Case: 1:10-cv-04852 Document #: 71 Filed: 10/18/10 Page 1 of 8 PageID #:902

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Chicago Teachers Union, Local No. 1, American )

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

Plaintiff’s Opposition to Defendants’

Motion to Stay Enforcement of Injunction Pending Appeal

Introduction

The Court should deny Defendants’ motion to stay because (1) Defendants are unable to

cite irreparable harm or even a slight harm from anything in the Court’s order of October 4, 2010

and (2) nothing in the Court’s opinion conflicts with existing case law. The Board does not have

to put a single teacher back in a classroom, does not have to add a single teacher to the payroll,

and does not have to expend a single penny. While the Board claims an immense funding crisis

(which plaintiff Chicago Teachers Union disputes), it is impossible that this Court’s order could

add any cost. It is baffling how the Board can allege any detriment of any kind except a public

loss of face.

As to the second point, it is useful to re-state the limited nature of both the relief sought

and the injunction granted. The injunction requires the Defendants to rescind dismissals that
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violated constitutional due process because they failed to account for the property rights of

tenured teachers in economic layoffs when they conducted outrights dismissals. The Court also

ordered the Defendants to promulgate rules, in consultation with Plaintiff, that account for these

property rights in layoff situations. Plaintiff’s suit does not challenge the ability of the

Defendants to conduct a legitimate economic layoff. What Plaintiff challenges is the lawless

manner in which the Defendants wholly dismissed tenured teachers from “permanent

employment” with no opportunity to receive preferential consideration as experienced teachers

for the vacancies now going to completely inexperienced new hires off the street. Neither

Shegog v. Board of Education, 194 F.3d 836 (7th Cir. 1999) nor Land v. Board of Education of

the City of Chicago, 757 N.E.2d 912 (Ill. Ct. App. 2001), rev’d in part, 202 Ill. 2d 414 (Ill. 2002)

deny that laid off teachers have a right to recall under 105 ILCS 5/34-18(31).

Argument

I. The Defendants have not been irreparably injured.

As noted by Defendants, this Court should look to four familiar factors in exercising its

discretion in considering the motion to stay enforcement: 1) the likelihood of success on appeal,

2) irreparable injury to the Defendants absent a stay, 3) the balancing of harms among the

parties, and 4) the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). None of these

factors favor granting a stay.

First, there is absolutely no irreparable injury that could possibly arise from anything in

the Court’s order. . None of the “harms” alleged by Defendants rise to this level. 1 To begin, the

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These alleged “harms” are: (1) that the IELRB in collateral proceedings will improperly apply
the Court’s findings of law to the detriment of the Defendants, (2) that if the IELRB in collateral
proceedings orders the reinstatement of the teachers Chicago Public School students could be
harmed as a result of a “shut down” to accommodate the reinstatements, (3) that the
promulgation of recall rules conflicts with Illinois law, and (4) that the injunction would force
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chance that an administrative body may rely on this Court’s opinion in collateral proceedings

does not even approach a cognizable harm. There is no certainty that the Illinois Education Labor

Relations Board (“IELRB”) will grant the relief sought by CTU. Even if it does, there is no

certainty that its decision would be based on or influenced by this Court’s order. And at any rate,

there is nothing in the Court’s order that is legally binding on the IELRB.

Similarly, the mere fact that the Defendants will be required to follow statutory

requirements of 105 ILCS 5/34-18(31) and allow teachers to be considered for recall if there are

vacancies can hardly constitute a “harm.” The Court’s ordering the Board to create a recall

policy does not reinstate a single teacher, or require the expenditure of a single penny. The

Defendants recognized this fact in their own press release:

CPS disagrees with aspects of the ruling, but the district is pleased that the court
found that CPS is not required to restore positions eliminated as the result of
budget cuts. The court acknowledged that the teachers union did not ask to
restore eliminated positions. Instead, the union asked only that the district provide
tenured teachers an opportunity to be considered for existing vacancies.

--Exhibit A (Chicago Public Schools News Release date October 4, 2010).

This argument is really nothing more than a disagreement about the scope of the Defendants’

discretion in conducting economic layoffs of tenured teachers. The same applies to the argument

that the injunction would force the Defendants to “create a property right.”

The property right of tenured teachers in economic layoffs will not be “created” by the

Defendants. It was not even “created” by the Court’s order. It was always there. And

Defendants completely fail to say why the recognition of an appropriate right to recall for

qualified teachers to fill vacancies causes any harm, much less irreparable harm.

the Board to create a property right. Def’s. Mot. for Stay at 9-11 (Dkt 64).
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Likewise, since there are no harms, the balancing of harms and public interest certainly

does not require a stay. The injunction requires the creation of an appropriate recall policy for

teachers with the right qualifications and experience—it does not mandate that any recall take

place. And to the extent that a recall does occur, it would only be for teachers who were at least

as equally qualified as – or more qualified than – the new hires now used by the Defendants to

fill vacancies. There is no harm to the public interest if Defendants create rules for recall that

take into account the criteria that the General Assembly required when it enacted 105 ILCS 5/34-

18(31). Nor do Defendants even purport to explain why the criteria in the statute should not be

used in the manner directed by the statute if and when vacancies arise.

II. The Court’s injunction is consistent with existing case law and correctly
determined what constitutional due process requires in a layoff of tenured teachers.

The Defendants are not likely to prevail on appeal because the Court’s reasoned opinion

is correct, restrained, and consistent with existing law. Importantly, and unlike in Shegog and

Land, Plaintiff CTU did not bring this suit to absolutely bar the Defendants from conducting

layoffs. Instead, Plaintiff sued because tenured teachers were dismissed from employment

outright rather than being laid off, and most disturbingly these dismissals occurred

contemporaneously with the hiring of brand new, first-year teachers off the street.

As this Court noted in its careful statutory analysis, the Board of Education is expected

under Illinois law—the source of the substantive right to which “due process” has been denied—

to have rules for both “the layoff…and recall of such employees…” 105 ILCS 5/34-

18(31)(emphasis supplied). This dispute is really about whether a tenured teacher has any

interest in being recalled to employment after being laid off in the course of a legitimate

economic emergency.

Nothing in Land or Shegog stands for the contrary. Notably in both cases, the plaintiffs

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were contesting the ability of the Board of Education to dismiss their employment after they had

enjoyed the substantial rights provided in both the relevant collective bargaining agreement and

in the Board’s own policy for retention and reassignment, indeed, with guaranteed pay for ten

months. Those rights are set out in Appendix H of the contract. Of course as this Court is

aware, the defendants have failed to place the laid off teachers in Appendix H. In this case, there

is a legal vacuum which did not exist in Shegog or Land. In neither Shegog nor Land did the

plaintiffs seek to enforce the right to recall, for they had been through a procedure for retention

and reassignment. A statutory right to recall rules and a due process right to be considered under

those rules was simply never before either of those courts. But such a process is what Plaintiff

CTU seeks in this case. The right to some recall in the course of an economic layoff is required

from the plain language of 105 ILCS 5/24-18(31), and teachers are entitled to a right under the

Due Process Clause to present their qualifications for recall.

In this case, where the teachers did not go into Appendix H of the collective bargaining

agreement, the Court has held that there must be some recall procedure because that is what 105

ILCS 5/34-18(31) provides. And the Board has admitted it has no set of recall rules. And it has

no process for consideration of an individual teacher’s right to recall under such rules. The

Board does not deny that it has failed to provide recall rights. It seems to argue that it need not

comply because the 1995 amendments took away tenure rights – but the 1995 amendments in

section 84 state that teachers still have permanent appointments. And the Board can hardly say

the 1995 amendments diminished the prior right to recall – rather the 1995 amendments

specifically provided the right where none had previously existed. The Board is in the peculiar

position of saying the right to recall no longer means anything because of the 1995 amendments,

when it was the 1995 amendments that first created the right.

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To be sure, the 1995 amendments make clear that the Board does not have to keep

“supernumerary teachers,” i.e., superfluous teachers, on the payroll even if they have no classes

to teach. But nothing sought by the CTU or ordered by this court remotely implicates that policy

or requires the Board to do so. It is not the CTU but the Board that is trying to undercut the 1995

amendments which allow for layoff but also allow for recall for qualified teachers if vacant

positions arise. That balancing gives the Board and the local principals who must abide by the

School Code as much as the Board all the flexibility they need while assuring the teachers who

remain are the most qualified and experienced for the children who attend our public schools.

While the Defendants have cited to 105 ILCS 5/34-18(31) as the source of its authority to

conduct economic layoffs as it did in both Shegog and Land, they completely failed to abide by

what that law requires in a layoff situation, i.e., they failed to include a recall policy. As made

clear from the Defendants’ alleged “harms,” they do not want to create such a recall policy, and

think they are irreparably harmed by complying with a statutory requirement and considering

qualified experienced teachers for employment instead of new, inexperienced hires.

Conclusion

For all the foregoing reasons, Plaintiff CTU respectfully requests that this Honorable

Court deny Defendants’ Motion to Stay Enforcement of Injunction Pending Appeal.

Dated: October 18, 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

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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. Persoon, hereby certify that on this 18th day of October, 2010, the foregoing
Plaintiff’s Opposition to Defendants’ Motion to Stay Enforcement of Injunction Pending
Appeal was forwarded and served to all counsel of record via electronic filing pursuant to Local
Rule 5.9, Electronic Filing.

By,

s/ Michael P. Persoon

Despres, Schwartz & Geoghegan, Ltd.

77 W. Washington St., Ste. 711
Chicago, Illinois 60602
Ph: (312) 372-2511
Fax: (312) 372-7391