October 03, 2016 Articles

School Closings: Challenges for Students, Communities, and Litigators

By Katherine Gladson

Mass school closings have torn through urban districts across the country for over a decade, and for years, law firms and legal aid organizations have attempted to stop or stall these closings. However, one question seems to haunt litigation over this issue—what is the harm? How will closing a school hurt students? How will it hurt communities? Why should courts intervene to stop this?

Despite the number of school closings nationwide, formal research on this issue—specifically, research regarding the effects that closings have on students—remains very limited. For the past two years, I have represented students who were displaced or otherwise adversely affected by school closings and other forms of school district restructuring in Chicago, Illinois, through an Equal Justice Works Fellowship sponsored by the Mansfield Family Foundation. Our work has revealed information about how school closings affect students, schools, and communities. This article aims to capture the legal and practical implications of school closing decisions for affected students and to answer, at least in part, that repeated question—what is the harm and what approaches can help individual students who are forced to leave one school and move to another?

A Quick Primer on School Closings
The first step in understanding how school closings affect students and communities is understanding the rationale and procedures behind them. State laws and local policies have applied different rationales and followed different procedures for executing closures, but there are several commonalities.

Why are districts closing schools—and which schools are being closed? School districts nationwide have generally offered two main reasons for closing schools: (1) low academic performance or (2) underutilization of school building space, or a combination of low academic performance and underutilization. Applying these two bases has consistently resulted in schools from low-income communities (rather than those from middle- or upper-income communities) being disproportionately closed or restructured.

Low academic performance. Federal law has required states and local governments to have academic performance policies, previously through the No Child Left Behind Act (NCLB) and currently through the Every Student Succeeds Act (ESSA). Academic performance measures may include a variety of academic metrics but usually rely heavily on standardized test scores. While these performance measures apply to all schools, research has consistently shown that standardized achievement tests unfairly disadvantage minority students and students from low-income families.

Underutilization. Closing schools based on space utilization rates has become commonplace for school districts struggling with declining enrollment and budget issues—even though there is relatively minimal cost savings associated with closings. In many cities, there has been a strong correlation between underutilization of neighborhood schools and the decreasing availability of public housing and the proliferation of charter schools. Reducing the number of public housing units has led to fewer children in many neighborhoods; charter schools located in low-income neighborhoods have often attracted students who would otherwise attend neighborhood schools.

On the surface, each of these policies seems to have neutral goals—conserve resources and provide improved academic opportunities for students. But each has had a disparate impact on communities that serve low-income and minority students.

Who makes the decision to close? School boards are typically the authority that makes the final determination regarding school closings—sometimes with input from other governmental sources (such as city governing body or mayor) and often following an opportunity for public input regarding school closing decisions. Most school districts and municipalities have recognized that community input is important and necessary for this type of decision, and most districts have formally requested public commentary in writing or through public hearings (or both) at some point in the school closure process. But it is debatable whether the public’s comments are genuinely considered by local decision makers. Even though community input should be highly persuasive, many affected communities—especially those that have dealt with year after year of closures—have reported that, from their perspective, school districts have already made a final decision by the time public input is requested. The disconnect between district personnel and school communities has also has an impact on the effectiveness of district efforts to support communities after closings are approved. If school districts have not collected meaningful information from school communities about the risks associated with a particular closing or the specific needs of the school community, then attempts to provide transition support will likely be insufficient.

When are closing decisions made? The time frame for closures is another similarity across jurisdictions. The school closing process is typically initiated and completed during one school year (started in the fall or winter, and schools are closed over the summer). This short period of time has caused significant disruption for schools that are considered and selected for closure. More specifically, there is limited time for parents to find new schools for their students, limited time for school districts to reassign staff, limited time for individualized education program (IEP) teams to ensure that all students with disabilities will have appropriate services at their new school—and limited time for any organized efforts to challenge these decisions.

This quick timeline creates a challenge for litigation contesting school closings. Once a district starts this process, things can move very quickly. On the other hand, lawsuits filed before a school closing decision is final may be vulnerable to challenge regarding the ripeness of the decision. See, e.g., Smith v. Henderson, 944 F. Supp. 2d 89, 94–95 (D.C.C. 2013).

What Researchers Have Found about the Impact of School Closings
Quantitative research regarding the effects of school closings is very limited. However, there are certain findings and conclusions that researchers have been able to agree on. First, the primary way that students may actually benefit from a school closing is if displaced students are reassigned to a significantly higher performing school. See Marisa de la Torre & Julia Gwynne, When Schools Close: Effects on Displaced Students in Chicago Public Schools (Univ. of Chicago Consortium on Chicago School Research 2009); John Engberg, Brian Gill, Gema Zamarro & Ron Zimmer, “Closing Schools in a Shrinking District: Do Student Outcomes Depend on Which Schools Are Closed?,” 71 J. Urban Econ. 189 (March 2012). Unfortunately, going to a significantly higher performing school rarely happens, and the quality of the receiving school is often negatively affected by the pressures of supporting a significant influx of new students. See De la Torre & Gwynne, supra, at 5, 11; Deven Carlson & Stephane Lavertu, School Closures and Student Achievement: An Analysis of Ohio’s Urban District and Charter Schools 21 (2015). Second, researchers have found that school closings have a disparate impact on low-income students, students with disabilities, and minority students. See Carlson & Lavertu, supra, at 2; Journey for Justice Alliance, Death by a Thousand Cuts: Racism, School Closures, and Public School Sabotage 1–2 (2014). Last, student mobility rates—which can negatively affect achievement levels, graduation rates, etc.—have also been found to increase after a school closing (excluding the initial displacement via closings). In other words, students who have been displaced by a school closing are more likely to transfer schools again after the closing process is complete. See De la Torre & Gwynne, supra, at 20–21.

Issues Displaced Students Have Faced
Our individual legal representation has shown that displaced students face a variety of unique challenges after school closings. These clients have experienced a wide range of educational harms—from having their school records lost to having initial special education evaluations delayed (sometimes for more than a year), to having special education services disrupted or inappropriately decreased (or both). At the individual student level, the harm is dependent on a number of factors, including the quality of the receiving school, whether the student has a disability, the student’s support system outside of school. However, at a school district level, there are consistent trends and commonalities in the harmful effects of school closings for purposes of litigation.

Special education issues. Students with disabilities are especially vulnerable to the educational harms associated with school closings. Under the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act, students with disabilities have the right to receive the specific services and supports required by their IEPs and section 504 plans. The individualized nature of special education directly clashes with the large-scale disruption of school closings. Among the Legal Assistance Foundation’s school closing cases, there were common special education issues that students experienced.

Inappropriate evaluations. To receive or continue receiving special education services, students must be evaluated. The failure of a school district to provide thorough or timely evaluations directly affects the student’s ability to receive appropriate educational services. The announcement of school closings can cause disorganization at the district and school level—making it more likely that evaluations will be delayed or rushed. In addition, the decision to evaluate a student for the first time may be delayed if the student and his or her teachers are displaced by closing. Generally, school staff members prefer to get to know a student and gather data before approving an initial special education evaluation. When schools are closed, this process is disrupted, and there is a higher likelihood that the student’s initial evaluation will be delayed as new staff gathers data and reconsiders whether to refer the student for evaluation.

Failure to implement and reduction of special education services. Once a student has an IEP or section 504 plan, school districts have an obligation to implement the services included in those plans. Generally, a student’s educational needs drive the services that the student should be receiving at school. Financial constraints, programmatic changes, or other dysfunctional issues within a school district should not disrupt a student’s special education services. However, implementation problems can occur when students from closing schools are assigned to receiving schools that may not have the resources to implement their IEPs. In such cases, a prolonged failure to implement the IEP can occur—a clear violation of IDEA. In other situations, it may lead to attempts by IEP teams at the closing or receiving school to reduce or eliminate services that students need—another violation of IDEA.

Lost records. Maintaining accurate school records for students with disabilities is critical. Teachers need immediate access to current student IEPs and 504 plans, current evaluations, medical records, previous IEPs and 504 plans, etc. Unfortunately, during the school closing process, student records have not always been properly maintained or transferred to a student’s receiving school. Without access to accurate records, schools may fail to provide appropriate support to students with disabilities and to timely refer students for evaluations.

Community and school culture issues. As noted above, school closing policies have consistently had a disparate impact on communities that serve low-income and minority students. Even though academic performance and space utilization may seem somewhat unconnected, both of these bases consistently result in closing schools that serve the district’s most vulnerable student populations. In many low-income communities, neighborhood schools are long-standing anchors and support systems. Closing neighborhood schools disrupts and further destabilizes communities that are already burdened with other forms of instability. Moreover, at a community-wide level, these polices led to repeated schools closings in low-income communities. Disrupting the educational experience of any student can be harmful. Repeating that process with schools and communities that are overburdened and underserved only exacerbates the harm to students.

There have also been issues with combining different school communities into one attendance center after a closing. One concern that has been raised in response to school closings in different cities is that new school boundary lines and receiving school assignments crossed gang lines and historical neighborhood divides. Pew Charitable Trusts, Closing Public Schools in Philadelphia: Lessons from Six Urban School Districts 13 (2011). In Chicago, during the 2013 school closing process, parents and community members testified about the real and imminent threats that students would face during the proposed school transitions. A review of the hearing officer opinions from those public hearings demonstrates that the more concrete and specific that challengers (e.g., parents, community members, students) are when explaining this threat at a hearing, the better. For example, in 2013, Chicago Public Schools proposed closing Manierre Elementary and assigning its students to Jenner Elementary. At the public meetings and hearings for this proposal, there was persuasive testimony from students, parents, teachers, and community members about the long-standing gang rivalry between the communities that these schools served. Ultimately, Manierre was one of 4 schools—out of 4 proposed closings—to avoid closing. As community witnesses have pointed out, students will not be available for learning if they are afraid for their own safety, and without proper consideration and planning for affected communities, school closing decisions have raised significant safety concerns.

What Courts Have Said
School closing cases have been litigated in state and federal courts across the country. Despite the issues described above, the vast majority of cases challenging closings have been unsuccessful. Similar to social science research, case law is relatively limited at this time, but growing. Cases challenging closings have included the following claims:

Equal protection. Given the disparate impact that school closings have had on minority students, many complaints have raised equal protection claims on the basis of race. To date, an equal protection claim has not defeated a proposed closing, and in most cases, challengers struggled to establish discriminatory intent on behalf of the school district. See Smith v. Henderson, 944 F. Supp. 2d 89 (D.D.C. 2013). Individual states may also have civil rights statutes that prohibit discrimination on the basis of race or disability.

Procedural due process. Challengers have also raised procedural due process claims, but courts have generally found that students do not have a property or liberty interest in attending a particular school—rendering these claims largely unsuccessful. See Mullen v. Thompson, 2002 WL 452855 (3d Cir. 2002); A.A. v. Raymond, 2013 WL 3816565 (E.D. Cal. 2013).

Individuals with Disabilities Education Act (IDEA). IDEA claims have been largely unsuccessful in challenging school closing decisions. Generally, to reach federal court with an IDEA claim, a plaintiff must exhaust his or her administrative remedies (i.e., request an administrative due process hearing). Given the limited amount of time between the proposal and final approval of school closing decisions, establishing exhaustion is particularly challenging. Even if a plaintiff can establish exhaustion or an exception to this requirement, IDEA provides only for individualized relief. See Smith, 944 F. Supp. 2d at 103–4.Thus, the relief available under IDEA would not be ideal for impact litigation that aims to stop or stall a closing or closings—which would affect the educational experience of hundreds of students.

Section 504 of the Rehabilitation Act. The same issues identified above for IDEA claims—exhaustion and individualized relief—apply to section 504 claims in school closing cases. See Charlie F. by Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F. Supp. 3d 989 (7th Cir. 1991) (reasoning that 20 U.S.C. § 1415(f) requires any student seeking “relief that is available under” the IDEA to use the IDEA administrative system, before invoking other federal statutes); Smith, 944 F. Supp. 2d at 105–07.

Americans with Disabilities Act (ADA). ADA claims may be the most viable option for impact litigation regarding disability discrimination in this area. To establish a claim under Title II of the ADA, a qualified individual with a disability must allege the denial of “meaningful access” to an education or to special education programs. See Smith, 944 F. Supp. 2d at 104–5; Raymond, 2013 WL 3816565 at *22–23. Pursuant to Title II, public entities must make reasonable accommodations in their rules, policies, and practices when necessary to avoid discriminating against a person on the basis of disability. If a proposed receiving school does not offer the services or programs that students with disabilities need, there may be a strong ADA claim against the proposed closing.

State statutes for school closings. Some states, such as New York and Illinois, have statutes that substantively and procedurally address the school closing process. The outcomes of cases alleging violations of state school closing statutes have varied. In New York, the president of the United Federation of Teachers joined with members of the National Association for the Advancement of Colored People and community members to successfully stop the closing or restructuring of 20 neighborhood schools in 2010. Mulgrew v. Bd. of Educ. of City Sch. Dist. of N.Y., 902 N.Y.S. 2d 882 (N.Y. App. Div. 2010). Conversely, there have been several lawsuits filed against Chicago Public Schools to stop school closings based on Illinois’s statute—without any success.

In addition to the likelihood of success on the merits, plaintiffs have struggled to establish the harm necessary for injunctive relief. Requests for injunctive relief, based on any of the claims above, have generally been defeated by difficulties establishing how the closing will cause harm to students when balanced against the optimistic predictions of a district that a new school will provide better results.

On a more positive note, the Department of Education’s Office for Civil Rights (OCR) recently resolved a complaint regarding the discriminatory nature of school closing decisions in Newark, New Jersey. The Resolution Agreement specifically required the district to assess the academic impact on displaced students, the facilities and pupil capacities of receiving schools, and the provisions of special education services to students with disabilities. Then, considering the assessments listed above, the district must remediate any identified hardships, and remediation may include providing students with compensatory education services. There are at least two more discrimination complaints pending with OCR’s Chicago Office regarding Chicago Public School closings.

What Advocates Can Do
Finally, what the section above does not capture is the important impact that individual advocacy on behalf of affected students can have. Enforcing the rights of individual students—through IDEA due process hearings, section 504 due process hearings, state compliance complaints, and the like—can effectively address some of the challenges that displaced students face before and after a closing. While establishing harm within the context of impact litigation has been hard, establishing and remedying the harm to individual students has been much more straightforward and successful. In Chicago, we have been able to secure a variety of relief for students who were adversely affected by school closings, including compensatory education services, changes in IEP placement, new educational evaluations, and increased related services. Anticipating the common issues described above and informing parents and communities about their rights when a school closing is proposed can help to avoid or mitigate the harmful effects of the school closing process for students. Even if impact litigation in this area is difficult right now, there is still a lot that advocates can do for individual students.

Next Steps
Given the financial challenges facing many urban school districts across the country, the pattern of closing neighborhood schools will likely continue. Here are ways to address future closings:

Advocacy for affected students. There should be increased focus by advocates on students who are forced to leave closing schools. This advocacy should concentrate on special education, enrollment, and transfer of records issues.

Community engagement. Advocates should also collaborate with affected communities to ensure that parents, students, and community members understand the risks and their legal rights associated with school closings.

More research. We still need more social science research regarding this issue—specifically, longitudinal data regarding student outcomes focused on the same student population as opposed to school-wide performance measures.

Pushing courts. School districts enjoy significant discretion in the eyes of most courts. Moving forward, advocates should consider the challenges that other litigants have faced and push courts to better understand how students and school communities can be harmed during the school closing process.

Keywords: litigation, children’s rights, school closings, special education, students with disabilities, Individuals with Disabilities Education Act, IDEA, Rehabilitation Act section 504, Americans with Disabilities Act, ADA, impact litigation   


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Katherine Gladson – October 3, 2016