No Policy? No Problem: How Commonality Incentivizes Subjective Action
There is no denying the shortcomings of urban public education in America. In Chicago, high school graduation rates hover just over 50%, with 79% of its 8th graders labeled “Not Proficient” in reading on National Assessment of Educational Progress (NAEP) tests. In order to improve these disheartening statistics, public school system reform will continue to be necessary. But is it too much for parents and teachers within these systems to ask that reforms be objective and based on written policies that lead to predictable outcomes, instead of subjective standards that can be used to disguise underlying motives?
On February 22, 2012, the Board of Education of the City of Chicago announced that ten schools located exclusively on Chicago’s south and west sides would be “turned around,” a process that involves terminating all teachers and staff at those schools. The 2012 turnaround process started with an initial list of 226 schools, and then was narrowed to 74 schools by looking at objective factors like graduation rates and test scores. To further narrow the list of the 74 schools, a qualitative investigation process followed. Ultimately, ten schools were chosen for “turn around.” A briefing before the Board set forth the rationale for why each school was selected for turnaround, despite the fact that the issues at a chosen school were not unique from others on the longer list of 74 schools. Justification for each “turnaround” was presented, while rationale for choosing one school over another was not. The Board admitted that no written policy applied to the turnaround decision and no one set of factors was used to determine whether turnaround was appropriate for a particular school.
A class action suit was filed by the Chicago Teachers Union and 213 African American displaced teachers and paraprofessionals employed by the Board of Education, alleging that the Board’s decision to turn around these ten schools was racially discriminatory. Plaintiffs moved to certify a class under Rule 23(b)(2), (b)(3), or (c)(4), but the Court declined to certify a class. In its decision, the Court stated that “because the record before the Court demonstrates that the turnaround policy…was not well-defined or uniformly applied, Plaintiffs’ proposed class fails to meet the commonality requirement.”
Even if the Board of Education was in fact discriminating against the plaintiffs, unless the Board had a written policy suggesting this goal and the policy was applied to all of the school decisions, the wronged plaintiffs are without an efficient, class-wide remedy.
Since Dukes, companies and large employers have been incentivized to de-centralize policies or create subjective, qualitative standards for making any decisions that could possibly subject them to class-wide liability. Essentially, this commonality requirement allows defendants to take action against a plaintiff for any reason, as long as they can claim to be doing so with an individualized approach, allowing defendants to use “case-by-case analysis” as pretext for unlawful motives. Common sense tells us that a company will avoid writing a policy that could be construed to support any type of discrimination. This case and Dukes teach us that, from a liability standpoint, companies are better off with no written policies at all. Without a policy or standard practice, there can be no commonality. Without commonality, there can be no class. And often, without a class, there can be no effective remedy.
I think the interpretation of the commonality requirement post-Dukes goes too far. In an attempt to protect the judicial system from frivolous lawsuits, the Court has instead built a wall of protection from class liability around companies by incentivizing them to keep poor records or fail to implement company-wide policies. Without a class action as an option, a plaintiff is only left with the option of an individual suit, which is oftentimes not realistic, economically feasible, or fruitful. As Judge Posner reminds us in Carnegie v. Household International, Inc.,:“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for [modest damages].”
Photo Credit: Bartosz Brzezinski
 2014 U.S. Dist. LEXIS 72023, *19 (N.D. Ill. May 27, 2014).
 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
 376 F.3d 656, 660 (7th Cir. 2004) (emphasis added).