Photo by Bryan Mills on Flickr.

A group of activists is suing the District to prevent the closure of under-enrolled DCPS schools. When a judge allowed their lawsuit to go forward last week, it looked as though they’d snatched victory from the jaws of defeat. But maybe they’ve just snatched a longer, more drawn-out defeat.

In March, after DCPS Chancellor Kaya Henderson announced plans to close 15 schools east of Rock Creek Park, activists with Empower DC filed suit to block the closures. In May, a federal judge refused to issue an injunction that would have required DC to keep the schools open, saying that the plaintiffs had “no likelihood of ultimate success.” But last week he issued another ruling allowing the suit to go forward, saying plaintiffs were entitled to a chance to gather evidence to support their claims. What changed?

The plaintiffs in the suit—parents or guardians of children attending one of the closed schools—have alleged that the closures discriminate against poor, minority, and learning-disabled children. It’s true that the schools being closed have higher proportions of children in those categories than DCPS has district-wide. In DCPS schools as a whole, for example, about 9% of students are white. In the schools that were closed, only 2 out of 3,053 students were white.

But in this context, just showing that a government action has a discriminatory effect isn’t enough to prove that federal law has been violated. That requires proof of intent. In other words, the plaintiffs need to show that District officials closed these schools because of, not just in spite of, the race of their students.

Proving intent

Intent is notoriously difficult to prove. And it’s doubtful that even the activists themselves think that Henderson or Mayor Vincent Gray (both of whom are being sued personally) sat around in their offices planning to harm poor black children—and then recorded it in a memo. Instead they’re pinning their hopes on a very tiny loophole: sometimes, the Supreme Court has said, you can look at a discriminatory effect and infer a discriminatory intent if there’s no other possible explanation for the government’s action.

That’s still a high bar, and in May U.S. District Court Judge James E. Boasberg was skeptical that the plaintiffs could meet it. But in the most recent round of litigation, the plaintiffs added another argument. In the 1970s, they say, majority-white schools on the west side of Rock Creek Park were under-enrolled. And instead of closing them, DCPS bused students in from east of the Park. The plaintiffs argue that this shows DCPS has adopted different policies on school closure depending on the race of the students affected.

Boasberg clearly found this argument less than compelling. He pointed out that in the 1970s it wasn’t unusual to bus students long distances, whereas today it’s far less common. He wasn’t sure that it made sense to call decisions separated by 40 years a “policy.” And he noted that there may still be reasons for the closures that have nothing to do with race.

So why did he allow the lawsuit to go forward? Basically because, at this early a stage in litigation, the court is required to give the plaintiffs the benefit of the doubt. Even if their claims seem to rest on, as Boasberg put it, “a slender reed,” they’re entitled to try to find evidence to support them.

DC Human Rights Act

In addition to the claim that the school closings violate federal law, the plaintiffs also say they run afoul of the DC Human Rights Act. Here they may stand on slightly stronger ground, since that local legislation only requires them to show a discriminatory effect—specifically, that the government has limited or refused to provide some benefit “on the basis of” an individual’s race, disability, or place of residence. A separate clause extends the definition of “discriminatory practice” to any action that “has the effect” of violating the law’s provisions.

But matters don’t end there. As with the federal claims, the District can counter that it had a legitimate reason to close the schools that had nothing to do with race, and that’s what it’s done: it says the closures will save $8.5 million. But the plaintiffs respond that former Chancellor Michelle Rhee also projected savings when she closed schools in 2008, and they never materialized.

Back in May, Boasberg called the District’s cost-savings estimate “realistic and sensible.” Last week, though, he said the plaintiffs were entitled to look for evidence that it’s “just a mirage,” as they claim.

It’s true that DCPS’s estimates of cost savings, from both the 2008 round of closings and from the recent ones, have been questioned. But to prevail on their discrimination claim, the plaintiffs would need to show not only that DC’s projections might be wrong. Rather, the projections need to be so implausible they wouldn’t constitute a legitimate reason for closing schools. It seems unlikely that a court would conclude that: some of the schools were only 20-25% full, and yet they required many of the same overhead costs—including everything from utility bills to the principal’s salary—that a school operating at capacity did.

Besides, Henderson has identified benefits to school closings beyond saving money. With a larger school, she’s said, it’s easier to provide amenities like art and music classes, athletics, and full-time librarians. And with more than one teacher per grade, class sizes in larger schools can actually be smaller.

Policy decisions

It’s not a matter of whether the District is right or wrong here. It’s a matter of whether the District is so wrong that a court will substitute its own judgment for that of District officials. As Judge Boasberg says more than once in his opinions, it’s not the court’s role to second-guess policy decisions.

Although Empower DC has hailed the ruling as a victory, it seems highly unlikely that the group will ultimately prevail. What is likely, in fact almost certain, is that DC and DCPS will have to expend a good deal of time and money responding to the plaintiffs’ demands for evidence. Although Boasberg says he isn’t going to allow “a fishing expedition into decades of DCPS files,” presumably it will be no easy task to dig up documents dating back as far as the 1970s.

If the activists of Empower DC really want to promote the welfare of DCPS students, as they say they do, they’ll ask themselves whether diverting the school system’s resources into defending a nearly baseless lawsuit is really the best way to go about it.

Natalie Wexler is a DC education journalist and blogger. She chairs the board of The Writing Revolution and serves on the Urban Teachers DC Regional Leadership Council, and she has been a volunteer reading and writing tutor in high-poverty DC Public Schools.