STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

OAH FILE NO. 1300-32227

In the Matter of the Proposed Rules Relating
The Honorable Ann C. O'Reilly
to Achievement and Integration
MEMORANDUM OF LAW IN SUPPORT
OF THE DISAPPROVAL OF MDE'S
PROPOSED
DESEGREGATION/INTEGRATION
RULES DUE TO FOUR
SUBSTANTIVE DEFECTS

I. INTRODUCTION

This memorandum of law is being submitted in addition to the memorandum of law in

support of the disapproval of MDE's proposed desegregation/integration rules due to four fatal

defects. Also supported by the undersigned, this memorandum argues the provisions of MDE's

proposed desegregation/integration rules that relate to charter schools must be disapproved due to

five substantive defects. If the Administrative Law Judge (ALJ) finds that any one of these

substantive defects does, in fact, exist, then MDE should be required to remove the defective

provisions.

II. ARGUMENT

A. DEFECT NO. 1: MDE'S PROPOSED DESEGREGATION/INTEGRATION

RULES ARE UNREASONABLY VAGUE

Minn. Stat. § 124D.861, subd. 1 sets forth the following three policy goals of the

"Achievement and Integration for Minnesota" (AIM) statute:

Subdivision 1. Program to close the academic achievement and opportunity

gap; revenue uses.

(a) The "Achievement and Integration for Minnesota" program is established to

[(1)] pursue racial and economic integration and increase student academic
achievement, [(2)] create equitable educational opportunities, and [(3)] reduce
 academic disparities based on students' diverse racial, ethnic, and economic
backgrounds in Minnesota public schools.

And, to effectuate this three-part objective of the AIM statute, MDE's Commissioner was

authorized to enact the following rulemaking:

124D.896 DESEGREGATION/INTEGRATION AND INCLUSIVE

EDUCATION RULES.

(a) The commissioner shall propose rules relating to desegregation/integration

and inclusive education, consistent with sections 124D.861 and 124D.862.

(b) In adopting a rule related to school desegregation/integration, the

commissioner s shall address the need for [(1)] equal educational opportunities
for all students and [(2)] racial balance as defined by the commissioner.

(Bold with underlining and bracketed information added).

On its face, MDE's proposed desegregation/integration rules fail to meet a directive

contained in the enabling legislation. MDE's Statement of Need and Reasonableness (SONAR)

does not include a "defin[ition] by the commissioner" of "racial balance," let alone "address the

need for" such undefined "racial balance."

Despite the legislative directive, MDE's SONAR instead argues that further definition of

"integration" is not needed because the AIM statute describes what must be included in a school's

integration plan. But MDE may not merely restate the statute in order to satisfy the requirements

of the Administrative Procedures Act. Minn. R. 1400.2070, subp. 1 specifically provides that

"[t]he statement must be sufficiently specific so that interested persons will be able to fully

prepare any testimony or evidence in favor of or in opposition to the proposed rules. A general

description of the statute being implemented or restating the proposed rule is not

sufficient." (Emphasis added). Moreover, the AIM statute only provides, as follows,

suggestions about what a school's plan might include, and it does not further clarify what a

"measurable integration goal" would be:

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 Plan components may include: [(1)] innovative and integrated prekindergarten
through grade 12 learning environments that offer students school enrollment
choices; [(2)] family engagement initiatives that involve families in their students'
academic life and success; [(3)] professional development opportunities for
teachers and administrators focused on improving the academic achievement of all
students; [(4)] increased programmatic opportunities focused on rigor and college
and career readiness for underserved students, including students enrolled in
alternative learning centers under section 123A.05, public alternative programs
under section 126C.05, subdivision 15, and contract alternative programs under
section124D.69, among other underserved students; or [(5)] recruitment and
retention of teachers and administrators with diverse racial and ethnic backgrounds.

(Emphasis and bracketed information added).

Worse yet, the AIM statute has no applicability to charter schools. The first suggested plan

component — i.e., "innovative and integrated prekindergarten through grade 12 learning

environments that offer students school enrollment choices" — is not available to most charter

schools because they only offer one enrollment option — namely, the charter school. The next

three suggested plan components are not even related to "integration." The only suggested plan

component that "may" be applicable to charter schools and is related to integration is the

"recruitment and retention of teachers and administrators with diverse racial and ethnic

backgrounds." But, ironically, many of the culturally-specific charter schools already do this.

MDE's only other guidance is for the "eligible districts" to "set[] measurable racial and

economic integration goals that reflect increased opportunities and participation in programs

and activities included in the plan." Minn. R. 3535.0040(B)(1) (emphasis added.) But this

language does not provide any greater clarity and, in fact, muddies the intent of the rule as it applies

to charter schools. What would a "measurable racial integration goal" be? Would it be attracting

one or two white students to a school that has more than 20% students of color? Some percentage

of white students? Or would it be sufficient to attract only economically diverse students? The

rules are silent. Could a charter school that has 20% less students of color than a nearby traditional

public school set a goal of attracting one or two students of color and meet the requirements of the
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proposed desegregated/integration rule? The rules are again silent. Would voluntary attendance

at a summer school program that has a better "racial balance" than that in the school be sufficient?

There is no way to know. Could a charter school reasonably argue that it does not need to set an

integration goal because, by virtue of the fact that it has a variety of students from different cultural

background, it is integrated—even though they are all "non-white"? There is no guidance on this

question either. Is "integration" the same as "diversity"? That question is also left unanswered.

Providing "increased opportunities" in programs included in an existing integration plan

might make sense when applied to traditional public schools that are and have been required to

develop and implement integration plans under the existing desegregation/integration rules. But

this makes no sense when applied to charter schools because, for the 16 years since the existing

desegregation/integration rules were adopted, charter schools have not been required to have such

plans. Since they have no existing plans, how then are they to "increase integration opportunities"

in those non-existence plans?

The fact that the proposed desegregation/integration rules are unreasonably vague was

underscored by MDE's presentation at the rulemaking hearing. For the very first time, MDE

indicated therein that all "eligible districts and charter schools" would begin their integration

planning by developing a “comprehensive needs assessment”. “This needs assessment will

identify critical areas for improving student achievement and for increasing racial and economic

integration.”1 MDE went on to identify, as follows, the "four equity criteria" which will be used

to consider the extent to which plans increase opportunities:

1. Access: “We will work with districts to see whether protected students have
equitable access to rigorous high-quality educational experiences, to

1
Ex. 6 Hearing Transcript at 44, lines 21-22 (hereinafter “T. at___: __-___”).

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 decision-making processes, initiatives, resources, and to viable school
choice options”2.

2. Participation: “Districts and schools will be asked to look at student

enrollment and meaningful participation in all of their academic,
enrichment, and extracurricular offerings to determine whether protected
students are meaningfully engaged in high-quality educational experiences
and whether they're being supported as competent learners”;3

3. Representation: “Districts will be asked to gauge school culture, climate,

staff, and curriculum to see how inclusive each of these areas are”4;

4. Outcomes: “Districts must work towards measurable outcomes in each of

the three areas I just mentioned”. 5

But, if MDE thought it was needed and reasonable to require a "comprehensive needs

assessment" and the use of these four "equity criteria" in evaluating such plans, then these needed

to be included in the proposed desegregation/integration rules and the SONAR. The fact that they

are only now being introduced clearly demonstrates that MDE is itself concerned that the proposed

desegregation/integration rules are vague. Such vagueness is an invitation for MDE to engage in

ongoing ad hoc "interpretation" also outside of the rulemaking process. And it leaves open the

very real possibility that MDE will at some point, outside of rulemaking, define "integration" in a

way that charter schools simply cannot meet.

"[A rule should] … establish specific requirements, standards, or procedures to enable [the

agency] to enforce or administer certain laws or program." And rules that "emerge from the

rulemaking process [should be] clear, cogent, and understandable."6 (Emphasis added).

But MDE's proposed desegregation/integration rules are not "clear, cogent, [or]

understandable." If charter schools are going to be required to set "measurable integration goals"

2
T. at 48: 7-11.
3
T. at 48: 12-18.
4
T. at 48: 19-21.
5
T. at 48: 22-24.
6
Winget, Patricia. Minnesota Administrative Procedure, ch. 17.0 (2014).
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upon which they will be evaluated, then it is incumbent upon MDE to define just what those goals

would be. MDE's failure to do so, including the failure to define "racial balance," constitutes major

defects in MDE's proposed desegregation/integration rules.

B. DEFECT NO. 2: MDE'S PROPOSED DESEGREGATION/INTEGRATION

RULES ARE NOT RATIONALLY RELATED TO MDE'S STATED GOALS

Minn. R. 1400.2100(B) states that "[a] rule must be disapproved by the judge or chief

judge if . . . the rule . . . is not rationally related to the agency's objective." As discussed above,

a goal of the AIM statute is to "to pursue racial and economic integration." And, yet, MDE has

exempted from the application of MDE's proposed desegregation/integration rules traditional

public schools where the majority of the students are white, while extending the proposed rules to

charter schools where the student of color population is either 20% above the population at nearest

traditional public school, or the student of color population is 20% below the population of the

nearest traditional public school.

During the hearing, MDE admitted that student enrollment at charter schools is only about

5-6% of the entire public school enrollment. If MDE's objective was truly to integrate all students,

then why would it focus on 5-6% of the population while exempting a large contingent of white

students at traditional public schools? There is no rational answer to this question. Professor Gary

Ritter of the University of Arkansas7 has succinctly presented the argument this way:

Across the country, and in Minnesota, fewer than 5 percent of public school
children roam the halls in charter schools each day; the remaining 95 percent
are compelled to attend traditional public schools. So, the advocates of racial
integration are most certainly slinging their arrows in the wrong direction by
focusing on the failings of charter schools. If we are truly concerned about
limiting segregation, then this is where we should look to address the problem.

7
See Curriculum Vita attached to Exhibit 1.

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Ex. 1 at 20 (emphasis added). If broad-based "integration" is the goal of MDE's proposed

desegregation/integration rules, then there is simply no rational connection between that goal and

the method MDE selected to achieve it. Including three-fourths of 5-6% of the total traditional

public school enrollment, while exempting traditional public schools with a majority of white

students, will not begin to address the claimed goal of greater integration. In sum, MDE's proposed

desegregation/integration rules should, as they relate to charter schools, be removed because they

are not rationally related to MDE's stated goal.

C. DEFECT NO. 3: THE RECORD DOES NOT DEMONSTRATE THE REQUISITE

REASONABLENESS OF MDE'S PROPOSED DESEGREGATION/
INTEGRATION RULES AS APPLIED TO CHARTER SCHOOLS

1. Reasonableness standard.

Minn. R. Minn. R. 1400.2070, subp. 1 directs direct an agency, in preparing its SONAR,

to “explain the circumstances that created the need for the rulemaking and why the proposed

rulemaking is a reasonable solution for meeting the need”. Moreover,

[t]he Minnesota Supreme Court…, has long held that on judicial review, rules must be
reasonable to be valid. Minnesota case law also has equated an unreasonable rule with an
arbitrary rule.8 ….The United States Supreme Court held that an agency must have a
reasonable ground or basis for the exercise of its judgment in promulgating rules. 9 The
Court also has required that an agency articulate a rational connection between the
facts found and the choice made in rulemaking.10 In an often-cited decision,11 the Eighth
Circuit Court of Appeals defined arbitrary or unreasonable agency action as “willful and

8
In re Hansen, 275 N.W.2d 790, 793 (Minn. 1978); Hurley v. Chaffee, 231 Minn. 362, 367, 43
N.W.2d 281, 284 (1950); Minn. Chamber of Commerce v. Minn. Pollution Control Agency, 469
N.W. 2d 100, 103 (Minn. Ct. App. 1991); City of Morton v. Minn. Pollution Control Agency, 437
N.W.2d 741, 748 (Minn. Ct. App. 1989) (finding rule setting two-percent cap on grant
amendments for unanticipated site conditions was not arbitrary; deferring to agency expertise in
determining how to best allocate grant resources).
9
Am. Trucking Ass’ns v. United States, 344 U.S. 298, 314-315 (1953).
10
Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 286 (1974)
11
Greenhill v. Bailey, 519 F.2d 5, 10 n.12 (8th Cir. 1975)
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 unreasoning action, without consideration and in disregard of the facts or
circumstances of the case.”12
These very deficiencies are present in the proposed rules. The agency has failed to consider the fact
that methods to achieve integration are beyond the authority of charter schools; that the proposed rule
elevates integration over choice and deprives parents and families of the right to choose.

2. Traditional integration methods are beyond the statutory authority of

Minnesota charter schools

To achieve greater racial balance/integration, public school districts have used a wide

variety of measures over the years since Brown v. Board of Education13 was decided. These have

involved mandatory reassignment of students and mandatory bussing, closing schools, re-drawing

attendance boundaries and creating magnet schools.

Since Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), the

use of these race based measures to achieve greater racial balance (now referred to as "diversity")

has been limited.14 In the absence of a finding that a district engaged in recent discriminatory

conduct, districts must first consider "race neutral" means for achieving greater diversity. The

federal guidance on the types of programs that meet the "race neutral" requirement is as follows:

School districts should first determine if they can meet their compelling interests
by using race neutral approaches. Race-neutral approaches can be used for
decisions about individual students, such as admissions decisions for competitive
schools or programs, as well as for decisions made on an aggregate basis, such
as the drawing of zone lines that affect a large number of students. A district using
race-neutral criteria for the purpose of achieving diversity or avoiding racial
isolation may, "with candor . . . consider [] the impact a given approach might have
on students of different races." Parents Involved, 551 U.S. at 789 (Kennedy, J.,
concurring in part and concurring in the judgment). Examples of race-neutral
approaches include — but are not limited to — the use of criteria such as: students'

12
Minnesota Administrative Procedure, Chapter 22.2 1 (2014). Beck, George and Konar-Steenberg,
Mehmet, eds.
13
347 U.S. 483 (1954).
14
Ryan, James. THE SUPREME COURT AND VOLUNTARY INTEGRATION 121 Harvard
Law Review 131, 132 (2007). Professor Ryan is a William L. Matheson & Robert M. Morgenthau
Distinguished Professor, University of Virginia School of Law. This article is attached as Ex. 5.

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 socioeconomic status; parental education (e.g., highest degree attained or years of
education); students' household status (e.g., dual or single-parent household);
neighborhood socioeconomic status; geography (e.g., existing neighborhood lines);
and composition of area housing (e.g., subsidized housing, single-family home,
high-density public housing, or rental housing).15

None of these approaches are available to charter schools. First, charter schools lack the

general power to limit admission of students who apply. Rather Minn. Stat. §124E.11(a) provides

only three different ways that a charter school can limit student admissions:

(a) A charter school may limit admission to:

(1) pupils within an age group or grade level;

(2) pupils who are eligible to participate in the graduation incentives

program under section 124D.68; or

(3) residents of a specific geographic area in which the school is located

when the majority of students served by the school are members of
underserved populations.

Neither clauses "(1)" nor "(2)" would provide a "race neutral" admissions criteria that would result

in greater racial balance or diversity. And, in fact, clause "(3)" specifically contemplates allowing

a charter school to do just the opposite of achieving diversity: it allows charter schools to limit

admission only to "underserved populations" in a particular geographic area.16

If "race neutral" approaches do not result in greater racial balance or diversity, then the

federal guidance provides the following advice:

When race-neutral approaches would be unworkable to achieve their compelling

interests, school districts may employ generalized race-based approaches.
Generalized race-based approaches employ expressly racial criteria, such as the
overall racial composition of neighborhoods, but do not involve decision-making
on the basis of any individual student's race. For example, a school district could
draw attendance zones based on the racial composition of particular
neighborhoods, as well as on race-neutral factors such as the average household

15
U.S. Dep’t of Education Guidance Letter on Charter Schools (2014). Available at:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405-charter.pdf
16
This demonstrates the legislative desire to allow charter schools greater flexibility in student
enrollments that are not necessarily "racially diverse."
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 income and average parental education level of particular neighborhoods within the
school district. All students within those zones would be treated the same regardless
of their race.17

Yet, again, none of these suggestions are available to charter schools because they do not have

"attendance zones." Unlike traditional public schools that frequently have many elementary and

secondary school sites, charter schools typically operate at only one site. Thus the notion of re-

drawing attendance zones is completely inapplicable. Also, as discussed above, charter schools

cannot limit admission based on household income and parental educational level.

A final alternative approach to achieving greater diversity is to admit students using racial

criteria as only one feature of an overall plan to achieve greater diversity. The federal guidance

states as follows:

A district may consider a student's race as a "plus factor" (among other, non-racial
considerations) to achieve its compelling interests. But no student applicant to a
school or program should be insulated – based on his or her race – from an
assessment or comparison to all other student applicants, to ensure that the district
minimizes the impact of its program on those other students. In addition, a school
district should not evaluate student applicants in a way that makes a student's race
his or her defining feature. School districts should consider how the range of student
attributes, including both non-racial characteristics (e.g., a student's socioeconomic
status or parental educational background) and racial characteristics, contribute to
meeting the district's compelling interest in achieving diversity or avoiding racial
isolation.18

Again, because charter schools may not limit admissions unless one of the three criteria above is

met, these means are not available to charter schools.

In sum, MDE's proposed desegregation/integration rules are, as applied to charter schools,

unreasonable because the means by which schools can achieve greater diversity is simply

unavailable to charter schools in Minnesota. MDE has presented no evidence upon which the ALJ

17
Id.
18
Id.
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could conclude that charter schools could reasonably comply with MDE's proposed

desegregation/integration rules under the current law.

3. The proposed rules are contrary to the strong legislative policy supporting
parental choice

At the core of the argument over whether charter schools should be included in MDE's

proposed desegregation/integration rules mandating "integration" is the following question: is

achieving some undefined notion of "integration" more important than allowing parents the right

to choose where to send their children? If parents wish to send their child to a culturally-specific

charter school, then should that choice be denied because of some notion that "racial balance"

might be impacted and the attendant belief that diversity is more important than parental choice?

MDE, without statutory citation, suggests that the legislature is supportive of integration policies

over parental choice policies and, as a result, MDE has the authority to implement this policy

preference by rule. But, besides being ultra vires, the history of parental choice in Minnesota

suggests the opposite.

Minnesota was the first state in the nation to adopt a policy allowing students to leave their

resident districts and attend other districts under "Open Enrollment." See Minn. Stat. § 124D.03.

Under that statute, a district is, as follows, not allowed to limit the open enrollment of a student in

order to comply with an integration/academic achievement plan approved by MDE's

Commissioner:

Subd. 4. Achievement and integration district transfers.

(a) This subdivision applies to a transfer into or out of a district that has an
achievement and integration plan approved by the commissioner of education under
sections 124D.861 and 124D.862.

(b) An application to transfer may be submitted at any time for enrollment

beginning at any time.

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 (c) A pupil enrolled in a nonresident district under an achievement and integration
plan approved by the commissioner of education is not required to make annual or
periodic application for enrollment but may remain enrolled in the same district. A
pupil may transfer to the resident district at any time.

Minnesota has also adopted the Post-Secondary Enrollment Options program. Minn. Stat.

§ 124D.09. The purpose of the Post-Secondary Enrollment Options program was to promote

rigorous academic pursuits and to provide a wider variety of options to high school pupils by

encouraging and enabling secondary pupils to enroll full time or part time in nonsectarian courses

or programs in eligible postsecondary institutions." There is no limitation on a student's ability to

participate in this choice program, regardless of whether leaving the district or school would result

in a less integrated environment.

And, of course, Minnesota was the first state in the nation to adopt the charter school law.

Minn. Stat. § 124E.01-.26. There is no provision in the charter school law that relegates the

parental right to choose a charter school for his or her child to a determination about the

appropriate, though undefined, "racial balance" of either the sending school or the receiving charter

school.

All of these statutes indicate a strong legislative intent to preserve the rights of parent to

choose where to send their children. MDE has presented absolutely no evidence that this policy

objective is any less important than the policy objective of encouraging integration. In fact, several

current and former legislators have submitted testimony in this proceeding attesting to that fact.

See Jan. 11, 2016 letter from Senator Terri Bonoff; Jan 5, 2016 letter from Reps. Sandra Erickson

and Jenifer Loon; and the Jan. 11, 2016 letter from Ember Reichgott Junge, Gen Olson, Amy Kock

and Kathy Saltzman. The proposed rules fail to honor the right and ability of the parents and

students of color to make education decisions

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 MDE's proposed desegregation/integration rules suggest that MDE is seeking to help

students of color by pursuing integration and academic achievement goals. But it is important to

note that, as follows, most of the parents who choose to send their children to charter schools are

African American:

Black families in America are seeking public charter schools in unprecedented

numbers (Alliance, 2011a). Nationally, Black students are choosing charter schools
nearly double the rate that they are choosing traditional public schools. During the
2010-2011 academic year, Black students accounted for roughly 16% of the
national student population in traditional public schools, while in public charter
schools they accounted for 29% of the student population (Alliance, 2011a)."19

Moreover, surveys of African American parents indicate that they favor school choice and the

freedom to place their children in the highest quality schooling options available. An illustrative

survey is available at: http://scoter.baeo.org/news_multi_media/20130723-Survey%20Report-

NEW%5B9%5D.pdf.

It is also important to recognize that parents who choose to send their children to culturally-

specific schools, or schools with a high percentage of "non-white" students, are not like the parents

and families in the Brown v. Board era who had no such choice. Professor Ritter makes, as follows,

that case quite eloquently:

Clearly, the student attendance patterns that emerge from these increased choices
offered to minority families are quite different than attendance patterns that resulted
from the forced segregation of our nation's past. Indeed, it is likely that the parents
who are now able to choose charter schools for their students view these options as
ones that enhance, rather than undermine, their civil rights.

. . . the fact that poor and minority students flee these segregated traditional public
schools for similarly segregated charters does not imply that charter school policy
is imposing segregation upon these students. Rather, the racial patterns we observe
in charter schools are the result of the choices these students and families make in
order to seek more attractive schooling options. To compare these active parental
choices to the forced segregation of our nation's past …trivializes the true

19
Almond, Monica. The Black Charter School Effect: Black Students in American Charter
Schools. The Journal of Negro Education, 81 (4), 354-365

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 oppression that was imposed on the grandparents and great-grandparents of many
of the students seeking out charter options today.20

A compelling question raised by this data is this: do policy makers have a better

understanding of what is good for students than do the parents of those students? Isn't it

unreasonable to suggest that primarily white policy makers know better than "non-white" parents

regarding where their children should receive an education? Nekima Levy-Pounds, Professor of

Law at William Mitchell School of Law and Director of the NAACP in Minneapolis, has put the

integration vs. choice debate into the following simple terms:

At the end of the day, I do believe in the Beloved Community…. I also believe in
the importance of differentiating between schools that are designed with kids
of color in mind to try to protect them and affirm their identity in a land that
is hostile to difference.21

(Emphasis added). During the hearing on this rule, Ms. Levy-Pounds elaborated as follows:

I have concerns about the extension of the proposed integration rule to charter schools in
general but to culturally specific charter schools in particular. And part of that has to do
with what I believe is a false analysis that's being applied to culturally specific charter
schools that tends to consider those schools to be segregated schools.

This 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.

And so when I think about culturally specific charter schools, it's important to recognize
that as African-American parents, we have very limited choices in terms of where we can
send our children to make sure that their identity is being affirmed, that they are learning
about heritage, and that their environment -- that they are in environments in which they
feel that their humanity is being respected.

Unfortunately, after my family moved here in 2003, we had sent our daughter, this
particular child who is standing with me, to a traditional public school down the street

20
Ex. 1 p. 3.
21
Hawkins, Beth. How Minnesota’s Push to Integrate Schools Sparked a War Against
Charters Serving Minority Families. The Seventy Four, Jan. 2, 2016. Available at:
https://www.the74million.org/article/how-minnesotas-push-for-integrated-schools-is-
sparking-a-war-against-charters-serving-minority-families.

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 from our house, and what we found was although that particular school had a high
concentration of children of color, the school itself was hostile to racial diversity.

The majority of the teaching staff was overwhelmingly white and they were not
comfortable with the demographic shifts that were taking place in Brooklyn Park. And my
daughter Jayda was in a classroom in which her teacher did not affirm her as an African-
American student and actually downplayed her intelligence, and I knew how smart my
child was.

She was memorizing whole books at one and two and 3 years old, and so I had to advocate
for my child's intellectual capacity to be respected in that environment, and I realized that
the teacher was actually discriminating against my daughter and other students of color by
over amplifying the intellectual capacity of some of the white students in the classroom.

It was very clear, and so I talked to my daughter about finding a culturally specific charter
school that will affirm her identify. Even though the charter school that she attended at the
time, which was Excell Academy, the majority of the teaching staff was white, there were
many more African-American teachers who were present, teaching assistants and staff as
well, and that made her feel supported in that particular environment.

And I can't imagine as a parent not having those choices available to me, and it's
disappointing when you have primarily white people who are holding themselves out as
experts who have never raised a black child and who do not understand the difficulties that
we face in trying to place our children in environments where their identity is being
affirmed and where their humanity is being valued and respected.

That is a constant challenge that parents of color face in the state of Minnesota, and
somehow some people feel that if you magically place children of color next to white kids
in class, that their outcomes are automatically going to be improved.

Well, there are horror stories from children who have been placed in predominantly white
environments in which they face hostility, racism, discrimination, and where their
intellectual abilities are not being affirmed in many of those environments. Of course there
are exceptions to that, but those are stories that I hear time and time again and again I've
seen with my own eyes.

Jayda's education at a charter school actually prepared her to go on to a boarding school in

North Andover, Massachusetts which she excelled academically at that school….
(Emphasis added).22

22
T. at 93-96.

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 In short, MDE's proposed desegregation/integration rules are not reasonable as applied to

charter schools because: (1) charter schools lack the ability to comply with the rules; (2) the

policy objective of integration takes priority over the policy objective of choice, or (3) policy

makers "know better" than do parents. Moreover, given the costs of imposing this rule on charter

schools and families—in terms of lost opportunities, in terms of loss of choice and in terms of the

impossibility of compliance—it is simply unreasonable to impose unworkable and incredibly

limiting conditions on 5-6% of the "racial imbalance" issue.

D. DEFECT NO. 4: THE RECORD DOES NOT SUPPORT THE REQUISITE NEED
FOR MDE'S PROPOSED DESEGREGATION/INTEGRATION RULES AS
APPLIED TO CHARTER SCHOOLS

1. Demonstrating the need for the rule.

A rule must be disapproved if the record does not demonstrate the need for the rule. Minn.

R. 1400.2100(B).

The question of whether individual rules or rule subsections are needed usually focuses on
whether a problem exists that calls for regulation. This determination requires examining
the facts and circumstances underlying the agency’s proposed action….23 The OAH rules24
require the agency to explain “the circumstances that created the need for the rulemaking
and why the proposed rulemaking is a reasonable solution for meeting the need” in its
SONAR. 25

When making the case for a rule, agencies must rely on treatises or other academic

authorities to demonstrate the need for and reasonableness of their proposals. Indeed the rules

regarding the contents of the SONAR provide as follows:

The statement of need and reasonableness must summarize the evidence and
argument that the agency is relying on to justify both the need for and the

23
See Minn. League of Credit Unions v. Minn. Dep’t of Commerce, 486 N.W. 2d 399, 406
(Minn. 1992).
24
Minn. R. 1400.2070, subp. 1
25
Minnesota Administrative Procedure, Chapter 22.2.2 (2014). Beck, George and Konar-
Steenberg, Mehmet, eds.
-16-
 reasonableness of the proposed rules, and must state how the evidence rationally
relates to the choice of action taken. The statement must explain the circumstances
that created the need for the rulemaking and why the proposed rulemaking is a
reasonable solution for meeting the need. The statement must be sufficiently
specific so that interested persons will be able to fully prepare any testimony or
evidence in favor of or in opposition to the proposed rules. A general description
of the statute being implemented or restating the proposed rule is not sufficient.
The statement must include:

A. citations to any economic, scientific, or other manuals or treatises

the agency anticipates relying on….

(Emphasis added).26

2. The vast majority of racial isolation occurs in traditional public schools, not
charter schools

During the hearing, some argued that culturally-specific charter schools are resulting in

"greater segregation."27 But these claims are simply without merit. Professor Ritter has done

extensive research regarding this claim. The details of his analysis are contained in his expert

opinion attached as Ex. 1. Professor Ritter sums up the research results as follows:

Thoughtful analyses such as the RAND study and our Little Rock study find that
students who move into charter schools mostly choose schools with racial
compositions similar to those of the traditional public schools they exited. These
results are not uniform; they vary state by state (for example, we find in Florida that
charter schools and traditional public schools are similar in their "reflectiveness" of
the broader community; in Delaware, however, charters are not as reflective of the
community as are traditional public schools.) Results also vary by metropolitan
area (in Philadelphia, 65% of the students in both charters and traditional schools
attend highly segregated schools; in Atlanta, only 25% of charter students attend
highly segregated schools while 70% of traditional public schools students attend
such segregated schools).

Of course, schools (charters or traditional) that are the most "segregated" sit in
geographic areas with high concentrations of poor and minority students. These
families have the fewest choices; when they are dissatisfied with the schooling
options they have, charters often open to serve these disadvantaged students. These

26
Minn. R. 1400.2070 subp. 1.A.
27
It is not clear if the agency is adopting that position, because the agency has never articulated a
clear need for applying the rule to charter schools.
-17-
 are issues related to poverty and residential segregation — these are not charter
problems!

….Across the country, and in Minnesota, fewer than 5 percent of public school
children roam the halls in charter schools each day; the remaining 95 percent
are compelled to attend traditional public schools. So, the advocates of racial
integration are most certainly slinging their arrows in the wrong direction by
focusing on the failings of charter schools. If we are truly concerned about limiting
segregation, then this is where we should look to address the problem.28

(Emphasis added).

Similarly, in a recent article entitled "Desegregation Since the Coleman Report: Racial

composition of schools and student learning," Steven Rivkin of the University of Illinois at

Chicago identifies a key trend masquerading as "resegregation": the decreasing enrollment share

of white students due to the increasing ethnic diversity of public schools. Rivkin explains as

follows:

Using data from the U.S. Department of Education for the years 1968, 1980, 1988,
2000, and 2012, Rivkin documents how public school enrollment patterns have
changed over time. Rivkin finds that black students' likelihood of exposure to white
students in 2012 was 27 percent, compared to 36 percent in the 1980s when serious
desegregation efforts were underway…. Although desegregation efforts have
certainly waned, Rivkin attributes this more so to the changing demographic
composition of schools. While black students' share of student enrollment has
remained virtually constant since 1968 (between 15 and 17 percent), white students'
enrollment share has declined from 80 percent in 1968 to 51 percent 2012. Over
this time period, other populations, such as Hispanic and Asian students, have
gained enrollment share…. An analysis of the dissimilarity index of schools, which
measures how dissimilar schools' enrollment patterns are compared to the national
student population, reveals that segregation is not increasing ….Rivkin finds that
the dissimilarity index in schools has decreased fifteen points from 1968 to 2012,
from 81 to 66. Districts saw a small rise in dissimilarity between 1968 and 1988
which Rivkin attributes to the 'white flight' of families from urban areas to the
suburbs. 29

28
Ex. 1, p. 20.
29
Education Next, SPRING 2016 / VOL. 16, NO. 2, excerpting from Rivkin, Steve. Are Schools
Really ReSegregating?available at: http://educationnext.org/are-u-s-schools-really-resegregating/
-18-
 Given that charter schools represent a very small percentage of the overall student

enrollment and that other causes are contributing to "resegregation" beyond the control of charter

schools, MDE has failed to demonstrate the need to extend the reach of its proposed

desegregation/integration rules to charter schools.

3. MDE presented no evidence that greater diversity in charter schools results in

higher academic achievement

a. Sociological evidence does not support the need for the proposed rule
as it applies to charter schools

Dr. David Armor is a nationally recognized expert in the sociological research regarding

30
the connection between greater diversity and higher academic achievement Dr. Armor was

asked to provide testimony regarding whether the assumption of the proposed rule — i.e., that

charter schools should be more integrated because that will result in higher academic achievement

— is reasonable given the sociological research in this area.

After reviewing MDE's proposed desegregation/integration rules, Dr. Armor phrased the

question regarding the need for and reasonableness of the rule in this way: "[can] its students in a

predominantly [students of color (SOC)] charter achieve as well as white students, or at least

perform at grade level? That is, does the concentration of SOC in a charter school act as a barrier

to high achievement?" The following is Dr. Armor's response:31

According to a growing body of research, the answer is a definite "no." One of the
earliest charter programs to demonstrate high achievement for high-poverty SOC
is the Knowledge is Power Program (KIPP). Although some of the early
evaluations of KIPP were not definitive, a recent rigorous evaluation by
Mathematical completed in 2010 showed that about half of the KIPP programs were
showing large gains in math (compared to a matched control group) sufficient to

30
Dr. Armor’s Curriculum Vita is attached to Exhibit 2.
31
Dr. Armor's full testimony is attached as Ex. 2.
-19-
 reduce the black-white gap by 50% within three years.32All of these KIPP programs
were more than 90% SOC (most black, but some predominantly Hispanic).

A second body of work involves evaluations of charter schools in New York City
carried out by Dobbie and Fryer.33 These studies find that some predominantly
SOC (and low-income) charters in New York City produce substantially higher
achievement levels than regular NYC public schools. Some of the charters are
sufficiently successful, the authors conclude, that they can close the achievement
gap between SOC and white students.

While not all charter schools actually produce such high outcomes, the important
lesson of the KIPP and NYC charter studies is that high concentrations of SOC are
not a barrier to high achievement. In fact, since the successful charters in these
studies generally have instructional programs with longer school days and more
class time in academic topics, they may be a more cost effective way to reduce
the SOC-white gaps by focusing resources on disadvantaged students instead
of on all students.

(Emphasis added).

Professor Ritter also reviewed studies examining effectiveness of KIPP charter schools

across the country.34 .He sums up the research around KIPP charter schools as follows:

Over a multi-year period, the research teams Tuttle, Clark, Bing-ru Teh, Nichols-
Barrer, Gill, and Gleason (2010) and Tuttle, Clark, Gill, Gleason, Knechtel,
Nichols-Barrer, and Resch (2013) at Mathematica Policy Research have conducted
a longitudinal study of KIPP middle schools. Their most recent (2013) report
examined over 16,800 KIPP students in 43 KIPP Middle Schools across 11 states
(comprising all middle schools that were open and fully enrolled at the time of the
study). KIPP students were compared to over 5,043,000 students from each KIPP
school's feeder schools or the districts in proximity to KIPP. This study examined
outcomes from two conditions: A Randomized Control Trial (RCT) from 16 KIPP
schools using student lottery data and a Quasi-Experimental Design (QED) using a
matched comparison group (in 41 middle schools). In the RCT condition,
"lotteried-out" students served as the control group. In the QED condition,
comparison students were identified through propensity score matching. KIPP
students were compared using scores on each KIPP school's state achievement

32
Tuttle, C.C., B. Teh, I. Nichols-Barrer, B.P. Gill, and P. Gleason. Student Characteristics and
Achievement in 22 KIPP Middle Schools: Final Report Mathematica Policy Research, 2010.
33
Dobbie, W and R.G. Fryer, "Are High Quality Schools Enough to Increase Achievement
Among the Poor? Evidence from the Harlem Children's Zone," American Economic Journal:
Applied Economics, 3 (2011), 158-187; Dobbie. W. and R.G. Fryer, "Getting Beneath the Veil of
Effective Schools: Evidence from New York City," American Economic Journal: Applied
Economics, 5 (2013), 28-60.
34
See Ex. 1.
-20-
 exams in math and reading. KIPP schools had statistically significant impacts in
math and reading for each of the four years after KIPP enrollment. In math, effect
sizes range from 0.15 after one year of KIPP to 0.31 after 4 years of KIPP. In
reading, effect sizes ranged from 0.05 after one year of KIPP to 0.22 after 4 years
of KIPP. All effect sizes were statistically significant and educationally meaningful,
according to the researchers.

Mathematica found that KIPP schools achieve these gains while serving a
demographically similar but initially lower-performing student body than
neighboring district schools. Crucially, Mathematica found that the gains made by
KIPP students hold up even when factors like parental motivation are controlled
for, by comparing the results for students who entered KIPP's enrollment lotteries
and were offered admission to those who entered the lottery and were not offered
admission. Overall, our review of the extant literature of KIPP demonstrates
that the network systematically generates educational advantages for its
students, of whom roughly 95% are African American or Hispanic and 86%
are eligible for free or reduced price lunches (KIPP, 2013). One might
reasonably consider this a victory in terms of social justice.35

(Emphasis added).

Professor Christine Rossell is also a nationally-recognized sociological expert on the

connection between integration and greater academic achievement. 36 Professor Rossell was asked

to review the most prominent, current research available on the educational effects of charter

schools. Her first conclusion is that "none of this research examines the educational benefit of a

racially balanced student body for charter schools or students of color." See Ex. 3. She also

concludes that there is no research in any of the most prominent, current research on charter

schools "showing the benefits of requiring charters to plan activities with other schools" as MDE's

proposed desegregation/integration rules require. Id.

MDE has presented absolutely no empirical evidence to refute the findings of these three

nationally-recognized experts. And, while Professor Myron Orfield asserted that there were no

studies showing the academic benefits of culturally-specific charter schools, his assertion was

35
Ex. 1, p. 14-15.
36
See Curriculum Vita of Christine Rossell, attached to Ex. 3.
-21-
demonstratively false. Both Professor Ritter and Professor Armor cited many studies

demonstrating the effectiveness of KIPP charter schools. See Exs. 2 and 3. Professor Armor and

Professor Rossell separately confirmed that there are two very recent studies37 that demonstrate

the effectiveness of culturally-specific charter schools on the academic achievement of African

American students. Professor Rossell concludes that these studies in fact "argue against the need

for and reasonableness of requiring high performing charter schools with a majority of students

of color to integrate." Ex. 3. (Emphasis added).

b. Testimony presented at the hearing also demonstrated that there is no

need to "integrate" culturally-specific charter schools that parents
voluntarily select for their children

In contrast to the underlying assertion of MDE's proposed desegregation/integration rules

which is that the students of color in charter schools would benefit academically if those schools

were somehow and to some unspecified degree more "integrated," there have been numerous

comments and much testimony contradicting this assumption. One only has to recall the very

moving testimony from Gospel Kordah who came to this country from Nigeria as a refugee,

speaking no English and having "many emotional issues." He testified that he simply "got by" in

school, and that being in mostly white classroom "drained his confidence." He further testified

that it was a constant fight to fit in, to be a good student and to try to get the teacher's attention. "I

always felt like it was meant for me to be second to the Caucasian students." He had all white

teachers, and he never felt as if he could go to them and explain. Likewise, those teachers never

came to him to ask about his failing grades.

37
Dobbie, Will, and Roland G. Fryer. 2011. "Are High-Quality Schools Enough to Increase
Achievement among the Poor? Evidence from the Harlem Children's Zone." American Economic
Journal: Applied Economics, 3(3): 158-87; Dobbie, Will, and Roland G. Fryer Jr. 2013. "Getting
beneath the Veil of Effective Schools: Evidence from New York City." American Economic Journal:
Applied Economics 5(4): 28-60.

-22-
 He did manage to graduate from high school, and then went on to college. After college,

he went to work for a charter school. He testified as follows:

And after college, I got a job in a charter school, and a lot of the kids that I serve now are
from African countries and dealing with coming from refugee camps and kind of almost
exactly the same things that I've had to see or had to deal with.

And so I see the -- you know, the merit in them being together to build in that confidence
and to show them that, yes, things are tough. Things that you have seen are tough. Things
that are going on right now are tough because not only are your parents not involved in
your education because they have to find out how you can get food on the table, but you're
on your own.

And some of them are kindergarten and, you know, three years old, and nobody's -- there's
no resources in place for those kind of students in the public sector because it’s just -- it's
based on "Okay. You know, we'll try our best to teach you and whatever happens after that
you're on your own," and that's what seems to happen a lot.

But in the charter school where I am now, I'm able to, you know, recognize some of the
things that these students are going through. They're more open to talk to me or any other
teacher in the school about the things that is going on not only at home but in the school.
And, you know, they can look around and see people that look like them that are
particularly going through the same thing, and we -- you know, they're more open to
sharing ideas with each other to try to get through school or to cope with the certain things
that they're dealing with.

And so I find it very important that whatever decision is taking place, that we consider
the ones that do not really have the support from their parents, the ones that do not have
support from their teachers at times because they’re not able to relate, but most importantly
we have to be mindful of lives, not laws or any particular reason why we want to pass
a law. Every child deserves an equal opportunity to receive an education in a way that
they can feel comfortable and they can feel respected as a person, but also in a way
that they can take from and prepare a future for the next generation. That's it. 38

Student after student gave testimonials to the benefits of culturally-specific schools,

including Jayda Pounds, Adeola Adeleke and many more from Excel Academy. Adult educators,

including Former Minneapolis Board member Alberto Monserrate, Sabrina William, Yee Yang

38
T. at 114-116.

-23-
and Eric Mahmoud provided testimony about the incredibly powerful impact culturally-specific

charter schools have had on the success and well-being of students of color here in the Twin Cities.

These qualitative experiences regarding the benefits of culturally-specific schools in

Minnesota are borne out by the results such schools are achieving. Joe Nathan, a national expert

on charter schools, made these comments as part of the rulemaking process last April:

MDE is attempting to change some of Minnesota's most effective public schools,

when the state has one of the nation's largest achievement gaps between whites and
students of color. One example is Higher Ground Academy, which was cited by
U.S. News and World Report in their most recent rankings, as the highest rated
Minneapolis or Saint Paul public high school. While the 4-year high school
graduation rate for African Americans is 69% in the St. Paul district, and 47% in
the Minneapolis district, HGA graduates 79% of its African American students.
And all of their graduates are accepted to some form of postsecondary education as
a condition of graduation. Yet HGA is 100% African American. The Star Tribune's
"Beat the Odds"39 list regularly includes schools like Higher Ground Academy,
along with Friendship Academy, Hiawatha Academy, Ubah, Global Academy and
Harvest Prep. Yet these schools would be forced to change if they were included in
the desegregation rule."40

4. MDE has not even presented credible evidence demonstrating a consensus for
the conclusion that integration has historically resulted in higher academic
achievement for students of color, whether or not they attend charter schools

The following lengthy excerpt from a 2012 scholarly article in the Journal of Negro

Research sums up the findings relative to whether greater diversity in traditional public schools

has resulted in higher academic achievement nationally:

The Black-White achievement gap, the gap in traditional measures of academic

achievement between Blacks and Whites, has been debated and analyzed among
scholars, legislators, and practitioners for decades. The Federal Elementary and
Secondary Education Act (ESEA) of 1965 was authorized to address the
achievement gap. However, since its passage, the achievement gap has changed
relatively little. The 2009 National Center for Education Achievement gap

39
Eric Mahmoud testified that, in fact, seven out of 10 Beat the Odds Schools are charter
schools.
40
Comment from: Joe Nathan Date: Fri, Apr 10, 2015 at 3:32 PM; available at:
Comments%20Received%20During%20Request%20for%20Comments%20Period.pdf
Dr. Nathan reiterated these and other similar results in his testimony on the second day of the
hearing.
-24-
 statistical analysis, that reports on national achievement scores among fourth and
eighth grade students, revealed, that in both mathematics and reading, White
students scored on average 26 points higher than Black students (Vanneman et al.,
2009)² only five points lower than when earlier studies were conducted
(mathematics in 1990 and reading in 1992).41

Countless authors have attempted to identify the causal factors associated with the
achievement gap. Many have identified several influences that are school related
such as low teacher expectations, lack of curriculum rigor, poor teacher training
programs, lack of school resources, tracking, a lack of appreciation for Black
culture, incompetent administration, and so forth (Delpit, 1995; Kozol, 2005;
Ladson-Billings, 2009; Meier, 2002; Steele, 1992; Thompson, 2004). Conversely,
other scholars have identified socioeconomic and home environment triggers such
as a lack of time reading to children, lack of parental involvement, student apathy,
lack of adequate healthcare, mobility, lack of affordable housing, and low
socioeconomic status, as reasons Black students perform poorer than White
students (Coleman, 1988; Rothstein, 2004). One group of researchers contends that
a combination of factors such as student turnover rates, inexperienced teachers, and
student racial composition, significantly contributes to the achievement gap
(Hanushek & Rivkin, 2006).42

Dr. Armor, was asked to provide his opinion on this issue both nationally and with regard

to Minnesota results. 43

There is a lack of consensus in social science research on whether racial diversity

has a positive, educationally significant, and consistent impact on academic
outcomes for SOC44 in regular K-12 public schools. More specifically, there is no
consensus on whether school desegregation can significantly close the achievement
gap between white and SOC. In this testimony, academic outcomes are defined
primarily as performance on standardized tests.

This lack of consensus has been documented by the National Academy of

Education (NAE)45 and also by Roslyn Mickelson.46 The major reason for lack of
consensus is the wide variation in research results, particularly for studies done
during the desegregation era (1960s-1990s) as compared to those done after 2000.

41
Id.
42
Almond, Monica. The Black Charter School Effect: Black Students in American Charter
Schools. The Journal of Negro Education, 81 (4), 354-365.
43
The full version of that opinion is attached as Ex. 1.
44
"Students of Color."
45
National Academy of Education, Committee on Social Science Research Evidence on Racial
Diversity in Schools, Race Conscious Policies for Assigning Students to Schools: Social Science
Research and Supreme Court Cases (Robert Linn & Kevin Welner eds., 2007).
46
Mickelson, Rosalind. Twenty-First Century Social Science on School Racial Diversity and
Educational Outcomes," Ohio State Law Journal 69:1173-1228.
-25-
 Earlier studies tend to find smaller and more variable effects of desegregation,
while later studies tend to find larger and more consistent effects.

Studies done during the desegregation era usually involve a single school district,
and they evaluate academic outcomes following a desegregation plan, often one
ordered by a court or a government agency. Many of the earlier studies also
employed experimental or quasi-experimental designs with relative small sample
sizes. These earlier studies either track the academic progress (over time) of
students undergoing desegregation, or in the case of experimental studies, compare
outcomes for desegregated minority students vs. those who remain in segregated
schools.

Later studies use national databases, sometimes cross-sectional, or in some cases

test scores for an entire state. Most important, virtually all of the later studies cited
by NAE and Mickelson infer causation by examining the effects of variations in
racial composition, not the effects of an actual desegregation plan. The more recent
studies require sophisticated statistical methods in order to conclude that racial
composition is the reason for SOC test scores rather than some other factor, such
as a family preference for a desegregated school.

Returning to the earlier studies, one of the most comprehensive is a meta analysis
commissioned in 1984 by the National Institute for Education, a branch of the
Department of Education.47 A panel of experts selected about two dozen of the best-
designed experimental or quasi-experimental studies of the effect of desegregation
on black achievement. There were wide variations in the effects found by each
study, and Thomas Cook concluded that desegregation had no effect on black
student math achievement and only a very modest effect on their average reading
achievement. Importantly, the median reading score was not statistically
significant, thereby illustrating the wide variability of the individual studies.

The conclusion of Mickelson that more recent studies are more reliable
because they use national or state-wide data bases and more sophisticated
methodologies misses the point of evaluating desegregation plans. The
relationship between racial composition and test scores in the general population of
public schools is not the most relevant comparison for evaluating the desegregation
proposal for Minnesota. Rather, the results of specific desegregation plans
implemented in specific school districts should be the basis for a decision about a
new desegregation policy.

In that regard, I have evaluated the effects of comprehensive desegregation

plans on academic achievement in more than a half dozen major school
districts.48 One of those happens to be the Minneapolis desegregation plan,

47
See Thomas Cook et al, School Desegregation and Black Achievement, Washington, D.C., National
Institute of Education, 1984.
48
Five are discussed in David J. Armor, "Desegregation and Academic Achievement," in School
Desegregation in the 21st Century, eds. C. Rossell, D. Armor, & H. Walberg. Praeger 2002.
-26-
 which was implemented in stages starting in the mid-1970s. Figure 1 shows
that black reading achievement did not improve after desegregation, and in
fact the black-white gap actually worsened after 1991 even though
Minneapolis schools had a very high degree of racial balance. The same was
true for math scores. None of the desegregation plans I have evaluated show
significant increases in black test scores or significant narrowing of the black-
white or Hispanic-white test score gap following desegregation.

One of the more widely cited studies that found a desegregation effect is a state-
wide analysis of Texas test scores by Eric Hanushek and colleagues.49 It should be
noted that when this study analyses black and white students separately, the usual
procedure for evaluating the effect of desegregation on black achievement, the
effect of racial composition is small and not statistically significant.

I acknowledge the value of state-wide data sets, so I have included a straightforward

analysis of the relationship between school racial composition and black
achievement in a Midwestern state. Figure 2 shows a longitudinal analysis of black
student test scores over time as cohorts move from 3rd grade to 8th grade. Three
independent cohorts are averaged to produce more stable estimates: black students
entering 3rd grade in 2005, in 2006, and 2007. The analysis shows quite clearly
that black gains in math scores are virtually identical regardless of the racial
composition of schools. Black student growth is only a single point higher in
predominantly white schools than in predominantly black schools, out of a total
growth of over two hundred points; that is an advantage of only one half of one
percent for blacks in majority white schools.

When one considers the considerable body of research on the impact of actual
school desegregation plans on achievement, the conclusion is clear. School
desegregation plans have not had a significant impact on the academic achievement
of black students, nor have they reduced the achievement gap by a significant
amount.

49
Hanushek, Eric A., John F. Kain, and Steven G. Rivkin. New Evidence about Brown v. Board
of Education: The Complex Effects of School Racial Composition on Achievemet. Journal of
Labor Economics 27:349-383.
-27-
 80

70

White
Standardized Scores (Median Percentiles)

60

50

40

30

Black
20

10
New Test

0
1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

Figure 1. Minneapolis 6th Grade Reading Scores Following Desegregation

-28-
 750
0-25% Black
725 26-50% Black
51-75% Black
700 75-99% Black

675

650
Standarized Scores

625 Black students in predominantly

white schools gained 221 points
from 3rd grade to 8th grade
600
Black students in predominantly
black schools gained 220 points
575 from 3rd grade to 8th grade

550

525

500

475

450
Gr 3 (2005-07) Grade 4 Grade 5 Grade 6 Grade 7 Gr 8 (2010-12)

Figure 2. Growth in Black Student Math Scores from 3rd to 8th Grade by School Racial
Composition in a small Midwestern State

5. There is no need for the rule because state law and charter school contracts
already require that charter schools set academic goals

Under MDE's proposed desegregation/integration rules, three-quarters of the State's charter

schools will be required to "set academic achievement goals." Yet MDE's proposed

desegregation/integration rules nevertheless assume that students attending these charter schools

are doing poorly academically.50 MDE's proposed desegregation/integration rules also assume

that this goal setting is necessary because there is no other way to address charter schools that may

not be performing as they should. But these assumptions are demonstrably false. The very purpose

50
In fact, as discussed above, a great number of these same schools are outperforming traditional
public schools.

-29-
of charter schools is to "improve all pupil learning and all student achievement."51 Charter schools

must set academic goals each year and those goals must be reflected in the contracts with their

authorizers. And, unlike traditional public schools, if a charter school is not performing, there

exist two different means by which to correct that situation — i.e., (1) authorizer action or (2)

MDE action.52 There is simply no need for additional goal setting requirements and additional

ways to penalize charter schools.

6. The isolated supporters of including charter schools in the proposed rule.

The only commentators who urged inclusion of charter schools at the hearing were

Professor Orfield and two of his affiliates (i.e., Tom Luce53 and Will Stancil54). But it is important

to understand the entire context for their comments.

Professor Orfield opposed the creation of charter schools at their inception, and he has been

vocally opposed to their operation over the ensuing 25 years. He is also an outspoken advocate

for metro-wide mandatory bussing of public school students. A recent article about this current

rulemaking process provides additional and important background regarding Professor Orfield:

At the center of the [rulemaking] controversy is a University of Minnesota Law

School professor who has authored a number of reports decrying charter schools as
ineffective and a major barrier to integration. The director of the university's
Institute on Metropolitan Opportunity, Myron Orfield has been a vocal proponent
of integrating schools by creating metro-wide school districts.

The brother of noted integration scholar Gary Orfield, a professor at the University
of California Los Angeles Graduate School of Education, Myron Orfield began
decrying school choice in an era of starkly different school demographics. In 1991
when the first charter school law was passed, more than 90 percent of Minnesota
students were white. Today, three-fourths of Minneapolis and St. Paul students are
children of color.

51
Minn. Stat. § 124E.subd. 1.
52
Minn. Stat. § 124E.10 subd. 2; Minn. Stat. § 124E.10 subd. 4(c).
53
Tom Luce is the Director of Research at the Institute on Metropolitan Opportunity, which
Professor Orfield runs.
54
Will Stancil is a researcher for Professor Orfield.
-30-
 As the shift has accelerated, Orfield's work has become increasingly strident and
ideological. Last year he was forced to concede that half the funding for a marquee
report came from teachers unions, which used it to push anti-charter policies.

In one of his most recent reports, Orfield describes the rise of a "poverty education
complex," which he asserts is a "lucrative private education sector" with a financial
interest in reversing desegregation efforts.

White flight in the 1990s, he wrote, caused re-segregation in Twin Cities

neighborhoods and schools. "This triggered a decline in test scores, which was used
by self-styled 'school reformers' as evidence of the failure of central city public
education," he wrote last spring. "School reformers argued that Minnesotans
needed more 'choice' in education: both the ability to choose which public school
district to attend, and also the option to choose between traditional public and
independent 'charter' schools."….

"While legally mandated segregation is forbidden, charters have found [an]

effective workaround, one that skirts as close as possible to the enforced separation
of the Jim Crow era," he writes. "A large number of charters are 'culturally focused'
and overwhelmingly composed of a single racial group, ensuring that students from
any other group will remain isolated."

A few months prior, Orfield released a study largely financed by three Illinois
teachers unions titled "Charter Schools in Chicago: No Model for Education
Reform." In it, he claimed that the city's traditional district schools outperformed
its charters. The conclusion called for a moratorium on new charters as well as
legislation curtailing their expansion, positions the unions were lobbying for at the
Capitol.

The Illinois Network of Charter Schools fired back quickly, noting that Orfield
made a number of errors, including inflating district schools' graduation rate from
63 percent to 83 percent, and cherry-picking research that supported his
contentions.

Orfield's own colleagues have questioned the soundness of his research, with
another University of Minnesota faculty member decrying a recent study as "highly
suspect" and "unworthy of the label 'university research.'"

Two other Twin Cities scholars, one of them an attorney who has represented
charter schools, were so frustrated with errors and inaccurate depictions in a widely
circulated 2009 Orfield report, "A Missed Opportunity: Minnesota's Failed
Experiment with Choice-Based Integration," they authored a 69-page rebuttal
published in the same journal, the William Mitchell Law Review. 55 Among their
assertions: Orfield omitted research conducted by his own brother that contradicted
the study's hypothesis.

55
The law review article is attached as Ex. 4.

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 III. CONCLUSION

The ALJ has a smorgasbord of substantive defects upon which to disapprove of MDE's

proposed desegregation/integration rules by requiring, at a minimum, that the provisions relating

to charter schools be omitted. And the undersigned only need for the ALJ to adopt but one of these

substantive defects to compel such disapproval.

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Respectfully submitted, The Board of Pillsbury Julie Guy, Executive
United Communities Director, Sojourner
Cindy L. Lavorato, Truth Academy
Attorney Bill Wilson, Former
Commissioner of Human Board of Sojourner
Joe Nathan, Director of Rights, and Executive Truth Academy
the Center for School Director of High Ground
Change Academy Neal Thao, Executive
Director, Noble Academy
Malik Bush, Co-Director The Board of Higher
Center for School Ground Academy The Board of Noble
Change Academy
Cara Quinn, Executive
John Miller, Co-Director Director, Community of Carrie Bakken,
Center for School Peace Academy Executive Director,
Change Avalon Charter School
Elaine Salinas Board
Robert Wedl, Former Member, Bdote The Board of Avalon
Commissioner of Learning Center Charter School
Education
Doug Knick, EdD, Paul McGlynn, Executive
Curtis Johnson, Assistant Executive Director of Director, Harbor
Manager, Education DREAM International School
Evolving
Technical Academies The Board of Harbor
Daniel Sellers, Director International School
of MinnCAN Tony Simmons,
Executive Director, High Ben Stegemen, Interim
The Board of MinnCAN School for Recording Executive Director,
Arts College Prep Elementary
Jim Bartholemew, School
Minnesota Business Wayne Jennings, Board
Partnership Chair, High School for The Board of College
Recording Arts Prep Elementary School
Charlie Weaver,
Executive Director, The Board of DREAM Krissy Wright, Director,
Minnesota Business Technical Academies Academic Arts High
Partnership School
Patricia Brostrom,
The Minnesota Business Superintendent, The Board of Academic
Partnership Minnesota Transitions Arts High School
Charter School
Larry McKenzie, Sabrina Williams Chief
Pillsbury United Lisa Hendricks, Education Officer, Excell
Communities Executive Director, Academy
Partnership Academy
Antonio Cardona, The Board of Excell
Pillsbury United The Board of Academy
Communities Partnership Academy
The following Excell Eddie Grant, Student Josephin Mbiti
Academy Faculty, Staff, Success Coach
Students, Families and LaKesha Sneed
Friends: Tiffany Grant, Daycare
Teacher Angela Akpan
Justin Balvin, Academic
Dean Dewitt Davison, Angela Huot
Paraprofessional
Cecilia Willis, Business Danielle House
Manager, Community Miea Williams,
Ed. Director Kindergarten Readiness Flexie Giddings
Teacher
Candace Dunbar, Tom Williams
Transportation & Pamela McDuffy,
Reserve Teacher Current Students of
Facilities Director
Excell:
Shalonda Gordon, HR Jennifer Uttech, School
Social Worker Araea Akpan
Coordinator

Amanda Walters, Abdul Akpan

Tom Anderson, Research
& Assessment Teacher
Anil Autar
Coordinator
Elyse Lewis, Teacher
Fatoumata Bah
Julie James, Lead
Teacher Jennifer Schenemauer,
George Cooper
Teacher
Beth Mueller, Lead Olivia Deshield
Teacher Kimberly Handren, ELL
Teacher Imanrenezor Ebojie
Bridget Weber, Lead
Teacher Lauren Metty, Mikai Gbayor
Paraprofessional,
Nancy Young, Title I Reserve Teacher Tariah Gray
Teacher, Lead
Sarah Kempf, Teacher Anthony Halverson
Amber Merrigan, Lead
Teacher Mary Zoubek, ELL Johnathan Hutchinson
Teacher
Angela Hillsted, Lead Chrishara Hynes
Teacher Fay Holland, Parent
Liaison, Student Success Buindu Kamara
Kip Sneen, Middle Coach
School Math Teacher Kadija Koroma
Excell Parents
Ashley Kock, Emma Manneh
Paraprofessional Ayanna Wesson
Loreal Mckely
Synethia Davison, Food Zakkiyya Abdulwahid
Service Coordinator Deveyon Nix
-34-
Jahnea Porte Essence Porter The Board of Flex
Academy
Gabriella Shipp Amanda Tuonyon
Amy Koch, Achieve
Manaka Soumahoro Rudy Zarway Minnesota

Keyshawn Wiley Former Excell Students Amy Larsen, Executive

Director, BlueSky
Jahari Winder Jordan Williams Charter School
Frederick Yarweh Jaccob Williams The Board of BlueSky
Charter School
Stephanie Zakiel Joshuyan Williams
Bonnie Jorgenson, Head
Adeola Adeleke Valencia Owens of School
Daevion Bellanger Deja'nae Shipp Duluth Edison Charter
Schools
Jorielle Breck Jamese Robinson
Lynnell Mickelsen,
Aminata Cissoko Ron Berger, Chief
parent/citizen advocate,
Financial Officer,
Antonese Conley Put Kids First
Lionsgate Academy
Minneapolis
Amour Dickerson Barbara Novy, Executive
Brad Cross, Community
Director. Stonebridge
Kahlil Edwards Board Member of AFSA
World School
Charter School
Jordan Enders Brandon Wait, Executive
Corey Stewart, Assistant
Director, Paladin Career
Antrevion Ferguson Director, Sun Academy
& Technical High School
Sumel Flomo The Board of Sun
Dr. Chavez Russell,
Academy
Executive Director,
Aazhairiyah Green
Friendship Academy Abdulkadier Osman,
Dominique Harris Executive Director, Dugsi
The Board of Friendship
Academy
Willow Humphrey Academy
The Board of Dugsi
Khawsu Ighodalo Jordan T Pollock
Academy
Destany Jones Agriculture Instructor /
Nancy Dana, Executive
FFA Advisor
Director, St. Paul City
Dosia Mason School
Academy for Sciences
Bobby McKissic and Agriculture
The Board of St. Paul
Greg Gentle City School
Funmilayo Ologunde
Principle, Flex Academy
-35-
Kevin Byrne, Executive
Director, MN Internship
Center

Kristin Quinn, Board

Chair, MN Internship
Center

L. Walz, Executive
Director, MEFE

The Board of MEFE

Harvey Friedenson,
Attorney at Law

John Gawarecki,
Director, Math and
Science Academy

The Board of Math and

Science Academy

Katie Avina, Academic

Cesar Chavez Charter
School

Harvest Network of
Schools

Dr. Mustafa Ibrahim,

Executive Director,
STEP Academy

The Board of STEP

Academy

Dr. Meg Cavalier

Executive Director
River's Edge Academy

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