Legal Analysis: No Regionals for CPS Cross-Country Athletes After 11th-Hour Lawsuit Fails

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By Will Foster ’20

I was disappointed to hear this evening that CPS cross-country runners (including Payton’s) won’t be allowed to compete in the IHSA Regional competitions tomorrow after a judge rejected attorney Kevin A. Sterling’s request for a temporary restraining order (TRO) allowing them to compete while the CTU strike continues. (A link to the ruling is here; my analysis of the original brief is here.)

I am pretty surprised by the judge’s reasoning, if not so much the result. I had expected that, if the Plaintiffs lost, it would be because the court would reject their assertion of a protected right. The entirety of the key reasoning, though, deals with the balance of equities between the IHSA and the plaintiff athletes.

Judge Eve Reilly, to her credit, does note in her four-page ruling that in her view students not being able to compete “is not fair and it is wrong” (p. 3). More substantively, she also concludes that “Plaintiffs have raised a fair question of a protectable right” to participate in state series competitions as third-party beneficiaries of CPS’ membership in IHSA (p. 2).

But in sections 7-10 of her ruling Judge Reilly begins to side with the IHSA. First, in response to Plaintiffs’ allegation of irreparable harm, she states that although “this could potentially rise to the level of irreparable harm, the harm … must be certain not merely possible or speculative” (p. 3). It is a bit unclear what “this” is referring to. If it only refers to the alleged deprivation of chances for athletic scholarships, then I agree with Judge Reilly that the harm alleged seems rather speculative. But if it refers to all the injuries alleged in the paragraph, then I disagree with Judge Reilly — missing the one chance all year to compete in a state-level competition seems like a concrete and imminent injury to me.

In any event, Judge Reilly’s next major point is one I find a bit perplexing: “Plaintiffs have not made an argument that they would succeed on the merits and therefore the court does not address this issue” (p. 3). However, Section D of the TRO request was literally titled “There is a strong likelihood that JCPXC-Team XI, as well as other similarly situated CPS student-athletes will prevail on the merits of their claims … ” (emphasis added). I had thought that was a merits argument, although perhaps there is some technical point here I am not understanding. (Also, it’s true that the discussion of the merits was somewhat brief, although if that were the reason Judge Reilly rejected the argument I would have thought she’d have said so.)

The real crux of Judge Reilly’s reasoning comes in the final section, section 10, of the order. There, Judge Reilly balances the hardships that a TRO (or the lack of one) would impose on the relevant parties. Although the opinion recognizes the unfairness of the situation for the student-athletes, it sensibly concludes that “the court must balance student safety above all other concerns” (p. 3).

However, then the opinion starts to list various safety concerns, the first of which does not seem very compelling: “The IHSA had presented this court with the argument that teachers and coaches would be forced to make a decision about crossing the picket line to carry out their duties if this TRO was granted” (p. 3). But it seems to me that all union teachers are already faced with the choice of whether or not to cross the picket line — a choice they have been faced with every day since the strike commenced. A range of factors might influence that choice — from needing their next paycheck to, yes, wanting to coach their cross country team in regionals. There is no qualitative difference between the former factor and the latter. Judge Reilly clarifies that IHSA had alleged that “the possibility of conflict if teachers and coaches were crossing the picket line could place students in a dangerous situation” (p. 3). It is difficult to know what to make of this. As a practical matter, because my understanding is that picketing in front of schools only occurs on weekdays during the strike, it is unclear how any conflict would arise because fellow union members might not even find out that their colleague had crossed the picket line until Monday — long after the students had competed.

It is also worth noting that, as a legal matter, CPS teachers have no legal obligation to be members of a union (or even to pay union dues), see Janus v. AFSCME, 585 U.S. ____ (2018), so it’s my understanding that anyone “crossing the picket line” would be violating union rules but not actually violating any laws. The union can punish strike-breakers by kicking them out of the union, of course, but that does not seem too problematic if a teacher voluntarily and knowingly chooses to cross the picket line. In short, encouraging picket-line crossing would hardly be inciting lawless action. (To be clear, I do not understand Judge Reilly to have asserted the contrary — I’m just pointing it out for curious readers.)

Judge Reilly’s next point seems stronger, though: “[S]chools would be forced to open their buildings to accommodate sports teams without adequate staff on hand to do so” (p. 3). Well, it seems like a stronger point if in fact “schools would be forced to open their buildings.” Yet no evidence of that is presented in the opinion, although perhaps evidence was provided in the oral argument. I imagine that many CPS students could reach the site of the meets (for at least some schools, the site is near North Ave. & Stockton) on public transportation — which is the same method by which many of them are used to traveling to school every morning. Moreover, I am informed that at least some CPS cross country athletes sometimes gather before a meet at the site of the meet — without making an intermediate stop at their school building. Taking all this together, I expect that very few, if any, students would have an absolute necessity to enter any CPS school building on Saturday before (or after) the meet.

Judge Reilly notes that “[i]t is unclear what authority [CPS] would have to require staff involved in the strike to leave the picket line to return to work.” I would imagine the answer is probably, “No authority” (although I’m not sure), but I don’t think that really matters. In his press conference after the oral argument this morning, attorney Kevin Sterling made it clear that he was not attempting to coerce any CTU members to cross the picket lines. Rather, he said he would rely on parents, non-union coaches, and any union coaches who voluntarily decided to cross the picket line. Now, it could be that teams are generally only allowed to participate in IHSA events with their regular coaches physically present (I’m not familiar enough with the rules). That would indeed seem to put pressure on union coaches to cross the picket line. However, Judge Reilly’s opinion does not clearly state whether that is the case.

One last point: My experience with cross country meets (although I no longer participate) is that they tend to be somewhat disorganized by nature, due to the large number of athletes and large area over which the course stretches. So I am a little skeptical that the lack of union-member coaches would cause a significant marginal decrease in organization or safety, particularly because many parents would presumably still be present.

Again to her credit, Judge Reilly does conclude with the statement that “[t]he court would urge the IHSA to accommodate the athletes once the strike has concluded as that is the right thing to do” (p. 3). But it seems unlikely that any such accommodation will be forthcoming.

I greatly respect Judge Reilly’s (and the IHSA’s) desire for caution in order to protect student safety. Nevertheless, I am at least a bit skeptical of the ruling for the reasons heretofore stated. In particular, some of the factual assumptions upon which the equitable balancing rests seem dubious.

UPDATE (Saturday, October 26): An incisive additional point was mentioned to me by Payton junior Andrew Shi ’21 in conversation this morning. He pointed to IHSA’s rule allowing teams from schools with ongoing teacher strikes to compete in the state series provided the state series had already begun at the time the strike commenced. So, he reasoned, IHSA’s existing rules expressly contemplate (and approve) the possibility that some teams might compete in a meet during a time when teachers and staff members (including some coaches) were on the picket lines — and therefore not available to assist with the meet. This evidently reflects a judgment by the IHSA that the participation of union members is not absolutely necessary to maintaining order and security at meets. (Presumably the IHSA would not recklessly and knowingly put student-athletes in harm’s way, so one must infer they have concluded that meets can still be run reasonably safely during a strike.) In sum, as Andrew put it, there can be no dispute that “the exact same logistical hurdles would still exist” if athletes raced during a strike because they were “continu[ing] competing in a state series [that] has already started” as if, as was the case with this year’s CPS runners, the state series had arguably — arguably — not yet started. So this “clearly demonstrates that … the IHSA already evaluated said hurdles and determined that they aren’t significant enough to cause an end to competition.” I think this argument is a death blow to Judge Reilly’s balance of the equities. IHSA’s own rules contradict the premise that pressure on coaches to cross the picket line or inadequately-staffed school buildings are reason enough to eliminate a team from competition.

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