Jonathan Bilyk Jun. 3, 2014, 11:37am

The Chicago Teachers Union and three black, tenured Chicago Public Schools teachers suing the city's Board of Education over allegations administrators engaged in racial discrimination by targeting schools staffed predominantly by black teachers for reorganization purposes will not be allowed to turn their suit into a class action.

On May 27, U.S. District Court Judge Sara L. Ellis denied the plaintiffs’ request to certify a class of more than 160 black teachers and CPS staff at 10 allegedly failing schools selected by the board to be “turned around” or “reconstituted,” a process that basically involves replacing those schools' teachers and staff.

Ellis said the evidence did not support the class certification request, noting repeatedly that the board did not base its final decision for school closures on any one set of criteria, but rather opted to reorganize certain schools and their staff based on subjective reasons, unique to each building.

“The court thus could not resolve whether the board’s turnaround policy was discriminatory as applied to all class members ‘in one stroke,’ for it would have to examine the rationale behind the decision to turn around each of the 10 schools and compare those reasons to the decisions not to pursue the remaining 63 schools that had been considered for turnaround,” Ellis wrote in her 21-page opinion.

The ruling denying certification stems from a suit brought in 2012 by the Chicago Teachers Union Local 1 and three tenured CPS teachers: Donald L. Garrett Jr., Robert Green and Vivonell Brown Jr., all of whom had who had taught with CPS for 15 years or more.

The suit centered on 2012 decisions by the City of Chicago's Board of Education to reorganize, or “turn around,” 10 public schools --eight elementary schools and two high schools-- on Chicago’s south and west sides.

The board said the decisions were the outcome of a process that began with a list of 226 schools subject to evaluation based on consistently poor student performance. That list was eventually reduced to 73 schools, and ultimately, to 10.

The turnaround procedure, which is allowed under state law at schools that have been on probation and fail to make progress, includes the replacement of a school's entire staff. While most tenured teachers, including Garrett, were relocated to full-time positions at other schools, others, like Green and Brown, were not.

In their civil rights suit, the three teachers and their union claim the board targeted the 10 schools for reorganization because teaching staffs at those schools were more than 50 percent black.

Because of the large number of employees subject to the reorganization actions, the plaintiffs asked the court to certify their complaint as a class action.

The judge, however, sided with the board, which had argued its decisions couldn't be considered discriminatory because the process it used to select schools to "turn around" was based on issues unique to each school, and not based on an across-the-board action.

Particularly, Ellis said the plaintiffs' class certification request failed to satisfy the legal standard of commonality. While all the potential members of the class may have suffered a potentially common injury as a result of board's decisions, they did not necessarily suffer the injuries as a result of a general board policy.

“If the turnaround decision had instead been based solely on choosing the 10 schools with the lowest PPI [performance score of the school’s academic trends] or some other objectively measurable criteria applied across the board, with no need to look further into how the criteria were applied to the individual schools, the court could find a common issue,” Ellis explained.

The commonality concerns also doomed any contention by the plaintiffs that a class certification would allow the claims against the Board of Education to move forward with greater efficiency or give the court greater ability to manage the case.

“As claims would have to be resolved on a school-by-school basis, any efficiencies to be gained by certifying the class … are destroyed,” Ellis wrote.

Electronic court records show a status hearing in the case will take place on July 29.

The plaintiffs are being represented by Robin B. Potter and Shankar Ramamurthy of Robin Potter & Associates in Chicago. Randall D. Schmidt of the Mandel Legal Aid Clinic is also listed as an attorney for the three named plaintiffs.

Records show the board is being represented by several attorneys, including Sherri L. Thornton-Pierce, Cary E. Donham and John J. Hagerty of Taft Stettinius & Hollister LLP; Susan L. Poll-Klaessy of Shefsky & Froelich; Cheryl J. Colston with the City of Chicago's Board of Education; and Susan Margaret O'Keefe with the Chicago Board of Education.

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Chicago Teachers Union
222 West Merchandise Mart Plaza
Chicago, IL 60654

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