linda Soderstrom, also on federal housing subsidy, moved from Richfield to the Normandale Lake Estates. Now they’ve been pushed out once more.

“The lack of humanity is deep,” Soderstrom told The Star-Tribune. “It’s really deep.”

After the Crossroads takeover in late 2015, housing activists and community groups across the metropolitan region began meeting regularly to strategize how they could confront the challenges of rising rents and displacement. Soon the Suburban Hennepin Housing Coalition was born—comprised of nearly two dozen community and faith-based groups. Their mission centered on the “the three P’s”—preservation of affordable housing, production of affordable housing, and protection of tenants.

Much of the attention around affordable housing in the U.S. has tended to focus on cities like New York, Boston, San Francisco, and Seattle—densely built urban areas where land for new housing is in short supply. But most Americans live in suburbs, many of which are seeing rapidly increasing poverty and racial diversityHere, the need for affordable housing can be just as acute, but the dynamics of the issue are distinct from the urban version—and, often, more complex.

On the outskirts of the Twin Cities, the housing crisis includes some familiar ingredients—anxieties about race and poverty, debates about density and “neighborhood character.” But here there are also deep divisions between various pro-housing advocacy organizations, as well as big differences between suburbs, depending on their relative affluence.

Hope Melton, a retired urban planner, has lived in the wealthy suburb of Edina for nearly 40 years. Last fall, she invited some neighbors to meet in her living room, to kickstart a conversation about steep local housing prices. They’ve been meeting and growing their group ever since.

“Fifteen or twenty years ago, the affordable housing crisis was mainly hitting poor people,” Melton told CityLab. “Now it’s affecting a much wider swath of people. We’ve really been attracting a lot of seniors in Edina, the older generation is really stepping up.”

Although the Twin Cities have historically been one of the nation’s most affordable places to live, the region has a markedly low rental vacancy rate, meaning there’s high demand for new units and steady pressure on rents. Activists fear that “flipping” affordable units into luxury market-rate apartments will become increasingly common prospects for investors, especially those from out-of-state.

Anne Mavity, the executive director of the Minnesota Housing Partnership, says the region is not building new affordable units at the rate at which presently affordable units are disappearing. Market-rate units that were constructed 35 years ago are generally reasonably priced today simply because they’re and older and not fancy. The term-of-art for these types of units is “NOAH” or “naturally-occurring affordable housing.”

“We’re losing NOAH at a rapid pace,” Mavity said. “And every time a sale happens, the price of the unit is going to go up, the rents will go up. We are increasingly attractive to national investors, and that is not good for our residents.”

To combat some of these trends, the Suburban Hennepin Housing Coalition has been organizing around several key policy areas, namely to add new affordable housing stock, and help tenants fight displacement. In March, for example, the Minneapolis suburb of St. Louis Park passed a first-of-its-kind ordinance requiring new property owners to give low-income tenants 90 days notice to find a new place to live if they’re being priced out, and to pay for tenants’ moving expenses. A similar rule was just introduced to the Bloomington City Council this month, according to the city’s program manager, Bryan Hartman.

Nelima Sitati-Munene, executive director of the African Career Education & Resource, Inc. (ACER), a group focused on organizing the African immigrant community in Minnesota and a member of the Suburban Hennepin Housing Coalition, says they’ve been pushing municipal leaders to no longer “view the landlord as the only stakeholder” in their cities. In her suburb of Brooklyn Park, activists recently succeeded in getting rental affordability requirements included in new multi-family housing developments.

Sitati-Munene says organizing around suburban governments has been both a challenge and opportunity. “The reality is this affordable housing crisis is a new phenomenon for a lot of people,” she said. “And a lot of suburban city councilmembers are part-time. A lot of leaders have been really surprised to learn what’s going on, to hear people’s personal stories.”

Still, the fundamental tensions associated with affordable housing debates in other parts of the country persist here: Many suburbanites are vehemently opposed to changes in local development patterns, especially when the word “density” comes up.

“That’s a very polarizing issue,” said Ricardo Perez, a community developer at the Community Action Partnership of Hennepin County, when I asked him about increasing housing density as a strategy to boost affordability. “I personally leave it to the policy experts to have those conversations amongst themselves. My main focus is on community and to serve those families who are being affected directly by these issues.”

Aaron Berc, a housing organizer with Jewish Community Action and another Suburban Hennepin Housing Coalition leader, was similarly noncommittal on the question of density. “We’re not going to support a project because it’s dense. We’ll support a dense project because it’s affordable,” he said. “Certainly we need more housing—our city needs to go grow. But I would say we need housing that is affordable for the community more than we need more housing.”

These questions around development and density are hardly theoretical abstractions. In March, the city of Minneapolis released a draft comprehensive plan which included a new proposal to upzone neighborhoods so that single-family-homes could be more easily converted into fourplexes, an idea with the strong backing of Minneapolis’s new mayor, Jacob Frey. “Affordable housing is a right,” he tweeted in March. “Addressing our supply—and shortage—is going to be a key part of realizing that right.”

Some groups, like the Defend Glendale Public Housing Coalition, have already come out in strong opposition to the fourplex idea; they argue that relying on market-based solutions will inevitably make things worse for low-income people and increase displacement. The city is accepting public comment on the draft proposal through the end of July.

In Edina, efforts to add more housing have also met stiff resistance. The City Council recently rejected a proposal for a new seven-story building, which would have included 20 percent of its 135 units as affordable. In October the Edina City Council rejected another proposed high-rise condo buildingthis one of 173 new units, with twenty percent of them designated as affordable.

There’s no doubt that height and density are the two issues that have focused people’s minds as we address development, redevelopment and affordable housing,” says Melton. “How would I characterize the conversation? Chaotic, emotional, uninformed.”

The dynamics get more complicated, Melton says, as residents wrestle with complex issues of race and class through the politics of Midwestern cultural norms. “‘Minnesota Nice’ plays into this very much,” she said. “People don’t raise their voice, nobody wants to talk about race, nobody wants to talk about their responsibility historically for what’s happened to people that they don’t want to have in their community.”

Instead, Melton says, her neighbors will “say they don’t want ‘urban’ things, that they don’t want all the noise and diversity and crowding and traffic and all that,” she says. “Those things they regard as negative, and they moved to Edina to escape it.”

Bruce McCarthy, the president of the Lake Cornelia Neighborhood Association in Edina, has said he is “very pro-development” but that “we just want to see it a certain kind of way.” He’s urged his city council to focus on its new comprehensive plan before it approves any new project that requires amending building size requirements.

Yet even among housing activists who might otherwise be on the same side, the issue of racial integration and fair housing can be charged. In 2014, two of the Twin City’s most racially diverse suburbs, Brooklyn Center and Brooklyn Park, filed a federal fair housing complaint against the state, alleging that policymakers had illegally concentrated subsidized housing and poverty in their cities, in defiance of a state law that requires affluent communities to provide their “fair share” of affordable housing. The re-adoption of a “fair system” is a way of ensuring that more subsidized units end up in higher-income areas. The Metropolitan Interfaith Council on Affordable Housing (MICAH), a faith-based housing organization, partnered with the cities on the complaint.

Sue Watlov Phillips, executive director of MICAH, says the Metropolitan Council, a regional government agency charged with enforcing the “fair share” law (among many other municipal duties) has been resistant to their complaint, though HUD is continuing to investigate their grievances.

“We’re not saying anyone needs to move or be forced to move, but we’re saying we want to make sure if you want to move out to another place, you should have affordable housing and opportunity in every community,” she said. “We went from being one of the most integrated metros in the country to one of the most segregated, and a lot of it was because we have designated our resources and policies so housing could only be developed in certain areas.”

But Sitati-Munene of Brooklyn Park’s ACER opposes the fair housing complaint: Her group insists that the working-class suburbs of Brooklyn Park and Brooklyn Center need much more subsidized housing construction, not less.

Despite disagreements over strategy, placement, and scale, the fact that groups in in the Twin Cities metro are even wrestling with these issues puts them ahead of the curve nationally when it comes to organizing the suburbs. And activists acknowledge that the housing issues they’re confronting are not unique to their region.

“After the foreclosure crisis people lost their homes and more people have started to rent,” says Sitati-Munene“Rental markets are flooded, and prices are going up. If other suburbs aren’t dealing with affordable housing issues now, it’s coming.”

School Desegregation Lawsuit Threatens Charters

Originally published in The American Prospect on January 26, 2015.
—-

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.”


It’s fitting that this fight would take
 place in Minnesota
, which is both the birthplace of the charter school movement, and a longtime champion of civil rights.

Minneapolis enacted the nation’s first fair housing and fair employment ordinances, and Minnesota passed one of the first state laws banning housing discrimination. In 1948, it was an impassioned speech to the Democratic National Convention by Minneapolis Mayor Hubert Humphrey that led the Democratic Party to pass its first civil rights platform plank. In the early 1970s, under a court order, Minneapolis moved to integrate its public schools. This prompted the state to issue desegregation rules applicable to schools across the state. By the early 1990s, Minneapolis and St. Paul had not a single racially segregated school, and the Twin Cities metropolitan area was one of the most desegregated regions in the United States.

“We had no segregated schools because we had strong civil rights laws and we enforced them,” says Myron Orfield, a law professor at the University of Minnesota and the director of its Institute on Metropolitan Opportunity.

Today, the educational landscape looks quite different. While the number of people of color living in the Twin Cities metropolitan region—defined as Minneapolis, St. Paul, and the surrounding suburbs—has increased considerably over the past two decades, integration advocates say that demographic shifts alone are insufficient to explain the growth of segregated schooling in Minnesota.

And grown it has. Since 2000, the number of elementary schools in St. Paul educating more than 90 percent students of color grew from 2 to 18, while the overall percentage of students of color in the district rose only 11 percent. Similar shifts occurred in Minneapolis. In 1995, the Minneapolis School District was 63 percent nonwhite, but had only two elementary schools that were 90 percent segregated. Today the district has 13 such elementary schools, and 26 percent of district students attend schools with over 90 percent students of color.

MPS SPPS demograpic change chart FIXED.png

The demographics of the 164 charter schools in Minnesota—which roughly 50,000 students attend—have also impelled the state to argue, for the first time, that charters should no longer be exempt from state integration laws. (An administrative judge will rule on this separate dispute in late February.)

The resegregation of the region’s schools, critics say, was the product not just of demographic change but also of conservative pressure in the 1990s to weaken desegregation mandates, coupled with the rise of a charter sector that targeted specific races and ethnicities, thereby accelerating the isolation of poor and minority students. The growth of charter schools, they add, also created new opportunities for white children to congregate in separate schools. Charters attended by predominately white students grew by 40 percent between the 2007-08 school year and the 2012-13 one. Researchers found that more than half of these white charters are located in attendance zones with racially diverse traditional schools.

Opponents of the state’s proposal, and of the Shulmans’ lawsuit, argue that their proponents—state officials, Myron Orfield, and his allies—misapply the label of  “segregation” when talking about charter schools. “I find it offensive and insulting to compare parents of color making choices to send their kids to schools that are better addressing the academic needs of their kids with segregation, a system that was set up by white supremacists decades ago to force students of color to inferior schools,” testified Alberto Monserrate, the first Latino ever elected to the Minneapolis School Board, in early January.

Whether or not one thinks these schools should be considered segregated, the rise of schools with high concentrations of racial minorities—both in traditional schools and in charters—means an increase in the number of schools serving high concentrations of poor students. Researchers at the Institute on Metropolitan Opportunity find the poverty rate at Twin Cities minority-segregated schools to be two-and-a-half times greater than the poverty rate at integrated schools, and five times greater than the poverty rate at predominantly white schools. They also find that math and reading test scores for black students at highly segregated schools are lower than test scores for black students at less segregated schools. Suspension rates, too, are substantially higher in racially segregated elementary schools than in less segregated ones.

IMO.png

“Yes, there’s a difference between segregation that’s imposed by the state versus segregation that is through choice, the first is worse than the second,” says Richard Kahlenberg, a senior fellow at The Century Foundation and a longtime researcher of school integration. “However, the negative effects of concentrated poverty obtain even when concentrated poverty is a matter of constrained choice.”

 

This is not Daniel Shulman’s first time filing a school segregation lawsuit against the state. In 1995, Shulman sued Minnesota, arguing that segregated schools in the Twin Cities metropolitan area violated both the state and federal constitutions. The case settled five years later, and as part of the settlement, Minnesota established a voluntary integration program between Minneapolis and ten neighboring suburban districts. Most participants were poor minority students who enrolled in predominately white suburban schools.

“But the segregation in Minneapolis and St. Paul is worse today than when I started the first case 20 years ago,” says Shulman. “That’s why I brought the case again, and I’m sorry I waited this long to do it.”

Shulman’s legal strategy rests on a theory that, at this point, is still very much untested. In the past few decades, it’s become increasingly difficult for civil rights advocates to win federal school desegregation lawsuits. Following the 1978 Supreme Court case Milliken v. Bradley, courts began to draw sharper distinctions between de jure and de facto segregation; the Supreme Court said unless it could be shown that a district deliberately sought to discriminate against students by race, it could not be held responsible for school segregation.

“Federal desegregation rulings are about racial discrimination, which looks at intent to discriminate,” says Derek Black, a professor at the University of South Carolina School of Law, who studies education law and policy. “Since the 1980s and 1990s, it’s become more and more difficult to prove intent, which means more and more districts have been released from their desegregation obligations.”

By suing the state, rather than the federal government, the Shulmans aim to bypass all those sticky questions about intent. “What they’re saying is that the actual existence of segregated schools creates an educational harm, and the state ought to correct that harm, regardless of why it came about,” explains Black.

Their strategy has been tried once before, in a 1989 Connecticut lawsuit known as Sheff v. O’Neill. The plaintiffs argued their constitutional rights were violated because the concentration of African-American students in a particular district was a violation of the state’s right to equal education.

The case made its way up to the state Supreme Court, and in 1996, the justices ruled that Connecticut had an affirmative obligation to provide its students with equal educational opportunity. This constitutional right, they concluded, necessitated providing students with integrated educations, and so the state moved to establish an array of voluntary integration options.

Though Sheff is not controlling law in Minnesota, it is expected that Minnesota judges would consider it if they adjudicate the Shulmans’ suit. “I think the more courts that say an idea is a good one, the more likely it is that courts that follow after them will agree,” says Black, pointing to school funding lawsuits as an example. However, Sheff was notably litigated before the rise of charter schools.

In 1993, Minnesota’s Supreme Court ruled that all students are guaranteed a fundamental right to an adequate education. In their new suit, the Shulmans seek to argue that no education could possibly satisfy the state’s adequacy requirement given the highly segregated environments.

Lawsuit opponents argue that “adequacy” should be measured not by the composition of student bodies, but by demonstrated achievement. “What we’re saying is the first thing to look at is whether kids are learning, not who is sitting in the classroom,” says Cairns, the attorney representing the charters. “And once you establish that kids are learning, then that’s the measure of an effective and adequate education.”

Derek Black says most states do consider achievement “outputs” when determining whether students are receiving adequate educations. Such outputs could be scores on standardized tests, graduation rates, or college readiness measures. Though variance exists from state to state, Black says most courts would look at both outputs and inputs. “The question would be whether the failure to provide certain inputs is the cause of an inadequate education, as measured by various outputs,” he says. If Minnesota’s judiciary takes up this groundbreaking case, they will have to decide whether racially and economically integrated schools are necessary inputs.

“I think there’s an increasing recognition that equal education is the constitutional responsibility of state governments, and therefore [states] have to promote policies to avoid racial and economic segregation,” says Phil Tegeler, the executive director of the Poverty & Race Research Action Council, and a leader in the National Coalition on School Diversity. Tegeler hopes lawyers in other states will follow the Shulmans’ lead. “We really need to see more creative, affirmative litigation,” he says.

“This is huge, you could potentially have 50 state lawsuits on this issue,” says Kahlenberg.

Opponents of the lawsuit, and of the state’s plan to include charters under statewide integration rules, say that there’s been a fundamental misinterpretation of what segregation is. They deny that charter schools targeting specific races or ethnicities are illegal or unjust. Rather, they say, these schools provide students with “culturally affirming” environments in which to learn.

Bill Wilson founded one such “culturally affirming” charter in St. Paul—known as Higher Ground Academy. Though Higher Ground’s student body is more than 90 percent East African immigrant and low-income, it’s one of the highest performing schools in the region. Advocates say the school’s success is due to its unique, and culturally sensitive education strategies. “I know people who brought this lawsuit against the state use the word ‘desegregation’ but let’s find the intentional action,” Wilson says. “I won’t call this segregation, I won’t call it racial isolation, because it’s not true.”

“It’s a false analysis that’s being applied to culturally specific charter schools, that tends to consider those schools to be segregated,” testified Nakima Levy-Pounds, the president of the Minneapolis NAACP chapter. “That flies in the face of civil rights history and also the fact that we have historically black colleges and universities around the country that are specifically designed to affirm, enrich, and enhance the educational experiences of African-Americans who we know have faced historical discrimination throughout our time in this country.”

Darrick Hamilton, an urban policy professor at The New School, says his research suggests there certainly could be instances where predominately black schools may be better learning environments for black students. Quoting W.E.B. Du Bois, he says, “The Negro needs neither segregated schools nor mixed schools. What he needs is Education.”

Even among those in the Twin Cities who advocate for integration, the civil rights community remains torn over how to think about charter schools.While the St. Paul NAACP welcomes the Shulmans’ new lawsuit, for example, its leaders have not taken a position on their charter school argument, or on whether charters should be exempt from statewide integration laws.

“It’s hard enough to get a broad coalition of people to say we want to integrate the schools, and when you add the charter school issue, the politics just become much more challenging,” says one Twin Cities civil rights leader. “There are definitely some advocates who say we should focus on desegregating the traditional schools, and if the districts can get their act together then demand for charters will [naturally] go down, because parents will trust that traditional schools can take care of their kids.”

But researchers at the Institute on Metropolitan Opportunity say that segregated charter schools perform even worse than segregated traditional schools. With the exception of a few high performing networks—including Bill Wilson’s Higher Ground Academy—they find that most charter schools that serve high concentrations of impoverished racial minorities produce poorer academic results than traditional schools, even after controlling for variables like poverty and race. The Minnesota Star Tribune also found that slightly more than half of all students in Minnesota charter schools were proficient in reading, compared to 72 percent in traditional public schools.

Defenders of “culturally-affirming” institutions don’t spend much time talking about white charter schools. Yet white charters are on the rise.

“One of the problems with allowing culturally-focused schools to become single-race enclaves is that, once you create a legal justification for these schools, it becomes very difficult to prevent white parents from adopting the same language to create white segregation,” says Will Stancil, an attorney with the Institute on Metropolitan Opportunity. “Integration isn’t about exposing kids to some magic aura of whiteness, it’s about the importance of universal inclusion in education: providing all children full access to the teaching, resources, and networks that the most privileged kids currently have.”

IMO Charters.png

Those who do support including charters in the lawsuit and under statewide integration rules point to a “Dear Colleague” letter that former Secretary of Education Arne Duncan sent around in 2014. Duncan’s federal guidance said charters must be included in court-mandated or state-administered desegregation plans.

“You just can’t exempt charter schools from the basic civil rights laws of the state, they’re supposed to be publicly funded public schools, and they should be subject to the same civil rights requirements as other public schools,” says Phil Tegeler. Myron Orfield says Minnesota is the only state that he knows of that explicitly exempts charters from its civil rights laws.

The rhetoric surrounding these legal battles will likely grow even more charged in the coming weeks and months. By the end of February an administrative law judge should make her final decision on whether charters will be exempt from statewide integration rules. However, if the Shulmans ultimately win their lawsuit, some say this could render any charter school exemptions moot.

“I think ultimately the lawsuit could trump the rule,” says Derek Black. “It could require the state to do a whole variety of things.

Daniel Shulman isn’t worried about what the judge will decide with regards to charters and the state rule. “It would be nice if there were a rule that effectively desegregated Minnesota’s schools—that’s one way the state could begin to remedy the result of its past constitutional violations,” he says. “But this rule is not going to effect the lawsuit.”

The state of Minnesota has filed to dismiss Shulman’s lawsuit, and a judge will consider this motion in a hearing in April. (A spokesperson for the Minnesota Department of Education told The American Prospect that they cannot comment on the case, but is “committed to helping every student achieve academic success.”) If the case is not thrown out—and it can be appealed, if it is—then the trial will likely be scheduled for late 2017.

“I know for a lot of leaders it’s convenient to not do anything or to not talk about these issues, but for the children who are kept separate, it’s wrong,” says Cruz-Guzman. “We feel we’re doing the right thing by bringing the lawsuit.”

Minnesota is not the first state to wrestle with the challenges of balancing school choice and desegregation. And it surely won’t be the last. Cairns, who serves on a litigation panel for the Alliance of Public Charter School Attorneys, says that he and his colleagues recognize the “wide-ranging implications” of this case. Though it’s not a federal suit, Cairns believes its outcome will be “hugely important to provide direction” to the rest of the country.