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An Issue Too Big for One Practice Group

Using Organizationwide Advocacy on School Closings

By Katherine Gladson abandoned classroom

The Board of Education of the Chicago Public Schools decided in 2013 to close 49 neighborhood elementary schools—the largest mass school closing in national history. The closing schools were primarily located in low-income neighborhoods of color on the south and west sides of Chicago, and the vast majority of the students at those schools were African American. The disparate impact of school closings on minority students has been a consistent trend in Chicago.

For the last five years, LAF (formerly the Legal Assistance Foundation) has been advocating on behalf students and communities that have been harmed by school closings. LAF has used litigation, conducted community outreach, and submitted public commentary. LAF has an education law team of six attorneys who represent students in special education and school discipline matters. However, LAF’s efforts on school closings have extended organizationwide through the help of LAF’s internal Civil Rights Task Force. The task force is composed of approximately 20 attorneys who are from different practice areas and collaborate on organizationwide initiatives on civil rights issues.

LAF received funding in 2014 from the Albert & Anne Mansfield Family Foundation and support from Equal Justice Works to create LAF’s School Closings Project. The project offered direct legal representation to students who had been adversely affected by the 2013 school closings. In two years LAF represented over 50 students who were displaced or otherwise affected by school closings and restructuring within the Chicago Public Schools’ district.

Here I describe how LAF attorneys have worked together in the courtroom, in classrooms, in public hearings, and beyond to advocate for students and communities harmed by school closings.

Background on School Closings

Chicago is not alone in its struggle with school closings. Urban school districts across the country—including districts in New York City, Detroit, Philadelphia, Kansas City, and Washington, D.C.—have likewise faced mass closings. The policies and procedures behind school closings vary with state laws and local policies. However, schools are selected for closure for two consistent reasons: (1) low academic performance and (2) underutilization of a school building. Closure criteria related to low academic performance typically stem from state and local implementation of performance requirements imposed by federal law. Closure criteria related to underutilization have typically been proposed to address declining enrollment or budgetary problems or both. Beyond closing schools, districts have considered other forms of restructuring to remedy the aforementioned issues; such proposals have included co-locations (moving one or more school programs into another school’s building), phaseouts (closing a school gradually by not enrolling new students and finalizing closure once the last enrolled grade graduates), and turnarounds (replacing at least 50 percent of the school’s current staff and potentially turning over school operation to a private operator).

Regardless of the proffered criteria or rationale, the schools selected for closure or restructuring are most often located in low-income areas and serve students of color. In Chicago researchers have estimated that between 80 percent and 90 percent of students affected by school closings and other forms of school restructuring are African American. Recent studies have delved more deeply into how long-lasting residential segregation, public housing policies, and charter school expansion have caused minority students, specifically African American students, to be disproportionately affected by school closings and restructuring. In Chicago the demolition of public housing coupled with rapid growth of charter schools in African American communities contributed to low enrollment or “underutilization” at neighborhood schools, and this in turn led to school closings.

The option to attend a higher-performing school is limited by where students live, family budgets, availability of transportation, and the number of 'good' schools nearby.

Research on the effects of school closings and restructuring on students is still growing. Most studies so far have acknowledged that closures and other forms of restructuring can disrupt the educational experiences of affected students. Studies have reported that school closings can result in increased student mobility (beyond the initial move after a school closing) and reduced quality (based on academic growth) of the “receiving schools” that accept students after a closing. One of the only consistent findings in this area of research is that for students to benefit from a school closing, displaced students must attend a substantially higher-performing school after the closure. However, most displaced students do not end up attending a school that is substantially better performing. The option to attend a higher-performing school is limited by where students live, family budgets, availability of transportation, and the number of “good” schools nearby. After the 2013 closings in Chicago, only 21 percent of displaced students attended a Level 1 school (highest quality), while 36 percent of displaced students attended a Level 3 school (lowest quality).

Beyond the educational effects on students, research has found that school closings result in minimal cost savings to school districts while imposing additional challenges on affected communities. Closed school buildings have proven to be very difficult to sell, repurpose, or otherwise reuse within Chicago and other urban school districts. As a practical matter, school-closing efforts have resulted in large vacant buildings falling into disrepair while attracting illegal activity within communities that are already struggling to maintain property values and public safety.

In short, the burden of school closings is multifaceted, long-lasting, and largely borne by communities of color.

Individual Representation

Nationwide legal challenges to mass school closings have resulted in minimal large-scale success. However, our cases have shown that direct representation of individual students can yield significant positive outcomes. Most of LAF’s individual representation has focused on students with disabilities and their rights under the Individuals with Disabilities Education Act (IDEA). All students who are eligible for special education services under the IDEA have an individualized education program (IEP) that must set forth the services and supports that they need in order to receive a free appropriate public education. Typically LAF becomes involved in cases where a school district has failed to provide a student with a free appropriate public education, and our advocacy efforts for individual students are largely carried out at school-based IEP meetings. Common legal issues faced by our clients affected by closures included missing records, delayed special education evaluations, delayed special education evaluation referrals, and failure to implement IEPs developed by previous school teams. Below are three cases that illustrate the different ways that school closings can cause educational harm and how legal advocacy can help.

Christopher: A Long Wait for Services. Ms. Daniels came to LAF for special education assistance on behalf of her 9-year-old son, Christopher. (Note: Names of our clients have been changed.) Before enrolling in the Chicago Public Schools, Christopher had been receiving special education services at a therapeutic day school—a school setting that provides special education services for the entire school day—in a suburb outside Chicago. Ms. Daniels’s family became homeless during Christopher’s first-grade year, and her family moved out of the family’s suburban school district and eventually into the Chicago Public Schools—right before the 2013 school closings. Ms. Daniels enrolled Christopher at their neighborhood elementary school, and she presented his IEP to the new school staff. At that time Christopher’s school was preparing to close, and school staff did not implement his IEP or work to create a new one. After the school closed, Ms. Daniels presented Christopher’s IEP to the new school staff at his receiving school, but his IEP was not implemented again. This time Christopher’s school refused to implement his IEP because it had not been updated the previous year—contrary to Ms. Daniels’s original request. When Ms. Daniels called LAF, Christopher had been inappropriately placed in general education without special education services for nearly two academic years.

After LAF accepted Christopher’s case, we were able to (i) advocate that Christopher be found eligible for special education services within the Chicago Public Schools, (ii) secure interim services while a new IEP was created for him, (iii) work with Christopher’s IEP team to create an updated IEP, and (iv) successfully advocate compensatory education services for the two years that Christopher was denied appropriate services. Through our advocacy, Christopher received (i) direct support from a special education teacher for math and reading, (ii) paraprofessional support, and (iii) academic tutoring.

Matthew: Three Schools by Third Grade. Matthew’s mother, Ms. Whitley, called LAF in the summer of 2014 after Matthew had been attending his receiving school for one year. At that time Matthew had just finished second grade, and Ms. Whitley was concerned that he would be inappropriately forced to repeat the second grade. Matthew has autism and has been nonverbal since he started attending the Chicago Public Schools. Matthew’s needs were so significant that the Chicago Public Schools had assigned him to a specialized program, called a “cluster program,” for students with low-incidence disabilities. Cluster programs are not available at every neighborhood school, and so students often have to transfer when this assignment occurs. In 2013 the Chicago Public Schools closed a large number of schools with cluster programs and thus caused those students to be transferred again. By the time Matthew was in third grade, the Chicago Public Schools had assigned him to three different schools. School changes can be challenging for any student, but they are especially difficult for students with autism.

Matthew’s teacher at his receiving school repeatedly reported that he was not making progress throughout second grade, but his IEP team did not make appropriate changes in his IEP to support him. During that time the Chicago Public Schools also failed to evaluate Matthew for an augmentative communication system to assist him in communicating. Matthew had been referred for this evaluation at his closing school, but his receiving school did not follow through with this referral. When LAF got involved, Matthew had no functional system of communication despite having attended school for four years.

LAF represented Ms. Whitley at IEP meetings and successfully advocated that additional services be in Matthew’s IEP and that the Chicago Public Schools complete an augmentative-communication evaluation. After improving Matthew’s IEP services, we successfully advocated that Matthew be placed in a therapeutic day school specializing in serving students with autism. Matthew’s new school also introduced him to a communication device that finally enabled him to communicate with others.

Curtis: Specialized Support Instead of Discriminatory Discipline. Curtis was in fifth grade when his mother, Ms. James, contacted LAF. Curtis had been diagnosed with attention-deficit/hyperactivity disorder (ADHD) and a mood disorder. Due to these health conditions, Curtis had been having behavioral problems in school. When Curtis was in fourth grade, he was expelled from a charter school for behavior that included not following directions, being defiant, and having conflicts with his peers. The charter school insisted that Curtis participate in an expulsion hearing with his mother but would not allow Curtis’s father, who was present at the school, to participate. During the expulsion hearing, school staff stated that Ms. James should have Curtis evaluated outside school, but the staff never referred Curtis for school-based special education services.

After this experience, Ms. James enrolled Curtis at their neighborhood school, which was also a turnaround school—a type of school restructuring where over 50 percent of the staff has been replaced and school operation may be turned over to a private operator. This school was very chaotic, and she felt that Curtis was not receiving appropriate instruction there. When staff from another charter school approached Ms. James about enrolling Curtis at this other school, she was hesitant. However, the staff repeatedly called her and assured her that the staff could handle Curtis’s behavior. By winter break, when Ms. James contacted LAF, Curtis was spending prolonged periods of time, on a daily basis, in a classroom by himself as a disciplinary consequence. The school was also regularly sending him home early or suspending him for behavior that was clearly related to his disabilities.

LAF represented Ms. James at Curtis’s eligibility conference and successfully advocated that he be found eligible for special education services for the first time. Curtis’s initial IEP protected him from the discriminatory disciplinary actions that he faced at both charter schools. LAF also successfully advocated that Curtis be placed in a therapeutic day school specializing in serving students with social-emotional and behavioral needs.

Systemic Advocacy

As a legal issue, school closings affect students and communities in many different ways. Beyond individual cases, LAF attorneys have gotten involved in larger efforts to tackle the problems of school closings. Under Illinois law, school closure has several steps, and LAF has advocated on behalf of students and affected communities at each step.

Public Commentary. The first step in school closure is that the Chicago Public Schools create guidelines for how the Chicago Public Schools will select which schools to close. Per Illinois law, the guidelines must outline the academic and nonacademic criteria for proposed “school actions”—the general term used to describe such school actions as closing, phaseout, boundary change, and co-location. Since 2012, LAF has collaborated with six local legal aid organizations—Cabrini Green Legal Aid, Chicago Coalition for the Homeless, Chicago Lawyers’ Committee for Civil Rights Under Law, Equip for Equality, Legal Council for Health Justice, and the Legal Advocacy Center of the Jewish Federation of Metropolitan Chicago—to submit a joint public commentary on the Chicago Public Schools’ guidelines. Together we advocated that the Chicago Public Schools clarify standards for closures and create effective transition plans for any school selected for closure. In 2016 our comments opened with the overarching concern that school actions had been implemented in a racially discriminatory way for years and urged the Chicago Public Schools to assess the school actions’ impact on students and communities and to invest in the Chicago Public Schools’ existing neighborhood schools. This collaborative effort has helped us articulate and communicate formally the concerns of students, parents, and communities across the city.

Public Hearings. After finalizing guidelines, the Chicago Public Schools must release a list of recommended school actions for that school year. Then the Chicago Public Schools must conduct public meetings and hearings for each of the recommended school actions. Under Illinois law, the list of recommended school actions must be released by December 1. However, in the 2012–2013 school year, the list was not released until mid-March. Throughout the 2012–2013 school year, LAF’s Civil Rights Task Force had been meeting internally and with other legal organizations to discuss the pending closures. However, once specific schools were identified, our meetings increased, and next steps became more concrete. Members of LAF’s Civil Rights Task Force divided up the 54 schools proposed for closure and began researching their respective school assignments. Attorneys from various groups made time to gather information about each school’s student population, educational performance, school utilization, and any special programming or circumstances. Based on our research, members of LAF’s Civil Rights Task Force testified at several public hearings on behalf of school communities citywide about the legal violations associated with the proposed closings and the inadequacy of the proposed transition plans and urged hearing officers not to approve the proposed closings.

Friends of Trumbull v. Chicago Board of Education. After public hearings and meetings are complete, the Chicago Public Schools Board of Education can approve any proposed closing. Based on the Chicago Public Schools’ determination that Trumbull Elementary was underutilized, the school was one of 49 elementary schools selected and approved for closure in May 2013. The Chicago Public Schools’ utilization formula for making this determination assumed that an ideal class size comprised 30 students. However, during the 2012–2013 school year, Trumbull had a higher-than-average special education population and housed six separate special education classrooms with class sizes limited by law to a maximum of 13 students—far less than the “ideal” 30-student class size in the Chicago Public Schools’ formula.

LAF attorneys from different practice groups collaborated on this case, in addition to their own demanding caseloads.

In June 2013 members of LAF’s Civil Rights Task Force represented Trumbull students, parents, and community members in a federal lawsuit against the Chicago Public Schools to challenge the Board of Education’s decision to close Trumbull. The lawsuit alleged violations of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Specifically, Friends of Trumbull, a community group, challenged the Chicago Public Schools’ decision to close Trumbull by relying on the Chicago Public Schools’ rigid application of a utilization formula that did not reasonably accommodate the unique spatial needs of Trumbull’s higher-than-average special education population. For months, LAF attorneys from different practice groups collaborated on this case, in addition to their own demanding caseloads. Within a few weeks of filing, the court held a preliminary injunction hearing to stop the closure process. Due to the short time period between the official Board decision to close and the start of the new school year, the timeline for this hearing was very rapid. Our request for an injunction was denied, and this meant that Trumbull was closed. After closure, the case was ultimately dismissed following a determination that the organization plaintiff, Friends of Trumbull, did not have standing to proceed with this case. The outcome of our case was not unusual; school-closing cases have proven challenging to litigate for advocates across the country. However, despite having limited resources and time before the school closings, LAF attorneys had still managed to file and litigate a federal lawsuit on this issue. While the outcome was not what we had hoped, the experience was a strong example of how organizationwide collaboration can directly benefit clients and increase LAF’s impact.

Community Education. LAF has created resources for parents and community members to understand school actions better and to assist parents in advocating on behalf of affected students. As noted above, states and school districts have different administrative policies and procedures for school closings and restructuring. However, school closure tends to be relatively speedy. In most cases, districts propose and effectuate a closing during a single school year, and this means that students, parents, and community members may have very limited time to express their concerns, challenge the proposed action, or prepare for implementation of the closing. Some of the resources that LAF has created include a streamlined summary of Illinois’s school-closing law, guidance about testifying at the Chicago Public Schools’ hearings, a summary of hearing officer findings and recommendations from past school-closing hearings, and recommendations for parents of students with disabilities to support their students when transitioning between a closing and receiving school. Ideally these resources will help parents and community members better understand their rights and the school-closing process in the event that they are affected.

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The Chicago Public Schools publicly promised a five-year moratorium on school closings after the 2013 closings. That moratorium will likely end with the start of the 2017–2018 school year. Given the current budgetary problems that the Chicago Public Schools and other urban districts across the country are facing, students and families will likely be confronted with school-closing problems in the near future. School closings pose a complicated set of challenges, and attorneys organizationwide at LAF have chosen to take on those challenges by getting involved at every step.

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