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 decisionmaking 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 AfricanAmerican 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 

 

4 To 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 decisionmakers 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, caseby-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 considerations 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 WalMart, 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 AfricanAmerican 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 nondiscrimination 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 decisionmaking 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 decisionmakers, 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 decisionmakers 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 decisionmakers, 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, classbased 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 offhanded 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 classwide 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 haildamaged 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 WalMart 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, nontenured 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.