Oakland sets the tone at hearing on school closures

WASHINGTON (Jan. 29) — At a hearing, people from Oakland, Calif., and several other cities told the US Department of Education that public school closures have resulted in heartbreaking circumstances that discriminate against African Americans and therefore violate Title VI of the Civil Rights Act of 1964.

Mike Hutchinson testifies for Oakland, Calif., at a hearing at the US Dept of Education Tuesday, Jan. 29, 2013
Mike Hutchinson, left, and Joel Velasquez testify at the hearing for Oakland, Calif.

“This is decimating our communities, and it can no longer continue to happen,” Joel Velasquez from Oakland said. “What can I say to help you not just hear what I’m saying about the impact, but to actually listen and entertain the possibility that the policies and practices that the US Department of Education is supporting [are] exacerbating the problem?”

He said it would be wrong if the youngest of his three children didn’t have the same access to public education as his oldest. But thinking outside the limits of his own family or his own community, he acknowledged that the gathering here of more than 250 activists from about 18 cities had made him realize that school closures, which happen mostly in poor neighborhoods with people of color, are destabilizing the very communities that No Child Left Behind’s turnaround options were supposed to lift up.

“If we truly want to achieve the dream of democracy, we must stand together collectively—not just to provide the best education for our own children, but for all children,” he said.

The closing of five Oakland elementary schools

Last year in Oakland, the state administrator, overseeing the district as a condition of a loan, closed five public elementary schools strictly as a cost-saving measure: Lakeview, Lazear, Marshall, Maxwell Park, and Santa Fe. The district reportedly had a structural deficit of $30 million and needed to close schools to balance the budget. More than a thousand students were displaced by the closures. The schools, all 50-100 years old, were closed despite huge community opposition, according to Mike Hutchinson, a graduate of Oakland’s public schools and the University of California, Berkeley.

“The closures were unnecessary and unjustified,” Mr Hutchinson said. “The closures all occurred in schools where almost 100 percent of the students are of color and qualified for free or reduced-price lunch. These closures all happened in neighborhoods already greatly affected by school closures and charter schools.”

After the closing decision, one of the schools, Lazear, was converted to an independently-run charter school. Oakland Unified School District initially rejected the charter, but that decision was overturned by the Alameda County Board of Education in June.

“Even if Oakland’s school board rejects a charter school application, the county or the state can overturn Oakland’s decision and grant the charter,” Mr Hutchinson said. “We no longer have the ability to control or run our public education system.”

The exact cost savings has been disputed as well. Figures as high as $6 million down to the current estimate of $2.03 million have been printed in various media. But these figures take into account neither the Lazear conversion nor the estimated $1 million cost of building portable classrooms for the displaced students. The low estimate of $2 million represents about 0.5 percent of the district’s operating budget and could have been paid out of reserves, Mr Hutchinson said.

The question of civil rights violations

Mr Hutchinson charged the Oakland Unified School District with not answering questions about the reasons schools in low-income communities of color were closed while other schools in more affluent neighborhoods were being built. He accused the district of providing details to the public that were proven false. These actions, while deplorable, would not constitute civil rights violations if they were true.

The Justice Department gives a summary of Title VI of the Civil Rights Act of 1964 on its website:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

But then, he went on: “The effects of these changes have been particularly acute in lower-income communities of color, resulting in a disparate impact on our students’ ability to receive a quality education in Oakland Public Schools.”

Them’s fightin’ words right out of the federal regulation:

A [public school district], in determining the type of disposition, services, … benefits, or facilities which will be provided under any such program, … or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin …

A claim that an agency that receives federal funds is having a “disparate impact” on a protected group doesn’t need to prove that the discrimination was intentional, just that some neutral policy or practice, such as school closures, results in discrimination. In a July 1994 memorandum, the attorney general directed agencies that receive federal funds to “ensure that the disparate impact provisions in your regulations are fully utilized so that all persons may enjoy equally the benefits of Federally financed programs.”

In the case of Oakland’s public schools, Mr Hutchinson is saying that the school closures are causing the school district to provide inferior educational services—a “dismantling of many of our vital public education services,” as he calls it—for people who are black, Hispanic, and poor.

This analysis has a few problems, though. First, the activists must show that the closing of schools directly causes the disproportionate impact on people of color. It can’t simply perpetuate a disparity that already exists. Districts might argue that the practices causing a “disparate impact” on people of color existed long before they decided to close the schools. Sadly, the lowering of expectations of black, Hispanic, and poor students may produce a chain of events, culminating in the closures. If that’s how it is, the Title VI claim might stop right here.

Second, activists can’t use “broad conclusive statements” or “flawed statistics” to make their case. This would also cause the claim to be rejected without consideration. Most actual studies involving students or schools are inconclusive because experimenters can’t possibly control all external variables in real children’s lives. Conducting a scientific experiment would require controls where one group of children received the service being tested and another group didn’t, all while keeping every other aspect constant between the two groups. This would be unethical, as it would threaten the education of real students, so most data about schools ends up being scientifically inconclusive.

But assuming both of those hurdles could be cleared in a case, now the activists would have to shoot down the likely defense strategies from the school district.

A district’s defense against Title VI claims

The most likely defense from a school district for school closures is that the action has a “substantial legitimate justification.” This is more than an excuse for closing schools, such as cost savings that don’t hold up under close scrutiny; the justification must show that the action is necessary in order to meet specific goals.

The legal concept of “necessity” is a tricky one that requires some explanation. It means that if the district didn’t close the schools, it would not be able to accomplish its mission or some goal that is integral to its mission. A cost savings of less than 1 percent is not likely to prove necessary, especially if reserve funds are available, but proof that the closures are being carried out to improve the quality of education in Oakland would be both substantial and legitimate.

But instead of improving education, Mr Huthinson and others here today say the closures are reducing the quality of education being provided for students in communities of color while students in white communities in the same district enjoy access to more or better educational services.

Federal courts have often found violations in cases where agencies take actions that result in the provision of fewer services or benefits, or inferior services or benefits, to members of a protected group. For example, the US Court of Appeals for the Ninth Circuit, which affects California, ruled in the 1984 case of Larry P. v. Riles that placing black students in special classes for disabled students and thus denying them access to the regular curriculum enjoyed by other students at the school, based solely on the fact that their IQ test scores were not validated, was a violation of the civil rights of those students.

A second line of defense against Title VI claims comes in the form of the absence of “equally effective alternative practices.” In other words, if there’s no other way to improve education in Oakland, a way that results in less disparate impact but is just as good, the Title VI claim will not stand up.

Suggesting changes to a failed NCLB

Perhaps this defense is built into the No Child Left Behind law. Closing the school is considered a last resort for schools that fail to meet academic standards, to be used after all other options under the law have been exhausted. The problem here is that Oakland’s closures are not based on the concept of turnaround under NCLB. If they were, though, this law might be a useful piece of evidence that no other action is available to achieve the district’s goals. In some ways, then, NCLB can be viewed as making it more difficult to prosecute Title VI claims against school districts for certain actions, such as school closures.

But just because no other options exist under the law doesn’t mean they don’t exist. Jitu Brown, who put together the grassroots education movement known as “Journey for Justice” and brought these protesters to Washington this time around, is getting on board with at least one alternative. Based on research that suggests the current NCLB turnaround options don’t work, another activist group developed the “Sustainable Success Model” two years ago. Journey for Justice is asking the Department of Education to add this model as a turnaround option for failing schools, since it would result in less discrimination than the current options appear to inflict on people of color.

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.