A couple of months ago I was running some errands with my older son, who is a junior in high school and possessed of a biting wit. I was telling him that University of Minnesota professor Myron Orfield had submitted a lengthy rebuttal to a story of mine that accused Orfield of launching a cloaked attack on school choice.
The rebuttal was vintage Orfield: Hundreds of words of circular legal arguments and phrases like “regression analysis.” It went on and on and on until your eyes rolled back in your head and you probably failed to notice that he basically mostly accused me of interviewing people he disagrees with.
Which I did. A whole pack of them, in fact.
“Oh, that’s one of the fallacies,” my boy said. “Argumentum verbosium.” Also known, apparently, as proof by intimidation.
On Monday Minnesota’s Chief Administrative Law Judge signed off on a 93-page opinion authored by one of her colleagues that shreds those proof points, one by one. Given the extent of the verbosity they had to untangle, we should take up a collection and send the jurists for a spa weekend.
The opinion also puts to rest a longstanding tussle between the state and charter schools that’s repeatedly ended up before administrative law judges over the last decade: When the programs must comply with the red tape they were created to be free of, and when they need not.
In January, I wrote a story published by The 74 Million, an education news and commentary site, that laid out the problems with the state’s position and made the case that Orfield was attempting to manipulate state school integration policies to undercut the legality of charter schools and school choice.
And school leaders of color chimed in to note that segregation, as far back as Brown v. Board of Education, referred to the practice of excluding students based on their race. Parents of a single race or ethnicity choosing a school that affirms their identity is not segregation.
Orfield’s response was also published in The 74. Judging by the number of his assertions the judges who handed down this week’s decision found unsubstantiated, I’m guessing they’d have a field day taking a red pen to it.
The not-so-verbosium version of the story: For years, there was general agreement that Minnesota’s rules regarding school desegregation were broken. While integration proponents and their political foes duked it out at the Capitol and in the courts, Minnesota became markedly less white than in generations past and large numbers of whites lit out for the suburbs.
Consequently, schools re-segregated and large numbers of families of color fled for an emerging sector of charter schools that delivered terrific outcomes for poor and disabled kids. Which is the point at which Orfield’s works began to take some creative routes to supporting his hypotheses. Colleagues lately have questioned whether it counts as “scholarship.”
That brings us to four years ago when, despite some crazy political chicanery, lawmakers inked a new law that affirmed integration as a goal and created some accountability for public dollars that were to be used to support desegregation efforts.
And thus began the long dull death march that is rulemaking, the process in which the requisite government agency, in this case the state Department of Education (DOE), makes the rules by which the law is implemented. It’s the last messy step in the sausage making and it has a huge impact on how well or disastrously a policy prescription is implemented.
Innumerable task forces and reports later, the DOE proposed a rule that pleased no one. The new rule would, for the first time, require charter schools—which by law must take all comers, regardless of factors like race—to engage in integration activities. It would require schools where 20 percent or more of students are of color to create integration plans, but leave all-white schools untouched.
And, like the equally vague rule it was to replace, it would not actually necessarily result in integration. Schools and districts would submit plans to move in the right direction which DOE would approve or not, according to factors not spelled out.
(Things the old rule allowed as furtherance of integration: The displaying of artwork from different cultures; participating in sports or other activities with kids of another race or ethnicity, albeit on the opposing team; field trips involving another culture. I’m not making this up.)
Because three different sets of education advocates all opposed the proposed rule for different reasons, in January the Minnesota Office of Administrative Hearings, which sorts out a number of issues involving public agencies, held a two-day hearing. Never mind that he told me in an interview for the 74 story that he would not participate, Orfield testified at length.
But so did a lot of other people, including two attorneys who know a thing about deflating argumentum verbosium. In the end the judges rejected the rule.
“By redefining ‘eligible district’ to include charter schools… an option the legislature choose not to do–the [DOE] is not only making law, it is contradicting existing law. The tail does not wag the dog when it comes to lawmaking.”
This morning Orfield sent out a tweet that seems to assert victory: “ALJ reverses Minnesota’s 17-year-old legal conclusion that there was ‘no compelling interest in racial integration.’ ALJ Opin at 36.”
That’s not actually what the opinion says, and even if it were the other 92 pages are not kind to his case. But it does give rise to another fallacy, one that fits neatly into 140 characters: proof by assertion, the practice of asserting something as uncontroverted fact until everybody else gets tired and goes home.
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