Chicago Public Schools students will miss a seventh day of classes Tuesday as Mayor Rahm Emanuel's attempt to get the courts to quickly end the teachers strike did not produce immediate results.
Instead, a judge opted to hear arguments on the mayor's request Wednesday from the school district and the Chicago Teachers Union.
By then, the legal matter could be irrelevant. Union leadership could decide at its Tuesday meeting to end the walkout in anticipation of a vote by teachers down the road on a new contract proposal that was hammered out during marathon negotiations last week.
If the strike is not called off, however, Cook County Circuit Judge Peter Flynn will listen to the merits of granting the school district an injunction against the union.
"We can go to Plan B and be heard on what we think are strong legal grounds to enjoin the strike and at least get kids back in school on Thursday morning, we hope," said Stephen Patton, the mayor's top city attorney.
The lawsuit added to the uncertainty and could further inflame passions on both sides of a strike that has generated heated rhetoric from Emanuel and union President Karen Lewis.
For Emanuel, the union's decision Sunday to put off a House of Delegates vote on returning to the classroom allowed him to go back on the offensive. For Lewis, the challenge is an internal one, convincing union delegates that her team has negotiated the best deal it can get.
On Monday, school district attorneys filed hundreds of pages of court papers contending that the union's 26,000 members had no legal basis to declare the strike in the first place.
In its complaint, the district noted that Lewis made public statements stressing that union members were concerned about teacher evaluations, recall policies for laid-off educators and the potential closings of scores of schools, all of which CPS said could not be used as the legal basis for a strike.
"While new Illinois law prohibits us from striking over the recall of laid-off teachers and compensation for a longer school year, we do not intend to sign an agreement until these matters are addressed," it quotes Lewis as saying the day before the strike started at midnight Sept. 10.
The union fired back, saying in a written statement that teachers are striking for valid legal reasons, including salary, teacher evaluations and classroom conditions. A salary dispute does give a legal basis for striking, and the framework contract agreement that emerged Friday did include a different salary schedule from one discussed just days earlier.
Emanuel's lawsuit is "a vindictive act instigated by the mayor," part of an attempt to "trample our collective bargaining rights and hinder our freedom of speech and right to protest," the union said.
The school district attorneys also made a second argument, asserting that the strike is "a clear and present danger to public health and safety." The district noted that 84 percent of CPS students are eligible for free and reduced-price meals served at the schools, that no student has been shot in a school since 2007 and that special education services are provided to 50,000 students who "may suffer from loss of or decline in critical life skills."
Several labor law experts said Monday that the city has a strong case when it says the primary issues cited by the union do not allow it to strike.
"This is a strike over noneconomic issues" said L. Steven Platt, a prominent city labor lawyer, noting that only economic issues are legal cause for a strike under state law. "Of course they insist there are other issues, but the main issues, the ones that are driving the strike, are noneconomic issues."
That view was not unanimous. Martin Malin, a professor at the Chicago-Kent College of Law who specializes in labor law, said that some issues being negotiated, like air conditioning in schools, affect working conditions that are legal grounds for a strike.
Labor law experts did agree on a couple of points, however. One is that it will be very tough to prove that the strike represents a clear and present danger to public health and safety. "We've never had a teachers strike enjoined under this standard since the statute took effect," Malin said.
Another point took the form of a question: Would a judge up for retention be willing to rule against the labor unions that historically have played a key role in city elections? Flynn is seeking retention on the Nov. 6 ballot.
"You tell me what chancery judge is going to issue an injunction against the teachers union," Platt said. "Believe me, the unions have long memories. Every union is going to remember this judge ... come election time."
One option would be for the judge to try to settle the matter in chambers, without issuing a ruling that risked offending unions or even the mayor, the experts said.
The school district will first have to prove to Flynn that the matter should be in his court and not before the Illinois Educational Labor Relations Board.
The union has stated that the strike was partly over unfair labor practices. It filed a complaint with the state labor relations panel and argues that board is the only agency with the right to ask a court to stop the strike. A preliminary ruling on the unfair labor practices matter is expected Tuesday.
Malin said the union "has a very strong argument" that the labor relations board should first get to decide whether to go to court to request an end to the strike. Malin noted that last year when the union disputed the district's right to offer incentives at individual schools for early implementation of a longer school calendar, the district did not dispute the labor board's jurisdiction, "which is what (CPS) seems to be arguing now in the current petition."
Zev Eigen, an associate professor at Northwestern University Law School who specializes in labor law, said he believed the city could prevail on a legal basis but questioned whether the suit would further heighten already frayed nerves on both sides of the dispute. He called the union's response "disheartening" but "predictable."
"This is exactly the conflict spiral response I anticipated," Eigen said. "Threats of coercive power to resolve the dispute are met with more coercive threats of power."
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