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October 8, 1982


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiffs, all of whom either are now or were, until they were discharged, tenured full-time faculty members employed by the City Colleges of Chicago, brought this civil rights action against the Board of Trustees of the City Colleges of Chicago, Community College District No. 508 ("the Board") and Oscar Shabat ("Shabat"), chancellor and chief administrator of the City Colleges, seeking declaratory and injunctive relief and compensatory and punitive damages on the ground that a rule prohibiting faculty members from engaging in concurrent full-time employment outside the Colleges is unconstitutional on its face and as applied in violation of the fourteenth amendment and the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983.*fn1 In an earlier opinion, this Court held that the rule against concurrent full-time outside employment, which is contained in the collective bargaining agreement between the Board and the Cook County College Teachers Union, Local 1600, is not unconstitutional on its face when infused with its common-sense meaning and that the rule is rationally related to a legitimate state interest. Kaufman v. Board of Trustees Community College District No. 508, 522 F. Supp. 90 (N.D.Ill. 1981).*fn2 This matter is presently before the Court on the parties' cross-motions for summary judgment*fn3 with respect to plaintiffs' claims that, notwithstanding the facial validity of the rule, it has been applied in an arbitrary and capricious manner in violation of principles of substantive due process and equal protection.

In support of a motion for summary judgment, the moving party has the burden of showing that there is no dispute as to any genuine issue of fact material to a judgment in its favor as a matter of law. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979). The non-moving party is entitled to all reasonable inferences that can be made in its favor from the evidence presented. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961).

Briefly stated, plaintiffs contend that defendants have acted arbitrarily and capriciously in violation of settled principles of substantive due process and equal protection of the laws in that they did not seriously enforce the rule against concurrent full-time employment from its inception in 1969 until November, 1980, despite the fact that they knew or should have known that violation of the rule was potentially widespread among City Colleges faculty. Plaintiffs maintain, however, that beginning in November, 1980, defendants revived the long-dormant rule without warning or notice and proceeded to discharge nearly 30 faculty members for violation of the rule, including most of the plaintiffs herein.*fn4 Plaintiffs also maintain that defendants have effectively exempted from the scope of the rule self-employed faculty members and those who are on the faculties of other area colleges while enforcing the rule against those who are employed by a third party and that they have never developed or applied any consistent standards in the course of their improvisational enforcement of the rule over the years.

Defendants deny that they had any longstanding prior knowledge of the full-time as opposed to part-time concurrent outside employment of the City Colleges faculty in general or of those faculty members who have been terminated since November, 1980, in particular. They maintain that they have assiduously enforced the rule against concurrent outside employment since its inception both with respect to those faculty members who are employed by another as well as those who are self-employed and those who are on the faculties of other area colleges.

The parties have submitted a wealth of material in support of their respective positions that the rule has or has not been applied in an unconstitutional manner. The Court has thoroughly sifted and reviewed the mass of material presented together with the legal memoranda submitted by counsel directed to the question of arbitrary and capricious enforcement of the rule. In our view, even if all actual or potential factual disputes are resolved in favor of defendants, the following undisputed material facts emerge. As set forth more fully below, these undisputed material facts merit summary judgment in favor of plaintiffs.


The rule against concurrent full-time employment was first incorporated in the collective bargaining agreement between the Board and the Cook County College Teachers Union in 1969. From its inception, the rule was actively opposed by the Union as well as by a sizeable segment of the faculty, though the Union ultimately acceded to the inclusion of the outside employment rule in the collective bargaining agreement. As currently set forth in Article VIII.E of the collective bargaining agreement, rule 2-201 provides:

  A full-time position in the Colleges is accepted
  with the understanding that the faculty member
  will not continue, or at a future date accept, a
  concurrent full-time

  position or positions equal to a full-time
  position with any other employer or employers
  while he is teaching full-time in the Colleges.

A virtually identical provision is also contained in the individual employment contracts signed by full-time faculty members at the City Colleges. Although the rule was promulgated in 1969, it was not until the fall of 1978 that the Board began requiring faculty members to fill out individual "outside employment forms" in which they were asked to disclose the nature and extent of their employment, consultation and research outside the City Colleges. The forms have been required in each academic semester since the fall of 1978 to date, with the exception of the fall 1979 and spring 1980 semesters.

It is undisputed that concurrent outside employment is widespread among the faculty of the City Colleges and that this state of affairs has long been known to and tolerated, if not expressly encouraged, by defendants.*fn5 As this Court noted in an earlier opinion, defendants' toleration and even possible encouragement of such outside employment is not surprising since a faculty member with concurrent outside employment in his or her field of expertise is both able to supplement his or her moderate income from the City Colleges and bring experience drawn from the field into the classroom to the benefit of the City Colleges' student body as a whole. Kaufman v. Board of Trustees, Community College District No. 508, supra, 522 F. Supp. at 100. Defendants maintain, however, that they have never knowingly acquiesced in the concurrent full-time, as opposed to part-time, outside employment of a faculty member within the meaning of the rule at issue in this case. Plaintiffs, of course contend otherwise.

In any event, it is undisputed that from the time the rule was adopted in 1969 until November, 1980, no tenured faculty member affiliated with the City Colleges was dismissed for engaging in concurrent full-time outside employment in violation of the rule.*fn6 During that eleven-year period, defendants received information both anonymously and, in some cases, voluntarily from the affected faculty member himself that a handful of faculty members, certainly not more than a dozen depending upon whether plaintiffs' or defendants' figures are used, might be engaged in concurrent full-time employment in violation of the rule. The City Colleges administration investigated each case and most of the faculty members involved were found not to be in violation of the rule. Of those who were determined to be in violation of the rule, two or three chose to resign from the City Colleges, with the approval of the Board, rather than discontinue their outside employment. A few others chose to resign their outside positions and remain with the City Colleges, again with no objection from the Board. No further disciplinary action was taken with regard to any of these individuals.

In the spring of 1979, however, Chancellor Shabat recommended to the Board that faculty member Emmett Cosey be dismissed for violation of the rule against concurrent full-time employment. A special committee of the Board held a hearing with respect to the charges in May, 1979, and instead resolved to adopt severe sanctions short of dismissal against Cosey.*fn7 The Board's resolution also included a statement to the effect that "the Board of Trustees reserves the right to consider dismissal of a full-time faculty member who holds an outside full-time job or its equivalent." There appears to be some dispute with respect to whether or not the Board's decision in the Cosey matter was widely known among the City Colleges faculty. There does not appear to be any question, however, that any dissemination of the Board's decision and resolution in the Cosey case to the faculty at large would have been through informal channels within the Colleges rather than by formal Board action.

Then, in November and December, 1980, approximately a year and a half after the Cosey matter, the Board adopted dismissal resolutions for three full-time faculty members — Yvonne Kyler, Caroline Brown and Aldo Perri — all of whom were alleged to have violated the rule against concurrent full-time employment and misrepresented the extent of their outside employment on the Board's outside employment forms.*fn8 Within the next year, both before and after the filing of the instant suit on May 15, 1981, the Board adopted dismissal resolutions for approximately 30 more City Colleges faculty members, including ten of the plaintiffs herein, for alleged violation of the rule against concurrent outside employment. Most of those who were dismissed over the ...

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