Chicago Teachers Union, Local 1 American Federation of Teachers, AFL-CIO et al v. Board Of Education City Of Chicago

Filing 37

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/18/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO TEACHERS UNION,
)
LOCAL NO. 1, AMERICAN FEDERATION)
OF TEACHERS, AFL-CIO, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
BOARD OF EDUCATION OF THE CITY )
OF CHICAGO,
)
)
Defendant.
)

No.

12 C 10338

MEMORANDUM OPINION AND ORDER
Chicago Teachers Union, Local No. 1 (“Union”) and several
individual teachers (“the individual plaintiffs”) have filed suit
against the Board of Education of the City of Chicago (“Board”),
claiming that Board violated Title VII of the Civil Rights Act of
1964 (“Title VII,” 42 U.S.C. §2000e to 2000e-17) when it
instituted a layoff plan that resulted in termination of the
employment of a number of African American teachers and
paraprofessionals.1

Union and the individual plaintiffs wish to

pursue their claims as a class under Fed. R. Civ. P. (“Rule”) 23,
with the class defined in these terms (Compl. ¶9):
All African American persons terminated by the Board of
Education of the City of Chicago as a tenured teacher
or staff, as defined by the labor agreement between the
Chicago Teachers Union and the Board of Education,

1

All “Complaint” references speak of the First Amended
Complaint (Dkt. 5), which will be cited “Compl. ¶--.” Board’s
memorandum will be cited “B. Mem.--,” Union’s response will be
cited “U. Mem.--“ and Board’s reply memorandum will be cited “B.
R. Mem.--.”

pursuant to the Board’s “layoff policy” on or after the
2011 calendar year.
Board has filed a Rule 12(b)(1) motion to dismiss Union as a
party plaintiff, asserting that it lacks standing to pursue its
claim.

Board argues that the relief sought by Union creates a

conflict of interest between it and its members not included in
the class.

For the reasons stated in this opinion, Board’s

motion is denied at this time.
Standard of Review
Defendants may challenge standing under Rule 12(b)(1) on
either facial or factual grounds.

As to the first alternative,

such challenges “require only that the court may look to the
complaint and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction” (Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009)(emphasis
in original)).

By contrast, “a factual challenge lies where the

complaint is formally sufficient but the contention is that there
is in fact no subject matter jurisdiction” (id. at 444, internal
quotation marks omitted and emphasis in original).

To that end

the “district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists” (id., internal quotation marks
omitted).
Board does not specify whether it is attempting a facial or
2

a factual challenge to Union’s standing, but it appears to be
pursuing the latter course.

In either event a plaintiff such as

Union bears the burden of establishing standing (Retired Chicago
Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)
(“RCPA II”)).

In the case of a factual challenge, a plaintiff

bears the burden of supporting standing with “competent proof,”
meaning that plaintiff must “show[ ] by a preponderance of the
evidence, or proof to a reasonable probability, that standing
exists” (id.).
Statement of Facts2
Union is a “labor organization” “representing over 30,000
professional educators and Board of Education employees” (Compl.
¶10).

It is the “exclusive bargaining representative for all

teachers and paraprofessional and School Related Personnel
(“PSRP”) in CPS [the Chicago Public School system]” (id.).
Board operates the Chicago Public School System (“the School
System”)(Compl. ¶2).

It is responsible for the administration of

approximately 685 schools in Chicago’s 77 neighborhoods (id.).
It employs approximately 23,000 teachers, 16,500 of whom are
tenured (id. ¶66).

Approximately 47% of the tenured teachers are

Caucasian, approximately 29% are African American and
approximately 24% are non-African American minorities (id. ¶¶67-

2

As this opinion does not deal with any of the substantive
issues on the merits, this Statement of Facts will be brief.
3

69).
During the relevant time period Board and Union were parties
to a collective bargaining agreement (B. Mem. at 2, Ex. 1).
Invoking its position in relation to Board, Union has brought
suit to “redress defendant’s pattern and practice of
discrimination against a class of African American teachers and
paraprofessionals by terminating their employment pursuant to a
layoff policy which has a disparate impact on African Americans”
(Compl. ¶1).
Union alleges that the decline in the African American
teaching force in the School System (down to approximately 28.7%
in 2011 from 40.6% in 2000) “corresponds directly with a series
of layoffs and school actions conducted by Defendant” (Compl.
¶¶4-5).3

Union alleges that Board targets South and West Side

schools (where “most” of the School System’s African American
teachers are employed) for “layoff at a higher rate” (id. ¶¶4, 6,
39-40).

According to Union that policy “disproportionately

affect[s] African American teachers and staff” and has a
disparate impact (id. ¶¶6, 101-05).
Standing
For standing-to-sue purposes the general rule is that “an

3

As the details of the layoff policy are not salient to
this opinion, they will not be discussed in detail here.
Complaint ¶¶41-64 provides a more thorough discussion of the
policy.
4

injured party must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests
of third parties” (RCPA II, 76 F.3d at 862, internal quotation
marks omitted).

But in certain situations an organization may

have “associational standing” to represent the rights of its
members, as when (id. at 862-63, quoting Hunt v. Wash. State
Apple Adder. Comm’n, 432 U.S. 333, 343 (1977)):
(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect
are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.
Neither side disputes that (a) and (c) of the Hunt test are met.
But Board challenges Hunt requirement (b), arguing that a
conflict of interest exists that precludes Union from asserting
associational standing.
On that score “an association fails to meet the second prong
[of the Hunt test] where there is a serious conflict of interest
between the organization and its members” (RCPA II, 76 F.3d at
863), a concept that requires the conflict to be “profound” (id.
at 864).

And to that end RCPA II has recognized at least two

types of conflicts that will defeat associational standing: (1)
“where an association seeks standing to directly sue some of its
own members” and (2) “where the association’s suit, if
successful, would cause a direct detriment to the interests of
its members and the litigation is not properly authorized” (id.).
5

Only the second of those types of conflict is at issue here.
Two concerns are implicated when the second type of conflict
is at issue: (1) “a concern that the litigation is not germane to
the association’s purposes” and (2) “a concern that the
association will not be fully committed to the litigation and, as
a result, will not pursue the litigation with the zealous
advocacy necessary to be an adequate representative” (RCPA II, 76
F.3d at 864-65).

RCPA II, id. at 865 tells us, however, that

“[these concerns are allayed where the litigation was properly
authorized in accordance with the association’s procedures.”
Accordingly Union may defeat Board’s challenge to its
associational standing by showing either that the litigation will
not cause a direct detriment to any of its members or by showing
that the litigation was properly authorized (id.).

Board

contends that Union can make neither of those showings.
Direct Detriment
Board first argues that this action creates a “profound
conflict of interest” between Union and its members because if
the laid-off teachers are rehired some currently-employed
teachers (also Union members) will necessarily be disadvantaged.
Board cites three potential conflicts in support of its argument.
First, Board asserts that if the discharged African American
teachers are reinstated, the other teachers who replaced them
will be displaced (B. Mem. 7).

Second, Board argues that even if

6

reinstatement of the discharged teachers would not displace any
currently-employed Union teachers, “it may unfairly compromise
their seniority, putting purported class members ahead of other
[Union] members who were not displaced in 2012" (id.).

And

third, Board contends that there is a direct detriment to nonAfrican American Union members because the African American class
members “would receive preferential treatment” in rehiring
decisions “regardless of seniority or other relevant factors”
(id. at 8).
Union responds that Board is merely speculating about
potential detrimental effects that will not in fact come to
fruition.

As for the claimed displacement of currently-employed

teachers, Union asserts that it is seeking (1) reinstatement of
its affected members into the same positions or substantially
similar positions or (2) front pay and benefits.

Union cites a

March 2013 list of some 400 job openings in the District (U. Mem.
5) and asserts that a successful resolution of its suit will
leave Board with several alternatives, not necessarily requiring
the displacement of any currently-employed teachers.

As to the

issue of seniority, Union acknowledges that it is “possible” that
the rehired teachers may move ahead of newly-hired teachers in
seniority status, but it urges that because it was Board’s own
alleged wrongdoing that caused the issue, “Board can hardly use
its own wrongdoing to deny standing to [Union] to protest the

7

wrong inflicted on its members” (id. at 5).4

Finally, Union

addresses Board’s argument that the rehired teachers will receive
“preferential” treatment by stating that any reinstatement remedy
would simply be “a return to the position they would have held
but for the unlawful conduct” (id. at 7).
Union’s latter two arguments--however persuasive they may be
in equitable terms--really do not address the question whether or
not there is a conflict--whether or not some Union members will
be directly harmed by the remedy sought in this lawsuit.

Simply

put, whether or not it is framed as “preferential” or a “return
to the status quo,” there is a conflict if one group of Union
members will be benefitted at the expense of another group of
Union members.
In that respect this Court does not write on an entirely
clean Seventh Circuit slate.

First, fully four decades ago Air

Line Stewards and Stewardesses Ass’n, Local 550 v. Am. Airlines,
490 F.2d 636 (7th Cir. 1973)(“Air Line Stewardesses”) made clear
that unions are subject to the ordinary rules of standing.5

4

On the next page of its memorandum, Union also challenges
Board’s factual assertion by stating that “In regards to
seniority, there will be no actual change to the seniority status
of younger teachers. If, for instance, a teacher has worked for
five years, no remedy awarded as a result of this lawsuit will
nullify the teachers’ five-year tenure status” (U. Mem. 7).
5

It must be noted that Airline Stewardesses addressed the
issue of associational standing under the rubric of Rule 23(a),
asking whether the claims of a representative plaintiff are
typical of the claims of the class and whether the representative
8

There a class of female stewardesses6 and their union sued
American Airlines under Title VII, alleging that the airline had
a policy of firing female stewardesses once they became pregnant.
Under the settlement reached by the parties, the discharged
stewardesses would be placed on a “preferential hiring list, to
be employed to fill vacancies before others were hired” (id. at
638).

Those rehired stewardesses would also have the same level

of seniority they had enjoyed up to the respective dates of their
termination (id.).

Our Court of Appeals rejected Union’s

arguments defending its standing, stating (id. at 642, internal
quotation marks, citations and footnotes omitted, emphasis
added):
We think a union may serve its members by being
plaintiff in a suit to vindicate their civil rights.
There is nothing in the law which precluded the Union
from recognizing the injustice done to a substantial
minority of its members and from moving to correct it.
When it espouses the interest of one group of its
members, it doubtless has an obligation of fairness to

plaintiff will fairly and adequately protect the interests of the
class (id. at 640). That approach to evaluating associational
standing was disavowed by our Court of Appeals less than three
years later in Local 194, Retail, Wholesale and Dep’t Store Union
v. Standard Brands, Inc., 540 F.2d 864, 867 (7th Cir. 1976)
(“Local 194"). Although the same standards may be “applicable by
analogy” (id.), the standards “while similar, [are] not
identical” (RCPA II, 76 F.3d at 864, internal quotation marks
omitted). Hence the cases evaluating the question under a Rule
23 framework may be useful but are not necessarily controlling.
6

In the 40 years since Air Line Stewardesses the job title
has changed to “flight attendants,” but in keeping with the
language of that case, this Court will perforce use the
nonegalitarian term “stewardesses” throughout this discussion.
9

any members whose interests are in conflict. But except
for the area of collective bargaining and its necessary
incidents, the Union has no unique authority to
compromise the rights of its members. Its adequacy as a
representative party in a class suit, and its authority
to compromise the rights of its members in a class suit
when such rights do not arise out of collective
bargaining agreements are to be tested and judged in
the ordinary way.
Just a few years later Local 194, 540 F.2d at 866 again
spoke to the issue of a union’s associational standing.7

In that

case a class of “blacks, Spanish-surnamed persons, and women” and
their union sued their employer under Title VII, alleging
discrimination in hiring and promotion.

Local 194, id. at 866

first found that Union did have standing to seek injunctive and
declaratory (but not monetary) relief on behalf of its members
and then went on to address specifically the issue of
“conflicting interests.” As Local 194, id. stated (emphasis
added):
Often a union finds itself in the position of
representing a membership whose interests conflict, not
only in Title VII cases, but in its collective
bargaining role. This does not disqualify it from
acting at all. Union’s duty is to represent fairly the
interests of all members without discrimination towards
any.
Our Court of Appeals again addressed the issue, this time
specifically applying the Hunt test, in RCPA II, 76 F.3d at 86267.

There the Retired Chicago Police Association brought suit

7

Both Air Line Stewardesses and Local 194 were decided
pre-Hunt and, of course, did not address the three-factor test
that controls this case.
10

challenging a settlement between the City of Chicago and certain
of its pension funds because of the settlement legislation’s
effect on certain healthcare costs.

After a thorough discussion

of associational standing and the Hunt test, the court found that
a “profound” conflict of interest existed because if the RCPA was
successful in invalidating the settlement legislation, certain
members of the association would be “directly harmed” because
they would lose the subsidy provided to them by the legislation
and their health care premiums would increase by $4 every month
(id. at 865).8

That “direct detriment” to other association

members defeated the RCPA’s standing.
While Local 194 and RCPA II may seem to be somewhat at odds,
RCPA II is the only case to use the Hunt framework and address
the specific issue of “profound conflicts,” and the situation
there is analogous to Board’s characterization of the situation
posed by this case.

In claimed support of that characterization

Board has tendered a declaration of Lauren Clair-McClellan, a
human resources employee in the School System (B.R. Mem. Ex. 2).
For its part Union argues that currently-employed teachers
will not necessarily be harmed.

In partial support of that

position Union cites the earlier-referred-to website that lists
approximately 400 open jobs into which the plaintiff teachers

8

RCPA II, id. at 866-67 also found another conflict, not
analogous to the case at bar, based on a breach of fiduciary
duty.
11

could be placed.9

And as stated earlier, Union also says that

its goal is flexible:

It need not take the form of placing the

teachers into the same spots that they originally held, but can
alternatively place them in similar positions or award them
backpay.10
To be sure, it is Union’s burden to establish standing “by a
preponderance of the evidence, or proof to a reasonable
probability, that standing exists” (RCPA II, 76 F.3d at 862).

Or

as RCPA II, id. at 865 goes on to say:
[W]here a defendant asserts that a direct-detriment
conflict of interest precludes an organization from
asserting associational standing, the organization
bears the burden of coming forward with competent proof
to rebut the challenge.
But Board and its counsel have forgotten--or perhaps have
preferred to ignore--that this opinion is not being issued in a
vacuum.

As it is being written, Board is awash in a sea of

uncertainty.

Just to name the enormous problem that continues to

receive the greatest degree of public scrutiny, Board is at the
outset stage of implementing a massive set of school closings,
with its own program for doing so very much in a state of flux.
And every day’s newspaper and television coverage speaks of other

9

That list is dated March 28, 2013. Obviously the list
will not remain static throughout the course of this litigation.
10

Union acknowledges that it does not have standing to seek
backpay (see Local 194, 540 F.2d at 865), but that does not
impede the individual plaintiffs from doing so.
12

complex factors making Board’s and its teachers’ future paths
highly uncertain.11

In this extraordinarily dynamic rather than

static state of affairs, Board’s hypothetical contentions about
potential conflicts are rendered even more iffy.
What emerges from all of this is that more factual
development is essential before it can

be determined whether

Union is to be forced out of this lawsuit on a lack-of-standing
basis as a matter of law.

In many ways the situation is

analytically similar to a request for a grant of qualified
immunity by a state actor in a Section 1983 lawsuit, where the
result hinges on the resolution of which side’s version of
disputed facts proves to be accurate (see, e.g., Pearson v.
Callahan, 555 U.S. 223, 238-39 (2009)).

In that context the

Supreme Court has taught that the denial of such a motion in the
early stages of the lawsuit is the proper course of action.

11

Last Sunday’s June 16 Chicago Tribune sec.1, p.7, col. 1
has elaborated on the Tribune’s day-earlier report that the
massive school closings will carry with them the layoffs of 420
teachers, many with tenure (some with satisfactory, others with
unsatisfactory, ratings). Another 125 teachers will be laid off
as the result of “turnarounds” at five schools slated for
overhauls. This Court is not of course minimizing the serious
problems posed by Board’s anticipated budget shortfall of nearly
$1 billion during the coming years--Union’s Vice President is
quoted in the Tribune article as speculating that as many as
1,000 to 2,000 layoffs could be in the offing. It is a mistake
to think of the issues presented here as though they involved a
figurative snapshot of a stable situation, rather than a motion
picture of a changing situation. What is undeniable is that
neither side is in possession of a crystal ball, let alone an
unclouded one. And that uncertainly confirms the wisdom of the
no-decision decision announced here.
13

Just so here.

This action will carry on with or without

Union, for the separately represented individual plaintiffs are
not targeted by Board’s present motion.

But further developments

as to those persons might render some issues inappropriate for
resolution, so that Union’s continued presence would be essential
to a total outcome.

Moreover, any disparity in the resources

needed to litigate the issues as between Board and the individual
plaintiffs would be less of a factor--or perhaps a
nonfactor--with Union still in the case.12

In short, Board’s

motion is best denied at this time, without prejudice to its
possible renewal if future factual developments reveal the real
world likelihood of the required “profound conflicts.”
Authorization
That really dispatches Board’s motion for a determination as
a matter of law at this point, but the just-stated possibility of
a need to reexamine the question at a future date in light of
future developments makes it appropriate to look at the second
branch of the RCPA II analysis:

the prospect that even if a

direct detriment to the interest of some of Union’s constituents
were to be shown, the conflict could still be waived if Union
obtained proper authorization.

As RCPA II, 76 F.3d at 865 has

12

Although this is not an (let alone the) analytical basis
for the conclusion reached here, it is worth noting that the
result arrived at in this opinion enhances the prospect that the
ultimate battle on the merits of the case will be waged (as all
legal issues ought to be) on a level playing field.
14

put it, once a “direct detriment” has been shown, the plaintiff
must show that “the litigation was properly authorized in
accordance with the association’s procedures.”
On that score Board contends Union has not alleged that it
obtained such authorization, while Union responds that it is
“inherently authorized [to bring this action] by virtue of its
status as the exclusive representative of all CPS teachers” (U.
Mem. 8).

Union argues that it is certified under Illinois law as

the exclusive representative of the interests of its members
“even when those interests conflict” and that it is in fact
Union’s job to resolve those conflicts (id. at 8-9).

Union

attempts to distinguish RCPA II, which required some affirmative
showing of an authorization, because RCPA II involved a
“voluntary association,” whereas Union has “inherent
authorization” (id. at 9).
RCPA II, 76 F.3d at 865 imposed the authorization
requirement because once the membership of an association has
“affirmed that the detriment to some members’ interests does not
render the litigation outside the germane interests” of the
group, “a court can be assured that the association will pursue
the litigation with the strong advocacy and persistence necessary
to be an effective representative.”

Hence no notion of “inherent

authorization” would be in keeping with the policy behind the
requirement, for if all conflicts were automatically waived by

15

default there would be nothing to give the courts the assurance
described by RCPA II.

That case made no statement as to a

distinction between “voluntary associations” and unions, as urged
by Union, and the latter cites no authority to support such a
proposition.

In sum, if the issue decided here became

appropriate for a fresh look in the future as to a real rather
than hypothetical conflict, Union would have to make a better
showing.
Other Measures
One last possible issue for potential future consideration
bears mention.

Before this Court could rule that associational

standing does not exist, it would be required to assess whether,
in the language of our Court of Appeals at an earlier stage of
the same litigation that later produced the RCPA II opinion
(Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 607
(7th Cir. 1993) (“RCPA I”)):
other approaches less drastic than denying group
standing will provide adequate protection for the
interests of those whose position is not represented by
the group, while affording the group and the judicial
system as a whole the efficiencies that [Int’l Union
v.]Brock, [477 U.S. 274 (1986)] has identified in
associational standing.
Here this Court sees no less drastic alternative.

If future

events were to call for dismissal of Union as a plaintiff on
lack-of-standing grounds, the quoted RCPA I teaching would not
negate that outcome.

16

Conclusion
For the above-stated reasons, Board’s current motion for
Union’s dismissal is denied.
action.

Union will remain a party to the

This Court sets the next status hearing for 9:15 a.m.

June 25, 2013.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 18, 2013

17