all right we have everybody now our nd case for today is the chicago teachers union against the board of education of the city of chicago appeal number twenty one thousand one hundred and sixty seven and we'll begin with mr smith on factual issues they were not raised by the board and to which the plaintiffs dim have an opportunity to respond more specifically the court erred in deciding that the plaintiff failed to show the alternatives that the union was raising were apples and oranges and nuts they they were you know an additional adverse impact analysis isn't the same thing as an alternative and in your briefing you seem to say either direct transfers by the board or more modestly sending names over to be priority interview we asked for different principles and i wondered if you've settled on one or the other those transfer options because that one seems to me to be the most serious of the ones  and that is the issue that i want to address is the transfer option and so we did propose two different ones for purposes of the argument i want to focus on the transfer alternative that requires the ord to notify teachers that they may be laid off and then implement a policy where principals have to interview those laid off teachers for big positions prior to interviewing anyone else off the street just make sure i understand where you're going under that option if a principal did that interview say you know a group of three of these potentially about to be laid off teachers and the principal decided that none of them was a fit for what that principal needed at the school that would be enough that's great because that system would result and we know it will result in a less discriminatory alternative because in fact with even without this and i'm going to use a phrase you used in other cases of mine the sum on the scale that the principals have to consider these people st even without that i'm on the scale the undisputed evidence is that more than half of the teachers who received a layoff notice  were displaced from their jobs ultimately found other jobs in vacant positions in the other schools can i ask you when they give when you give us that number are you looking at all of the teachers who received the layoff notices because your class is only so i understand the african american who received a layoff notice so there were some but that was about forty three percent of the laid off group wasn't  twenty four dollars ok yes exhibit twenty four dollars which is the summary of the underline evidence summarizes the number of layoff notices which were four hundred and seventy the number of african americans who got those notices and were displaced from their jobs that number is six hundred and thirty and then they say three hundred and sixty mowing of those individuals either found other jobs other fill other vacancies or was anything more than speculation and no it wasn't speculation so the board acts as if it doesn't know the qualifications of teachers of the qualifications for the but it does all of these teachers were qualified to teach in positions with the board of education so mr schmidt can i just interrupt and say within the board's records let's say  they st of all i assume the board doesn't allow people to be teachers at c p s who don't have a teaching ticket they must have known you have a teaching certificate for high school you have a teaching certificate for th grade or you have a teaching  whatever so is that what you're saying that in the board's whether they dug it out or not is another question that within the board's capacity was the ability to see which slots were open and which people were out there you know that's exactly what on their qualifications and the requirements of the positions of the board have been information it can match teachers and the reassigned teachers school teachers in the concrete pool and day to day substitutes to positions that they need filled and it's not like they call the teachers and say what are your qualifications they know it so they know both ends of it so going back to judge rotors question yes they have that information they were doing it in terms of the responses pool and they could have done it but i want to emphasize this issue was not ready he's in the just record the defendant the defendant's argument against the transfer alternative was that the school code doesn't allow it and although we disagree with nab certainly the school code makes it very clear that the although the principal have the authority to recommend is the board's power to hire and the board has the power to require principals to meet certain practices and procedures in filling vacancies and they have evidence by what the the undisputed fact that in fact after the two thousand layoff they've implemented a  print for alternative where they required teachers to be our principals interview three played off teachers and then explain if they were going to hire any of them that explain explanation had to be  before they go and hire people from what we call off the street so i don't know how do you early in the district court did you advance the more modest alternatives to cheer talking about here because i just wonder if we had a little bit of ships passing in the night where the disco board was saying wait a minute you know we've gone to a lot of trouble to give local autonomy to the schools have all the school councils everything and so we can't just insist that a principal take a teacher you know would you make it very clear the district court that this preferential interview optional call it was on the table well the transfer of turn in the district court the focus really was on does the school code the details of the transfer alternative we believe or spell out but probably not in the detail that we've set forth and get them out but this this transfer alternative i'm talking about we believe that the more directive transfer alternative where the board tells principals these are the people you have to take and you know basically laterally transfers people is consistent with the school code and we know that because again in terms of the reassigned teachers who'll mcadory teachers and date as a substitute the board doesn't ask the principal if we can assign this teacher to your school for two weeks or whatever they just do it  so so we don't believe that the school code prevents the direct transfers but to the extent that we can avoid that conflict the transfer alternative that allows our requires principals to be the the port claimed it needed to do these layoffs because of budget reasons but the district could or concluded that wasn't true the nd is undisputed that the board knows the demographics of both the teachers and the students and knows that those numbers are highly correlated so african american students are predominately taught by american teachers white students are taught by white teachers so that and they know that are going to be drops in that romance and those profs enroll and right now are predominately african american students so they know d that that by still using drops in enrollment and the number of free and reduced school  lunches that's going to have a disproportionate impact on african american teachers and so our position is that those facts should have a reasonable jury could looking at those facts conclude that the board intentionally discriminated against african americans that the contract of the collective bargaining agreement doesn't allow the board to discriminate is it is not inconsistent i'm going to jump right in on the transfer all try it because that seems to be the primary issue that's before the court because we have proven a business justification which was the declining enrollment in the district court found on that basis that we had a business justification so then the issue becomes have they really resented a substantial equally valid alternative to address declining enrollment we submit did not in the district court agreed and i agree with counsel that there was much discussion below with respect to the school code what principals could do or not do but it's the plaintiff's burden to come forward with an alternative that would be less discriminatory and also be equally valid in terms of trying to achieve the effect from the layoffs which was the client enrollment so mystery and they've got to read oh i'm sorry can i drift your attention to page twenty of the district court's order where the district court is is criticizing the showing that the plaintiffs made about the transfer  and i i was very disturbed by most discussion because the court begins by saying plaintiffs make no attempt to demonstrate how well qualified the class members were for the vacant position or whether the positions matched the clambers training experience but that totally overlooks the fact that it's a matter of of the you know the top line in the personnel file what somebody is training is it would be very easy to see how many high school just in terms of compensation financial benefits to back up a moment to address your initial question it was fifty eight percent of the class members they were relying upon our expert report which was basically submitted to show that there was no disparate impact the court as you now did rule that he wasn't going to look at those reports because he didn't he didn't have to reach that decision so that's where the fifty eight percent number comes up privileges of employment is also not discriminated against in this case it would have been the plaintiffs were not only to say that that it's the teacher or professional could have filled a spot at another school but that somehow that also was not the material and gross employment action because it might hamper their future seniority in the future because if the layoffs and determine on a school by school basis we don't lateral transfer from school way to school b in school b you know maybe had lower achievement scores of various types i feel like you'd be arguing that this is just a lateral transfer in schools are not clones of one another but now you're not saying no your honor because i don't think we could make that our him because i think to be complete the burden is to show that not only is it just a transfer that may have the same benefits which is all that our expert was putting forth on the just disparate impact but the nd part of it is is is this a transfer that makes sense for their particular teacher and it's not so much of a stretch to say the conditions may be not the same the new school for example we've mentioned seniority and also maybe a situation where it's further away from their home because if you just get to apply the individual schools and generally speaking they're going to apply to a school that's in their geographic area now they may have to go across town to accept a position and i think we would be here arguing about that had they actually gone into depth about it before the district  think what the district court was pointing out is more than just the fifty eight percent number of the class which by the way there's a class that made the same benefits but there's more to the story they have to actually show that initials would have been the same otherwise or could be a material adverse some point x number of those circumstances so the judge i believe was just simply saying that speculating that the plaintiffs had to come agreement that was in a fact in two thousand level twelve there was an eprom vision secondly we don't know whether or not that added privilege in terms of being able to get priority interview in would have a less discriminatory effect in the long run until we actually knew whether or not those folks will be hired or not its two principal still makes a decision and the decision is she or he principal makes a decision who's going to fill those one hundred slots and then send it back to the board to determine whether or not it's consistent with the collective bargaining agreement terms here experiment and then delay ops are sent out by the board the principal makes the decision as to who the board makes the decision this to how many based upon declining enrollment numbers and that's what happened here arguments are actually in the district court opinion your honor i think the court actually gives citations to argument an argument was principally one that the plaintiffs would never come up with a matching showing that number one those openings would have been something that these laid off teachers appear vessels could have filled a number two in this was the primary argument that the council's right the primary argument was dealing with whether the principals would be taken out of that process and there was a lot of merit transferred and i know the district court cites two arguments there but again i would stress that's not enough they can't just show them alternative transfer alternative and less less discriminatory and they did not come forward with any evidence that it would be so little desire minatory on the basis of race i mean you've been saying maybe people would like to be closer to their home or maybe a school has a better reputation than another obviously realistically there's hierarchy there but that doesn't strike me as necessarily associated with race i mean  people like to be close to home and not have that commute so are you saying the board was really afraid that if it had tried sort of the th eleven system that they were going to get sued because somebody moved from school one school to transfer alterative the only thing to be is there complete picture one hundred so dancer directly your question is that yes there needs to be more taken into account than just the compensation and benefits you need to look at a number of factors to determine whether or not that teacher still would be worse off or better off based upon that transfer bet's not the complete story and that's what the district court was pointing out is the plaintiffs made no effort to determine whether or not this was less criminal story and as this court said i believe isn't there and writer case that it's there's three different types of discrimination and current one it could be and they receive last conversation benefits s not the case here at least based upon our expert number two that they have to the conditions have to be similar in terms of seniority in terms of it dan smith so future harm is taken into account in rd the conditions of the school and if we were to simply hold that if there's a transfer of turned it is available and not address those other factors that would not be consistent with how this title seven has been construed in the past based on case law in that district court was absolutely right it's a point it's burton to come forward with that type of information to determine what they say now did they defendants expert report which has a fifty eight percent number the court did not rule on that because he believed it was only going to be disparate impact so therefore he didn't have to make a ruling but this was not poor but again importantly i think that's only half the story and i think that the conditions of employment are important and were not addressed about the planters and if i may to i would like to address the disparate treatment issue which is before the court played to seem to be arguing that because there was a disparate impact which course the district court did not find but for purposes of the just when impact analysis determined he would go to the other factors that somehow that indicates intention discrimination in a simply does not mean although business assessor he is not taking into account when you're talking about disparate treatment here there was a valid reason for doing it it was stressing the time of the romans and there's no suggestion by the district court that that was a pretense and you're not revisiting money i take it you're accepting the district court's finding  but i would say your honor because i think that the plaintiffs have missed but trait is finding he did not find that the budget was a pretext what he found was that the principal reason for the layoffs was due to flying enrollment not because of the budget issue so i'm not raising that now in this context but with respect to disparate treatment there is no evidence that it was done intentionally and by the way as i mentioned before it's the principles and make the decision who  mr schmidt for whatever rebuttal you like thank you thank you your honor so i want to remind the court that this issue was decided on summary judgment by the district court and we're having this question about all of these factual issues it should have been addressed in the district court the reason they weren't addressed there is because the district court ruled against the plaintiffs on the grounds that was not raised by the defendant the defendant challenge the transfer alternative only on the basis that it wasn't allowed by the school code had the defendant said look you also have to show you we get a summary judgment because these people aren't qualified we could have addressed it and we could have pointed out the that it's actually more than fifty percent ultimately rehired if you include the people who are rehired after september st the teachers who are day to day substitute the even even ignoring though that fifty eight percent we could have talked about that at the district court submitted evidence but we dems instead the district court ruled against us granted summary judgment on an issue that wasn't raised and therefore we didn't have an opportunity to respond to it and i do want to talk just a nd about the less discriminatory so so the argument is that that we failed to show that this transfer alternative was le interpretation of adverse action contrary to what a good shader had before he was summarizing various things that were beyond his expertise as its statistical expert like what the collective agreement requires and things like that so we moved it to to exclude his testimony but is finding that it was less discriminatory is is really there evidence and then if you just look at the numbers the bottom line numbers they laid off six hundred and thirty dollars average american teachers and told them you no longer have a job with the board of education unless you reapply and find a job ultimately ultimately only one hundred and sixty dollars of that six hundred and thirty dollars were more quote terminated under their definition than go to the concrete teachers pool etc so lesser numbers mean less discriminatory so for these reasons we think that this