Loyola University Chicago School of Law, JD 2022
On November 17, 2020, Chicago Public School (“CPS”) announced that in January 2021, CPS would have its first week of in-person learning since March of 2020. Upon the announcement, CPS parents had mixed reactions to the district’s plan to bring some students back, where some expressed excitement about the positive effect of in-person learning on their kids social and mental health, while others like the Grassroots Education Movement voiced concerns that the district had not done enough to make schools COVID-19 safe.
The return to in-person learning has been controversial and filled with conflict between teachers and the Chicago Teachers Union (“CTU”) versus the district. CTU expressed that it does not trust the district to keep the teachers and students safe, and the CTU released a statement that 71 percent of its teachers voted to continue remote learning instruction. Even with these concerns, CPS made the return by teachers mandatory. During its first week in-person, over 150 educators have been AWOL, having not shown up to school. Since then, the teachers’ protest has only become louder. CPS responded by docking the pay and locking teachers out of their remote learning platforms. Intense debate surrounds the topic, but the underlying legal principle remains, CPS cannot deny students a Free Appropriate Public Education (“FAPE”), guaranteed by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (“IDEA”), while CPS engages in a labor dispute with the CTU.
What was CPS’ plan? Why are teachers not reporting?
CPS published its plan, and many found it minimal. The plan specified that students, staff, and teachers are expected to submit a daily health screener in order to determine any COVID-19 symptoms and potential exposure. Additionally, all are expected to wear face coverings and adhere to pod grouping, in order for CPS to minimize teacher and student exposure. The district also established additional custodians, and purchased additional sanitizers, soaps, and disinfectant wipes.
However, no matter how detailed CPS’ plan was or was not, the number of infections speak for itself. Since returning to in-person, over 751 adults and 21 students have actionable cases of COVID-19. This all comes at a time when the United States is seeing the introduction of the new and highly contagious South African coronavirus variant.
CPS’ response to teachers refusing to show up
As of January 14, 2021, roughly 150 employees refused to show up to in-person learning. As a result, CPS responded and docked these teachers’ pay and locked them out of CPS remote learning systems, including their CPS Google Classroom accounts. The issue has further intensified. Within the last two weeks, as the number of COVID cases in adults increases, CPS continues to punish both teachers and students, and as new variants of COVID-19 are introduced into the United States, more teachers are refusing to show up in-person. As of January 28, 2021, only fourteen (14%) percent of teachers reported to schools. As a result, CPS and CTU are meeting to create a deal in order to avoid another teachers’ strike. It is clear that teachers have reason to not want to return in person and now that teachers are not showing up when they’re called upon, it’s a matter of can CPS lock out these teachers and deny students a FAPE? The answer is no.
Legality of CPS’ punishment?
No matter the status of a deal, the fact remains, CPS cannot deny students a FAPE merely because it is engaged in a labor dispute with the CTU. All students who are individuals with disabilities as defined by Section 504 and IDEA are entitled to Free Appropriate Public Education (“FAPE”). Under FAPE, eligible students are entitled to special education that meets the unique needs of that student, and they are entitled to related services, accommodations, modifications and an Individualized Education Program (“IEP”), where these services are at no charge to the student and should be done in the least restrictive environment.
Presently, CPS and CTU are engaged in a labor dispute, where under Illinois Educational Labor Relations Act 115 ILCS 5/4, CPS is required to engage in collective bargaining as this matter impacts teachers terms and conditions of employment. However, under this Act, while engaging in collective bargaining, CPS has a duty to act in good faith and not be in violation of, or inconsistent with any statute enacted by the General Assembly of Illinois.
CPS is not engaging in good faith collective bargaining because it violates students right to FAPE every time they lock teachers out of their remote learning systems. Although CPS does not publish how many students have a Section 504 plan or receive accommodations, it does print that approximately fifteen percent (15%) of its students have IEPs. Meaning that every day that CPS actively prohibits teachers from delivering the services to their students, instead choosing to lock teachers out of their remote learning access, CPS violates the rights of at least fifteen percent of its students. This action is in violation of the General Assembly of Illinois. CPS students are caught in the crossfire of CTU, who is within its rights as a union, and CPS, who is misinformed of its rights and violating students’ FAPEs.
CPS violates students right to FAPE each time that they lock teachers out of their remote learning systems, thus they cannot be engaging in good faith collective bargaining where they are acting in violation of a statute enacted by the General Assembly of Illinois. CTU should be aware during negotiations that CPS violates its students’ right to FAPE each time they lock out teachers. CTU should not compromise on its requests and it ought to have all its requests met in negotiations because CPS has no right to continue to punish teachers and students as it has.