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«Choice, Equal Protection, and Metropolitan Integration: The Hope of the Minneapolis Desegregation Settlement Myron Orfield1 Draft—Please do not ...»

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Choice, Equal Protection, and

Metropolitan Integration: The Hope of the

Minneapolis Desegregation Settlement

Myron Orfield1

Draft—Please do not cite without permission


The Minneapolis-St.Paul metropolitan area is one of the

whitest and most affluent regions in the country.2 In the state of

Hubert Humphrey, and many other national civil rights leaders,

central city school districts contain many public schools that are

overwhelmingly poor and enroll virtually no White students.3 These schools are segregated both racially and economically from their city and suburban counterparts—some are “hypersegregated,”4 with nearly 90% Black students and similarly large concentrations of poverty.5 The effects of neighborhood segregation and poverty are greatly magnified in schools, which are much more segregated

1. Associate Professor of Law, Fesler-Lampert Chair in Urban and Regional Planning, University of Minnesota and Non-resident Senior Fellow, the Brookings Institution. This paper was presented at the Public Law Workshop at the University of Minnesota Law School. The author would like to acknowledge Daria Roithmayr, Brad Karkkainen, James Ryan, john powell, Gary Orfield, Guy Charles, Jill Hasday, Ruth Okediji, and Jim Chen for their assistance. I would like to thank Scott Crain, C. Ann Olson and Nick Wallace for their spectacular research assistance.

2 U.S. Census Bureau, Summary File 3, See http://factfinder.census.gov/servlet/CTTable?_caller=geoselect&_ts=144858684577 (last visited _______, 2005). The Minneapolis-St. Paul area is about 86% White, and slightly more than 5% Black. The median income by household is more than $54,000—fourth in the nation. Id.



4. DOUGLAS MASSEY & NANCY DENTON, AMERICAN APARTHEID 10 (1993) (coining the term “hypersegregation” to describe intense, multidimensional segregation).


1/17/2006 6:30:53 PM ORFIELD.DESEG.JAN06DRAFT 102 Law and Inequality [Vol. 24:__ than their neighborhoods. Moreover, while more than two-thirds of poor white children lived in low-poverty neighborhoods, only about 25 percent of poor black children and less than 33 percent of poor Hispanic children lived in low-poverty neighborhoods.6 In significant part because of this racial and social segregation, only 52 percent of black children and 20 percent of Hispanic children in Minneapolis will graduate.7 Those that do graduate or obtain an equivalency degree will likely have tremendous difficulty finding a path to college or a well-paying job with benefits in the overwhelmingly white-dominated higher education system and economy. If this kind of racial and socioeconomic segregation can happen in the Twin Cities, it can conceivably happen anywhere.

Fifty years after the U.S. Supreme Court decreed segregated schools to be intrinsically wrong and later ordered that desegregation proceed by “meaningful and immediate progress,”8 separate schooling still exists for Whites and minorities.9 While county-wide educational systems throughout the south effectively and stably desegregated de jure school districts,10 Northern districts—contained within fragmented areas with many districts—were less amenable to stable integration. Minneapolis, for example,11 engaged in city-only desegregation. Hemmed in by many independent suburban districts and the Supreme Court’s decision in Milliken,12 these Northern cities were ordered to 6 Paul Jargowsky, Poverty and Place 75 (1997).

7 Minnesota Department of Education, “School Report Card: Minneapolis,” (2005), at http://education.state.mn.us/ReportCard2005/aypGraduation.do?SCHOOL_NUM=0 00&DISTRICT_NUM=0001&DISTRICT_TYPE=03 8 Green v. County Sch. Bd. of New Kent County, Va., 391 U.S. 430, 439 (1968).

9. See e.g., Richard Thompson Ford, Brown’s Ghost, 117 HARV. L. REV. 1305, 1309 (2004) (noting that “green follows White,” meaning integrated schools will ensure that minorities from low-income communities will not be ignored by the state if they attend the same middle-class schools as do Whites).



11 Booker, See also Myron Orfield, Metropolitics, ch.2 (1997); john powell, Segregation and Educational Inadequacy in Twin Cities Public Schools, 17 Hamline J.L.P.P. 337 (1996): Myron Orfield, Economic and Racial Polarizatin in Twin Cities Schools, 17 Hamline JLPP 271 (1996) 12 Milliken v. Bradley, 418 U.S. 717 (1974).

1/17/2006 6:30:53 PMORFIELD.DESEG.JAN06DRAFT ORFIELD.DESEG.JAN06DRAFT 2005] Minneapolis Desegregation Settlement 103 desegregate their schools without suburban assistance.13 While the county-wide systems in the south remained stably integrated for decades, the results in the Twin Cities were consistent with city-only desegregation plans throughout the country – temporary integration overwhelmed eventually by white flight.14 In Minnesota, “separate and much more than equal funding” of inner-city schools has been the response to the problem of regional segregation.15 Minnesota increased funding to segregated schools when it was under the threat of a metropolitan desegregation suit both in the 1970s under the federal equal protection clause and in the 1990s under the state’s.16 Since 1995, state funding formulas have guaranteed that twice as much money is spent per pupil the most segregated city schools, as compared to that spent in the wealthiest suburban districts.17 In both cases, like so many other places in the country, the state made an implicit bargain with the city schools: “you keep black and Latino out of our white suburban neighborhoods in segregated schools in the city and we will pay you to do it.” At the time, it seemed like a good bargain for whites who were afraid of black students and central-city education systems which liked the idea of new resources. But it wasn’t a good deal. It was a deal that likely destroyed countless lives, deeply hurt city and suburban neighborhoods where the schools became racially identifiable, and ultimately the quality of life and, very likely, the economy of the Twin Cities.

This new funding, which has not changed the tragedy and harm caused by the segregation of the inner-city schools, is unlikely to increase further. It is unlikely that the legislature will grant more money to inner-city schools when they are increasingly failing and when property taxes and enrollment are growing rapidly in the developing, low-property tax, and politically pivotal suburbs.18



14 Myron Orfield, Metropolitics, 44-45 (1997).


AND STABILITY 91 (1997).

16. Id. at 45.



18. See id.

1/17/2006 6:30:53 PM ORFIELD.DESEG.JAN06DRAFT 104 Law and Inequality [Vol. 24:__ Racially and economically isolated schools are often attacked by opportunistic politicians who use the pathologies created by segregation to fuel white resentment against the segregated schools.19 Segregated schools with high spending and poor test scores are often used as an affirmation of conservative views of government and a powerful wedge issue to divide suburban voters, many of whom live in low wealth school districts which directly compete with the central cities for aid.20 There has been little or no politically or practically effective liberal response to these attacks. But the failure of segregated schools is not necessarily due to corruption or mismanagement—although both are more likely to occur in central cities without politically powerful middle-class families to monitor school quality and performance. It is because, as decades of national experience have shown, students are overwhelmingly disadvantaged by the learning environments of majority poor and segregated schools.21 While racially and economically isolated schools fail, the few examples socially integrated schools are meeting expectations and effectively educating children from diverse racial and social backgrounds.22 Urban school advocates and political leaders across the spectrum throughout the nation have also hailed charter schools as an answer to failing urban schools.23 Charter schools, started in

19. See, e.g., Doug Grow, Was Day Crude? Or Just Stupid?, STAR TRIB.

(Minneapolis), May 22, 2004, at 1B (quoting the Minnesota Senate Minority Leader who was recently forced to apologize for “repeatedly and angrily sa[ying] that Minneapolis and St. Paul schools ‘suck’”)

20. See id. Suburban and rural leaders often object to the increasing amounts of aid that go to large, inner-city school districts while test scores and completion rates fail to improve. See id. These leaders generally fail to mention the manifold difference between educating students in schools with 90% or more children coming from poor homes and educating students in affluent or middle class suburbs.

21. See, e.g., RICHARD D. KAHLENBERG, ALL TOGETHER NOW 47-76 (2001) (discussing effects of concentrated poverty, parent educational achievement, “oppositional culture,” and influence of peers on educational attainment among students).

22. See Minn. Dep’t of Educ., School Report Card: Lake Harriet Upper (121), http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM =121&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Sept. 11, 2005) (showing demographics and links to AYP and Basic Skills Testing results). As an example, Lake Harriet Upper Campus in Southwest Minneapolis has 18% minorities, 11% free and reduced lunch enrollment, and the school is making adequate yearly progress and exceeding testing goals for children of all races. See id.

23 Much of the rhetoric surrounding charter schools is based on upsetting the notion of what a “public” school is. See, e.g., U.S. Charter Schools, at 1/17/2006 6:30:53 PMORFIELD.DESEG.JAN06DRAFT ORFIELD.DESEG.JAN06DRAFT 2005] Minneapolis Desegregation Settlement 105 Minnesota as a national model, have failed to yield any better results, have deepened racial segregation, and appear to be frequently mismanaged and financially unstable.24 Schools are more than textbooks, facilities, and dedicated teachers. Schools are also social networks which establish connections and relationships that are important in college, careers, and general access to opportunity. Poor, segregated schools cannot expose children to these networks, and the larger institutions associated with opportunity in society are harder for students from racially and socially segregated high schools to access, which hinders the ability of Black and Latino children to lift themselves out of poverty.25 In addition, even Whites who are the racial group most segregated in their schooling—segregated from both low-income students and students of color—are injured by decreased opportunities to interact with diverse groups in an increasingly diverse country.26 The trend across the nation is for increased diversity at all grades, and whites will soon be in the minority.27 Like Minneapolis in the 1960s and 1970s, older suburban school districts are experiencing rapid racial change, increased segregation, and its attendant harms.28 In several of these school districts, recent attendance boundary changes have concentrated minorities in racially identifiable schools in a pattern of conduct http://www.uscharterschools.org/pub/uscs_docs/o/movement.htm



EDUCATION 4, 7 (2003), http://www.civilrightsproject.harvard.edu/research/deseg/CharterSchools.php (noting that 70% of Black students in charter schools are likely to be in intensely segregated schools as opposed to 34% in standard public schools; also noting that the uniqueness of charter schools makes it difficult or impossible to evaluate the quality of education); see also Scott Abernathy, Charter Schools, Parents, and Public Schools in Minnesota, 34 CURA REP. 1, 6-7 (2004) (discussing positive and negative consequences associated with charter schools).

25. See Joleen Kirschenman & Kathryn Neckerman, We’d Like to Hire them but,...the Meaning of Race for Employers, in THE URBAN UNDERCLASS, supra note 15, at 203, 231 (documenting discrimination by employers in Chicago who turned down applicants from low-income neighborhoods and high schools more frequently).

26. See Ford, supra note 7 at 1311 (quoting the reasoning of Justice O’Connor in Grutter v. Bollinger, 539 U.S. 306 (2003)).

27 Eric Schmitt, The New Urban Minority, N.Y. Times, May 6, 2001, (Westlaw) (noting Whites constitute a minority in the largest 100 cities in the country).

28. See infra notes 28.See infra notes 235---247 and accompanying text. and accompanying text.

1/17/2006 6:30:53 PM ORFIELD.DESEG.JAN06DRAFT 106 Law and Inequality [Vol. 24:__ which may violate the federal and state constitutions.29 Suburban racial change and policies that contribute to White flight and segregation are hurting these communities by creating identifiably “White” schools and “Nonwhite” schools, thereby encouraging the spatial separation of Whites and minorities not only in schools but also in suburban neighborhoods.30 More segregation is not inevitable though. The legal response has been largely halted in the federal courts, as they have essentially “dismantled” desegregation remedies and allowed school districts to return to segregated schooling.31 Yet important federal remedies remain relevant to the setting of attendence boundaries in newly diverse, older suburbs.

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