Chicago Public Schools Tue May 28 2013

Forget Intent: Why The School Closings are Plainly Discriminatory

By Ramsin Canon

Last week, the Chicago Board of Education closed 50 schools, including 10% of the city's elementary schools. More than 80% of the students impacted are black. About 42% of CPS students are black.

A lot of emotions and outrage get ginned up. The CEO of the Chicago Public Schools was outraged, because she had supposedly been called a racist in pushing a policy of mass closure of public schools. Schools CEO Barbara Byrd Bennett was outraged that "as a woman of color," she could be accused of racism. Also, how could the Chicago Teachers Union and its allies in the parent and student community call the school closure plan "racist" when its purpose is purportedly to get kids out of failing schools? (As one of several rationales.)

There are two parts to the answer here, and they're very important, and each deserves its own, focused article, so let's do one at a time. The one of interest right now is the nature of a discriminatory policy; one for another day, is the conditions that result in discrimination.

Racist can be a tough word to hear or to understand. The school closure plan is absolutely not racist in the way we think of Archie Bunker (that's old-timey Eric Cartman for you youths) as being racist — that is, fueled by conscious hatred for a group, or subconscious fear of that group. But that is not the only definition of racist. Many a racist remark has been made with good intentions, for example; we can all think of cringe-inducing incidents of those from our personal experience. So perhaps it'd be better to call the school closure policy discriminatory. Oh, CPS's school closure plan is plainly discriminatory. The only open issues are whether the government had no choice but to be discriminatory. To date, CPS has not made that case.

This isn't controversial, in fact. Discrimination based on race is not about the intent of the discriminator. It's about the effect of the policy. This isn't Leftist race theory, this is taken directly from the United States Congress. Even to the Congress it's long been understood that a private employer or a government body can be guilty of discrimination even with a pure heart. Several pieces of long-standing legislation bear this out: the Civil Rights Act's "Title VII," which bars discrimination in employment; the Fair Housing Act, which bars discrimination in housing; and the Americans with Disability Act among others. These statutes all, either on their face or through interpretation by courts, contemplate that a policy can be discriminatory — have discriminatory effects — even absent any discriminatory motives.

In such scenarios, intent is immaterial. Motive is immaterial. What matters is, when a powerful actor (an employer, a government) acts, it has to be sensitive to the impact of that policy on protected classes — whether they be women or people of color or religious minorities or the disabled — and aware of possible disparate impacts. If they aren't sufficiently careful to justify or mitigate those impacts, then they have discriminated. Again, don't ask me, ask Congress — and take an example.

Say a big city fire department has a policy that requires firefighters to be 5'7". This would permit more than half of all men — that's below the median height — but a small fraction of women; the median height for adult women in the United States is 5'4" (let's assume it would screen out 80% of adult women). That policy is discriminatory on its face. Now of course, if there's a legitimate reason related to the job for that height restriction, and no less discriminatory alternative, we may want to accept it despite the fact that its discriminatory. But that wouldn't change its inherently discriminatory nature.

So assume that fire department's policy is challenged, and their response is simply to say that firefighters who are shorter than 5'7" tend to be physically too weak to carry the equipment they need to carry, to swing a fire ax with sufficient strength, to maintain their balance when holding a hose, etc. If we want to avoid discrimination, we should ask whether the fire department has a good reason for making these assumptions. If the fire department couldn't justify these assumptions with empirical evidence — and they surely couldn't — shouldn't we insist abandoning the policy, since it has a proven discriminatory effect?

Even assuming they could justify their assumptions, we can still imagine any number of reasonably available means the fire department could take to avoid the grossly discriminatory impact of the policy: basic physical abilities tests; a program to identify height-sensitive duties and determining whether they can be efficiently assigned to tall firefighters, etc. If they can implement these alternatives, then the proposed policy should be nullified — again, because the impact of the policy is plainly discriminatory.

It hasn't been challenged that the CPS policy of mass school closures is plainly discriminatory in effect. Of course technically speaking, the breadth of the discrimination was not known until the final list of schools was voted on. More than 80% of the students affected by the school closures are black. Thus the policy has a disproportionate impact on black students.

So the justification — why the 5'7" cutoff? — needs to be related to the action. The school closures were justified on the grounds of the over-provisioning of education; too many schools, too few students. Thus we need to accept that the discriminatory policy is okay because it is too costly to keep those schools open.

This is a hard justification to accept in the face of such a discriminatory policy for several reasons: primarily, while CPS enrollment has dropped slightly since 2000 (by fewer than 30,000 students), it has done so while the district has opened nearly 100 new schools. Even accounting for schools closed since 2000, there has been a net increase of 30 schools. Thus, the district's proffered reason, too much school with too few students, has to be considered deficient.

To understand why, let's go back to that fire department. Suppose the 5'7" requirement was only instituted a handful of years ago, because of an incremental recent increase in applicants under 5'7". In the interim between the creation of the policy and the challenging of the policy, they had issued waivers to some applicants who were under the height requirement. Thus the department itself had decided in numerous instances that the height requirement wasn't so central to a person's ability to be a good firefighter that the bar was absolutely necessary. The fact is that by its own action, the fire department was showing that it understood that the policy wasn't necessary to operate a good fire department.

The logic is similar for CPS. While the schools were "underutilized" by the standards the district itself created, the district has also been busy building new schools during a decade-plus period of slight student population decline. The proffered justification — decline in student population — must be deficient.

There is a counter-argument, of course; not all policies with a discriminatory effect are negative. For example, imagine a city government that has a policy of demolishing deteriorating housing stock and replacing it with safer housing. The policy may have a discriminatory effect, if that housing stock is inhabited overwhelmingly by minority renters. But if the inhabitants are put in short-term replacement housing and returned in relatively short order and at comparable prices, it's not a policy we would want to challenge necessarily — although it would of course still be discriminatory on its face.

So it's fair to argue that the school closures benefit the impacted group. (Note however that that wouldn't change the fact that the policy is discriminatory; it merely mitigates the desire to halt the policy.) Does closing large number of school benefits students? Here's what we know; that the schools the students will be moving to are not dramatically better, and that changing schools does little to improve individual student achievement. From WBEZ:

In a 2009 study of school closings, the Consortium on Chicago School Research found that between 2001 and 2006, most students whose schools were closed by the district re-enrolled in schools that were academically weak. Consortium researchers found that most students lost academic ground in the year their school was slated for closure. And once they were in their new school, they continued on an academic trajectory that was just like the trajectory of the closed school.

Let's go back to the fire department. Suppose the fire department, upon being challenged, was able to show that 10% of firefighters over 5'7" scored slightly to moderately better on performance reviews than those under 5'7". A number of questions are raised by this justification, but even taking it at face value, would that be sufficient to justify such a grossly discriminatory policy?

In that scenario, we can see why it would be so important to search for a less discriminatory alternative. The 5'7" bar is excluding most women but not very many men, for an ultimate objective that has little overall value to the government department and the public. The inference is that there must be room to decrease the impact with little harm to the department and the public; conditioning the height bar on a low physical strength score, for example, or having liberal waiver standards, or lowering the height bar by even an inch to capture significantly more women.

Again, apply the reasoning to the school closures. Given that the district knew the policy would have such a deep discriminatory impact, why did it not pursue a less discriminatory alternative? Why not phase in school closures, close fewer schools, reevaluate whether school closures are necessary to achieve the purported goal — lining up the cost of provisioning education to the demand in the form of enrollment?

The history of the closure process reveals at least part of the problem. It didn't start with a publicly determined problem — the supposed expense of over-provisioning — and then involve the stakeholders and the public in a process of identifying solutions. It isn't clear where the district started or how it arrived at the solutions. The district announced that it had a budget problem and had to close schools to fix it, and then the debate — what there was of a formal political debate — revolved around what schools to close and how to close them. It is precisely at the point of identifying a problem and debating alternatives that substantive political involvement is supposed to be effective.

In the end, we have a policy that is plainly discriminatory in effect, and at best, weakly justified as necessary and not justified at all as the least discriminatory option. Whether we call the policy "racist," is not very interesting when we more or less know it is discriminatory.