Professional Documents
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Motion For Preliminary Injunction
Motion For Preliminary Injunction
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
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:
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
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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
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
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
4. As a result, probationary non-tenured teachers are holding positions for which the
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
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
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
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
10. Furthermore, to invoke its power to engage in a reduction in force,, the Board
must:
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
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
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
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
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
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
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
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
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
22. In further support of this motion, plaintiff CTU (1) submits the attached
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
I, Michael P. Person, hereby certify that on this 13th day of August, 2010, the foregoing
Ron Huberman
CEO
Chicago Public Schools
125 South Clark Street
6th Floor
Chicago, IL 60603
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s/ Michael P. Persoon
One of Plaintiffs’ Attorneys
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