CHICAGO — A federal appeals panel agreed with a lower court’s determination the Chicago Teachers Union can’t sue Chicago Public Schools over layoffs the union argued were racially discriminatory.
The union sued CPS in 2012, alleging the district sent layoff notices to 1,470 teachers and paraprofessionals in summer 2011. CTU noted 630 of those teachers and paraprofessionals - all of whom are now included in CTU's class action lawsuit - worked in predominantly Black schools on the city’s South and West sides. After several years of litigation both parties moved for summary judgement. U.S. District Judge Jorge Alonso ruled in favor of CPS in January 2020, after which CTU took its case to the U.S. Seventh Circuit Court of Appeals.
Seventh Circuit Judge Ilana Rovner wrote the panel’s opinion, issued Sept. 22; Judges Joel Flaum and Diane Wood concurred.
The panel started with CTU’s allegation the terminations had a disparate impact based on race, explaining the union carried the burden of providing statistical evidence to back its discrimination claims.
Both sides agreed the laid-off employees comprised 30% of the union, and that 40% of those being laid off were Black, while also accepting the legitimacy of linking layoffs to schools where enrollment was declining. That left as the only issue the question of whether CPS could have completed the layoffs without those disparities.
While arguing before Alonso, CTU said CPS could have transferred people to open positions, conducted an adverse impact analysis before going through with the layoffs, used a metric besides enrollment, or addressed budget shortfalls without layoffs.
On appeal, CTU cited an argument CPS made before Alonso: that more than half the teachers who got layoff notices secured equivalent jobs by Sept. 1, 2011, with no loss of pay or benefits. While CPS said that was evidence the layoffs weren’t discriminatory, Alonso based his summary judgment ruling on the assumption the notices themselves were at issue, not the ultimate plight of individual workers. But on appeal, CTU said the fact the workers found new jobs proves its theory transfers would’ve been a better path.
“However,” Rovner wrote, “beyond noting the existence of open positions for which laid off employees were qualified, CTU does little to meet its burden that its proposed alternative was ‘available, equally valid and less discriminatory.’ ”
The panel said CTU gave no details for how CPS would’ve established a plan for transferring employees. CPS argued it was hamstrung because Illinois School Code gives hiring power to school principals, not the school board. CTU countered by saying the law lets a district establish procedures for filling vacant positions.
“CTU may be correct that the Illinois code does not forbid the kind of transfer arrangement they now propose,” Rovner wrote. “It does, however, clearly vest hiring authority with school principals and not the (Chicago Board of Education) itself. Without more evidence as to how the board could have simply overridden the existing system, CTU has failed to carry its burden of demonstrating a ‘viable’ alternative that the board refused to adopt.”
The panel also said the transfer proposal conflicts with CTU’s collective bargaining agreement, which also confirms “principals retain decision making authority over permanent hiring within their schools," Rovner wrote.
CTU also argued Judge Alonso failed to consider all of its proposed alternatives to the layoffs, but the panel said the union didn’t develop that argument before Alonso, nor did it add any detail on appeal on how CPS would’ve enacted some or all of its ideas.
After finding the disparate impact argument groundless, the panel looked at CTU’s allegation of disparate treatment. It explained that position also failed because CTU’s evidence didn’t support a reasonable inference that the employees’ race is what caused the layoffs.
“CTU points to nothing in the record undermining the board’s evidence that its layoff decisions were based on declining enrollment, not any intention to discriminate,” Rovner wrote. It also didn’t show the board knew the layoffs would disproportionately impact Black workers. “What’s more, CTU never explains how such knowledge, even if proven, would demonstrate that the board intended to discriminate.”
CTU has been represented in the action by attorneys Robin Potter, of Fish Potter Bolanos, of Chicago, and Randall Schmidt, of the Edwin F. Mandel Legal Aid Clinic at the University of Chicago Law School.
The Chicago Board of Education was represented by its general counsel Joseph Moriarity and attorney Cary E. Donham, of Taft Stettinius & Hollister, of Chicago.