STATE OF MICHIGAN IN THE COURT OF CLAIMS SCHOOL DISTRICT OF THE CITY OF DETROIT,

Case No. 16-000013-MZ Hon. Cynthia Diane Stephens

Plaintiff, v. DETROIT FEDERATION OF TEACHERS, LOCAL 231, et al., Defendants.

Shanta Driver (P65007) Monica Smith (P73439) UNITED FOR EQUALITY AND AFFIRMATIVE ACTION LEGAL DEFENSE FUND (UEAALDF) Attorneys for Steve Conn; Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); Strike to Win Committee; Nicole Conaway; Tracey Russel; Erika Jones 19526-B Cranbrook Drive Detroit, MI 48221 (510) 875-4463 [email protected] DEFENDANTS’ BRIEF IN OPPOSITION TO PRELIMINARY INJUNCTION INTRODUCTION - Building a New Civil Rights Movement to Restore the Democratic Rights of the People of Detroit and Save Public Education On April 30, 2015, Detroit teachers called in to work and went to Lansing to protest Governor Snyder's proposal to bifurcate Detroit Public Schools (DPS) into two separate school districts as part of yet another plan that would further the dismantling of public education in Detroit. Some teachers used their personal business days; others used their sick days. Everyone

was careful to provide notice to DPS of their impending absence. The newly elected president of the Detroit Federation of Teachers Local 231 (“DFT”), Defendant Steve Conn, was the only elected public official in Detroit to oppose the whole Snyder plan and to organize community support against it. By the end of May 2015, Governor Snyder threw in the towel and withdrew his plan. Detroit teachers understood that their actions secured that victory for the people of Detroit. Steve Conn was removed from office by the DFT Executive Board in the summer of 2015. In September, a majority of teachers at a large union meeting voted to reverse the Executive Board's action and restore Steve Conn to the presidency of the Union. Mr. Conn was not restored to office because the DFT Executive Board refused to heed the wishes of the membership and reverse their ruling. Governor Snyder believed that, with Steve Conn out of the way, he could reintroduce his original Detroit plan in the Michigan legislature and gain its passage. He was wrong. The tactic of teachers calling in to work to express their opposition to the Snyder plan and to change the balance of power was re-initiated. At first, the sick-outs seemed uncoordinated and spontaneous, but as the struggle advanced and with Governor Snyder refusing to budge, coordinated days of mass action were needed to raise the struggle to a higher level. BAMN and the Strike to Win Committee took the lead in organizing the days of escalating mass actions and organized student and community support that increased the power and scope of the teacher-led movement to save DPS and give the young people of Detroit the pride, dignity, and hope they have been robbed of for so long. Since the days of mass action were announced ahead of time, students’ and parents’ passive acceptance of the necessity of school closures would change into active expressions of support of the teachers. Some schools have been closed by parents refraining from sending their children to school and by student sick-outs.

The passage of Public Act 10 of 1999, seventeen years ago, gave Michigan governors the right to take over DPS, impose an Emergency Financial Manager (“EFM”) on the District with dictatorial authority to run the schools, and stripped away the right of Detroit voters to elect their school board, a right at that time possessed by every other community in the state. Six years after the first state takeover, the people of Detroit voted two-to-one in a ballot referendum called Proposal E to end the state takeover and to restore to the people of Detroit the right to control the educational policies and decisions of DPS through the election of a fully-empowered school board. By 2009, new legislation was passed to void the decision of Detroit voters to elect a fully empowered school board to run DPS. The District was under the control of a new Emergency Financial Manager. In 2011, weeks after Wayne County Circuit Court judge Wendy Baxter ruled that the Emergency Financial Manager (“EFM”) had no authority to make educational decisions within DPS, Lansing passed new legislation expanding the Governor's powers and reach to impose state takeovers on poor, majority black cities throughout Michigan. The title Emergency Financial Manager was shortened to Emergency Manager (“EM”) to underscore the EM's broad dictatorial power to run any public institution the Governor deemed to be "failing." The democratic right of the people of Detroit to control the future of their city through local government elections was completely eliminated when the bankruptcy of Detroit gave an appointed board the right to control and regulate Detroit's budget and financial allocations. The mass popular direct actions led by Detroit teachers are the only avenue of democratic expression available to Detroiters. The popularity of the teachers’ actions and the authority of the teachers have grown by leaps and bounds in the past month, precisely because students, parents

and the community understand that the teachers are fighting for the social and political rights of the people of Detroit and not for a limited set of teacher contractual demands. It is wrong to characterize the teachers’ sick-out actions as narrow trade union strikes intended to secure better working conditions or wages and benefits for Detroit teachers. The teachers have made clear from the outset that they are fighting a political battle aimed at challenging the overreaching separate and unequal political initiatives and proposals of Governor Snyder and the Michigan legislature. The teachers have been clear from the onset of their actions that they are fighting to stop the imposition of the new Snyder Plan on Detroit Public Schools, to remove EM Darnell Earley, to reestablish the democratic control of DPS by the people of Detroit, to defend the right of the youth of our city to receive an equal, quality public education, and to return the deplorable Education Assistance Authority (EAA) schools to DPS. EXHIBIT A. The teachers are leading a new civil rights movement in Detroit that has broad student, parent and community support. This movement, if allowed to grow, has the power to defeat the new Jim Crow and to reverse the growing racial inequality in Detroit and other majority black and Latina/o communities throughout the state. The teachers’ actions and the actions of students, parents and the community are the first and only actions that are actually causing the Michigan Legislature to contemplate relief for Detroit. The appalling conditions of the schools, denial of basic educational essentials—teachers, books, classrooms, science equipment, computers, etc.— and unabated, ongoing health and safety violations created by nearly seventeen years of dictatorial control of Emergency Managers1 have garnered national attention and led to calls for

1

With the exception of an 18-month interval during DPS was run by an elected School Board.

state and federal action to rescue DPS. In a little more than a month of action, the teachers have gained more for DPS than any of the appointed commission reports and recommendations, hollow promises from politicians, and assurances by former EMs that they would act on Detroit's behalf. However, none of the calls for government action will be realized if the teachers’ movement is halted by a court injunction. The individually named teacher defendants, BAMN, Strike to Win Committee, and DPS students can offer proofs to this court that can explain the character, demands, broad popularity and growing power of the new movement. We can show that what the teachers are fighting for is the restoration of democracy for the citizens of Detroit, the preservation of public education and to end all the vestiges of the new Jim Crow that stand as a barrier to a meaningful rebirth of Detroit. We urge this court to give us the opportunity to offer our proofs prior to the issuance of its final order so that the truth can get out and real and positive change can occur in DPS. I.

DPS teachers, students, and community can testify that this is a united struggle for civil rights that is beyond the scope of the PERA. The explicit aim of the 1994 amendments to the Public Employment Relations Act

(“PERA”) was to protect the right of Michigan students to an education from strikes over disputes over working conditions. This is clear in PERA’s definition of strikes: “the concerted failure to report for duty… the stoppage of work… for the purpose of inducing, influencing, or coercing a change in employment conditions, compensation, or the rights, privileges, or obligations of employment.” MCL 423.201(1)(j). PERA prohibits “strikes” as defined within its provisions. Therefore, PERA does not give courts authority to issue injunctions under it when the actions in question are not over “employment conditions.” Understanding this, the EM presents a proposed order to this Court that would enjoin Defendants from “engaging in a strike and/or engaging in any other unauthorized work

stoppage.” This language—which admits there can be other “work stoppages” that are not “strikes” as defined under the PERA—is the EM making sure that not just strikes, but the teachers’ sick-outs are enjoined by the order. But the PERA only prohibits “strikes”: on its face, the EM’s proposed order is beyond the scope of the PERA. Similarly, work actions that are forms of social protest are not to be enjoined on the basis of a contract’s no-strike clause because they are not over issues for which the method of resolution is spelled out in the contract. Cf. Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 721-22 (1982) (finding the court could not enjoin a longshoremen’s strike protesting the Soviet Union’s invasion of Afghanistan on the basis of the collective bargaining agreement’s no-strike clause, since the issue prompting the strike was not one to first be arbitrated under the contract). When the focus of a protest is one of fundamental civil rights, the courts are further discouraged from enjoining the protest. In Williams v. Wallace, the federal court enjoined Alabama Governor George Wallace from using intimidation or force against protesters who wanted to march peacefully to Selma to demand voting rights. Wallace was arguing that the march harmed the state interest of keeping its streets and highways open. The court rejected Wallace’s argument for two reasons. First, it upheld the proposition that, when considering injunctive relief in relation to a popular movement for justice, the court must weigh the supposed harm of the action against the “enormity” of the injustice being protested: “[I]t seems basic to our constitutional principles that the extent of the right to assemble, demonstrate and march peaceably along the highways and streets in an orderly manner should be commensurate with the enormity of the wrongs that are being protested and petitioned against. In this case, the wrongs are enormous. The extent of the right to demonstrate against these wrongs should be determined

accordingly.” Williams v. Wallace, 240 F.Supp. 100, 106 (1965). Second, Williams considered the lack of alternate methods, given the disenfranchisement of black people in Alabama, to further the desired political change: “The law is clear that the right to petition one’s government for the redress of grievances may be exercised in large groups. Indeed, where, as here, minorities have been harassed, coerced and intimidated, group association may be the only realistic way of exercising such rights.” Id. at 106. The attempt by EM Darnell Earley to characterize the teachers’ actions as economic strikes is false and defies any conventional definition of a teachers’ strike. Striking teachers do not call in to "SubFinder" to arrange for a substitute teacher to cover their absence. Striking teachers do not sacrifice their contractually-guaranteed personal business days or sick days. All past Detroit teachers’ strikes have been continuous and not intermittent actions. Detroit teachers’ strikes have begun with a mass vote for a strike at a mass meeting and a vote on a list of demands related to their terms of employment, and have ended when a new contract is ratified. This Court must first conduct a full evidentiary hearing before making a determination whether the teachers’ sick-outs are “strikes… to change employment conditions” that the PERA prohibits. This Court cannot issue an injunction simply based on EM Earley’s misrepresentations, especially in light of the paramount issues that the teachers and community of Detroit are protesting. If the people of Detroit are allowed to have the voice in the courtroom that they have been denied in electing their own leaders, they will demonstrate that their grievances are many as well as varied, but all stemming from anger at the regime of emergency managers and the inferior education provided in Detroit. Defendant Nicole Conaway, a teacher at East English Village Preparatory Academy (EEVPA) and an organizer with BAMN and the Detroit Strike to Win Committee, can testify

about the neglect and dilapidated conditions in the schools she has taught at under years of state control. This year at EEVPA, the school year began with seven vacancies. Two were filled by long-term substitute teachers, one to a special-education resource teacher. The classroom across from hers does not have a teacher and is covered by various teachers on various days: oftentimes, students wait outside for a teacher on their contractual prep period to come and cover the class. The science prep lab has no science equipment or supplies to prepare lab experiments. Ms. Conaway is supporting the sick-outs because she believes the solution to these issues is removal of the EM, ending all state takeovers, and restoring democratic control to the people of Detroit. EXHIBIT B. Defendant Erika Jones, a teacher at Cass Technical High School, can testify about why she is taking action and about the vast support she is receiving from her students and their parents: “I am being sued for using my First Amendment rights to say we love our kids and we’re giving them the best education we can give them under these conditions, but it’s not enough. Our kids are supporting us. Some kids were asking why we came back because they thought one day wasn’t enough, and that we needed to do more. And parents are asking what they can do to help the cause.” EXHIBIT C. Markeith Jones is a senior at Detroit School of Performing Arts. Despite its name, 15 students were kicked out of the dance program because one of their teachers was never replaced. They have canceled their annual dance concerts. The Music Tech (Production) Program has been cut, and the Radio Television and Broadcast students are no longer able to do broadcasts over the school televisions. In his English class, they are reading Beowulf and in most of the books most of the story is missing. Four other teachers were lost this school year. At his previous school, Northwestern High School, students could not use the library because it was infested with bed

bugs. Some seniors could not graduate on time because there were not enough teachers to offer enough classes for all the students to fulfill their graduation requirements. Most classes had 45 students—this problem was created because nearby schools were closed and Northwestern was the only remaining public school in the area. EXHIBIT D. Beverly Allen, a teacher at Martin Luther King High School, can testify that some students there have not had a regular teacher at all this school year, and that due to the Emergency Managers’ mismanagement, teachers were forced to loan money to DPS in the form of the Termination Incentive Program (TIP). She is demanding that the debt be forgiven because the state caused it, and that money return to the district and to teachers. EXHIBIT E. Keimauri Hill, a sophomore at Osborn Mathematics, Science and Technology High School, says that he has lost multiple days of school the past 3 years because of an “inadequate, damaged and… hazardous heating system at school during the winter months.” In his freshman year, he had no books in his English, Algebra I, and Biology classes. This year, he does not have books in his English, Geometry, and Chemistry classes. The school drinking fountains do not work, and so he and other students have to buy bottles of water from the school store to drink after gym or anytime during the day. He holds EM Earley and Governor Snyder responsible for these conditions and supports the Detroit sick-outs because they are fighting “to restore democratic control to our city and our schools and improve the learning conditions of our schools.” EXHIBIT F. Mary Jo Brockman taught at Marquette Elementary/Middle School from 2004 through 2015, and can testify that one year her class constructed a daily graph tracking how hot the classroom was. They took the temperature three times a day. The average temperature over a five-day stretch was 92 degrees. The carpets were never cleaned and the rain leaking from the

roof would wet them and there was always a moldy smell. When it rained, the sewage system backed up, and teachers would have to pour buckets of bleach down the drains in the bathrooms. It was up to the teachers to buy the bleach themselves. EXHIBIT G. Other teachers can speak about how the sick-outs are protests of the conditions of their schools and the lack of resources and teachers. II.

After teachers’ actions have exposed the inferior educational conditions of Detroit schools, DPS Emergency Manager Earley is now asking this Court to shoot the messenger: banning advocacy for the sick-outs is a violation of free speech and the First Amendment. The broad, popular scope of the teachers’ action is shown further by the very remedy that

EM Earley is trying to seek: prohibiting community criticism of his policies that might fuel the protests. The EM’s proposed order to this Court seeks to ban the Defendants—which include nonteachers such as members of the activist student and community organization BAMN and the teacher-community organization Detroit Strike to Win Committee—from “engaging in any activity directed at inducing another DPS employee [sic] to participate in a strike or any authorized work stoppage.” First, organizations like BAMN and Strike to Win are not covered by PERA, which only covers “public employees.” MCL 423.201(e). Second, there is nothing in PERA that prohibits “inducing” (i.e. persuading) public employees—let alone the community as a whole, which is what EM Earley is asking for—to participate in an action. Thus, the EM, who only would be able to get away with his policies because he does not have to worry about being elected out of office by the people of Detroit, now seeks to prohibit any criticism of his policies. If EM Earley gets away with this, he will be able to silence antiSnyder sermons by Reverends who have teachers in their congregations and who, like Dr. Martin Luther King, advocate direct mass action to stop the continued implementation of unjust racist

laws and policies. Earley’s dictatorship of DPS would be extended to include any church, student, parent or other community or political organization which opposes his continuing destruction of public education in Detroit. Earley cannot tolerate any open criticism of him, or any exposure of what is going on in the schools, or any advocacy of returning political control of the schools to the people of Detroit. EM Earley’s complete lack of honesty in claiming he is defending the right to education of the children of Detroit is only outweighed by his arrogance. The proofs that EM Earley is asking this court to rely on are insufficient and in many instances just plain untrue. One of the individuals whom Earley has named in this lawsuit is Defendant Erika Jones. Ms. Jones did not call in sick in conjunction with the recent wave of sick-outs. Ms. Jones learned that her school was closed on the first day of school following the Christmas break after her principal decided to close the school because many teachers had called off sick long before the start of school. Ms. Jones did not call in; however, she supported the stand her colleagues had taken and so she participated in a radio show and talked about the goals of the sick-out protest. EXHIBIT C. The reason why she is named in the lawsuit—and not others in her school—is because she dared to criticize EM Earley and his policies. This violates the state’s Whistleblowers’ Protection Act (WPA). MCL 15.362. EM Earley’s attempts to muzzle teachers brave enough to tell the truth about EM Earley's mismanagement and cynical disregard of the interests are simply a different form of retaliation. EM Earley falsely claims in his motion for this injunction that he issued a cease and desist order to teachers prior to the January 20, 2016 teacher action. EM Earley did not issue his cease and desist order until Friday, January 22, 2016, long after filing for a temporary restraining order. Earley coupled his cease and desist order to the teachers with a letter of understanding he

purports to have reached with DFT interim president Ivy Bailey. The letter of understanding addresses none of the core issues of the teachers struggle and, like the cease and desist order, is simply a last-minute, ill-conceived maneuver to appear to have satisfied the prerequisites to attaining an injunction. The proofs offered by EM Earley to obtain an injunction against the individually-named teachers are inadequate, misleading and arbitrary. EM Earley's motion for an injunction should be denied on this basis alone. The EM’s proposed injunction plainly fails under the First Amendment. As a contentbased restriction that restricts pure speech and which also is a prior restraint, it must survive the strictest judicial scrutiny. It must be narrowly tailored to further a compelling state interest to not violate the First Amendment. “[O]nly a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” National Assn’ for Advancement of Colored People v. Button, 371 U.S. 415, 438 (1963). As will be examined further below, the state interest that Earley claims to be protecting—the education of Detroit’s children—is not his actual aim, and his claims to that end are vague and unsupported and therefore far from “compelling.” III.

In a balancing of the equities, Earley does not prevail in justifying the “extraordinary” remedy of preliminary injunction. Injunctive relief is “an extraordinary remedy that issues only when justice requires, there

is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury.” Pontiac Fire Fighters Union Local 376 v. City of Pontiac, 482 Mich. 1, 8 (2008). As such, the courts should be cautious before issuing an injunction. The “evidence” offered by DPS and EM Earley amounts only to evidence that schools were closed and vague, unsupported claims by Earley that the sick-outs have “negatively influenced DPS’ credit rating.” This is insufficient to justify a preliminary injunction in Michigan:

[I]t is insufficient merely to show that a concert of prohibited action by public employees has taken place and that ipso facto such a showing justifies injunctive relief. We so hold because it is basically contrary to public policy in this State to issue injunctions in labor disputes absent a showing of violence, irreparable injury, or breach of the peace. [T]he only showing made to the chancellor was that if an injunction did not issue, the district’s schools would not open, staffed by teachers on the date scheduled for such opening. We hold such showing insufficient to have justified the exercise of the plenary power of equity by the force of injunction. School Dist. For City of Holland, Ottawa and Allegan Counties v. Holland Educ. Ass’n, 380 Mich. 314, 326 (1968). Instead, the Court must take into consideration broader questions of equity. In Holland, that included whether the district was bargaining in good faith. In this case, this includes the far greater, actually-irreparable harm that the emergency-manager regime, now helmed by Earley, has done to the people of Detroit. A.

Earley does not have the right to ask this Court for equitable relief because he himself has “unclean hands”: namely, from poisoning and harming Michigan’s children. As the Michigan Supreme Court has stated, “[t]he maxim that one ‘who comes into

equity must come with clean hands’ is ‘the expression of one of the elementary and fundamental conceptions of equity jurisprudence.’” Rose v. National Auction Group, Inc., 466 Mich. 453 (2002) (citation omitted). The doctrine of clean hands is “a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814 (1945). “When a party comes into equity it should be very plain that his claim is an equitable one… [I]f there are Any indications of overreaching or Unfairness on his part, the court will refuse to entertain his case, and turn him over to the usual remedies.” Stachnik v. Winkel, 394 Mich. 375, 386-87 (1975) (emphasis added) (citation omitted).

Earley is invoking the interests of children, but he is responsible for poisoning children in Flint despite the evidence and protests of Flint’s elected city council that the city’s water was tainted. In Detroit, he has overseen the continued decimation of DPS. B.

The injunction itself would cause irreparable harm by stopping the only action that has stopped the freefall of Detroit Public Schools and has given hope to the people of this city. There is a four-factor analysis to determine whether a preliminary injunction should

issue: “(1) the likelihood that the party seeking the injunction will prevail on the merits; (2) the danger that the party seeking the injunction will suffer irreparable injury if the injunction is not issued; (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief; and (4) the harm to the public interest if the injunction is issued.” Campau v. McMath, 185 Mich. App. 724, 728-29 (1990). The evidence presented above prove that EM Earley cannot prevail on any of the prongs. The defendants in this case ask this court to deny EM Earley's proposed order for a temporary restraining order and for an injunction. Earley will likely fail on the merits. Earley has the burden of proving that this court’s time to consider an injunction is necessary, and that the “usual remedies” do not. Stachnik, 394 Mich. at 387. DFT’s collective bargaining agreement already contains provisions for how DPS is to challenge the use of sick days. Earley had not even bothered to send out his January 15, 2016 order to teachers, while asking this court to rule ex parte. The Defendants are confident that they will find far more students and parents who will be willing to testify in support of the teachers’ sick-outs than Earley will. The status quo, before the sick-outs started, was freefall for the Detroit Public Schools.

This Court needs to deny DPS’ and EM Earley’s motion for a temporary restraining order and a preliminary injunction. Respectfully submitted, UNITED FOR EQUALITY AND AFFIRMATIVE ACTION LEGAL DEFENSE FUND (UEAALDF) By: __________________________ Shanta Driver (P65007) Attorneys for Defendants Steve Conn; Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); Strike to Win Committee; Nicole Conaway; Tracey Russel; Erika Jones 19526-B Cranbrook Drive Detroit, MI 48221 Dated: January 25, 2016