IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Chicago Teachers Union, American Federation )

of Teachers, Local No. 1; )
) Case No. 10-cv-4852
Plaintiff; )
)
v. ) Judge David H. Coar
)
Board of Education of the City of Chicago; a body )
politic and corporate, and Mary Richardson )
Lowery, Norman Bobins, Tariq Butt, Roxanne )
Ward, Peggy Davis, Alberto Carrero, Jr., and Ron )
Huberman, in their official capacities; )
)
Defendants. )
__________________________________________)

PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION

Plaintiff Chicago Teachers Union, American Federation of Teachers Local 1 (“CTU”) by

its undersigned counsel, pursuant to Fed. R. Civ. P. 65 (a) and (b), seeks a preliminary

injunction against the individual defendant officers of the defendant Board of Education of the

City of Chicago. Plaintiff CTU seeks this preliminary injunction only for the Complaint’s

Counts I and II, which arise under this Court’s jurisdiction under 42 U.S.C. 1983, the Civil

Rights Act of 1871, and 28 U.S.C. 1331 and 1343(a)(3)-(4). On Friday August 13, 2010, CTU

has served this motion and attachments upon the defendants at the offices of the Legal

Department of the Board of Education of the City of Chicago at 125 South Clark Street, Chicago,

Illinois and on the law firm of Franczek Radelet, 300 South Wacker Drive, Chicago Illinois.

Plaintiff CTU has filed a Declaration of Jackson Potter, which sets forth the facts showing the

irreparable injury if a preliminary injunction is not entered. The facts of such irreparable injury
are set forth at paragraphs 16 through 19 below and in Part II of the Argument section of the

Memorandum of Law.

Plaintiff CTU seeks a preliminary injunction to stop the discharges of the tenured

teachers. The defendant officers have summarily dismissed these teachers without cause and

without any allowing any opportunity to be considered for retention or reassignment in positions

held or being filled by non tenured probationary teachers. such tenured teachers in positions held

by or to be filled by non-tenured probationary employees. Under Counts I and II plaintiff CTU

seeks a preliminary injunction to bar the individual defendant officers acting under color of law

from violating the constitutional rights of the tenured teachers to procedural due process under

the Fourteenth Amendment to ensure they are considered for and retained in positions they are as

qualified as or more qualified to fill then less experienced non tenured probationary employees

and:

A) From discharging tenured teachers without any individualized determination as to

the qualifications and certifications of such teachers to be retained or recalled to positions held or

to be filled by non tenured probationary employees, in violation of the rights of such tenured

teachers to active continuing employment under Due Process Clause of the Fourteenth

Amendment and the provisions of Illinois law, including 105 ILCS 5/34-18(31) and other

relevant provisions of the Illinois School Code respecting the rights of tenured teachers;

B) From failing to consider tenured teachers discharged under the resolution of June

15, 2010 or the resolution of June 23, 2010 for retention or reassignment in positions being filled

or to be filled by probationary employees and from refusing to provide such teachers with a

procedure that allows for their retention and reassignment into positions being filled or to be

filled by probationary employees; and

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 C) From denying these discharged teachers the same or equivalent rights to

procedural due process to retention or reassignment that should and would have applied if the

defendant officers had put in place same procedures for retentions and reassignment set forth in

Section 504.2 of the Policy Manual of the Chicago Public Schools issued Board of Education of

the City of Chicago which is attached as Exhibit D of the Complaint or the same procedures set

out in Appendix H of the Agreement Between the Board of Education of the City of Chicago and

the Chicago Teachers Union, June 1, 2007 to June 30, 2013, which is attached as Exhibit D of

the Complaint, or the procedures that should have applied under the criteria for retention and

reassignment required for a reduction in force under 105 ILCS 5/34-18(31).

In support of this motion for a preliminary, plaintiff CTU attaches the Declaration of

Jackson Potter setting out the irreparable injury and other facts and further states:

1. By resolution of June 15, 2010, the Board of Education of the City of Chicago

(“Board”) and its individual officer defendants (“Officers”) unlawfully authorized defendant

Huberman to fire and discharge the tenured teacher members of the plaintiff Chicago Teachers

Union instead of displacing them with rights to retention or reassignment in positions that such

tenured teachers could fill.

2. When conducting layoffs, the Board and its Officers are obligated both under the

Due Process Clause of the Fourteenth Amendment of the Constitution and under the Illinois

School Code creating property rights in tenure to respect and not unlawfully deprive the tenured

teachers of their continuing property rights to retention and reassignment even in a reduction in

force. See Mims v. Board of Education of the City of Chicago, 523 F.2d 711, 715 (7th Cir 1975)

Service Employees International Union Local 11 v. Board of Education, School District U-46,

1981 U.S. Dist. LEXIS 14148 (N.D. Ill., July 27, 1981).

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 3. Instead, without a hearing or any individualized determination as to whether these

tenured teachers were qualified for other positions that would go to non probationary employees,

the Board and its Officers unlawfully discharged such teachers—completely extinguished their

property right in continuing active employment in other positions which they could fill—without

any hearing, individualized consideration of their qualifications, or other due process.

4. As a result, probationary non-tenured teachers are holding positions for which the

discharged tenured teachers—who have been “honorably” discharged but discharged

nonetheless—have received no consideration, despite their qualifications.

5. On June 15, 2010 the Board passed a resolution that stated as follows:

The Board hereby delegates to the Chief Executive Office the authority to
honorably terminate (lay off) tenured teachers who are displaced from their
teacher positions because of the financial exigency and resulting cost saving
measures, including increases in class size, or for reasons other than attendance
center closings, program closures, drops in enrollment or changes in the education
focus of a school or Board actions under 105 ILCS 5/34-8.3 or 105 ILCS 5/334-
8.4…. The CEO shall offer tenured teachers scheduled for honorable termination
… scheduled for dismissal pursuant to this delegation the opportunity to resign in
order to preserve any rights they have to a payout of sick benefit days and proved
them all legally required notices associated with an honorable separation of
employment.

6. By such summary discharges the Officers have unlawfully refused to extend the

kind of procedural due process that other tenured teachers have received under Section 502.4 of

the Policy Manual or Appendix H when layoffs have occurred in the past. Plaintiff CTU seeks to

have the Officers apply either the same procedures or a constitutional equivalent of the

procedures set forth in Section 504.2 of the Chicago Public Schools Policy Manual

(“Reassignment and Layoff of Regularly Certified and Appointed Tenured Teachers).

7. Likewise, the Officers have deprived the tenured teachers of the kind of to

procedural due process that has previously been given to laid off teachers under the parties’

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collective bargaining agreement, namely the “Agreement between the Board of Education of the

City of Chicago and the Chicago Teachers Union Local 1, American Federation of Teachers

AFL CIO, July 1, 2007 to June 30, 2012.

8. Even if it were determined as a matter of contract interpretation that such tenured

teachers had no rights to retention under the precise language of either under Section 504.2 of

the Chicago Public Schools Policy Manual or Appendix H the Officers have an obligation to but

have failed to provide the due process required under the Illinois School Code, including 105

ILCS 5/34-18(31) in connection with such layoffs.

9. Under the Illinois School Code, including 105 ILCS 5/34-18(31), whenever a

reduction in force occurs, the Officers have no power to discharge teachers permanently without

cause and they remove only for cause with the panoply of due process rights provided under 105

ILCS 5/24A. Furthermore, in connection with a layoff under 105 ILCS 5/34-18(31), the

Officers must consider certain criteria for retention and reassignment and recall of all affected

teachers, including tenured teachers.

10. Furthermore, to invoke its power to engage in a reduction in force,, the Board

must:

Promulgate rules establishing procedures governing the lay off or reduction in

force of employees and the recall of such employees, including but not limited to
criteria for such layoffs, reductions in force or recall rights of such employees and
the weight to be given to any particular criterion.

--105 ILCS 5/34-18(31).

11. Accordingly, even if Appendix H were found not to apply (plaintiff CTU

contends it does apply), the Officers still would have to make individual decisions under the

above provision of Illinois law as to retention and reassignment of tenured teachers and, as set

forth expressly in the statute, “take into account factors including, but not … limited to,
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qualifications, certifications, experience, performance ratings or evaluations and any other

factors relating to any employee’s performance.” 105 ILCS 5/34-18(31).

12. Contrary to Illinois law and in denial of the rights of tenured teachers to

procedural due process under the Fourteenth Amendment, the Officers have dismissed some of

the City’s best teachers without any individualized determinations of their qualifications to be

retained or placed in positions in preference to probationary untenured teachers or even new

hires off the street.

13. Furthermore, even with respect to teachers who have a recent “unsatisfactory”

evaluation and who were discharged under the resolution of June 23, 2010 applying to such

teachers, there has been no opportunity for the affected tenured teachers to show that such

evaluation—which may be a single unsatisfactory evaluation in a long career—was unjustified or

unusual in light of the teacher’s qualifications and other criteria related to that teacher’s job

performance. Even with respect to these teachers, the Officers have no power under 105 ILCS

5/35-18(31) to discharge a tenured teacher summarily based on what may be only a single

negative evaluation. Instead, the Officers are merely authorized to give appropriate “weight” to

such a negative evaluation under the criteria that must be considered in determining whether

such a teacher, when laid off, may be retained or allowed to fill a vacant position, in comparison

with other applicants for such positions. The only basis for outright firing a teacher for cause is

set out exclusively in 105 ILCS 5/34-24A, and the Officers have no other power to fire a teacher

except on such basis.

14. The CTU-member teachers are suffering irreparable injury in at least the

following respects: First, the Officers have engaged and will continue to engage in continuing

and repeated violations of constitutional rights to procedural due process as more discharges of

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tenured teachers are currently scheduled to occur. While the discharges are purportedly

“honorable” to avoid the hearing procedures of 105 ILCS 5/24A that are required in a for-cause

termination, the subjection of tenured teachers to such procedures has been humiliating,

demeaning, and public. As set out in Exhibits J and K of the Complaint, the tenured teachers

discharged have been stigmatized in the press by defendants as bad teachers, though many have

excellent evaluations.

15. Second, unless restrained by this preliminary injunction, the tenured teachers will

lose their opportunity for retention and reassignment to positions now held by probationary

employees or to be filled by them. It is anticipated that the Board of Education of the City of

Chicago may hire up to an additional 2,000 new employees even during this year in which there

is a significant reduction in force. If those positions are filled with probationary employees

while this suit is pending it may prove impossible to determine what positions the tenured

teachers would have received if their rights to procedural due process had been respected and

had they been considered for those positions during the pendency of this suit.

16. Third, if the discharged teachers are not allowed a chance to fill positions now,

but are only reinstated at the final relief stage of the litigation, such reinstatement may well come

in the middle of the year. Not only would such reinstatement at a later date disrupt the continuity

of instruction of the students and be harmful to them but it would jeopardize the professional

reputation of the teacher who is being reinstated in the middle of the year but will be responsible

for the final achievements of the students.

17. Fourth, apart from the general humiliation of being subjected to an

unconstitutional procedure as referred to above, there is a significant risk of further irreparable

and lasting injury to the reputations of these teachers since the Board and its officers have

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portrayed the discharges as involving only unqualified or “bad” teachers when in fact the

majority of those laid off under the June 15, 2010 resolution have no such ratings. As set out in

Exhibit J, a typical news story states “the Chicago public schools will only reach into the very

bottom of the evaluation ratings to lay off teachers.”

18. Accordingly, the remedy at the relief stage may be inadequate. It is impossible

for the court to perfectly calculate in what situation the teachers would have been had the board

not acted as it did or to repair the damage to their reputations or constitutional rights. There is

also no adequate legal remedy in damages. These are not the type of constitutional torts that can

be quantified in damages.

19. The balance of hardships favors relief. While the Board is claiming that it is

acting to meet a fiscal emergency, the prudent course of action is to avoid the outright firing of

tenured teachers who have strong legal claims to reinstatement and damages, not only under 42

Section 1983 but under Appendix H. Since probationary employees and new hires brought in to

replace such tenured teachers have no such rights, the Board could end up spending more money

by failing to give preference to non tenured teachers who are being fired outright instead of being

displaced with rights to retention or recall.

20. Furthermore, the Board remains free to fire teachers for cause under 105 ILCS

5/34-24A after notice and a hearing, and no teacher, even if displaced, has a right to a vacant

position for which such teacher has no qualifications or relevant experience.

21. The public interest also favors such relief. Surely the students are entitled to

continuity of instruction, by qualified and experienced teachers able to fill the vacant positions

which become available. Furthermore, there is a strong public interest in protecting the tenured

rights of teachers as a means of attracting some of the most talented and best educated of our

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citizens to forego other income opportunities and help our neediest children in return for some

measure of job security in making such a sacrifice.

22. In further support of this motion, plaintiff CTU (1) submits the attached

Memorandum of Law, (2) and the Declaration of Jackson Potter.

WHEREFORE plaintiff CTU respectfully moves for entry of an order for a preliminary

injunction barring the defendant Officers under Counts I and II of the complaint from

discharging tenured teachers and depriving them of their property right to active continuing

employment based on tenure and to be considered for retention and reassignment to positions

now being filled or to be filled by probationary non tenured employees.

Dated: August 13, 2010 Respectfully submitted,

s/ Michael P. Persoon
Michael P. Persoon (mpersoon@dsgchicago.com)
Thomas H. Geoghegan (admin@dsgchicago.com)
Jorge Sanchez (attysanchez@gmail.com)
Despres, Schwartz & Geoghegan, Ltd.
77 W. Washington St., Ste. 711
Chicago, Illinois 60602
Ph: (312) 372-2511
Fax: (312) 372-7391
Robin B. Potter (robin@potterlaw.org)
Robin Potter & Associates P.C.
111 East Wacker Drive
Suite 2600
Chicago, Illinois 60601
Ph: (312) 861-1800
Fax: (312) 861-3009
Robert E. Bloch (efile@dbb-law.com)
Omar Josef Shehabi (oshehabi@dbb-law.com)
Dowd, Bloch & Bennett
8 S. Michigan Avenue
Suite 1900
Chicago, Illinois 60603
Ph: (312) 372-1361
Fax: (312) 372-6599
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 CERTIFICATE OF SERVICE

I, Michael P. Person, hereby certify that on this 13th day of August, 2010, the foregoing

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, and the accompanying

Memorandum, was served upon the following, in the manner designated:

Via First Class Post

Board of Education of the City of Chicago

Mary Richardson Lowery
Norman Bobins
Tariq Butt
Roxanne Ward
Peggy Davis
Alberto Carrero, Jr.
125 South Clark Street
6th Floor
Chicago, IL 60603

Ron Huberman
CEO
Chicago Public Schools
125 South Clark Street
6th Floor
Chicago, IL 60603

Via Email and First Class Post

Patrick J. Rocks, Jr. (pjrocks@cps.k12.il.us

Board of Education of the City of Chicago
Law Department
125 South Clark Street
Suite 700
Chicago, IL 60603

Via Email and First Class Post

James C. Franzcek, Jr. (jcf@franczek.com)

Franzcek Radelet, P.C.
300 S. Wacker Drive
Suite 3400
Chicago, Illinois 60606

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 s/ Michael P. Persoon
One of Plaintiffs’ Attorneys

Despres, Schwartz & Geoghegan, Ltd.

77 West Washington, Suite 711
Chicago, IL 60602
Ph: (312) 372-2511
Fax: (312) 372-7391

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