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(Editor's note: An earlier version of this column referred to a legal brief filed in the Cruz-Guzman case, which asserted that plaintiff's counsel had admitted certain charter schools were "killing it" academically. That reference did not accurately describe plaintiff counsel's position and has been removed.)
A curious debate has raged on these Opinion Exchange pages since the Nov. 8 election. Advocates for Minnesota business have disputed among themselves just how panic-stricken employers, developers and investors ought to be over the prospect of an all-DFL state government taking charge in St. Paul come January. ("Business has nothing to fear from DFL dominance," Nov. 16; "Housing business has had plenty to fear from DFL," Nov. 21; "Small business wary of single-party control," Nov. 28.)
The business community's unease and uncertainty dramatizes this state's distinctive situation in the wake of the 2022 midterms.
Nationally, the simple, political-horse-race story of that election is that Republicans coast-to-coast did about the worst they possibly could have under the circumstances — an inflation-fevered economy, crime-plagued cities and a post-honeymoon president who was a mediocre political talent in his prime and is in his prime no longer.
And yet, on the national level, the "worst" Republicans could do still enabled them to snatch control of the U.S. House which, as a practical matter, will allow them to block for the moment Washington Democrats' ever-extravagant agenda.
Meanwhile, though, back in Minnesota, DFLers exploited their staggering dominance in the core Twin Cities metro area to secure total control of state government for the first time in a decade and only the second time in more than 30 years. As a practical matter, Minnesota's election brought a rogue wave that could transform the landscape.
As Gov. Tim Walz tried to describe it last week: "The art of what is possible has expanded."
Remembering the array of tax hikes on business and higher incomes enacted in 2013-14, the last time DFLers ruled unchallenged in St. Paul, along with heavy spending, at least some business leaders are bracing for more of the same next year. Other Minnesotans may recall the legalization of same-sex marriage and medical marijuana, along with the beginnings of more relaxed voting rules (no-excuse absentee ballots, etc.) as previews of the kind of cultural/political innovations empowered DFLers might pursue.
But what could be the most dramatic and controversial policy expansion augured by the new power structure has been quietly moving toward a showdown for years, little noticed by most. The issue's time — and the time to pay attention — may be at hand.
A lawsuit with the shorthand title Cruz-Guzman v. Minnesota was filed by a coalition of parents and activists fully seven years ago, and the dispute has been working its way through Minnesota courts, executive agencies and the Legislature ever since. The litigation alleges that racial and economic segregation in Minneapolis and St. Paul schools, which has developed with the help of state-sanctioned policies on school choice, charter schools, district and attendance boundaries, etc., denies minority pupils the "adequate" education courts agree they are guaranteed by the Minnesota Constitution.
The lawsuit asks state courts to declare the current situation unconstitutional and order the Legislature to alter it.
The case has taken several momentous turns over the years. In 2018, the Minnesota Supreme Court overruled a unanimous appeals court ruling that had thrown the lawsuit out. That court had ruled that in the absence of deliberate racial discrimination, the question of how best to design a school system is not a proper issue for courts of law but a "political question" best left to the creative conflicts and compromises of broadly representative legislative chambers and school boards.
The Supreme Court instead committed Minnesota judges to deciding when the political branches have sufficiently fulfilled their duties under the Education Clause of the state Constitution.
It's worth noting that the state Supreme Court is yet another government institution where the DFL's electoral successes have had potent influence. By 2018, DFL Gov. Mark Dayton's appointees made up a majority of the justices, and they voted in favor of the Cruz-Guzman plaintiffs. Two holdovers appointed by GOP Gov. Tim Pawlenty dissented. The dissenters are still on the court — still outnumbered 5-2 by DFL-appointed colleagues.
What followed the 2018 ruling was nearly two years of court-ordered mediation in which the plaintiffs and the state — represented by the DFL Walz administration and office of DFL Attorney General Keith Ellison — sought a policy compromise. In 2021, legislation emerging from those talks was introduced at the Legislature. The bill would have implemented a metro-wide desegregation plan with "student assignment preferences based solely on socio-economic status ... ." In the then-divided Legislature, the measure did not advance and the dispute returned to court.
This fall, the case has returned to the Minnesota Supreme Court, which is now being pressed to review a September decision from the Minnesota Court of Appeals on a key question in the case. Under existing law, the appeals court ruled, the mere fact of racial and economic imbalance among schools does not violate the state Constitution unless it results from deliberately discriminatory state policy. If caused only by the free decisions of families about where to live and send their kids to school, such "de facto segregation" is not in itself unconstitutional, the court held.
Yet the appeals court deferentially noted that the "task of extending existing law falls to the Supreme Court ... [with its] primary role in interpreting the state constitution."
So that's where we stand. Little has changed at the state Supreme Court, which seems just as likely to accept this invitation to "extend existing law" and keep this litigation alive as it was four years ago. Meanwhile, everything has changed at the Legislature, which under DFL control next year seems far more likely to transfigure education policy.
What it would mean can't be known. Proponents believe deeply in integration as a remedy for learning gaps among racial and income groups. But the state warns in its legal arguments that under the lawsuit's theory "all schools in the state with fewer than 20% racial minorities and [lower-income] students are unconstitutional — no matter what actions the Legislature undertakes to create a system of education, no matter how well those students perform, and no matter how impracticable it would be to change student demographics in parts of the state."
Meanwhile, representatives of various charter schools suffering so-called "hyper-segregation" due to "parents voluntarily choosing to send their non-white children to these 'culturally-affirming' environments in which to learn" intervened in the litigation. They warn that their freely chosen schools would become "constitutionally infirm" under the Cruz-Guzman reasoning even though they are "beating the odds," as the Star Tribune's reporting puts it.
Elections matter, people say. And in the wake of the DFL's unqualified election triumph, it seems both small-business leaders and the organizers of culturally affirming schools working wonders with at-risk minority kids have reason to worry.
"One Minnesota," united at last.
