Professional Documents
Culture Documents
Introduction
Plaintiff Chicago Teachers Union (“CTU”) brings this motion under Fed. R. Civ. P 65 to
enjoin the individual defendants (the “Officers”), officers of the Board of Education of the City
of Chicago (the “Board”), from firing tenured teachers under color of a resolution of June 15,
2010, in violation of their rights under the Due Process Clause of the Fourteenth Amendment and
Illinois law. The gist of the violation is simple: the Officers are firing qualified tenured teachers
without any hearing. Normally in constitutional law such a hearing would be to determine
“cause.” Here, the Board has gone out of its way to construe discharges not as “for cause”
firings, but as “honorable. But “honorable” or not, the Board is still firing them and cutting off,
without any hearing or further opportunity to be heard, all rights to be considered for retention in
But tenured teachers can be fired only “for cause” after a hearing with a panoply of due
process rights. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). The Board has
chosen to retain at least some non-tenured employees over these “honorably discharged” tenured
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teachers. Numerous qualified tenured teachers have lost their jobs while non-tenured
probationary teachers continue in their stead, and many more hundreds imminently face the same
fate. This deprives tenured teachers of their property rights in violation of the Due Process
In an act of particular hubris, the Board and Officers are ignoring and failing to apply the
retention and reassignment provisions for tenured teachers that exist in Appendix H of the
parties’ collective bargaining agreement, the “Agreement Between the Board of Education of the
City of Chicago and the Chicago Teachers Union, July 1, 2007 to June 30, 2012.” Compl. Ex.
D. Even worse, the Board is ignoring and failing to apply its own regulations governing the
retention and reassignment of such discharged tenured teachers, Board of Education Rule 4-6
“Layoff of Employees and Reductions in Force,” and Board Policy 504.2, “Reassignment and
Layoff of Regularly Certified and Appointed Tenured Teachers”. These Regulations fully
incorporate Appendix H. Furthermore state law requires that in conducting any reduction in
force the Board consider these tenured teachers’ “qualifications, certifications, experience,
performance ratings or evaluations, and [] other factors relating to [their] job performance,”
If the Board refuses to apply these rules used in the past for layoffs, then it must develop
something that provides the same due process right to be considered for retention or
reassignment. On this motion, plaintiff CTU does not seek to enforce either Appendix H or Rule
504.2 directly but instead contends that the Due Process Clause requires some equivalent
procedure for every teacher regardless of circumstances. Furthermore, the school code itself, in
addition to the Due Process Clause, requires the Board to come up with such a procedure to
consider tenured teachers for retention based on their qualifications. 105 ILCS 5/34-18(31). At
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the very least, the Board cannot carry out this reduction in force consistent with the Due Process
Clause without some fair procedure for comparing the qualifications of the tenured teachers with
property rights in their employment with non-tenured teachers who are probationary and have no
such rights, and retaining or reassigning qualified tenured teachers in preference to their non-
tenured counterparts.
Statement of Facts
For purposes of this Motion, plaintiff CTU refers to and incorporates herein all the facts
set out in ¶¶ 16-62 of the Complaint, and the exhibits attached thereto. To summarize the facts
briefly:
By resolution of June 15, 2010, the Officers passed a resolution authorizing defendant
Huberman to “honorably terminate” tenured teachers (Compl. Ex. F). On June 16, 2010,
defendant Huberman began to assert this power and “honorably discharged” teachers who taught
in city-wide programs, including those elite teachers who trained other teachers. Decl. of Jackson
On June 23, 2010, the Board passed a second resolution which gave defendant Huberman
the power to discharge teachers who were under remediation or had negative evaluations
(Compl. Ex. H). As set out at in ¶¶ 43, 53, and 54 of the Complaint, the Board made statements
to the media that presented the entire reduction in force as one involving teachers with
unsatisfactory evaluations. In fact, the majority of tenured teachers who have been laid off are
On July 22, 2010 the Board announced plans to dismiss 400 teachers in the “Track E”
schools. Compl. ¶¶46-47. The majority of these teachers were tenured. Decl. of Jackson Potter,
¶¶ 9-10. Of the few who were rated “unsatisfactory, many of them were over the age of 40 and
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had significant seniority. Decl. of Jackson Potter, ¶ 16. Plaintiff CTU has been previously
advised that there will be additional dismissals, upwards of 1000, in the schools which begin
classes in September. Decl. of Jackson Potter, ¶ 24. More tenured teachers will be dismissed,
The Board and CTU have a contractual provision for retention and reassignment of
tenured teachers, known as Appendix H, which the Board incorporated into its own rules in
adopting Section 504.2 of the Policy Manual of the City of Chicago (Compl. Ex. D). The Board
has refused to apply these procedures and process to the affected tenured teachers, including
importantly the rights to retention and reassignment for a ten month period with full pay. Decl.
of Jackson Potter, ¶ 23. The Board has taken the position that these displacements are not the
kind of displacements covered under Appendix H and has summarily discharged the tenured
teachers without any procedure for considering their fitness for retention or reassignment in
preference to non-tenured teachers. The Board has refused to place teachers subject to these
displacements into any “reassignment pool” or to provide them any preference over non-tenured
teachers either in retention for other positions or recall. On July 15, 2010, plaintiff CTU filed
grievances under the Agreement that the Board has violated Sections 39, 42-2 and Appendix H
of the Agreement (Compl. Exs. I1-I4). CTU has requested the Board to hold up any further
discharges while the grievances are pending. The Board has made no response.
The Board typically hires approximately 2000 new hires every year to replace “natural”
changes in labor needs arising from retirements and changes in enrollment and programming.
Decl. of Jackson Potter, ¶ 21. The Board also employs thousands of teachers who lack tenure.
Decl. of Jackson Potter, ¶ 22. Throughout the layoffs, the Board has failed to provide any
opportunity to the affected teachers to explain or show that they were qualified to perform the
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work of their non-tenured counterparts who remain employed, or to show that they should be
preferred for recall over other candidates. Decl. of Jackson Potter, ¶ 23.
Argument
Plaintiff CTU brings this motion to require the Board to provide these constitutionally
required hearings and is entitled to the entry of a preliminary injunction. See Ty, Inc. v. Jones
Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)(providing standards for preliminary injunctions).
The Board’s resolution of June 15, 2010 unlawfully authorizes the outright “honorable”
discharge of tenured teachers as part of a reduction in force, so as to cut off any chance for
retention or reassignment, without any opportunity to be heard and have their qualifications
discharges, however “honorable,” take away the property rights of these teachers without due
Every single “honorable” dismissal of a tenured teacher in this case—a dismissal without
property right in violation of that teacher’s right to Due Process. Such a right to due process is
well settled in any kind of discharge of a teacher, whether honorable or dishonorable. See
Loudermill supra, 470 U.S. 532; Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
Furthermore, an “honorable” discharge that does not even pretend to be for cause does not even
have a legal basis in the Illinois School Code, even apart from the Fourteenth Amendment.
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Terminations “for cause” require extensive procedures mandated by both the parties’
contract and the Illinois School Code, 105 ILCS 5/34-85 and 105 ILCS 5/24A. Any other
termination of tenured employment must occur under the proscriptions of 105 ILCS 5/34-18(31),
but an “honorable” discharge that cuts off a tenured teacher’s due process right to be considered
for other positions is an unknown procedure under section of the Illinois School Code. That
teachers will be considered, and not cut off arbitrarily by acts like the resolution of June 15,
2010. The Board officers cannot “honorably” discharge – or discharge (as opposed to layoff) at
off,” as opposed to “discharged,” so long as their property right of tenured employment, which
includes the right to preferential retention over non-tenured teachers, is respected. Mims v. Bd.
of Ed. of the City of Chicago, 523 F.2d 711, 715 (7th Cir. 1975); Shegog v. Bd. of Ed. of the City
of Chicago, 194 F.3d 836, 837 (7th Cir. 1999). What is dishonorable about the Board’s use of
these “honorable” discharges is that it is preventing tenured teachers from presenting the case
that they should be retained over their probationary counterparts, in contradiction of the
longstanding Illinois rule giving qualified tenured teachers priority for retention over non-
tenured teachers. See Henkenson v. Board of Education, 15 Ill. App. 3d 440 (1957); Catron v.
Board of Education 126 Ill. App. 3d 693 (1984). In Catron the appellate court stated:
If the tenured teacher is legally qualified for a position of a non tenured teacher,
or of a tenured teacher with less seniority, she may be reassigned to the latter’s
position. The policy reflected in the statute is a preference for qualified tenured
teachers over qualified non tenured teachers…
The failure to give any preference for a tenured teacher is the gist of the Board’s denial of due
process – it is the modus operandi for taking away their property rights.
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Most of the fired tenured teachers do have “honorable” records, and have been evaluated
as “excellent” teachers. Contrary to some of the defendants’ public statements, very few of these
teachers have negative evaluations. For example, CTU is not aware of even a single teacher out
of all the literacy coaches, special education instructors and others in the discharge of “city wide”
teachers who has a negative evaluation. These particular teachers are the elite of Chicago
teachers, yet they have been fired while probationary employees have been retained.
But because of the importance of the tenure right, the Supreme Court has long held that a
school board may not extinguish that right without due process. As the Court has stated:
The right to due process “is conferred, not by legislative grace, but by
constitutional guarantee. While the legislature may elect not to confer a property
interest in [public] employment, it may not constitutionally authorized the
deprivation of such an interest, once conferred, without appropriate procedural
safeguards.” Arnett v. Kennedy 415 U.S 134, 167 (1974).”
--Loudermill, 470 U.S. at 541.
As Loudermill explains, the process “due” cannot be dictated by state law itself, but only
by the Fourteenth Amendment. “In short, once it is determined that the Due Process Clause
applies, the question remains what process is due. The answer to that question is not to be found
in the… [state’s own] statute.” Id. (internal quotes and citations omitted).
Here the Board Officers are not even providing the process called for by Illinois law,
much less that of the Constitution, hence the violation is clear as is plaintiffs likelihood in
proving such violation. The Board is simply discharging qualified tenured teachers without even
a smidgen of a claim that most or all of these teachers are not meeting expectations. While the
Board has claimed the right to fire teachers who have negative evaluations—and very few of the
fired teachers have them—it cannot do so by fiat. Illinois law states that any for cause
termination requires a hearing, even in a reduction in force. 105 ILCS 5/34-85; 105 ILCS 5/34-
254A; see also, Service Employees International Union Local 11 v. Bd. of Education, School
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Dist. U-46, 1981 U.S. Dist. LEXIS 14148 (N.D. Ill)(attached as Exhibit 2). The Board and its
Officers cannot suspend Illinois law and start firing teachers “for cause” with no hearing. And
The Officers have conducted no hearings. The discharged teachers have been given no
opportunity to be heard why they should be retained. Even the few teachers with negative
evaluations never had a chance to explain why the evaluation, which is necessarily very
subjective, was undeserved. With eyes and ears shut, the Board Officers have summarily fired
them. Furthermore, as to the other teachers – the majority - there is not even a hint of poor
performance, but they have been fired too, with no chance to explain why they should be
preferred over non tenured teachers. Such summary discharges, whether “honorable” or “for
cause,” simply cannot be undertaken as a means for a reduction in force. See Mims, 523 F.2d at
715; SEIU Loc. No. 11, 1981 US Dist LEXIS 14148 (ND Ill 1981). As the district court stated
in the SEIU Local 11 case: “(T)he district cannot use considerations of economy as an excuse to
get rid of undesirable employees, thereby circumventing the ‘proper cause’ hearing…” SEIU
Local No. 11 at *11. Likewise, the June 15, 2010 resolution authorizing the outright discharge of
Aside from the use of disguised “for cause” terminations, all tenured teachers are
entitled to an opportunity to show that they can perform work that might otherwise go to non
tenured probationary employees. Id. at *15. That is also the type of proceeding the Illinois
School Code specifically authorizes the Board to undertake in 105 ILCS 5/34-18(31)—that is, to
determine which teachers should be laid off based on their “qualifications, certifications,
experience…and …job performance” in comparison with other teachers. The above cited
provision does not authorize the Board to fire anyone. It does not contemplate terminations for
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cause. Even a single teacher with a negative evaluation may be more qualified than a
probationary employee hired at a bargain basement price right off the street, and may have more
And it is here that one of the primary functions of the Due Process Clause is most
important: the tenured teachers must be allowed meaningful opportunity to be heard to correct
any factual error. See Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly¸397 U.S.
254, 266 (1970)(“’the possibility of error or irritable misjudgment [is] too great, to allow
termination of aid without giving the recipient a chance…to be fully informed of the case against
him so that he may contest its basis and produce evidence in rebuttal.’” (citing the District
Court); see also, Smith v. Illinois Sec’y. of State, 2002 U.S. Dist. LEXIS 1318 (N.D. Ill.)(due
process claim to contest error related to identity theft), attached as Exhibit 3. These teachers
must have the opportunity to correct any mistake that could have led to erroneous evaluations, or
The reason that the June 23, 2010 resolution targeting such teachers for discharge is
unlawful is that the Board has no statutory power to fire them either, apart from its power under
105 ILCS 5/34-18(31). Nor can one prejudge their qualifications, with or without such a
negative evaluation in the record. A single bad evaluation may come from a principal’s pique
with an outspoken employee, who is not in any way a bad teacher. There is not an iota of
authority under 105 ILCS 5/34-18(31) or 105 ILCS 5/34-85 and 105 ILCS 5/24A for the Officers
to make such summary discharges, so as to avoid looking at their credentials for retention.
mandated when considering retention of a tenured over a non-tenured teacher. Again, the case of
SEIU Local No. 11 is instructive. In that case, the district court held that even non teacher
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employees laid off by a school board were entitled to show they could perform the work of
temporary employees who lacked the same contractual rights. The court relied on the Seventh
Similarly, in Mims v. Board of Education of Chicago, 523 F.2d 711 (7th Cir
1975)… [a] hearing was required not to examined the propriety of the layoff but
to determine the fitness of those particular employees for temporary positions.
In Mims, a suit against the Chicago Board of Education, the Seventh Circuit announced
‘We recognize that a layoff is less drastic than a discharge and may not require all
the procedural safeguards necessary before termination through discharge… But
we think that plaintiffs had a property interest in their continued active
employment…. Plaintiffs at least were entitled to an opportunity to attempt to
demonstrate that they were capable of performing the work assigned to the six
temporary employees… the issue of whether plaintiffs could perform the work,
unlike that of the need to cut back due to loss of federal funding, was one of
which plaintiffs might have been able to contribute information and valid
persuasion, possibly resulting in a temporary continuation of employment… The
defendant board … failed to provide plaintiffs with the opportunity for such a
review that due process required.”
That statement of the Seventh Circuit is directly applicable to the situation at hand. The
only difference is that in this action, the tenured teachers are seeking consideration not for
“temporary” but permanent employment. They seek placement in teaching positions which non-
tenured teachers have or in positions which will continue to open up throughout the coming year.
As set out in Mims and SEIU Local 11, even if the Illinois School Code did not require it, the
Board officers have violated the constitutional rights of tenured teachers to provide such a
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But the Illinois School Code does require it. Under 105 ILCS 5/34-18(31), the Officers
are expected to do exactly what the Seventh Circuit in Mims and the district court in SEIU Local
11 held that they are constitutionally obligated to do. While the Board is expressly given the
power to conduct layoffs in subparagraph (31), the exercise of that power necessarily requires
experience” than another. Specifically, 105 ILCS 5/34-18(31) authorizes the Board:
In other words, 105 ILCS 5/34-18(3) authorizes the Board and its Officers to do what
they would be constitutionally obligated to do anyway. And as the Seventh Circuit stated in
Mims, the tenured must have an opportunity to be heard and be considered for retention, since
the affected teacher of course has a great deal of information to contribute to a decision on
retention or reassignment – and a right to protect his or her property interest in tenure.
Actually, if the Board and its Officers were willing to use it, the Board does have a
constitutionally adequate procedure – namely, the retention and reassignment provisions for
tenured teachers in Appendix H of the parties’ collective bargaining agreement. The same
reassignment procedure is set out in Section 504.2 of the Board’s Policy Manual. Instead, in bad
faith, the Officers have taken the position that those retention and reassignment procedures used
in the past do not apply to most of the tenured teachers now being dismissed. Plaintiff CTU
emphatically disagrees with this position and is vigorously grieving the issue.
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Even if the Board were to prevail in arguing that the particular procedure in Appendix H
or in Section 504.2 of the Policy Manual does not apply to this particular type of layoff, the
Board is still required under the Fourteenth Amendment to have a procedure that is at least as
protective of the tenure rights of teachers. It is irrelevant whether the Board can come up with
an interpretation of Appendix H or Section 504.2 of the Policy Manual to get out of those
specific procedures – it still has an obligation under the Due Process Clause to allow laid off
tenured teachers to show they are qualified to fill positions being filled or to be filled by non
tenured teachers.
II. Plaintiff’s tenured teacher members face irreparable harm in the absence of
the preliminary injunction.
The tenured teachers who have been or will be discharged without cause under the
resolution of June 15 2010, have suffered or will suffer irreparable injury. First, there is
irreparable injury simply from the violation of their Due Process rights, as set forth in Mims, to
be considered for retention over non-tenured teachers. To quote the Seventh Circuit on this type
injury sufficient to warrant injunctive relief.” United Church of the Medical Center v. Medical
For tenured teachers to be discharged by fiat of the Board, with no hearing—while the
Officers imply to the media that only “bad” teachers will be dismissed—is the kind of travesty
that constitutes irreparable injury by itself. Furthermore, the repetition of the injury is
irreparable harm, and its remedy certainly would serve the public interest (emphasis supplied)”
Preston v. Thompson 589 F.2d 300, 303, fn. 3 (7th Cir. 1978). See also Wright and Miller,
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Federal Practice and Procedure, Civil, Section 2948, at p. 440 (“When… a constitutional right is
involved, most courts hold that no further showing of irreparable injury is necessary”).
Second, the sheer number of affected teachers creates a situation difficult to remedy or
repair if no preliminary injunction is issued. The legal remedy will be inadequate. In even a few
months it will be hard to determine what positions the discharged tenured teachers should or
would have been placed in if they had been given their due process rights and considered for
retention over non tenured teachers now. For example, a music teacher who qualifies for a
position as a music teacher at School “A” may not have the chance to fill that position again—
another tenured teacher may be in the spot by then, and the relief might not be practicable. In a
case involving up to 1,500 teachers there are just too many moving parts to assume any legal
Reinstatement may come in the middle of a school year, and it may disrupt the continuity of the
academic year. Indeed, such belated reinstatement may create problems for the reinstated
teacher. If the academic performance of the students is adversely affected by an abrupt change
of teachers, then the tenured teacher who is reinstated may suffer a negative evaluation or have
Finally, as indicated, the manner of the discharge has put all the tenured teachers—but
especially those with good evaluations—in a false light, if not outright defamed them. The
officers have falsely purported or led the media to believe that only teachers with
“unsatisfactory” evaluations are being discharged. In Virgie Lee Valley et al. v. Rapides Paris
School Board, 118 F.3d 1047 (5th Cir 1997), a school superintendant sought to be reinstated
when she had been denied due process by the school board. The Fifth Circuit, relying on the
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Seventh Circuit’s decision in United Church of the Medical Center stated at page 1056: “[w]e
find the threat of injury to [the superintendant’s] reputation and her ability to procure comparable
employment, not to mention the egregious and constitutionally infirm hearing she was subject to,
The Officers will suffer no legally cognizable injury if they are required to use a
procedure that retains qualified tenured teachers over non-tenured teachers when making layoffs.
Indeed, that is the very purpose of tenure in the Illinois School Code. As a matter of law, the
Officers cannot suffer any harm or hardship from retaining more qualified or equally qualified
tenured teachers except possibly a financial harm from the lower salaries non-tenured teachers
command. But under the Illinois School Code, in particular 105 ILCS 5/34-18(31), cost or salary
of cost favor entry of injunctive relief. If the tenured teachers are denied reinstatement, they
have claims to damages against the officers, while non-tenured teachers would have none.
Finally, if the Officers wish to fire teachers with negative evaluations (and most of the
discharged tenure teachers have good evaluations), the Officers have an appropriate process for
doing so, 105 ILCS 5/24A. There is no legally cognizable “hardship” for the officers if they
IV. The public interest will be served by issuing the injunction and ensuring that
qualified, tenured teachers are not displaced by their untenured,
inexperienced counterparts.
The public and certainly the students are better off if the tenure provisions of the Illinois
School Code are respected. Nothing could do more to deter young people from entering the
teaching profession than a martial-law type action to make tenure protection null and void. If the
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tenure system set up by the Illinois School Code is to be scrapped, such a decision should be
taken by the legislature and not these un-elected officials. Finally, students are better served by
having the right teachers in place now without the uncertainty as to who will teach them
Conclusion
For the above reasons, CTU respectfully requests this Court grant its motion for a
preliminary injunction.
s/ Michael P. Persoon
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