Chicago Teachers Union, Local v. Board of Education of the City , 797 F.3d 426 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2843
CHICAGO TEACHERS UNION, LOCAL NO. 1,
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-10311 — Sara L. Ellis, Judge.
____________________
ARGUED MARCH 31, 2015 — DECIDED AUGUST 7, 2015
____________________
Before KANNE and ROVNER, Circuit Judges, and
SPRINGMANN, District Judge.
ROVNER, Circuit Judge. In the ongoing pursuit to improve
the quality of the Chicago Public Schools (CPS), the Chicago
Board of Education (“Board”) has implemented various
The Honorable Theresa L. Springmann, of the Northern District of
Indiana, sitting by designation.
2 No. 14-2843
systems and processes to improve the quality of education
for children. One process involves reconstituting schools
that the Board deems to be deficient. Such a reconstitution or
“turnaround,” as it is known colloquially, involves removing
and replacing all administrators, faculty, and staff from a
selected school and relieving the local school council of
certain duties. Then, the Board either contracts with a third
party to operate the school, assigns the school to the Board’s
Office of School Improvement, or turns it over to one of the
nineteen geographic networks that make up the next layer of
leadership in the Chicago School Board system.1
I.
The Illinois School Code provides that a school may be
subject to turnaround if it has been on probation for at least
one year and has failed to make adequate progress in
correcting deficiencies. 105 ILCS 5/34-8.3(d)(4). Pursuant to
the collective bargaining agreement between the Chicago
Teachers Union and the Board, tenured teachers affected by
reconstitution are placed in a reassigned teachers’ pool
where they continue to receive a full salary and benefits for
one school year. If a tenured teacher does not find a new
position within that year, she is honorably terminated unless
her time in the pool is extended. Probationary appointed
teachers, other teachers, and para-professionals are not
placed in the reassigned teachers’ pool but are eligible for
the cadre pool where they can receive substitute assignments
1 District-run schools in CPS are organized into 19 geographic networks,
which provide administrative support, strategic direction, and
leadership development to the schools within each Network. Each
network is headed by a Chief of Schools, also called a Network Chief.
No. 14-2843 3
for which they are paid per assignment. Tenured teachers
who are not reassigned within a year are also eligible for the
cadre pool. Teachers in the cadre pool continue to receive
health benefits for one year and receive a higher rate of
payment than those in the ordinary substitute pool.
Between 2004 and 2011, the Board reconstituted sixteen
CPS schools. In autumn 2011, the Board began considering
which schools would be subject to a new round of
reconstitution. Oliver Sicat, the head of CPS’ portfolio office,
led the process, at the end of which the CPS CEO, Jean
Claude Brizard, made final recommendations to the Board,
all of which were accepted.
The CEO initially identified 226 schools that had been on
probation for at least one year—the baseline eligibility for
turnaround under Illinois law.2 He then reduced the list to
seventy-four schools by removing schools that met the
objective criteria of a composite Illinois Standard
Achievement Test (ISAT) score above the network average
for elementary schools or a five-year graduation rate above
network average for high schools.
Brizard was responsible for selecting the final ten schools
for turnaround and presenting those selections to the Board
for a vote. The district court described this process as
2 The district court referred to 226 schools eligible for turnaournd in
2012. On appeal, the Board clarified that there were 226 schools rated at
the lowest academic level, level three, and thus eligible for turnaround in
2012. There were also, however, an additional twenty-four schools rated
at academic level two that had been on probation for a year or more and
thus also were eligible for turnaround under Illinois law. The Board
eliminated all but one of these level two schools from consideration for
turnaround. We will continue to use the number 226 for simplicity.
4 No. 14-2843
“qualitative” and the Board asserted that the CEO used
“subjective criteria.” According to Ryan Crosby, the
Manager of School Performance at the relevant time, the
decisions were not made on the basis of a written policy or
on one particular set of factors. Nevertheless, Crosby
testified that the CEO and other participants in the decision-
making considered factors such as academic performance,
performance trends, leadership, whether the school was over
or under utilized, proximity to and effect on other schools,
school culture, facilities, safety, parent and community
input, and input from CPS staff. The meeting participants
who analyzed each school in sessions called “deep dives”
included CEO Brizard, Chief Portfolio Officer Sicat, Network
Chiefs, the Chief Academic Officer, Noemi Donoso, and
Board staff responsible for areas such as safety,
transportation, facilities, academic performance and special
education. R. 63-3, pp. 54, 62 (ID#869, 877); R. 69-3,
Declaration of Denise Little, app. ex. 4, pp.2-3 (ID#1201-02);
R. 69-3, Declaration of Harrison Peters, app. ex. 3, pp.2-3
(ID#1196-97). Some of the factors considered in evaluating a
school’s candidacy for turnaround are decidedly objective. A
school’s academic trends, for example, are measured by its
performance points score. Performance points are calculated
by considering, among other things, standardized test
scores, school attendance rates, academic progress, and
improvement over time in comparison with other schools in
the same geographic network. For high schools, the dropout
rate, “freshman on track” rate, and success in advanced
placement programs are also included in the performance
points.3 The Board gave particular weight to improvements
3 In 2008, the school district began measuring the freshman on-track rate,
No. 14-2843 5
trends. A school that was on probation but improving was
much less likely to be selected. Individual employees’
performance ratings, years of service, and performance of
students in a teacher’s individual classroom were not taken
into account.
At a February 2012 Board briefing, the CEO
recommended ten schools for turnaround—two high schools
and eight elementary schools. The briefing set forth the
detailed rationale for selecting each school and included the
factors listed above. Some schools received even more
detailed attention. Casals, which was considered a “priority
school” was slated for turnaround because it had an overall
low performance, and student achievement was growing at
a slower pace when compared with similar students at other
schools, despite having received much assistance during its
five years on probation. The briefing also set forth CPS’s
response to community feedback it had received in
opposition to the proposed turnaround at Casals.
The Board voted to authorize the reconstitution of all ten
schools as recommended. On June 30, 2012, the Board
terminated all teachers and staff from those ten schools. The
ten schools were located exclusively on the south and west
sides of Chicago where African Americans make up 40.9% of
tenured teachers. No schools were selected for turnaround
on the north side, where only 6.5% of tenured teachers are
a measurement developed by the University of Chicago. The
measurement looks at course grades and credits in the first year of high
school and students are considered on-track at the end of their freshman
year if they accumulated at least five course credits and failed no more
than one semester course in a core subject during the school year.
http://cps.edu/News/Press_releases/Pages/PR1_08_27_2014.aspx
6 No. 14-2843
African American. Of the tenured teachers displaced
because of reconstitution, 51% were African American,
despite comprising just 27% of the overall teaching
population within CPS. In hard numbers, 213 African-
American employees were displaced.
The racial demographics at the ten reconstituted schools
varied as shown in the table below.
School % African-American teachers
Smith 88.6
Woodson 85
Stagg 83.7
Fuller 81
Herzl 75.6
Chicago Vocational 75
Tilden 57.4
Piccolo 39.1
Marquette 26.7
Casals 26.7
Board’s brief, p.13.
Plaintiffs Donald J. Garrett Jr., Robert Green, and
Vivonell Brown, Jr., three African-American tenured
teachers affected by the turnarounds, and the Chicago
Teachers Union, Local No. 1, filed suit against the Board,
alleging that the Board’s decision to reconstitute these ten
No. 14-2843 7
schools was racially discriminatory. Plaintiffs sought to
certify a class of:
All African American persons employed by the
Board of Education of the City of Chicago as a
teacher or para-professional staff, as defined in
the labor agreement between the Chicago
Teachers Union and the Board of Education, in
any school or attendance center subjected to
reconstitution, or “turnaround,” on or after the
2012 calendar year.
R. 63, p.2 (ID#817). 4
The proposed class consists of African-American staff in
the following positions: 32 para-professionals, 11
probationary appointed teachers, 163 tenured teachers, and
7 teachers with no tenure status. As of the briefing for this
appeal, half of the 32 para-professionals displaced by the
2012 turnarounds were currently active employees, 7 of the
11 probationary appointed teachers were current employees,
and 122 of the 163 tenured teachers were currently active
CPS teachers. Board’s brief, pp.11-12. African-American
teachers and para-professionals displaced in the 2012
turnarounds also include teachers who have retired, who are
on leaves of absence, and those no longer employed by the
Board.
The named plaintiffs sought class certification under
Federal Rules of Procedure 23(b)(2), (b)(3) and/or (c)(4). The
4To avoid confusion, our references are to the district court docket cites
with both individual record page numbers, and for ease of location, a
page identification number (ID#) from the continuously paginated
district court record.
8 No. 14-2843
district court denied class certification on May 27, 2014.
Although it found that the class met the requirements for
numerosity, typicality, and adequacy of representation, the
district court found that the plaintiffs had not met their
burden of establishing a common issue by a preponderance
of the evidence. It also found that plaintiffs had not
adequately shown that common questions of law or fact
predominated over individual claims as required by 23(b)(3),
and that there was no basis for issue certification under
Federal Rule of Civil Procedure 23(c)(4).
II.
The purpose of class action litigation is to avoid repeated
litigation of the same issue and to facilitate prosecution of
claims that any one individual might not otherwise bring on
her own. The district court’s task below was to determine if
the plaintiffs-appellants presented a scenario in which
judicial efficiency would be served by allowing their claims
to proceed en masse through the medium of a class action
rather than through individual litigation. Our analysis is not
free-form, but rather has been carefully scripted by the
Federal Rules of Civil Procedure. For this reason, the civil
procedure rules on class actions are the best place to begin.
Before we turn to those rules, however, we note that this
case comes to us from a district court order denying the
certification of the class. Chicago Teachers Union, Local 1 v. Bd.
of Ed., No. 12 C 10311, 301 F.R.D. 300, 304 (N.D.Ill. May 27,
2014), hereinafter “Order.” Our review of such a decision is
deferential. CE Design Ltd. v. King Architectural Metals, Inc.,
637 F.3d 721, 723 (7th Cir. 2011). “We review class
certification orders for abuse of discretion. Abuse of
discretion results when a district court commits legal error
No. 14-2843 9
or makes clearly erroneous factual findings.” Reliable Money
Order, Inc. v. McKnight Sales Co., Inc., 704 F.3d 489, 498 (7th
Cir. 2013). Deferential review can and must also be exacting.
“A class may only be certified if the trial court is satisfied,
after a rigorous analysis, that the prerequisites” for class
certification have been met. CE Design, 637 F.3d at 723. The
decision to certify a class or not can cause a considerable tilt
in the playing fields of litigation and therefore is not one to
take lightly. See id. The party seeking certification bears the
burden of demonstrating that certification is proper by a
preponderance of the evidence. Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
A.
Because a class action is an exception to the usual rule
that only a named party before the court can have her claims
adjudicated, the class representative must be part of the class
and possess the same interest and suffer the same injury.
Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2550 (2011). The
general gate-keeping function of Federal Rule 23(a) ensures
that they are. All class actions, no matter what type, must
meet the four explicit requirements of Federal Rule of Civil
Procedure 23(a):
(1) the class is so numerous that joinder of all
members is impracticable (numerosity);
(2) there are questions of law or fact common
to the class (commonality);
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of
the class (typicality); and
10 No. 14-2843
(4) the representative parties will fairly and
adequately protect the interests of the class
(adequacy of representation).
Fed. R. Civ. P. 23(a) (parentheticals ours).
In addition to meeting these requirements of Rule 23, a
class action must meet the requirements of one of the four
categories in Rule 23(b). Rule 23(b) sets forth the various
requirements for class actions depending on, among other
things, the type of relief sought. In this case, the plaintiffs
sought certification under Rule 23(b)(2), (b)(3), and/or (c)(4),
the requirements of which we will discuss after addressing
the threshold requirements of 23(a).
On appeal, the only remaining contested factor from Rule
23(a) is commonality—whether “there are questions of law
or fact common to the class.” Fed. R. Civ. P. 23(a)(2).
Although a court need only find a single common question
of law or fact (Wal-Mart, 131 S. Ct. at 2556), the mere
occurrence of all plaintiffs suffering as a result of a violation
of the same provision of law is not enough. Id. at 2551;
Suchanek v. Strum Foods, Inc., 764 F.3d 750, 755 (7th Cir. 2014).
The claims must depend upon a common contention that is
capable of class-wide resolution. Wal-Mart, 131 S. Ct. at 2551.
In this context, class-wide resolution means that determining
the truth or falsity of the common contention will resolve an
issue that is central to the validity of each claim. Id. at 2551.
The majority in Wal-Mart summed this up by stating:
What matters to class certification ... is not the
raising of common ‘questions'—even in
droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to
No. 14-2843 11
drive the resolution of the litigation.
Dissimilarities within the proposed class are
what have the potential to impede the
generation of common answers.
Id. at 2551 (emphasis in original) (citing Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev.
97, 131–132 (2009)).
In Wal-Mart, a proposed class of all of the 1.5 million
women who work or worked at the company alleged that
the company discriminated against them on the basis of
gender by denying them equal pay or promotions. The
Supreme Court reversed the certification of the class, finding
that the plaintiffs could not bear the burden of
demonstrating commonality when the employment
decisions complained of by the plaintiffs resulted from
millions of individual decisions made by low-level decision-
makers who had been given full discretion over such
matters. “Without some glue holding the alleged reasons for
all those decisions together, it will be impossible to say that
examination of all the class members’ claims for relief will
produce a common answer to the crucial question why was I
disfavored.” Id. at 2552 (emphasis in original).
That “glue,” the Wal-Mart majority explained, could be
something such as a biased employment testing procedure
or a general policy of discrimination established by top
managers, but the facts of the case provided neither. Id. at
2553. To the contrary, as the court noted, the only relevant
corporate policy was one forbidding discrimination and a
policy of delegating employment decisions to local
managers. Id. at 2554.
12 No. 14-2843
The Board argues that the facts here align with those in
Wal-Mart—that is that the decision to reconstitute the
schools was not made pursuant to a central uniform policy
or even by a single decision-maker, but rather was based on
“subjective, qualitative factors that were not uniformly
applied.” Board’s brief, p.19. And indeed the district court
found that the “turnaround policy, to the extent there was
one, was not well-defined or uniformly applied,” and
therefore, “Plaintiffs’ proposed class fail[ed] to meet the
commonality requirement.”) Order, p.11. The district court
concluded that if the turnaround decision had been made
based solely on an objectively measurable criteria applied
across the board, it could find a common issue, but because
the decisions were made using qualitative, subjective, case-
by-case review, commonality failed. Order, p.10-11.
Before we delve into the questions of whether first, the
review was really case-by-case and second, whether
subjective review dooms commonality, we should unpack
the process through which a school was selected for
reconstitution. Recall that the process of identifying schools
for reconstitution consisted of three steps. First, the CEO
identified all of the schools eligible by state law for
reconstitution due to poor past performance, that is, the
school had been on probation due to low academic
performance for at least one year. 105 ILCS 5/34-8.3(d). Then
the CEO reduced that list of 226 schools to 74 schools by
removing those that met the objective criteria of a composite
ISAT score above the network average for elementary
schools, or a five-year graduation rate above network
average for high schools. The third step is the one that the
district court focused on most: in this step the CEO and
other high-level board members attended a series of
No. 14-2843 13
meetings in which they discussed the types of information
that the group would consider concerning schools eligible
for reconstitution, and then analyzed that information.
The first question we ask, therefore, is if the latter
subjective steps (assuming they are indeed subjective and
individualized) destroy the alleged commonality created by
the first clearly-objective steps. The Board and the district
court’s reasoning assume that they do. But this cannot be so.
Suppose hypothetically that after the objective first and
second steps, all of the schools remaining on the list had
100% African-American teachers, and no schools with white
teachers remained on the list. We could undoubtedly
conclude that the objective factors had a disparate impact on
African-American teachers. Suppose that the Board went on
to evaluate those 74 schools with all African-American
teachers in a subjective, case-by-case manner to narrow the
list from 74 to 10—all of which still were made up of
African-American teachers. The introduction of subjective,
case-by-case criteria would not alleviate the disparate impact
of the initial objective criteria. Surely we would say that the
plaintiffs could allege that there was sufficient commonality
to establish a class. Every one of those teachers could answer
the question, “why was I disfavored?” by pointing to the
initial objective criteria that impacted only African-American
teachers. This is why the plaintiffs point to Connecticut v. Teal
to argue that a discriminatory intermediate step taints the
entire process. Id., 457 U.S. 440 (1982).
In Teal, the employer required those seeking a promotion
to take a test. Id. at 443–44. Although objective on its face, the
test eliminated far more African-Americans than white
candidates. Ultimately, the employer (faced with the lawsuit,
14 No. 14-2843
it seems) promoted a disproportionately high number of
African Americans to supervisor positions. The court
determined that despite the fact that the bottom-line result
was non-discriminatory, the plaintiffs established a prima
facie showing of a discriminatory impact. Id. at 455–56.
It is true that Teal was not a class certification case, but to
the extent the Board asks us to ignore the impact of the
objective steps of the test, it is directly on point, particularly
because “class determination generally involves consider-
ations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1432 (2013). Teal helps to answer the
question of whether a class can be certified where the
alleged class of plaintiffs claims they were all harmed
similarly in an early step of the process even if, under Wal-
Mart, they cannot point to sufficient glue to bind their claims
under a later part of the process. Teal instructs that an early
discriminatory process can taint the entire process, and
indeed our hypothetical demonstrates why this must be so.
And it certainly is more efficient to answer the question “did
these early discriminatory processes have a disparate impact
on race” just one time rather than over and over again in
multiple separate lawsuits.
In short, if the plaintiffs allege that the objective criteria
in the first two steps narrowed the pool in such a way as to
have a disparate impact on African-American teachers (and
indeed they do), then this is the glue that binds the claims
together without regard to the later, subjective step.5
5 The defendants also claim that the plaintiffs waived this argument by
failing to raise it below. We conclude that the argument was not waived,
No. 14-2843 15
But even if, when evaluating the propriety of class
certification, we were to ignore these initial objective steps in
deciding which schools would be reconstituted, we would
still have to conclude that the district court erred in applying
the law of the Wal-Mart case to these facts. The Wal-Mart
decision simply does not preclude class certification where
subjective decision-making and discretion is alleged.
The district court, however, seemed to read Wal-Mart to
say that certification of a class is not possible when the acts
complained of are based on subjective discretionary factors
made by multiple decision-makers. Our post-Wal-Mart
decision in McReynolds, however, makes clear that this is not
so. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
672 F.3d 482 (7th Cir. 2012). In McReynolds, 700 African-
American brokers accused Merrill Lynch of racial
discrimination in pay by structuring team work and account
distribution policies in such a way that had a disparate
negative impact on African-American brokers. The
“teaming” policy allowed brokers to form teams to share
clients and commissions. Once formed, the team could
decide whom to admit as a new member. Brokers could still
work alone, but membership in a team was an undisputed
advantage. Under the account distribution policy, when a
broker left the employ of Merrill Lynch, the other brokers
but rather a relevant response to the district court’s conclusion that the
subjective criteria in the latter steps of the process defeated commonality.
Once the district court separated the steps and determined that the
subjective one doomed class certification, the plaintiffs were entitled to
direct the court’s attention back to the objective aspects of the process,
and demonstrate how a discriminatory step in a chain of events can
affect the ultimate outcome.
16 No. 14-2843
within the branch office could compete for the accounts left
behind by the exiting broker. According to company policy,
the managers were to award the accounts based on the
competing brokers’ records of revenue generated for the
company and the number and investments of clients
retained.
It turned out that team members tended to choose other
team members who were most like themselves, and thus
white brokers (who were the vast majority) seldom chose
African-American colleagues for their teams. And without
the help of the teams, African Americans did not generate as
much revenue or attract and retain as many clients as white
brokers, thus reducing their chances of winning account
distribution competitions. McReynolds, 672 F.3d at 488.
Merrill Lynch, like Wal-Mart, delegated discretion over
decisions that influence compensation—including decisions
involving the teaming and account distribution policies—to
135 lower-level directors. On its face, these facts sound
similar to those in the Wal-Mart case where the Supreme
Court found no commonality in the claims. This court found,
however, that although the local lower-level managers had a
measure of discretion with regard to teaming and account
distribution, the exercise of that discretion was influenced by
the two company-wide policies—one authorizing brokers
rather than managers to form and staff teams, and the other
basing account distributions on past success—that allegedly
exacerbated racial discrimination. Id. at 489. We held that
this established sufficient commonality for a class
certification such that the question as to whether these
policies created a disparate impact on African Americans
could be resolved most efficiently in one claim. Id. at 491. In
No. 14-2843 17
doing so, we noted that if, instead, Merrill Lynch had
delegated to local management the decision to allow
teaming, the case would more closely resemble Wal-Mart. Id.
at 489-90.
In contrast, just a few months later in Bolden v. Walsh
Constr. Co., we reversed a grant of class certification where
the facts fell on the other side of the line—reflecting
discretionary decisions more in line with the Wal-Mart
decision rather than McReynolds. Id. 688 F.3d 893 (7th Cir.
2012). In Bolden, twelve African-American plaintiffs alleged
that Walsh Construction tolerated racial discrimination in
assigning overtime work and in working conditions. Id. at
894-95. They asked the district court to certify two different
classes of African-American employees, covering all of
Walsh’s 262 projects in the Chicago area going back several
years. This court overturned the certification of the class
finding that the sites all had different superintendents,
different policies, different working conditions, and ranged
in the amount, if any, of discriminatory practices. Id. at 896,
898. Just as in Wal-Mart, Walsh had a company-wide non-
discrimination policy and granted discretion to
superintendents to assign work and address discrimination
that occurred on the site. Id. at 898.
Thus the Supreme Court’s Wal-Mart decision and ours in
McReynolds and Bolden together demonstrate that a
company-wide practice is appropriate for class challenge
even where some decisions in the chain of acts challenged as
discriminatory can be exercised by local managers with
discretion—at least where the class at issue is affected in a
common manner, such as where there is a uniform policy or
process applied to all. The Fourth Circuit (relying heavily on
18 No. 14-2843
this Circuit’s interpretation of Wal-Mart) summed it up well
by noting that
Wal-Mart did not set out a per se rule against
class certification where subjective decision-
making or discretion is alleged. Rather, where
subjective discretion is involved, Wal-Mart
directs courts to examine whether all managers
exercise discretion in a common way with
some common direction. Thus, to satisfy
commonality, a plaintiff must demonstrate that
the exercise of discretion is tied to a specific
employment practice, and that the subjective
practice at issue affected the class in a uniform
manner.
Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir.
2013) (internal citations omitted), cert. denied, 134 S. Ct. 2871
(2014). And indeed, even the district court acknowledged
that “if a general policy that is enforced at the corporate level
rather than by individual supervisors is claimed to be
discriminatory, even if some discretion exists, commonality
may be found.” Order p.9.
In short, subjective, discretionary decisions can be the
source of a common claim if they are, for example, the
outcome of employment practices or policies controlled by
higher-level directors, if all decision-makers exercise
discretion in a common way because of a company policy or
practice, or if all decision-makers act together as one unit.
The Board maintains that no single criteria was used in
the third step to narrow the field of seventy-four schools to
ten, but this is not an entirely accurate description. More
No. 14-2843 19
precisely, one could say that each of the twenty-six schools
chosen for reconstitution was chosen after being considered
individually. This does not mean that a different selection
criteria was used. For example, suppose a company has
decided to reduce its workforce by cutting the lowest
performing 25% of workers. To evaluate performance, it
looks to sales, evaluations, work ethic, and peer reviews. The
CEO terminates one worker because her sales numbers are
low, another because her evaluations from her supervisor
are sub-par, and yet another because of high absenteeism.
Although it is true that each employee was terminated for
different reasons, it is not true that a different set of criteria
were used for each. In fact, the employer implicitly
considered each factor for each employee, even if only some
of the performance criteria ultimately determined the
employee’s fate.
In this case, the Board tells us that after the objective,
numerical calculations in steps one and two, it considered a
number of factors. Those factors were discussed in a series of
meetings that included a small group of key people with
information about the various factors considered. The group
included the Board Chief Academic Officer, the Chief
Portfolio Officer, Network Chiefs, and representatives from
Board departments in charge of transportation, facilities,
safety, and special education.
In its brief, the Board describes the numerous factors
considered in the various schools, but they could be boiled
down to the following broader categories: academic
performance, performance trends, leadership, whether the
school was over or under utilized, proximity to and effect on
other schools, school culture, facilities, safety, parent and
20 No. 14-2843
community input, and input from CPS staff. See Board’s
brief, pp.5-11. We know that this small group of decision-
makers, even during the third and subjective stage of
decision-making, used these same criteria to assess each
school because they told us so again and again. See, e.g., Id. at
p.4 (“Selecting the schools for turnaround in 2012 involved a
lengthy recommendation process that considered the
academic performance of schools that were eligible for
turnaround, whether those schools’ performance improved
over time, and whether measures that had been implanted in
the school were working.”); Id. at p.6 (“selecting the schools
that would be reconstituted from those 74 schools was a
qualitative process guided by subjective criteria that various
stakeholders were asked to consider. For example, …
transportation, facilities, safety and special education …
planned school actions such as closures and phase-outs.”);
Id. at p.7 (“These discussions included not only the academic
performance of schools … but also issues such as leadership
and the culture of a school, gang boundaries, overall
performance, the condition and utilization of facilities and
the observable teaching in a particular building.”); Id. at p.8
(committee considered improvement while on probation
and school culture); Id. at p.9 (“The briefing noted that the
selection process considered information involving school
culture, safety, facility quality, community feedback and
targeted input from CPS staff.”). See also R. 53-2, Deposition
of Ryan Crosby, p.28 (ID#859). (“There was not one set of
factors that necessarily made a—each—in every school that
was recommended for reconstitution and appropriate
candidate [sic] but things such as the academic culture of the
school, whether or not quality instruction was being
provided, whether or not there was good leadership in the
No. 14-2843 21
school, the—in general as I said, the academic trends of the
school, the quality of implementation of programs that were
in existence.”). Id. at pp. 28-29 (ID#859-60) (describing
academic trends as comprised of academic standardized test
scores, the attendance rate, dropout rate, “freshman on
track” record, enrollment and success in advanced
placement classes, and a standardized academic progress
assessment); Id. at p.62 (ID#877) (“input from community
members and the chiefs—the network chiefs of schools
based on their feedback provided to the portfolio office.”);
Id. at 75 (ID#878) (enrollment and utilization data); Id. at p.79
(ID#882), (location was one of the factors considered); R. 74-
1, Crosby Dep. p.71-72 (ID#1604-05) (“talking with Network
Chiefs, in talking with community members about what was
going on in the schools to identify from that list of 80 what
were a likely set of possible actions.”); R. 69-3, Declaration of
Denise Little, app. ex. 4, p.3 (ID#1202), (factors considered
included “academic performance … leadership at the
schools, the culture of a school, gang boundaries, overall
performance, the condition of and underutilization of
facilities and the observable teaching in a particular
building”); R. 69-3, Declaration of Harrison Peters, app. ex. 3,
p.3 (ID#1197) (factors considered included “academic
performance … leadership at the schools, the culture of the
school, gang boundaries, overall performance, the condition
of and utilization of facilities and the observable teaching in
a particular building,” and input from parents); R. 69-3,
February Board Member Briefing, p.4 (ID#1208) (“school
culture, climate, safety, facility quality, community feedback
and targeted information from CPS staff.”).
The Board goes on to state that there was a “specific,
unique rationale for each turnaround decision” (Board’s
22 No. 14-2843
brief, p.10), but the examples they offer come from the same
set of criteria that they identified as applicable to all schools.
We can boil these criteria down to the following ten
categories: (1) academic performance, (2) performance
trends, (3) leadership, (4) whether the school was over or
under utilized, (5) proximity to and effect on other schools,
(6) school culture, (7) facilities, (8) safety, (9) parent and
community input, and (10) input from CPS staff. For
example, the Board states that Fuller and Woodson were
selected to provide support for a nearby school that was
closing—criteria #5 on our list. At Smith, the local school
council had asked for better options—criteria #9 on our list.
The Board chose Casals because of its culture of
complacency and poor quality instruction—criteria #6 and
#3. We could continue through each school, but need not. It
is clear that the Board applied the same set of criteria to all of
the schools evaluated for reconstitution.
In this way, the scenario in this case is worlds away from
that in Wal-Mart where a court could have no way of
knowing why each of the thousands of individual managers
made distinct decisions regarding promotions and pay in
millions of employment decisions. Likewise, in Jamie S. the
task of identifying disabled students who might need
educational services fell to countless school district
employees making highly individualized decisions about the
need for services in individual students. Jamie S. v. Milwaukee
Pub. Schs., 668 F.3d 481, 496 (7th Cir. 2012); but see Id. at 504
(Rovner, J. dissenting) (“I believe that notwithstanding the
inherently child specific nature of child-find inquiries, a class
action based on a truly systemic child-find failure may be
viable.”) Here we have one decision-making body, led by a
CEO with ultimate authority to recommend schools to the
No. 14-2843 23
Board, using one set of factors to analyze the need for
turnaround in each school. 6 When a small group of decision-
makers sits together in a room comparing and contrasting
the success of schools in order to evaluate their ultimate fate,
the concept of a uniform criteria and single-decision maker
merge. They are of one mind, using one process. In short, we
do not have myriad actions of individual managers. Here we
have one decision-making body, exercising discretion as one
unit, with the ultimate decision in the hands of one single
person, CEO Brizard. R. 53-2, p.62 (ID#877).
Decisions by myriad low-level managers are different
than decisions made by a single lead decision-maker or a
few concentrated top-level managers as
lower-level employees do not set policies for
the entire company; whereas, when high-level
personnel exercise discretion, resulting
decisions affect a much larger group, and
depending on their rank in the corporate
hierarchy, all the employees in the company.
Consequently, discretionary authority
exercised by high-level corporate decision-
makers, which is applicable to a broad segment
of the corporation's employees, is more likely
to satisfy the commonality requirement than
the discretion exercised by low-level managers
in Wal-Mart.
Scott, 733 F.3d at 114.
6 The Board voted to approve all recommendations for reconstitution.
24 No. 14-2843
The plaintiffs have demonstrated commonality by
asserting that a uniform employment practice (the set of
criteria used to evaluate the school) used by the same
decision-making body to evaluate schools was
discriminatory. Wal-Mart, 131 S. Ct. at 2551, 2554. See also,
Bolden, 688 F.3d at 899, (“Walmart observes that it may be
possible to contest, in a class action, the effect a single
supervisor’s conduct has on many employees.”).
And in fact, the district court noted the same thing, when
it said that “if a general policy that is enforced at the
corporate level rather than by individual supervisors is
claimed to be discriminatory, even if some discretion exists,
commonality may be found.” Order, p. 9 (citing McReynolds,
672 F.3d at 488–91, and Scott, 733 F.3d at 114.) Yet the district
court lost track of this principle when finding that the
plaintiffs had not met their burden of establishing
commonality because the selection process was qualitative
and lacked uniformity. Order, p.10.
The district court erred, therefore, when it stated that
“[t]he Court could not resolve whether the Board’s
turnaround policy was discriminatory as applied to all class
members ‘in one stroke,’ for it would have to examine the
rationale behind the decision to turn around each of the ten
schools and compare those reasons to the decisions not to
pursue the remaining sixty-three.” Order, p.11. This is not
so. The court need only resolve whether the “same conduct
or practice by the same defendant gives rise to the same kind
of claims from all of the class members.” Suchanek, 764 F.3d
at 756. And just as in McReynolds, whether employment
practices “cause racial discrimination … are issues common
No. 14-2843 25
to the entire class and therefore appropriate for class-wide
determination.” McReynolds, 672 F.3d at 489.
B.
Having concluded that the plaintiffs demonstrated
sufficient commonality to fulfill the threshold requirements
for a class action elucidated in Federal Rule 23(a), we now
turn to the plaintiffs request for certification under Federal
Rule 23(b)(2). Rule 23(b)(2) permits class certification if “the
party opposing the class has acted or refuses to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2); Lewis v. City of Chicago, 702 F.3d 958, 962 (7th Cir.
2012). Colloquially, 23(b)(2) is the appropriate rule to enlist
when the plaintiffs’ primary goal is not monetary relief, but
rather to require the defendant to do or not do something
that would benefit the whole class. Not surprisingly, “civil
rights cases against parties charged with unlawful, class-
based discrimination are prime examples” of Rule 23(b)(2)
classes. Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 614
(1997).
In this case, the plaintiffs sought a declaratory judgment
that the Board’s turnaround policies violated Title VII, 42
U.S.C. §§ 1981, 1983, and prospective injunctive relief
including a moratorium on turnarounds and the
appointment of a monitor to evaluate and oversee any new
turnaround process. R 63-1, p.21 (ID#841). The 23(b)(2) class
does not seek any money or individual relief.7
7 There is some confusing language in the plaintiffs’ initial brief
requesting class certification in the district court in which, after asking
26 No. 14-2843
The district court held that a 23(b)(2) class could not be
certified because “[a]lthough Plaintiffs’ request for a
declaration that the turnaround policy violates federal law
would apply class-wide, it would merely be a prelude to
further relief, which would be inherently individualized.”
Order, p.16. The order pointed out that no single injunction
could provide relief without establishing a system for
providing individualized relief to each class member “either
placing class members in specific jobs based on their
qualifications and openings or providing them with back
pay and front pay if no position was available.” Id. at 17.
The district court erred, however, by misunderstanding
the nature of the relief sought. The proposed 23(b)(2) class
did not seek individual relief such as reinstatement or
individually calculated damages in the form of back pay and
front pay. 8 It asked only that the court issue a declaration
that the Board’s turnaround practice violated Title VII and
for declaratory and injunctive relief only, the plaintiffs make an off-
handed and unexplained comment that “the assessment of backpay for
these individuals is ‘generally applicable to the class.’” R. 63-1, p.18 (ID#
842). The plaintiffs’ reply brief in the district court, however, makes clear
that its 23(b)(2) class seeks declaratory and injunctive relief and that
“[a]ny additional relief to the (b)(2) class will be incidental to, and flow
from, the declaratory relief sought. Calculating this relief will be
‘mechanical, formulaic’—and thus appropriate for a 23(b)(2) class,” R. 83,
pp.19-21 (ID#1780-1782), citing Johnson v. Meriter Health Servs. Emp. Ret.
Plan, 702 F.3d 364, 372 (7th Cir. 2012). See also, footnote 8, infra.
8 To the extent that any monetary relief is “incidental to the injunctive or
declaratory relief” it could be included in a Rule 23(b)(2) class, if “it
appear[s] that the calculation of monetary relief will be mechanical,
formulaic, a task not for a trier of fact but for a computer program.”
Johnson, 702 F.3d at 372.
No. 14-2843 27
42 U.S.C. §§ 1981 & 1983, and for prospective injunctive
relief including a moratorium on turnarounds and the
appointment of a monitor to evaluate and oversee any new
turnaround process. We agree with the district court that to
the extent that “each individual class member would be
entitled to a different injunction or declaratory judgment
against the defendant,” 23(b)(2) certification would not be
appropriate. Johnson, 702 F.3d at 369–70 (emphasis in
original). But the 23(b)(2) plaintiffs here seek the same
declaratory and injunctive relief for everyone. This class-
wide relief is different from the individual equitable and
monetary relief the plaintiffs seek through their Rule 23(b)(3)
class action, including reinstatement and front pay.
The Board replicated the district court’s error in its
briefing before this court, spending several paragraphs
describing the complexities required for providing
individualized relief. See Board’s brief, pp.26-27 (describing
the difficulties in reinstating teachers with various
experience, certifications, and damages). But this is all frolic
and detour. An order enjoining the board from
reconstituting schools would provide the exact relief that the
23(b)(2) class requests. A moratorium would prevent a
recurrent violation (see Milwaukee Police Ass’n v. Jones, 192
F.3d 742, 747 (7th Cir. 1999)) and would provide prospective
relief against an allegedly discriminatory practice. Wal-Mart,
131 S. Ct. at 2552, n. 7. Group relief is particularly
appropriate because the Board did not individually assess
any of the putative class members in the process of
reconstituting the school and displacing the teachers. Each
was displaced because of the Board’s uniform reconstitution
policies and practices.
28 No. 14-2843
Moreover, the fact that the plaintiffs might require
individualized relief does not preclude certification of a class
for common equitable relief. Pella Corp. v. Saltzman, 606 F.3d
391, 395 (7th Cir. 2010); Arreola v. Godinez, 546 F.3d 788, 801
(7th Cir. 2008); Allen v. Int’l Truck and Engine Corp., 358 F.3d
469, 471–72 (7th Cir. 2004). “It is routine in class actions to
have a final phase in which individualized proof must be
submitted.” Suchanek, 764 F.3d at 756. See also Johnson, 702
F.3d at 369 (In a 23(b)(2) class action, “a declaration is a
permissible prelude to a claim for damages.”). The district
court conceded that “[p]laintiffs’ request for a declaration
that the turnaround policy violates federal law would apply
class-wide.” Order, pp.16-17. This should have ended the
matter and convinced the court to certify the 23(b)(2) class.
But the district court became distracted by the issue of
individual relief for teachers and staff—matters that can be
resolved in a 23(b)(3) proceeding. See Johnson, 702 F.3d at 371
(“Once declaratory relief is ordered, all that is left is a
determination of monetary relief, and that is the type of
proceeding for which (b)(3) is designed.”).
In McReynolds, for example, when the court certified a
23(b)(2) class of African- American financial advisors, it did
so because it concluded that it would be more efficient to
evaluate the plaintiffs’ claims regarding the disparate impact
of the policies on a class-wide basis rather than in 700
individual lawsuits. McReynolds, 672 F.3d at 490–91. This
was true despite the fact that if the claims of disparate
impact prevailed, it might be necessary for the court to hold
hundreds of separate trials to determine which class
members were actually adversely affected by one or both of
the practices and if so what loss each class member
sustained. Id. at 491. “But at least,” the court concluded, “it
No. 14-2843 29
wouldn’t be necessary in each of those trials to determine
whether the challenged practices were unlawful.” Id. This
case is no different. It may be necessary to hold separate
hearings to determine to what relief each class member or
sub-class is entitled (both in terms of reinstatement and
money damages), but the question as to whether the
reconstitution process discriminates against African
Americans, either by disparate impact or treatment, can be
adjudicated class-wide. Likewise, a declaratory order that
the turnaround process did or did not violate federal law
would resolve the issue for all class members. And a
moratorium on turnaround would also provide relief for all
class members.
For this reason, the Kartman v. State Farm Mut. Auto. Ins.
Co., 634 F.3d 883 (7th Cir. 2011) case to which the defendant
points does not help. In Kartman, the plaintiffs dressed up
what was really a claim for money damages (in the form of
insurance payments) in injunctive clothing by asking that
the court order the insurance company to evaluate their hail-
damaged roofs under a uniform and objective standard. Id.
at 889. This court found that the insurance company’s
“approach to hail-damage estimating (if it was inconsistent)
might be evidence tending to show that the insurer
underpaid some hail-damage claims. But it does not
independently establish liability or support a separate
injunctive remedy.” Id. at 891. In contrast, a determination of
liability in this case (i.e. a finding that the reconstitution
practice discriminated against African Americans) might
require later determinations of individual relief, but would
resolve all questions of liability.
30 No. 14-2843
Indeed, this case follows the exact contours of the Wal-
Mart decision which conscribed the boundaries of 23(b)(2) as
follows:
Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would
provide relief to each member of the class. It
does not authorize class certification when
each individual class member would be
entitled to a different injunction or declaratory
judgment against the defendant. Similarly, it
does not authorize class certification when
each class member would be entitled to an
individualized award of monetary damages.
Wal-Mart, 131 S. Ct. at 2557 (emphasis in original). Here we
have a proposed Rule 23(b)(2) class asking for the same
injunction and declaratory relief for all. By refusing to certify
the class, the district court erred in its assessment of the legal
requirements of Rule 23(b)(2) and its assessment of the
23(b)(2) class’s request.
C.
As we just described, a 23(b)(2) class cannot seek money
damages unless the monetary relief is incidental to the
injunctive or declaratory relief. Wal-Mart, 131 S. Ct. at 2557.
The plaintiffs siphoned that portion of the complaint that
requested monetary relief and individual remedies into a
request for 23(b)(3) class certification. Federal Rule 23(b)(3)
allows for class certification when “questions of law or fact
common to the class members predominate over any
questions affecting individual members” and “when a class
action is superior to other available methods for fairly and
No. 14-2843 31
efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3). The latter superiority requirement is not at issue
here. The district court instead found that common claims
did not predominate, as “[t]he selection process involved a
qualitative review, and the [c]ourt would need to delve into
how each of the ten schools was evaluated in comparison to
the other schools considered but not selected.” Order, p.18.
To some extent the question of commonality that we
dissected at length above, and the question of predominance
overlap:
To gain class-action certification under Rule
23(b)(3), the named plaintiff must demonstrate,
and the District Court must find, that the
questions of law or fact common to class
members predominate over any questions
affecting only individual members. This
predominance requirement is meant to test
whether proposed classes are sufficiently
cohesive to warrant adjudication by
representation, but it scarcely demands
commonality as to all questions. In particular,
when adjudication of questions of liability
common to the class will achieve economies of
time and expense, the predominance standard
is generally satisfied even if damages are not
provable in the aggregate.
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1436–37 (2013)
(internal citations omitted). Our earlier discussion of
commonality leads us to the conclusion that the district court
also erred when determining that the plaintiffs failed to meet
their burden of proving predominance when it concluded
32 No. 14-2843
that the process of choosing schools to reconstitute was
different for each school. The lower court reasoned that
“there were specific facts and issues as to why each of the
ten schools was selected for turnaround in 2012.” Order,
p.18. This is true, but as we discussed at length above,
however, each school was evaluated for its performance
under the same set of criteria, analyzed by the same
committee, and ultimately subject to the decision-making
authority of one person. As the plaintiffs point out, they all
suffered the same injury at the same time as the result of the
same selection process by the same central decision-maker.
Common issues of fact and law predominate in
particular when adjudication of questions of liability
common to the class will achieve economies of time and
expense. See Comcast Corp., 133 S. Ct. at 1437. “Rule 23(b)(3),
however, does not require a plaintiff seeking class
certification to prove that each element of her claim is
susceptible to classwide proof. What the rule does require is
that common questions predominate over any questions
affecting only individual class members.” Amgen Inc. v.
Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184,
1196 (2013) (internal citations omitted). In this case, the key
question upon which all of the litigation rises or falls can be
answered for every plaintiff: was the selection process
discriminatory?
This is a good time to issue the reminder that “Rule
23(b)(3) requires a showing that questions common to the
class predominate, not that those questions will be
answered, on the merits, in favor of the class.” Id., 133 S. Ct.
1184 (2013). “[T]he office of a Rule 23(b)(3) certification
ruling is not to adjudicate the case; rather, it is to select the
No. 14-2843 33
‘method’ best suited to adjudication of the controversy
‘fairly and efficiently.’” Id. at 1191. Consequently, we can
take no position as to whether the plaintiffs will be able to
demonstrate that the selection process was indeed
discriminatory either in treatment or impact. The only
answer we provide today is that it will certainly be efficient
and fair to answer the question once for all plaintiffs rather
than in piecemeal litigation.
If the selection process is determined to be
discriminatory, individualized remedies and damages may
have to be determined for each plaintiff or perhaps for
subclasses of plaintiffs, such as tenured teachers, non-
tenured teachers and the like. But as we noted above, this
does not prevent certification of the class. As the district
court correctly noted “the fact that damages may be
individualized in this case would not preclude certification.”
Order, p.18, citing Butler v. Sears Roebuck & Co., 727 F.3d 796,
801 (7th Cir. 2013).
Given these considerations, the plaintiffs have met the
requirements for certification of the class under Rule
23(b)(3). One single question would trigger a liability finding
for both the 23(b)(2) and 23(b)(3) class: did the policies and
process behind the 2012 reconstitution unlawfully
discriminate against African-American teachers and staff?
And the answer to this question would eliminate the need
for repeat adjudication of this question for determinations of
damages or individual injunctive relief.
D.
Finally, Rule 23(c)(4) permits the court to certify
particular issues for resolution as a class action. Because we
34 No. 14-2843
conclude that the class can be certified under both Rule
23(b)(2) and 23(b)(3), we have no need to consider whether
the district court should have considered certification of one
particular issue. Nor must we consider the Board’s argument
that plaintiffs Garrett, Green, and the Chicago Teacher’s
Union are not appropriate class representatives, as the Board
failed to appeal from the district court’s finding of adequacy
of representation.
For the foregoing reasons, the district court order is
reversed and remanded for further consideration consistent
with this opinion.