Joe Nathan
ECM Publishers Columnist
(Editor’s note: The Center for School Change, where Joe Nathan serves as a senior fellow, received funds to help study the proposed rule being written about here. Two Center for School Change staff, including Nathan, testified against some of the proposed provisions to the state’s desegregation rule.)
In an unusual decision that will affect many Minnesota students and schools, two state administrative law judges rejected the Minnesota Department of Education’s proposed revisions of the state’s desegregation rule. I agree with the judges.
According to MDE, 134 districts receive more than $61 million altogether as part of this rule. The existing rule requires districts with a certain percentage of students of color to develop improvement plans, potentially with other districts. State funds provide 70 percent of the plan’s costs, while local property taxes provide 30 percent. A 2008 state auditor study (available here http://bit.ly/1XNP9Fr) questioned the existing rule. The auditors said the mission was unclear, as were the results, and that MDE was not providing enough oversight. So in 2013, the Legislature had MDE revise the rule so that it would have a more positive impact on students.
Many Minnesota districts depend on desegregation funding that is part of the rule. For example, Forest Lake Area Schools Superintendent Linda Madsen explained that the district receives more than $550,000 in revenue from the rule, which helps pay for both staff and student activities.
However, the administrative law judges criticized MDE’s proposed revisions.
In uncommonly colorful language, Administrative Law Judge Ann C. O’Reilly agreed with many Minnesotans that the MDE exceeded its authority by including charters in the proposed rule. Her decision was affirmed by Chief Administrative Law Judge Tammy Pust.
O’Reilly wrote in part: “The department is not only making law, it is contradicting existing law. The tail does not wag the dog when it comes to lawmaking. Agencies are creatures of legislation, and an agency’s rule-making power is only as great as the authority delegated by the legislature.”
Former Minnesota Commissioner of Education Bob Wedl, who has worked with district and charter schools, wrote that the decision is “unusual, as (administrative law judges) usually give great deference to agencies, since they are considered to have considerable expertise in the subject of the rules being proposed.”
But Pust and O’Reilly had many concerns about the proposed rule.
The judge agreed with those who testified against some of the provisions, including a bipartisan, multi-racial group of current and former state legislators, parents, students, educators and attorneys, led by veteran Minnesota education attorney Cindy Lavorato.
This coalition agreed that the charters should not be included. Group members included Nekima Levy-Pounds and Jeff Hassan, executive director of the African American Leadership Forum.
Hassan wrote: “MDE’s attempts were misguided because overwhelmingly majority white public schools were not required to desegregate – only schools that have racial majorities – which is hypocritical in and of itself. … All of the highest performing public schools for African-American children are charter schools that have majority African-American children. … AALF is happy that our system of checks and balances rectified what would have been a gross miscarriage of justice to our children.”
Legislators of both parties pointed out that charters have been exempt from the old rule because legislators wanted to provide another option for families. These legislators also insisted that the 2013 revised law had not given MDE authority to include charters in the new rule. They included DFL’ers Sen. Terri Bonoff, of Minnetonka, and former Sens. Ember Reichgott Junge, then of Robbinsdale, and Kathy Saltzman, then of Woodbury. It also included Republicans Reps. Jenifer Loon, of Eden Prairie, and Sondra Erickson, of Princeton, and former Sen. Gen Olson, then of Mound.
Former Minnesota Human Rights Commissioner (and award-winning charter founder) Bill Wilson told me: “It was a great decision. It was the right decision. Hopefully now we can move on to focus on improving curriculum and equalizing funding for schools.”
Education Minnesota, the state’s teachers union, wrote it that it “appreciates” MDE’s efforts but wished that the proposed rule had included opportunities for parents, student and educator voice in creating required plans. The union, which opposed creation of charters, also urged that charters be included in the rule.
The judges didn’t reject the proposed rule just because it included charters. Provisions required school districts and charters to produce plans to improve achievement that MDE would review. The judges agreed with a number of us that the MDE’s criteria for review of these plans were not clear enough. The judge wrote, “Requiring districts to submit a plan ‘setting measurable racial and economic integration goals,’ without explaining what that phrase means or how those plans will be judged, is unhelpful.”
The judges also concluded that MDE “fails to provide any affirmative presentation of facts” explaining why the existing rule had to be changed.
MDE responded to the judges’ ruling, stating in part that the law MDE was interpreting “plays an important role in the state’s efforts to close achievement gaps and eliminate racial disparities. While the department believed the proposed rule was reasonable and consistent with the new law, we respect Judge O’Reilly’s decision. We are reviewing the entire decision, including the judge’s recommendations, to determine next steps.”
I think the judges made the right decision. The 93-page decision is available here: http://bit.ly/1UDSVmL.
Rules should be clear, and guided by explicit direction from the Legislature. Research on desegregated schools in this and other states is mixed. We need to use the best available experience and evidence to help more students succeed.
Joe Nathan, formerly a Minnesota public school teacher, administrator and PTA president, is a former director and now senior fellow at the Center for School Change.
Reactions are welcome at joe@centerforschoolchange.org.