By: Joshua Gutzmann, Volume 106 Staff Member
After almost a full week of no school for over 31,000 students, because teachers are on strike in Minneapolis, the Minneapolis Federation of Teachers President declared that they were “ready to go for as long as it takes.” The strikes—authorized by a vote of over 97% in favor—are still ongoing and show no sign of ending. Most would hopefully agree that the teachers’ union’s goals are worthwhile—as students undoubtedly deserve well-funded, well-staffed, and well-resourced schools. And the rapidly rising teacher shortage because of uncompetitive salaries and emotionally demanding work conditions is alarming. Still, some community leaders criticized the teachers for “demanding a raise . . . . [w]hile . . . kids can’t read,” and forcing “[p]arents who [are] barely making living wage jobs . . . to take off from work to accommodate kids during the strike process.” While Minneapolis Public Schools claimed that they could not afford to meet teachers’ demands, teachers suggested that the legislature could allocate some of Minnesota’s $9 billion budget surplus to do so.
Teachers undoubtedly have students’ best interests in mind, but the strikes nonetheless put teachers’ rights and students’ rights in tension. This Post examines the possibility that the Minneapolis teacher strikes violate students’ rights under the Minnesota Constitution and finds that the Minnesota State Legislature may be responsible and liable for a violation. This Post therefore calls on the legislature to intervene to meet teachers’ demands in future strikes and fulfill its constitutional responsibility. Teachers know what their students need, and the legislature must meet that need.
I. MINNESOTA STUDENTS HAVE CONSTITUTIONAL RIGHTS TO EDUCATION AND EQUAL PROTECTION
Unlike the United States Constitution, which does not mention education rights and has been held to provide no federal right to education, the Minnesota Constitution’s Education Clause, titled “Uniform system of public schools” guarantees a “general and uniform . . . . thorough and efficient system of public schools” for its youth. It reads:
The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature . . . will secure a thorough and efficient system of public schools throughout the state.
Almost thirty years ago, the Minnesota Supreme Court held that students have a constitutional right to an adequate education, but there was no constitutional violation where the plaintiffs were “unable to establish that the basic system [was] inadequate” and where “the existing system continue[d] to meet the basic education[al] needs of all districts.” In a recent landmark case, Cruz-Guzman v. State, the Minnesota Supreme Court affirmed this “fundamental right,” holding that claims for violation of the Education Clause are justiciable and that the state can be sued for violating the Minnesota Constitution’s Equal Protection and Due Process Clauses.
Yet, what constitutes a violation of Minnesota’s Education, Equal Protection, and Due Process Clauses in a K–12 education suit remains unclear. Immediately following Cruz-Guzman, the Minnesota Court of Appeals heard a challenge to a first-in, last-out tenure policy for teachers that allegedly created an inequitable education. The court held that plaintiffs accusing the state of an Education Clause violation must allege that the education received by students was actually inadequate—not just that inequities exist or that the right has been impinged or burdened. The court also held that to adequately allege an Equal Protection Clause violation a plaintiff must identify a “‘discrete and identifiable group’ that suffers differential treatment.” Because the Minnesota Supreme Court would likely follow the same reasoning and precedents, students harmed by strikes likely must show either that the education does not meet a “baseline level” of adequacy or that they are part of a discrete and identifiable group of students experiencing unequal education.
II. A VIOLATION OF STUDENTS’ RIGHTS
A claim for violation of the Education Clause is unlikely to succeed so long as the school district makes up the hours missed due to the strike, because, by statute, each school must meet a minimum number of hours of instruction each year—establishing a clear standard for the amount of instructional time that constitutes an adequate education. Students and parents could also allege that they were not given the benefit of a “general and uniform system of public schools” because the interruption to their school year was unparalleled in other districts, but this claim would be likely to fail as well because the school year’s start and end dates already tend to vary from district to district.
However, an Equal Protection Clause claim could succeed by alleging that Minneapolis Public Schools students—a discrete and identifiable group of students in Minnesota—experienced impermissible discrimination because they were provided a lesser education. The State of Minnesota may counter that education delayed—even for several weeks—is not unequal or discriminatory, but this is false. Perhaps because of the unpredictability and inconsistency created by strikes, and the abrupt and unplanned pause in the flow of curriculum, studies have found that strikes harm student achievement. Whether or not students were harmed would likely at least be a question for the jury, and education experts will likely testify that missed class time, even when made up, has negative impacts on students—all of whom fare far better in stable and predictable environments. Therefore, Minneapolis students may have a plausible claim for a violation of their rights under the Equal Protection Clause of the Minnesota Constitution.
III. THE LEGISLATURE MAY BE RESPONSIBLE FOR ENDING THE STRIKES OR MAY OTHERWISE BE LIABLE FOR VIOLATING STUDENTS’ RIGHTS
The state legislature is likely responsible—and liable—for this constitutional violation. The Education Clause undoubtedly imposes a duty upon the legislature to ensure a “general and uniform” system of public schools, and a system in which some students are receiving a far lesser education is neither general nor uniform. The Minnesota Supreme Court was clear in Cruz-Guzman that “the Education Clause constitutes ‘a mandate to the Legislature,’” and claims against the legislature for violating the Education, Equal Protection, and Due Process Clauses are justiciable. Consequently, the legislature has an obligation to step in and meet educators’ demands to provide needed funding. This strike should not be addressed by Minneapolis Public Schools alone. The Minnesota State Legislature has a constitutional responsibility to prevent and resolve strikes and provide students with the education they deserve; it may not shy away from this constitutional, and moral, imperative.
 Minneapolis Public Schools Quick Facts, Minneapolis Pub. Schs. (Sept. 2021), https://mpls.k12.mn.us/uploads/mps_glance_2021-22.pdf [https://perma.cc/RGM3-NNSY].
 See, e.g., Teachers’ Strike: What Families Need to Know, Minneapolis Pub. Schs. (Mar. 8, 2022), https://humanresources.mpls.k12.mn.us/uploads/fact_sheet_strike_families.pdf [https://perma.cc/KFB5-JVMW].
 Samantha HoangLong, Minneapolis Teachers Strike: Negotiations Continue, Impacts of No School, Fox 9 KMSP(Mar. 11, 2022), https://www.fox9.com/news/minneapolis-teachers-strike-day-4 [https://perma.cc/WUH7-ZV3Z].
 MPR News Staff, Educators in St. Paul, Minneapolis Public Schools Vote in Favor of Strike, Minn. Pub. Radio (Feb. 18, 2022), https://www.mprnews.org/story/2022/02/18/educators-in-st-paul-minneapolis-public-schools-vote-in-favor-of-strike [https://perma.cc/E56B-DM8W].
 See, e.g., MPR News Staff, Minneapolis School Leaders Issue ‘Final Offer’ to Educational Support Professionals in Move to End Strike, Minn. Pub. Radio (Mar. 20, 2022), https://www.mprnews.org/story/2022/03/20/minneapolis-school-leaders-issue-final-offer-in-move-to-end-strike [https://perma.cc/V65S-LF3C].
 Tara Kini, Tackling Teacher Shortages: What Can States and Districts Do?, Learning Pol’y Inst. (Jan. 11, 2022), https://learningpolicyinstitute.org/blog/teacher-shortage-what-can-states-and-districts-do [https://perma.cc/F7SC-UCEB].
 John Lauritsen, St. Paul Community Leaders Say a Teachers Strike Would Hurt Students, CBS Minn. (Mar. 7, 2022), https://minnesota.cbslocal.com/2022/03/07/they-should-be-in-school-st-paul-community-leaders-say-a-teachers-strike-would-hurt-students [https://perma.cc/WP6B-7842].
 See Elizabeth Shockman, What Minneapolis Teachers Are Asking for, and Why the District Says It Can’t Afford It, Minn. Pub. Radio (Mar. 11, 2022), https://www.mprnews.org/story/2022/03/11/what-minneapolis-teachers-are-asking-for-and-why-the-district-says-it-cant-afford-it [https://perma.cc/Q4WZ-NSKK].
 See Hoff, supra note 6 (“On the second day of the Minneapolis teacher’s strike, educators took their message to the capitol. They rallied on the steps to ask lawmakers to use at least some of the state’s $9.25 billion budget surplus to fund their demands.”); Caroline Cummings, Minneapolis Educators Rally Outside Capitol, Urge Legislature to Use Surplus to Boost Wages, CBS Minn. (Mar. 9, 2022), https://minnesota.cbslocal.com/2022/03/09/minneapolis-educators-rally-outside-capitol [https://perma.cc/5ABR-PXYN]. Others have responded that the legislature should refuse to give money to an individual district that has seen declining enrollment for almost a decade, arguing that “Minneapolis parents and kids are voting with their feet.” See Jennifer Hoff, Can Minnesota’s $9 Billion Budget Surplus Fund the Demands of Striking Minneapolis Educators?, Kare 11 (Mar. 9, 2022), https://www.kare11.com/article/news/local/can-minnesotas-9-billion-budget-surplus-fund-teacher-strike-demands/89-7316351e-3c39-4361-aa28-9618656667ae [https://perma.cc/8UDN-CZLZ].
 See generally U.S. Const.
 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).
 Minn. Const. art. XIII, § 1.
 Skeen v. State, 505 N.W.2d 299, 312 (Minn. 1993) (emphasis added).
 Cruz-Guzman v. State, 916 N.W.2d 1, 11–12 (Minn. 2018).
 Id. at 8–10.
 Minn. Const. art. I, §§ 2, 7.
 Forslund v. State, 924 N.W.2d 25, 34–35 (Minn. Ct. App. 2019).
 Id. at 36 (quoting Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1297 (11th Cir. 2012)).
 Cruz-Guzman, 916 N.W.2d at 12 (citing Skeen, 505 N.W.2d at 315).
 See HoangLong, supra note 3 (“MPS says most seventh and eighth graders, as well as some high schoolers, have no extra days or hours on their calendars. That means the schools will need to make up the time lost due to the strike in order to reach the required 165 days.”); Kate Raddatz, Minneapolis Teachers Strike Enters 2nd Week With a New Concern: Makeup Days, CBS Minn. (Mar. 14, 2022), https://minnesota.cbslocal.com/2022/03/14/minneapolis-teachers-strike-enters-2nd-week-negotiations-still-ongoing [https://perma.cc/6B8K-J4M8].
 Minn. Stat. § 120A.41 (2021). If the Page Amendment—a replacement to the Education Clause proposed by former Minnesota Supreme Court Justice Alan Page which requires a quality education and various other educational rights—had been passed, this analysis might be different. See What Is the Page Amendment?, Our Children Minn., https://ourchildrenmn.com/about [https://perma.cc/9NUK-GLC9]. But, for now, any pure Education Clause claim after a teacher strike is unlikely to succeed unless the school district fails to make up the hours.
 Minn. Const. art. XIII, § 1.
 Compare 2021–22 School Year Calendar, Minneapolis Pub. Schs. (May 13, 2021), https://mpls.k12.mn.us/uploads/sy_calendar_-_english_-_2021-22_2.pdf [https://perma.cc/XVT2-38T9] (ending instructional days on June 10), with District Calendar, Duluth Pub. Schs.,https://www.isd709.org/district/calendar/monthly/2022/06 [https://perma.cc/7CY5-JGLH] (ending instructional days on June 9), and 2021–22 Student Calendar, Mankato Area Pub. Schs. (May 3, 2021), https://www.isd77.org/discover-maps/district/calendars [https://perma.cc/A28T-5DWT] (ending instructional days on June 3).
 Forslund v. State, 924 N.W.2d 25, 36 (Minn. Ct. App. 2019).
 See, e.g., Dylan Matthews, How Teacher Strikes Hurt Student Achievement, Wash. Post (Sept. 10, 2012), https://www.washingtonpost.com/news/wonk/wp/2012/09/10/how-teacher-strikes-hurt-student-achievement [https://perma.cc/2D5P-RSRZ]; Michael Baker, Industrial Actions in Schools: Strikes and Student Achievement, Nat’l Bureau Econ. Rsch. (Mar. 2011), https://www.nber.org/system/files/working_papers/w16846/w16846.pdf [https://perma.cc/3SLZ-MUFD]; Luz Karime Abadía Alvarado, Silvia C. Gómez Soler, & Juanita Cifuentes González, The Effect of Teacher Strikes on Academic Achievement: Evidence from Colombia, 82 Int’l J. Educ. Dev. 102369, 102377 (2021) (finding that students who have been exposed to more and longer strikes obtain, on average, lower scores in math and reading, and that students who were exposed to more strikes during secondary school score on average forty-one percent and twenty-nine percent standard deviations lower in math and reading, respectively); David Jaume & Alexander Willén, The Long-Run Effects of Teacher Strikes: Evidence from Argentina, 37 J. Lab. Econ. 1097, 1099 (2019) (finding that being exposed to the average incidence of strikes during primary school reduces labor earnings of males and females by 3.2% and 1.9%, respectively). Though other studies have found that strikes do not harm achievement as long as the hours are made up, these studies are likely biased. See, e.g., Harris L. Zwerling, Pennsylvania Teachers’ Strikes and Academic Performance, Penn. State Educ. Ass’n 1–2 (2007), https://www.psea.org/globalassets/for-members/member-resources/files/strikesandacademicperformance.pdf [https://perma.cc/7TZG-V9WB] (exemplifying a teachers’ association publication arguing that teachers’ strikes do not adversely affect students).
 See, e.g., CDC, Essentials for Childhood: Creating Safe, Stable, Nurturing Relationships and Environments for All Children, https://www.cdc.gov/violenceprevention/pdf/essentials-for-childhood-framework508.pdf [https://perma.cc/BR3Y-NAPK]; Lara R. Robinson, Rebecca T. Leeb, Melissa T. Merrick, & Lauren W. Forbes, Conceptualizing and Measuring Safe, Stable, Nurturing Relationships and Environments in Educational Settings, 25 J. Child Fam. Stud. 1488, 1488–1504 (2015) (“Safety, stability, and nurturance as individual factors have been shown to be critical to the school ecology and students’ academic success.”).
 Minn. Const. art. XIII, § 1.
 Cruz-Guzman v. State, 916 N.W.2d 1, 9, 13 (Minn. 2018) (quoting Associated Schs. of Indep. Dist. No. 63 v. Sch. Dist. No. 83, 142 N.W. 325, 327 (Minn. 1913)).
 Id. at 9 (“[T]he Education Clause is the only section of the Minnesota Constitution that imposes an explicit ‘duty’ on the Legislature.”).