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January 14, 1998

JOSEPH HEARNE, LINDA DALEY, ANDREW HOFFMAN, and the CHICAGO TEACHERS UNION, an unincorporated labor association, Plaintiffs,

The opinion of the court was delivered by: ZAGEL

 In 1995, shortly before the end of the legislative session in Springfield, the General Assembly passed a school reform package of laws. The Governor signed the Act into law on the same day it was passed. The Act applies only to the Chicago Public Schools because the General Assembly found "an education crisis exists in the Chicago Public Schools" and it altered existing conditions of the relationship between management and labor.

 The Chicago Public Schools have been operating under laws applicable only to them for several decades under Article 34 of the Illinois School Code. The Illinois laws are replete with statutes made applicable or inapplicable to cities with more then 500,000 inhabitants *fn1" of which there is only one in Illinois. Many of these statutes govern the status of employees such as those which provide separate pension schemes for Chicago police officers (400 ILCS 5/5-101-5/236) and Chicago firefighters (40 ILCS 5/601-6/226) and those which exclude Chicago police and firefighters (largely) from the Workers' Compensation Act (820 ILCS 305/1(b)(1), 8(c). There is a separate Labor Relations Board for employees of Chicago and Cook County (5 ILCS 3/5/1 et seq.).

 The laws that govern Chicago schools were amended in a variety of ways. For example, one provision was amended to permit a School Reform Board to outsource work done by employees and lay the employees off (105 ILCS 5/34-18 (30)). Non-educational employees can be discharged without cause (105 ILCS 5/34-15). Teachers and principals can be terminated only for cause but the Board (rather than an independent hearing officer) makes the final decision whether cause exists (105 ILCS 5/34-85). The board hires, fires and lays off; principals can administer all other discipline of all employees at their schools (105 ILCS 5/34-8.1). The Reform Board can intervene in under-performing schools and such intervention may result in summary reassignments, layoffs or dismissals (105 ILCS 5/34-8.4). The General Assembly also amended the collective bargaining law which governs educational employees by prohibiting collective bargaining over certain subjects. In part, this amendment precludes the Union from nullifying the effect of the Article 34 amendments by demanding that the Reform Board surrender them in a collective bargaining agreement. *fn2" (115 ILCS 5/4.5, a section of the Illinois Educational Labor Relations Act).

 The employees and their unions challenge the constitutionality of these laws. I have previously rejected a similar (but not identical) challenge by non-educational employees in Bricklayers Union Local 21 v. Edgar, 922 F. Supp. 100 (N.D. Ill. 1996).

 The plaintiffs here are the Chicago Teachers Union and one teacher, Joseph Hearne who was fired for cause under the new law. Also plaintiffs are two non-educational personnel, Linda Daley and Andrew Hoffman who could have been fired without cause but were, it is undisputed, fired for cause pursuant to the Reform Board's own policy and a collective bargaining agreement.

 At the threshold are a question of abstention in the case of one plaintiff, ripeness in the case of two others and the immunity of the State defendants.

 The gravamen of the complaint is that the individual plaintiffs are all African-American, as are a majority of the members of the Union, and that the legislative amendments to the school laws were racially and politically motivated. In support, plaintiffs allege that the non-educational personnel employed by the Board are 83.3% women or racial or ethnic minorities. Moreover, the Union has for many years worked for and contributed to the election of Democratic candidates for state office and opposed the election of the current Governor and Republican members of the General Assembly. From these facts the plaintiffs allege that the amendments to the school law were motivated by impermissible racial and political animus. There are no cited statements from the legislative record to support either the racial or political motivations of the legislators, and there is no evidence that the Democratic administration of the city government regards the amendments as acts of political hostility. The theory of the complaint rests purely on disparate impact.

 None of the state agencies belong in the case. Neither the State, nor its Governor, nor the Illinois Educational Labor Relations Board ("IELRB") can be sued for damages under the Eleventh Amendment. *fn3" The Governor and the Board might be amenable to injunctive or declaratory relief but neither is a proper defendant in a suit for damages. The Governor has no role in the enforcement of the new laws. He is not alleged to have performed any act other than signing legislation, and, in the unthinkable event that it lay within my power to enjoin him from doing so, it is too late for that relief. See Weinstein v. Edgar, 826 F. Supp. 1165 (N.D. Ill. 1993). Plaintiffs do not allege that the IELRB has taken or is about to take any action adverse to any plaintiff. So, there is nothing to enjoin. This leaves only the Title VII claim. Congress has waived sovereign immunity where the state is sued as an employer. But the State of Illinois is not an employer. The Reform Board is the employer. Every allegation of the complaint makes that clear. There is a case that accepts the possibility that a person could so deeply control an employment relationship that he or she could be deemed to be an employer as a hospital may by precluding a nurse from working for a particular patient. But the case that recognized this possibility also held that "teachers were not employed by the state, but by local school districts" despite the fact that "Illinois exerts more control over public school teachers than over any private employees in the state and probably over any other persons formally employed by local governments in the state." E.E.O.C. v. State of Illinois, 69 F.3d 167, 168, 171 (7th Cir. 1995). The state defendants are dismissed.

 This leaves only the claims of Hoffman and Daley: they dispute the absence of a binding decision by an independent hearing officer. It is clear that some aspects of the new law are not in dispute here, at least because plaintiffs have no standing to challenge them and the complaint does not appear to challenge them in this case. The outsourcing and layoff authority, the intervention authority and the principal's authority did not play a role in the terminations of Daley and Hoffman. So we are down to the issue of the independent hearing officer. This is also true with respect to the Teachers Union which seeks to vindicate the right of its members to have a binding decision rendered by an independent hearing officer and presumably its right to bargain with the Board for the same.

 This right to bargain is not, on its face, foreclosed by the new law so the Union has no obvious complaint in this regard. Even if the Union did have some claims to limitations on its bargaining rights, it went ahead and concluded a contract with the Board rather than challenge the law. It is true that some job security aspects are no longer subjects of bargaining, but the independent hearing officer issue is not one of them. To test this provision, the Union should have tried to bargain and filed unfair labor practice claims if the Board refused to negotiate. For reasons which may well have been quite prudent the Union decided that it was best to conclude the agreement rather than go through proceedings before the IELRB (which could not hear its constitutional challenges but could construe the law) and then go the Illinois Appellate Court which could both construe the law and pass upon its constitutionality. This sort of choice is difficult to make, but, once made, one is stuck with its consequences. The consequences here are that the Union claims are not ripe. The Union says, and they may well be right, that the pursuit of their objections in the state administrative and judicial process (as opposed to concluding an agreement) would have run the very serious risk of disrupting the orderly opening of schools. This means, however, that the Union will have to wait for another day to make its case, a day when we can say precisely what is or is not excluded from bargaining under state law.

 On the remaining merits of the complaint, I note there is no federal due process right to have a binding decision rendered by an independent hearing officer rather than the Reform Board. Under the present law there is a hearing officer who rules on evidence, oversees the making of a record and makes findings of fact and a recommendation. The fact that the Board does not have to accept what the hearing officer says is not in violation of the Constitution. No case is cited to me that so holds, and this is because the pattern of hearing officer recommendation and board decision making is a common and accepted structure in both federal and state practice. See Serio v. Police Board, 275 Ill. App. 3d 259, 655 N.E.2d 1005, 211 Ill. Dec. 622 (1995) (Police Boards); 29 U.S.C. § 160(c) (National Labor Relations Board); 33 U.S.C. § 921(b)(3) (Benefits Review Board). See generally United States v. Raddatz, 447 U.S. 667, 680-81, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). That the procedure may be abused in some cases is a matter to be raised when abuse does occur and no such abuse is alleged here. The fact that the Board's personnel may initiate the changes which the Board decides does not violate a federal constitutional right. Withrow v. Larkin, 421 U.S. 35, 54-58, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975); Lamb v. Panhandle Community Unit School Dist. No. 2, 826 F.2d 526, 529-30 (7th Cir. 1987).

 To the extent the state law conferred a property right in a different procedure, the state had the right to remove it prospectively as I held in Bricklayers Union, 922 F. Supp. at 107. The legislative process is due process. See also Pittman v. Chicago Board of Education, 64 F.3d 1098 (7th Cir. 1995) The plaintiffs, understanding this, attack ...

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