United States District Court, N.D. Illinois, Eastern Division
CHICAGO TEACHERS UNION, LOCAL 1, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; DONALD J. GARRETT JR.; ROBERT GREEN; and VIVONELL BROWN, JR., individually and on behalf of all similarly situated persons, Plaintiffs,
BOARD OF EDUCATION OF THE CITY OF CHICAGO, a body politic and corporate, Defendant.
OPINION AND ORDER
SARA L. ELLIS, District Judge.
On February 22, 2012, the Board of Education of the City of Chicago (the "Board") announced that ten schools would be "turned around" or "reconstituted, " a process that involves replacing all teachers and staff at those schools. Plaintiffs Donald J. Garrett Jr., Robert Green, and Vivonell Brown, Jr., three African American tenured teachers affected by the turnarounds and the Chicago Teachers Union, Local 1 ("CTU"), filed suit against the Board, alleging that the Board's decision to turn around these ten schools was racially discriminatory. Plaintiffs seek to certify the following class:
All African American persons employed by the Board of Education of the City of Chicago as a teacher or para-professional staff, as defined in the labor agreement between the Chicago Teachers Union and the Board of Education, in any school or attendance center subjected to reconstitution, or "turnaround, " on or after the 2012 calendar year.
Doc. 63 at 2. They seek certification under Federal Rule of Civil Procedure 23(b)(2), (b)(3), or, alternatively (c)(4). Because commonality is lacking and, even if it was found, certification would not be appropriate under Rule 23(b)(2), (b)(3), or (c)(4), Plaintiffs' motion for class certification  is denied.
The Illinois School Code, 105 Ill. Comp. Stat. 5/34-8.3(d), provides that schools may be subject to turn around if they have been on probation for at least one year and have failed to make adequate progress in correcting deficiencies. In a turnaround, the Board relieves the Local School Council ("LSC") of certain tasks and removes all staff. The Board then either contracts with a third party, such as the Academy for Urban School Leadership ("AUSL"), to run the school or assigns the school to the Board's Office of School Improvement ("OSI") or its geographic network for restaffing. Pursuant to the collective bargaining agreement ("CBA") between the CTU and the Board, affected tenured teachers are placed in a reassigned teacher pool where they continue to receive a full salary and benefits for one school year. If a tenured teacher does not find a permanent position during that year, he or she is thereafter honorably terminated unless his or her time in the pool is extended. Probationary appointed teachers ("PATs"), other teachers, and para-professionals are not placed in the reassigned teacher pool. Teachers ineligible for the reassigned teacher pool and teachers honorably terminated after one year may be placed in the cadre pool, where they receive substitute assignments for which they are paid per assignment. Teachers in the cadre pool continue to receive health benefits for one year and are paid at a higher rate than those in the day-to-day substitute pool.
Between 2004 and 2011, sixteen schools within the Chicago Public Schools ("CPS") were turned around. In fall 2011, the Board began considering which schools should be turned around, closed, phased-out, and co-located in 2012. This process was led by Oliver Sicat, who at the time, was in charge of CPS' portfolio office. The CPS CEO made the decision as to which schools should be recommended for turnaround to the Board, with the Board having the final say.
The 2012 turnaround process started with an initial list of 226 schools. Schools with a composite ISAT score above the network average for elementary schools or a five-year graduation rate above the network average for high schools were then removed, leaving approximately 74 schools on the list. A qualitative, "in-depth investigation process" of these 74 schools followed, involving school visits and additional data collection. Pl.'s Ex. A-10 at 13. Additionally, meetings were held with network chiefs,  representatives from other Board departments, community members, and other stakeholders interested in the proposed turnarounds.
According to Ryan Crosby, currently the Director of Performance Data and Policy in the CPS' Office of Accountability and at the time of the turnaround decisions, a Manager of School Performance, no written policy applied to the turnaround decision and no one set of factors was used to determine whether turnaround was appropriate for a particular school. Pl.'s Ex. A, Crosby Dep. Tr. 28:15-20. Nonetheless, certain factors played a role, including "the academic culture of the school, whether or not quality instruction was being provided, whether or not there was good leadership in the school, ... the academic trends of the school, the quality of implementation of programs that were in existence." Id. 28:20-25. But in considering whether to turn around a school, an individual employee's performance ratings, years of service, or the performance of students in a teacher's individual classroom were not taken into account.
Ultimately, ten schools-eight elementary schools and two high schools-were selected for turnaround. The schools being recommended for turnaround were presented to the Board in a February 2012 briefing, which discussed not only turnarounds but also school closures, phase-outs, and co-locations. The briefing set forth in detail the rationale for why each school was selected for turnaround, listing among other things, the level of performance, the utilization level, the number of years the school had been on probation, and its PPI score. The geographic network and a map denoting the location of the school and its performance level and utilization in comparison to other schools in the same area were also included. Certain schools received more detailed attention. For example, Casals, which was considered a "priority" school, was slated for turnaround because it had overall low performance with students growing at a slower pace than similar students at other schools despite having received multiple supports over its five years on probation. The briefing also set forth CPS' response to community feedback it had received in opposition to the proposed turnaround at Casals. After receiving and reviewing this information, the Board voted to turn around the ten schools on February 22, 2012. All affected teachers and staff were then notified that their schools were being turned around. On June 30, 2012, they were terminated from their positions at those schools.
The schools that were turned around in 2012 were located exclusively on the south and west sides of Chicago, where African Americans make up 40.9% of tenured teachers. No schools were selected for turnaround on the north side, where only 6.5% of the tenured teachers are African American. The racial demographics of the employee population varied at each of the schools at issue, however, with the percentage of African American employees at each as follows: Smith (88.6%); Woodson (85%); Stagg (83.7%); Fuller (81%); Herzl (75.6%); Chicago Vocational High School (75%); Tilden (57.4%); Piccolo (39.1%); Marquette (26.7%); and Casals (26.7%). If looking solely at teachers, the percentage of African American teachers was below 50% at four of the schools: Casals (20.7%); Marquette (21.4%), Piccolo (32.3%); and Tilden (48.6%). The total percentage of African American tenured teachers at the ten schools was approximately 51%, although as of February 8, 2013, African Americans made up only 27% of the total population of CPS tenured teachers.
The proposed class consists of 32 African American para-professionals, 11 African American PATs, 163 African American tenured teachers, and 7 African American teachers with no tenure status. According to the Board's records, of the 163 tenured teachers, 122 are current full-time Board employees,  1 is retired, 3 are on leaves of absence, 8 are part of the cadre pool, 6 are day-to-day substitutes, and 23 are no longer employed by the Board. Of the 11 PATs, 7 are current full-time Board employees and the remaining 4 are no longer employed by the Board. Of the 7 teachers with no tenure status, only 2 remain full-time Board employees. Half of the para-professionals remain employed full-time by the Board. Of all tenured teachers who entered the reassigned teacher pool in 2012, 61.5% were rehired. Of those African American tenured teachers displaced by the turnaround process in 2012, 74.9% were rehired from the reassigned teacher pool.
With respect to the named Plaintiffs, Garrett, who previously worked at Tilden, was hired by Marshall High School in November 2012, losing no pay or benefits. Brown, who taught at Woodson, received an interim assignment but was not offered a permanent position and thus returned to the reassigned teacher pool. Pursuant to the terms of the CBA, he may remain in the reassigned teacher pool until April 30, 2014 while receiving full pay and benefits. Green was a tenured teacher at Chicago Vocational High School, although he held only a provisional vocational teaching certification for auto body repair. After being placed in the reassigned teacher pool, he ...