DC School Closures: The Effect of Charter Schools and the Meaning of Discrimination

A little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings.  Cribbing from the court's order:

"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."

The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements.  Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits.  The district court's opinion is here: Download School Closings --- Order.

In most respects, the opinion is a straightforward application of existing law and doesn't break new ground.  Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities.  From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts.  This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal.  The only way to benefit veterans is "to benefit veterans."

The principle is not so obvious in the context of school closings where the district is picking which ones to close.  There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group.  Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal.  Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing.  When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.

You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools.  Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.

--Derek Black