In 2011, the Board of Education of the City of Chicago laid off over 1,400 teachers and paraprofessionals, all of whom belonged to the same union. The Board chose which schools would be subject to layoffs and it was then up to the principals of those schools to recommend the positions to be cut, subject to the central office review. In 2012, the union, as well as three laid-off African-American tenured teachers, commenced a lawsuit in the U.S. District Court for the Northern District of Illinois. Their claim is that the schools the Board selected for layoffs were disproportionately located in African-American neighborhoods, and the layoffs therefore had a disproportionate impact on African-American teachers and staff.
The plaintiffs moved for class certification and the court analyzed whether they had satisfied each of Rule 23(a)’s requirements for certification. Debate over commonality was contentious. The Board argued that, once a school was selected for layoffs, the school’s principal had discretion to select the individual employees and thus liability issues were not common but rather specific to each employee selected. The court responded that commonality exists where a class of employees asserts that a single policy caused a disparate impact, even when that policy incorporated some discretion at the local level. The court distinguished Wal-Mart v. Dukes, in which a “single policy was the missing ingredient” preventing certification.
The Board argued that the typicality requirement was also not met because the three individual plaintiffs were teachers, while the putative class included staff members and that that the plaintiffs had particular performance and interpersonal issues that led to their selection for layoff by the school principals. However, the court noted that the plaintiffs’ theory of the case was applicable to both teachers and staff members– the disparate impact of the Board’s policy in selecting schools for layoffs at issue–not discrimination flowing from the principals’ exercise of individual discretion. The court found that the final Rule 23(a) requirement, adequacy, was also satisfied. In this respect, the court held that there was no conflict of interest created by contractual remedies that certain putative class members formerly had as tenured teachers, because the agreements bestowing those remedies had expired. With respect to the union, the Board argued that a conflict of interest arose because, should plaintiffs prevail, non-African American members of Union “would not benefit.” However, the court dismissed this allegation of a conflict as “vague” and “indeterminate.”
The court also found that two of Rule 23(b)’s certification requirements were met. It found that the injunctive relief sought was appropriate for the class as a whole under Rule 23(b)(2) in the form of an order enjoining the Board from applying the policies that guided the layoffs to any future layoffs and an order reinstating class members to their jobs. The court also found that a central issue of liability predominates the case – the Board’s liability under a disparate impact or disparate treatment theory such that Rule 23(b)(3) was satisfied.
Not surprisingly, the Board has already filed a petition seeking Rule 23(f) review of the certification order by the Seventh Circuit Court of Appeals. This story may have another chapter.