Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi.

• Decision Date: 07 August 2015
• Docket Number: No. 14–2843.,14–2843.
• Citation: 797 F.3d 426
• Parties: CHICAGO TEACHERS UNION, LOCAL NO. 1, American Federation of Teachers, AFL–CIO, Plaintiffs–Appellants, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

797 F.3d 426

CHICAGO TEACHERS UNION, LOCAL NO. 1, American Federation of Teachers, AFL–CIO, Plaintiffs–Appellants

v.BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendants–Appellees.

No. 14–2843.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2015.

Decided Aug. 7, 2015.

Robin B. Potter, Shankar Ramamurthy, Potter & Associates, Chicago, IL, Randall D. Schmidt, Mandel Legal Aid Clinic, Chicago, IL, for Plaintiffs–Appellants.

Cheryl J. Colston, Chicago Board of Education Law Department, J. Timothy Eaton, Sherri Thornton–Pierce, Taft Stettinius & Hollister LLP, Chicago, IL, for Defendants–Appellees.

Before KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.^*

Opinion

ROVNER, Circuit Judge.

In the ongoing pursuit to improve the quality of the Chicago Public Schools (CPS), the Chicago Board of Education (“Board”) has implemented various systems and processes to improve the quality of education for children. One process involves reconstituting schools that the Board deems to be deficient. Such a reconstitution or “turnaround,” as it is known colloquially, involves removing and replacing all administrators, faculty, and staff from a selected school and relieving the local school council of certain duties. Then, the Board either contracts with a third to operate the school, assigns the school to the Board's Office of School Improvement, or turns it over to one of the nineteen geographic networks that make up the next layer of leadership in the Chicago School Board system.¹

I.

The Illinois School Code provides that a school may be subject to turnaround if it has been on probation for at least one year and has failed to make adequate progress in correcting deficiencies. 105 ILCS 5/34–8.3(d)(4). Pursuant to the collective bargaining agreement between the Chicago Teachers Union and the Board, tenured teachers affected by reconstitution are placed in a reassigned teachers' pool where they continue to receive a full salary and benefits for one school year. If a tenured teacher does not find a new position within that year, she is honorably terminated unless her time in the pool is extended. Probationary appointed teachers, other teachers, and para-professionals are not placed in the reassigned teachers' pool but are eligible for the cadre pool where they can receive substitute assignments for which they are paid per assignment. Tenured teachers who are not reassigned within a year are also eligible for the cadre pool. Teachers in the cadre pool continue to receive health benefits for one year and receive a higher rate of payment than those in the ordinary substitute pool.

Between 2004 and 2011, the Board reconstituted sixteen CPS schools. In autumn 2011, the Board began considering which schools would be subject to a new round of reconstitution. Oliver Sicat, the head of CPS' portfolio office, led the process, at the end of which the CPS CEO, Jean Claude Brizard, made final recommendations to the Board, all of which were accepted.

The CEO initially identified 226 schools that had been on probation for at least one year—the baseline eligibility for turnaround under Illinois law.² He then reduced the list to seventy-four schools by removing schools that met the objective criteria of a composite Illinois Standard Achievement Test (ISAT) score above the network average for elementary schools or a five-year graduation rate above network average for high schools.

Brizard was responsible for selecting the final ten schools for turnaround and presenting those selections to the Board for a vote. The district court described this process as “qualitative” and the Board asserted that the CEO used “subjective criteria.” According to Ryan Crosby, the Manager of School Performance at the relevant time, the decisions were not made on the basis of a written policy or on one particular set of factors. Nevertheless, Crosby testified that the CEO and other participants in the decision-making considered factors such as academic performance, performance trends, leadership, whether the school was over or under utilized, proximity to and effect on other schools, school culture, facilities, safety, parent and community input, and input from CPS staff. The meeting participants who analyzed each school in sessions called “deep dives” included CEO Brizard, Chief Portfolio Officer Sicat, Network Chiefs, the Chief Academic Officer, Noemi Donoso, and Board staff responsible for areas such as safety, transportation, facilities, academic performance and special education. R. 63–3, pp. 54, 62 (ID# 869, 877); R. 69–3, Declaration of Denise Little, app. ex. 4, pp. 2–3 (ID# 1201–02); R. 69–3, Declaration of Harrison Peters, app. ex. 3, pp. 2–3 (ID# 1196–97). Some of the factors considered in evaluating a school's candidacy for turnaround are decidedly objective. A school's academic trends, for example, are measured by its performance points score. Performance points are calculated by considering, among other things, standardized test scores, school attendance rates, academic progress, and improvement over time in comparison with other schools in the same geographic network. For high schools, the dropout rate, “freshman on track” rate, and success in advanced placement programs are also included in the performance points.³ The Board gave particular weight to improvements trends. A school that was on probation but improving was much less likely to be selected. Individual employees' performance ratings, years of service, and performance of students in a teacher's individual classroom were not taken into account.

At a February 2012 Board briefing, the CEO recommended ten schools for turnaround—two high schools and eight elementary schools. The briefing set forth the detailed rationale for selecting each school and included the factors listed above. Some schools received even more detailed attention. Casals, which was considered a “priority school” was slated for turnaround because it had an overall low performance, and student achievement was growing at a slower pace when compared with similar students at other schools, despite having received much assistance during its five years on probation. The briefing also set forth CPS's response to community feedback it had received in opposition to the proposed turnaround at Casals.

The Board voted to authorize the reconstitution of all ten schools as recommended. On June 30, 2012, the Board terminated all teachers and staff from those ten schools. The ten schools 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 tenured teachers are African American. Of the tenured teachers displaced because of reconstitution, 51% were African American, despite comprising just 27% of the overall teaching population within CPS. In hard numbers, 213 African–American employees were displaced.

The racial demographics at the ten reconstituted schools varied as shown in the table below.

School	% African–American teachers
Smith	88.6
	Woodson	85
	Stagg	83.7
	Fuller	81
	Herzl	75.6
	Chicago Vocational	75
	Tilden	57.4
	Piccolo	39.1
	Marquette	26.7
	Casals	26.7

Board's brief, p. 13.

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 No. 1, filed suit against the Board, alleging that the Board's decision to reconstitute these ten schools was racially discriminatory. Plaintiffs sought to certify a class of:

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.

R. 63, p. 2 (ID# 817).⁴

The proposed class consists of African–American staff in the following positions: 32 para-professionals, 11 probationary appointed teachers, 163 tenured teachers, and 7 teachers with no tenure status. As of the briefing for this appeal, half of the 32 para-professionals displaced by the 2012 turnarounds were currently active employees, 7 of the 11 probationary appointed teachers were current employees, and 122 of the 163 tenured teachers were currently active CPS teachers. Board's brief, pp. 11–12. African–American teachers and para-professionals displaced in the 2012 turnarounds also include teachers who have retired, who are on leaves of absence, and those no longer employed by the Board.

The named plaintiffs sought class certification under Federal Rules of Procedure 23(b)(2), (b)(3) and/or (c)(4). The district court denied class certification on May 27, 2014. Although it found that the class met the requirements for numerosity, typicality, and adequacy of representation, the district court found that the plaintiffs had not met their burden of establishing a common issue by a preponderance of the evidence. It also found that plaintiffs had not adequately shown that common questions of law or fact predominated over individual claims as required by 23(b)(3), and that there was no basis for issue certification under Federal Rule of Civil Procedure 23(c)(4).

II.

The purpose of class action litigation is to avoid repeated litigation of the same issue and to facilitate prosecution of claims that any one individual might not otherwise bring on her own. The district court's task below was to determine if the plaintiffs-appellants presented a scenario in which judicial efficiency would be served by allowing their claims to proceed en masse through the medium of a class action rather than through individual litigation. Our analysis is not free-form, but rather has been carefully scripted by the Federal Rules of Civil Procedure. For this reason, the civil procedure rules on class actions are the best place to begin. Before...