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Back in federal court July 10... CTU lawsuit for laid-off teachers returns to federal court; victims of mass firing in 2010 could win right to be rehired

David R. Stone - July 07, 2012

While Chicago Public Schools continues to utilize legal loopholes to get rid of veteran teachers without providing them with the right to a year in the "Reserve" pool during the summer of 2012, a lawsuit filed by the new administration of the Chicago Teachers Union during the summer of 2010 is still before the courts. Tenured teachers laid off by the Chicago Board of Education may yet win in federal court. Even for teachers laid off two years ago — in a massive dismissal for “economic reasons” in the summer of 2010 — there is hope that a Chicago Teachers Union lawsuit might get them rehired.

Above, on January 7, 2011 CTU attorney Thomas Geogehegan (center with hands calmly folded) explained to reporters the latest development in the CTU's federal lawsuit on behalf of more than 1,000 tenured displaced teachers who had lost their jobs following then CEO Ron Huberman's "fiscal emergency" layoffs of June through September 2010. Surrounding the lawyer are CTU staff members, including Jackson Potter and Jesse Sharkey, and more than two dozen of the veteran teachers who had been singled out for termination by the Huberman administration and that year's Board of Education (which had been appointed by then Mayor Richard M. Daley). After an odyssey that has seen the case go to the U.S. Circuit Court of Appeals and to the courts of Illinois, the case heads back to the U.S. District Court in July 2012. Substance photo by George N. Schmidt. The union filed motions in June 2012 in the U.S. District Court to revive a lawsuit. Earlier, the Illinois Supreme Court ruled that state law did not require the Board to create a procedure for rehiring more than 1,200 teachers “honorably terminated” in the summer of 2010, and hundreds more laid off from the Chicago Public Schools since then.

As the case returns to the federal court, the union teachers have a “good chance” to prevail, according to the CTU’s attorney in the case, Tom Geoghegan. He said a federal district judge already ruled (and an appellate court agreed) that teachers who earned tenure had earned a “property right” under the U.S. Constitution.

The Board of Education is continuing to fight against being forced to rehire the laid-off teachers or recognize that they have any rights.

The case returns to federal court next week. On July 10, 2012, both sides will appear in District Court for a “status hearing,” according to Geoghegan. At that time, the court might (or might not) make its ruling on whether the case should continue.

A review of highlights in the case so far:

June 15, 2010: The Board of Education began what is called “economic” layoffs of tenured teachers — citing what it claimed were budgetary reasons to “honorably discharge” them. For the teachers, this meant the immediate loss of employment, without the Board following the Board’s own policy of placing them into a reassignment pool. The reassignment pool normally allows laid-off teachers to continue to be paid for 10 months while seeking to be rehired.

Summer, 2010: For the next three months, the Board continued to “honorably discharge” teachers. By the union’s count, the number of laid-off teachers exceeded 1,280.

August 2, 2010: Chicago Teachers Union filed a lawsuit in federal District Court, seeking to prevent additional layoffs, and to require the Board to establish a procedure for rehiring the laid-off teachers.

Summer 2010, 2010-11 school year, and after: The Board of Education filled many teaching positions with new, probationary teachers. The union claims that laid-off teachers were qualified and should have been considered for these positions.

October 4, 2010: Judge David H. Coar of the U.S. District Court court issued an injunction against the Board and found that tenure “creates a property interest and right to some sort of retention procedure” and “provides tenured teachers some residual property rights in the event of an economic layoff.” The Board continued its new “honorable discharge” policy while it appealed the decision.

March 29, 2011: The Seventh U.S. Circuit Court of Appeals, in a 2-1 decision, said, “We AFFIRM the district court’s finding that tenured, laid-off teachers have a residual property right in the event of an economic layoff. We also direct the court to redraft its injunction to conform with this opinion.” The union claimed a victory because the appellate court agreed that teachers’ rights had been violated. The Board claimed a victory because it was not ordered to reinstate the laid-off teachers nor give them back pay.

At the time of this ruling, the union estimated, more than 700 of the teachers laid off in the summer of 2010 were still looking for a teaching position.

The federal courts had relied on the 14th Amendment to the U.S. Constitution in deciding that teachers have a right to “due process” before the Board could take away their “property right” to “permanent employment” (also known as “tenure”). Yet tenure and the recall process for laid-off teachers are not defined in federal law. Since such terms are included in the Illinois School Code, the Appellate Court asked the Illinois Supreme Court to rule on what specific rights the laid-off tenured teachers had, and what the Board must do for them.

February 17, 2012: The Illinois Supreme Court ruled that Illinois law does NOT “give laid-off tenured teachers either (1) the right to be rehired after an economic layoff, or (2) the right to certain procedures during the rehiring process.”

April 17, 2012: Based on the Illinois Supreme Court ruling, the U.S. Seventh Circuit Appellate Court vacated the injunction against the Board’s layoffs. The Board claimed victory.

May 4, 2012: The Union’s lawyers moved to file an “Amended Complaint” with the U.S. District Court. (The case is now before a different District Court judge—Judge Edmond E. Chang, not Judge Coar, who ruled in the union’s favor in 2010.) The aim now, according CTU lawyer Geoghegan, is to have the court rule on a question of federal law that was not answered by the state Supreme Court. The brief states: “The fundamental question at the center of this litigation is: what process must tenured teachers be given before a layoff can result in the permanent loss of employment. …Plaintiff CTU brings this motion to amend in order to resolve that basic question of federal law, which remains unanswered.”

May 31, 2012: The Board filed a response in opposition to the union’s motion to amend its complaint. The Board argues the case has already been decided, it is too late for the union to amend its complaint, the amended complaint is essentially the same as the original complaint, and it would waste the court’s time and resources because the union has no chance of winning.

June 14, 2012: The union filed its reply. It argues that the courts so far have decided only what rights tenured teachers have after they are laid off, and the amended complaint asks for a ruling on based on property rights associated with tenure before any loss of employment. The brief argues that no final judgment has been entered, so it’s not too late to amend the complaint. There was no need for the court to consider property rights before a layoff as long as teachers could expect to be rehired after a layoff, and no need for the union to amend its complaint (until now) because the union won when the court had ruled that the Board’s layoffs were illegal. The union insists that questions before the Illinois Supreme Court only referred to rights given by state law, so its ruling says nothing about property rights under federal law. The union’s brief also argues that settling the issues now will save the court time and resources by answering unresolved questions that might be raised in future lawsuits by other tenured teachers who have been (or will be) laid off since the summer of 2010.

What happens next? The laid-off teachers might lose, if the Appellate Court either refuses to accept the amended complaint, or if it hears the case again but decides in the Board’s favor.

If the court takes the amended case and rules in the teachers’ favor, what is the union asking for?

(1) Declare the layoffs illegal, so the Board would need to put in place procedures to follow before a teacher could be “honorably terminated,” and

(2) For those already laid off, “Reinstate the tenured teachers to their employment until they have been given a reasonable opportunity to challenge any impermissible or incorrect reason for the layoff.”

The union estimates that more than 400 of the tenured teachers laid off in 2010 have not yet been rehired. About 700 more tenured teachers were displaced in 2011 for what the Board called “economic reasons,” plus more than 800 at the end of the 2011-12 school year, according to the union. (This year’s number includes some 400 due to “economic reasons” or drop of enrollment at their school, and another group of more than 400 due to Board actions such as school closings and turnarounds.)

The Board’s Law Department referred questions from Substance to the CPS Communications Department. The Communications Department had no public comment at this time. Calls to the Board’s outside law firm that is handling the case were not returned.

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