Minnesota schools have a race problem.
They are heavily segregated and have been so for a long time. The recent Cruz-Cuzman v. Minnesota Court of Appeals decision declaring that racial imbalances within the Minneapolis school district did not violate the education clause of the Minnesota State Constitution is only the latest setback for quality education for all students, including those of color.
The roots of this decision go back to 1998 when the then Minnesota Attorney General put politics above the law and made a legal ethics decision that has forever hurt education in Minnesota.
In September of 1998, Attorney General Hubert “Skip” Humphrey III won the DFL primary for governor. Two weeks later, while defending a lawsuit filed against the state contending that the schools were unconstitutionally racially segregated, his office argued that state’s existing and proposed approach to voluntary integration through open enrollment was illegal. Contrary to law and without any request from the legislature, his rule exempted charter schools of any integration responsibility, the only state where charter schools enjoyed such an exemption.
This decision was contrary to existing case law. Even worse, it failed to cite this contrary case law, including four U.S. Supreme Court decisions, in its formal legal opinion. The rules of professional ethics require attorneys to cite all relevant precedents, including those that are contrary to one’s argument. This is the duty of candor.
The attorney general’s legal memorandum ignored clear controlling decisions in the 8th Circuit, which not only followed obvious direction of the Supreme Court, but delineated a much more effective test to determine intentional segregation than the Humphrey’s rules created. It ignored a Minnesota administrative court opinion directly on point, issued by former chief administrative law judge.
Perhaps most blatantly the integration memo did not even discuss the attorney general’s own prevision opinion on this subject in which he had come to an opposite conclusion citing all of the authority he now chose to ignore.
Minnesota attorneys are ethically compelled to follow a code of ethics – The Minnesota Rules of Professional Conduct. The code says one may not ignore clear contrary controlling law in legal arguments and documents presented to the Court. The then attorney general did that and acted unethically. But worse, based on this faulty legal opinion, he drafted and saw enacted a new toothless rule that allowed segregation to flourish.
The AG’s office transformed Minnesota’s open enrollment system into a quick and easy tool for white parents to avoid integrated schools. This whiplash change was followed by the most rapid growth of segregated schools in the nation and resulted in the nation’s greatest inequalities between white and non-white children – inequalities that would continue to multiply in almost every aspect of their lives across the whole of their life spans. Before the rule, Minnesota’s racial disparities were average and closing. After the rule, they became the worst in the nation.
Attorneys – including the AG – have an ethical duty of candor to cite the law properly and honestly. They also have an ethical or professional duty to represent their client. Yet while the AG represents the State of Minnesota, he also represents the people of the state and he is sworn to uphold the law and the State Constitution. In defending the state, Humphrey might have secured his short-term duty to the state, and potentially helped his political career. But in doing that he put his client’s long-term interests and his ahead of the longer-term interests of the people of Minnesota. This conflict of interest also is a violation of an attorney’s ethical duty to his client and to promote justice.
Some argue the attorney general’s move was a sensible response to an ongoing civil rights lawsuit against the state – in effect to make it harder to sue the state. The attorney general does have a duty to defend state agencies. Yet his greater duty, spelled out in the Minnesota Constitution, and made clearer in his oath of office, is to uphold the state and federal constitutions and laws and to protect the rights of those long subject to racial discrimination. As a part of this duty, when he urged a course of legal action that effects constitutional rights, he had a duty to present and follow – or to distinguish – all controlling law that might be contrary to his proposed course of action. The federal courts have held that this duty is at its upmost when the rights of disadvantaged citizens, are at issue.
The attorney general has the right change his mind about integrated schools. But as a guardian of constitutional rights, he had an unmistakable, unshakable duty to discuss and distinguish controlling law. Had Humphrey discussed and distinguished controlling law – even if he had done so unartfully, even had the civil rights community uniformly completely disagreed with him, and even, as was the case here, the civil right community were not represented by counsel at the hearing – his actions would fulfill his duty of care.
Had Humphrey done that he would have fulfilled his ethical duty of honesty and candor to the court. Moreover had he been honest the court back then might not have ruled the way it did in upholding a racially flawed integration plan.
Humphrey’s choices have had a lasting impact on racial segregation in Minnesota. It is this segregation that is at the heart of educational and other racial disparities in Minnesota. By deepening segregation, they served to further divide and polarize the electorate. When George Floyd was murdered, this action had for more than 20 years sowed the seeds of violence and disorder. And this violence and disorder was not just anger directed toward the police, but the unendurable frustration of those who would never receive an adequate education, have a chance for a decent job, or enjoy good health and a long life.
David Schultz is the Distinguished University Professor of Political Science and Legal Studies at Hamline University. Myron Orfield is the Earl R. Larson Professor of Civil Rights at the University of University of Minnesota Law School.