If Chicago Public Schools (CPS) decides to close your school, you get two minutes. Whether you are a parent, a student, or a community member, you only have two minutes to explain all the ways that your school benefits its students and community. Two minutes to explain why CPS should not do this. Two minutes to tell your story. When CPS decided to phase out top-rated National Teachers Academy (NTA) Elementary School, many tried as best they could to tell CPS exactly what was wrong with its plan.
The 3rd Ward where NTA is housed has had more closures and more displacement of African-American economically disadvantaged students than any other ward in Chicago . . . [NTA] has risen from the lowest possible CPS ranking to the absolute highest possible CPS ranking in just three years. We’re one of only 18 schools out of over 600 in CPS that serve the African-American community with this academic and community profile. . . . Are we set to take this away[?] —Hannah El-Amin, NTA parent.
My black daughter looks around her [class]room and sees other black students who are just as smart and high achieving as she is. She is growing up in an environment where being smart and black is the rule, not the exception. This is what NTA gives to black students like my daughter, and this is what CPS’s racist plan wants to destroy. —Elisabeth Greer, local school council president.
NTA is not an asset, it is not a location. It is students, families, and staff. The true asset of NTA is the members of its thriving community. . . . Our children are not disposable. Their educations matter. Their bodies matter. Their Black lives matter. —Autumn Laidler, NTA fourth grade teacher, speaking on behalf of NTA staff members.
In February 2018, despite overwhelming objections, CPS approved a plan to phase out NTA Elementary School and open a new high school in its building to meet the demands of a fast-growing, affluent neighborhood just north of NTA’s boundary. This was the first time that CPS proposed closing a high-performing and well-attended school. To challenge this glaring injustice, the NTA community knew two minutes would never be enough.
On the last day of school in June 2018, the Legal Assistance Foundation (LAF) and Chicago Lawyers’ Committee for Civil Rights (CLC), along with private attorneys from Eimer Stahl LLP, filed a five-count complaint in state court, challenging CPS’s violations of the Illinois Civil Rights Act and Illinois School Code. Shortly thereafter, we filed a motion for a preliminary injunction to stop CPS from implementing its plan while the case was pending. CPS filed a motion to dismiss, and as the new school year started, we entered into an expedited briefing schedule, racing to halt the plan before too much damage was done to the school. Two weeks before winter break and before students would apply to the new high school in NTA’s building, parents and community members filled a courtroom in downtown Chicago to hear the court’s ruling on the preliminary injunction and motion to dismiss.
From the bench, the judged announced that CPS’s motion to dismiss was granted in part, but the claim based on the Illinois Civil Rights Act survived and provided a basis for a preliminary injunction to immediately stop the district’s plans. The ruling marked the first time since enactment of the No Child Left Behind Act (NCLB) that a court has intervened to stop CPS from closing a school.
Background on School Closings
School closings have become widespread in urban school districts nationwide. The most common rationales offered are low academic performance, low enrollment, budget concerns—or a combination of these factors. To date, litigation efforts across the country have been largely unsuccessful in stopping school closings. See, e.g., Smith v. Henderson, 944 F. Supp. 2d 89 (D.D.C. 2013); McDaniel v. Bd. of Educ. of City of Chi., 2013 WL 4047989 (N.D. Ill. 2013). Successful cases have been few and far between. See, e.g., John B. v. Bd. of Educ., 95-1559 (Ill. App. Ct. Aug. 7, 1995) (ruling based on Open Meetings Act violations).
Legal framework. School closings were introduced as a sanction for low academic performance under NCLB. 20 U.S.C. § 6311(b)(7)(A). Under NCLB and now under the Every Student Succeeds Act (ESSA), states must create accountability standards to assess and monitor school performance. Under NCLB, which was in effect until 2015, if a school did not make adequate yearly progress, it could be subjected to a closure. Many of the mass school closings were undertaken while NCLB was still in effect. By comparison, ESSA emphasizes the responsibility of school districts to provide support for underperforming schools. However, both NCLB and ESSA require states to create their own implementation plan for complying with federal requirements. Thus, the actual mechanics of accountability and closure largely take form under state law and local school district policy.
Chicago school closings. In Chicago, CPS has closed nearly 200 schools since 2002. The vast majority of these schools served African American students and students from low-income households. Historically, CPS has closed schools for either low academic performance or low enrollment. Illinois—like New York—has codified specific procedural requirements for “school actions” (closings, phase-outs, consolidations, boundary changes, etc.) within its school code. The Illinois School Code requires CPS to create guidelines for selecting schools for a school action. For example, in 2013, when CPS closed a historic 49 schools in one year, CPS’s guidelines stated that schools with low enrollment (also called “under-utilized” schools) could be selected for closure. Once CPS has published its guidelines, it must convene at least two public meetings and one public hearing prior to approving a proposed school action. These are where students, parents, and community members get two minutes each to tell CPS whether or not a school should be subjected to a school action. Once the public meetings and hearing are complete, the Board of Education votes whether to approve the closure. Throughout this process, it has been very difficult for communities to push back against proposed school closures.
The impact. Until recently, research on the outcomes of school closings was very limited. The University of Chicago Consortium on School Research (CCSR) and others found that the only way students potentially benefit from a closing is if they are then assigned to a significantly higher-performing school. CCSR also found that academic harm starts during the year that the closure is announced and that the majority of students displaced from closed schools in Chicago do not later attend significantly higher-performing schools. In May 2018, a month before LAF and CLC filed our complaint, CCSR published a new study on school closings that integrated qualitative and quantitative data to analyze the multifaceted outcomes of the 2013 school closings in Chicago. CCSR’s findings were significant, and they included several negative impacts on students:
- long-term negative impact on math scores and short-term negative impact on reading scores for students displaced from closing schools;
- short-term negative impact on reading scores for students attending welcoming schools (schools that are designated to enroll students who are displaced from closed schools);
- increased reports of bullying and fighting at welcoming schools and development of an “us” versus “them” mentality between students and staff from closing schools and welcoming schools; and
- an absence of sufficient support from CPS at welcoming schools during the transition process.
In all, the CCSR study substantiated harms that students, parents, and community members have reported for years. CCSR’s newly released findings played a critical role in our case regarding the expected harm of CPS’s plan for NTA.
National Teachers Academy
NTA is—and was at the time CPS announced its plan to close it—among the highest academically performing elementary schools in Chicago. It is located at the site of the former Harold Ickes Homes, a public housing project on Chicago’s near south side. It serves over 750 students, making it “efficiently utilized” according to CPS standards. About 77 percent of its students are African American, and about 72 percent come from low-income households. NTA also has numerous wraparound supports that are integral to its success. NTA has a health clinic located inside its building that assists students and community members. Families have multiple low-cost options for before- and after-school child care. Students also have regular access to a swimming pool and recreational facilities on site through a partnership with the Chicago Park District. All extracurricular activities, including sports teams, are offered to students for free. In short, it is the kind of school that every neighborhood desires.
Despite all of this, in the spring of 2017, CPS decided to close NTA so that its building could be used to open a new neighborhood high school. Under CPS’s plan, NTA’s youngest students (kindergarten to third grade) would be transferred to nearby and recently expanded South Loop Elementary, and NTA’s remaining elementary grades would phase out over time (i.e., no more fourth grade one year, no more fifth grade the next year, and so on)—as high school grades phased in (adding ninth grade the first year, tenth grade the second year, and so on)—until the school enrolled only high school grades.
This plan was not the first time that NTA students faced displacement. In 2005, CPS enacted a boundary change that removed students who lived in nearby public housing from South Loop Elementary and sent them to NTA. In 2012, NTA was a designated welcoming school for students who were displaced from a different school closing. In 2013, even though it was not a designated welcoming school, NTA received many students who were displaced by the 49 school closings across the city. Each of these actions created challenges that the NTA community worked successfully to overcome.
LAF and CLC started working with members of the NTA community during the summer of 2017, after CPS first announced its plan. Together we advised parents and community members about the administrative school action process. We drafted public comments to CPS’s guidelines for school actions on behalf of NTA parents. We helped prepare testimony for the community meetings and the public hearing. We testified at the final public hearing and submitted a 30-page statement, opposing the plan, for the hearing officer’s consideration. Our written statement outlined many of the legal violations that were later alleged in our complaint. Last, we spoke at the Board of Education meeting prior to the final vote and urged board members not to approve the plan. Unfortunately, in February 2018, CPS’s Board of Education formally approved the plan to phase out NTA, and we started preparing for our next fight—in court.
Going to Court: Greer v. CPS
On June 19, 2018, LAF and CLC filed a complaint against CPS on behalf of seven African American students, four African American parents, and two community groups—Concerned Parents of NTA and Chicago United for Equity. Our named plaintiff, Elisabeth Greer, is an NTA parent and president of the local school council. Our student plaintiffs range in ages from 6 years old to 13 years old, covering several different grade levels and different academic programs within NTA (e.g., gifted, neighborhood, open enrollment). Concerned Parents of NTA is a group of parents, grandparents, and community members who had opposed the plan to phase out NTA since its announcement. Chicago United for Equity is a citywide organization that conducted a months-long racial equity impact analysis of CPS’s plan and fought for CPS to consider options for a high school that would not place such a high burden on African American students.
Our complaint set forth the violations described below. About a month after filing our complaint, we filed a motion for a preliminary injunction, which included sworn affidavits from six different local and national experts; affidavits from our parent and organizational plaintiffs, articulating the harm that this plan had and would continue to inflict; and about 1,000 pages of additional exhibits in support of our motion.
Violation of the Illinois Civil Rights Act. Illinois’s Civil Rights Act prohibits any “unit of State, county, or local government” from “utiliz[ing] criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin.” It provides individuals with a cause of action under state law for discrimination claims that are based on a disparate impact theory (an important state-level protection given that individuals are not able to advance a disparate impact theory under Title VII).
Our complaint stated that CPS violated the Civil Rights Act by relying on racially discriminatory criteria to justify NTA’s closing when it used “attainment” as the sole metric to determine that NTA was a lower-performing school than the school designated as the welcoming school. The School Code permits a closing only when CPS can provide displaced students with a “higher performing” school. However, both NTA and its proposed welcoming school, South Loop Elementary, had the same performance rating (Level 1+) based on CPS’s performance policy, which uses multiple metrics of performance. Even CPS’s own reports found that there was largely “no statistical difference” between the performance of NTA and South Loop Elementary. Because state law mandates that children from a closed school attend a higher-performing school, and because South Loop Elementary was rated the same as NTA, CPS’s guidelines set out a tie-breaker rule. Under the tie-breaker rule, CPS relied exclusively on attainment scores from standardized tests—the district’s lowest-valued metric and one with the largest racial achievement gap—to decide whether a welcoming school qualified as higher performing than the closing school. When it used attainment scores as the only criteria for this determination, CPS found that South Loop Elementary was higher-performing than NTA and, therefore, that NTA could be closed and its students could transfer to South Loop.
We presented evidence, through two expert witness affidavits, that using attainment metrics instead of other less racially biased metrics (such as measures of student growth) puts schools like NTA, that serve mostly African American populations, at an extreme disadvantage. More specifically, attainment metrics focus on students’ scores at a given point in time and are largely predicted by students’ access to resources. On the other hand, growth metrics measure student progress from one point in time to the next and better capture the contributions made within the school. Using attainment to justify school closings would result in majority African American schools being disproportionately classified as lower-performing, and therefore, subject to closure as compared with non-majority African American schools. CPS’s reliance on attainment data in this context was also a significant departure from its typical practice of valuing student growth metrics over attainment when rating schools. For example, in calculating school performance ratings across the district, CPS places three times as much weight on growth metrics as compared with attainment metrics. In sum, CPS’s use of attainment to determine which school was “higher-performing” when deciding to close NTA had the effect of discriminating against African American students.
Violations of the School Code. The Illinois School Code also requires CPS to prepare a transition plan to support the academic, social, and emotional needs of affected students. The transition plan must provide students with a “comparable level of social support services” that were available at the closing school.
In NTA’s case, we challenged four different violations of the School Code. Specifically, we argued that
- CPS failed to include criteria for a school phase-out in its guidelines,
- CPS failed to comply with its own guidelines,
- CPS failed to provide NTA students with a higher-performing welcoming school; and
- CPS’s transition plan failed to satisfy the requirements of the School Code and provide NTA students with a comparable level of social support services.
In support of these counts, we submitted two affidavits from local experts—one of whom is a researcher for the Chicago Teachers Union. We also relied on the affidavits of our plaintiffs to highlight all of the supports that NTA provides to its students, which would not be available at South Loop Elementary.
Injunctive relief. Under Illinois law, to obtain a preliminary injunction, we had to establish (1) a likelihood of success on the merits, (2) irreparable injury for which there is no adequate remedy at law, and (3) a right in need of protection. As noted above, we submitted voluminous evidence in support of our motion for a preliminary injunction. With the assistance of experts and the support of outside research, including the CCSR study, we presented evidence of the academic harms, social-emotional harms, and community-level harms associated with CPS’s plan. We also presented evidence of the financial harms that would have an impact on NTA as its budget was annually reduced, due to its declining enrollment, during the proposed phase-out. Finally, our plaintiffs’ affidavits articulated in specific terms how this plan would harm their students. Within our plaintiff group, there were students who
- had already been displaced from other CPS closings and would be displaced again;
- were siblings and would be separated between NTA and South Loop Elementary during the phase-out period of the plan;
- would lose access to NTA’s unique wraparound supports; and
- would endure the effects of budget cuts during NTA’s phase-out.
Oral argument. In October 2018, the court heard oral argument—in front of a courtroom packed with NTA supporters—regarding our motion for a preliminary injunction and CPS’s motion to dismiss. For the first time in nearly a year and half, our plaintiffs and the NTA community had longer than two minutes to tell their story. For the first time, CPS was forced to answer questions publicly to the judge about its plan. For the first time, many members of the NTA community felt heard.
The Decision in Greer v. CPS
On December 3, 2018, the courtroom was standing room only as the court announced its decision regarding our motion for a preliminary injunction and CPS’s motion to dismiss. The court granted our motion for a preliminary injunction, finding that the plaintiffs established a likelihood of success under the Illinois Civil Rights Act, but it dismissed the counts related to the Illinois School Code.
The court found that the plaintiffs adequately alleged that CPS’s use of attainment scores as the sole basis for a tie-breaker constituted a criteria or method of administration that had the effect of discriminating against African American students. Further, the court noted that CPS did not disagree that attainment metrics were used in the performance determination between NTA and South Loop Elementary, nor did CPS offer any contradictory evidence that attainment metrics place African American students at a disadvantage. The court also found that the plaintiffs adequately alleged a causal connection between CPS’s criteria (attainment) and the discriminatory effects on African American students.
Turning to harm, the court found that the plaintiffs demonstrated a likelihood of success on the merits of their claim that NTA students would be harmed emotionally, academically, and by the lack of services available at South Loop Elementary. Further, the court found that the plaintiffs had a likelihood of success in proving that an equally valid and less discriminatory alternative to attainment was available. Specifically, CPS could have used growth metrics or its own performance policy to make this determination in a less discriminatory way. Finally, the court cited several of our expert affidavits and found that the plaintiffs had adequately alleged irreparable harm, including “injuries ranging from direct academic harm, loss of funding and loss of current services.”
The court concluded by noting that while it agreed with CPS that the School Code provides the district with broad discretion in school phase-outs and closings, “that discretion is not unfettered. Where the phase-out . . . is based upon impermissible criteria, courts have the authority, indeed the duty, to enjoin said action.” This case is the first time that a court has enjoined a CPS school closing since the inception of No Child Left Behind. It is also the only decision nationwide, which the authors are aware of, that granted a preliminary injunction to plaintiffs in a school closing case based on a racial discrimination claim.
NTA Is Here to Stay
The court’s ruling on the preliminary injunction was announced during the late afternoon. Hours later, CPS issued a press release stating that it would not appeal the court’s decision. A few hours after that, we received confirmation that CPS was abandoning the plan altogether. NTA will stay open, and CPS will explore other ways to address concerns about high school programming in the nearby communities.
Conclusion and Key Takeaways
Partnerships—at every level—were the most crucial element of this victory. We formed a true partnership with our clients and the NTA community, and we supported each other’s leadership every step of the way. LAF, CLC, and our pro bono partner, Eimer Stahl LLP, each brought different perspectives and strengths to our legal team. Moreover, many of our experts were identified through existing relationships with our organizations or with NTA community members.
Other key takeaways:
- Getting involved early. Frequently, there is a short time period between a school district’s final decision to close a school and the actual closing. The fact that LAF and CLC were involved with NTA at the earliest stages of this process, before the decision was final, gave us a deeper understanding of the facts, evidence, and legal issues related to CPS’s plan.
- Establishing harm. In other school closing cases, plaintiffs have struggled to establish the harm of a potential school closing. The value of CCSR’s recent report and our expert witnesses cannot be overstated. With this support, we were able to break down harm into separate and specific categories—academic harm, social-emotional harm, programmatic harm, etc.
- Storytelling. Our clients and the NTA community at large worked tirelessly to tell the story of NTA and CPS’s plan throughout the course of our representation. Their dedication at the administrative level (public meetings and hearing) and overall efforts to raise awareness about this plan and its harm to their community gave our legal team a cohesive and well-developed administrative record and clear message to CPS throughout our representation.
Publisher: American Bar Association
Published: May 10, 2019
Written: Katherine Gladson (Legal Aid Chicago) and Candace Moore (Chicago Lawyers’ Committee for Civil Rights)