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.