Illinois Supreme Court rules that state law does not give laid-off tenured teachers substantive or procedural rights related to rehiring
Chicago Teachers Union, Local No. 1 v. Board of Educ. of the City of Chicago, 2012 IL 112566 (Ill. Feb. 17, 2012)
Abstract: The Illinois Supreme Court, having accepted two certified questions of law from the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI), ruled, in a 5-2 split, that under sections 34-18 (31) and 34-84 of the Illinois School Code [which address tenured teacher lay-offs in the Chicago school district] laid-off tenured teachers do not have the right to be rehired after an economic layoff, or the right to certain procedures during the rehiring process. The majority determined that the sections in question neither individually nor in combination provide laid-off tenured teachers with the substantive right to be rehired after an economic layoff. When the state legislature amended section 34-84 in 1995 to remove layoff and recall procedures, the court said, the clear intent was to eliminate “any substantive right arising from section 34-84 for tenured teachers to be rehired after an economic layoff.”
The majority, likewise, rejected the union’s argument that section 34-18(31) created a substantive right to be rehired after an economic layoff. Instead, it concluded that section 34-18(31) “is plainly an authorizing or enabling provision and does not contain any mandatory term,” and the “legislature intended merely to confer a power which the Board could exercise or not, as it saw fit.”
Facts/Issues: A federal district court in Illinois granted the Chicago Teachers Union’s (CTU) motion for preliminary and permanent injunctions, ordering the Chicago Board of Education (CBOE) to rescind its recent economic layoff of tenured teachers and to promulgate, in negotiation with CTU, layoff and recall rules for tenured teachers. While conceding that the Illinois School Code only creates the statutory authorization for rules, “[the School Code] provides tenured teachers some residual property rights in the event of an economic layoff.”
The court concluded, therefore, that CBOE’s resolution authorizing the “honorable termination” of tenured teachers as part of an economic layoff violated their Fourteenth Amendment rights because it deprived them of property without due process. The court therefore entered an injunction: (1) directing CBOE to rescind the discharges of tenured teachers; (2) directing CBOE to promulgate, in consultation with the CTU and after good faith negotiations, a set of recall rules compliant with the school code (105 ILCS 5/34-18(31)); and (3) enjoining CBOE from conducting future layoffs in a similar manner until recall rules had been promulgated.
The district court’s ruling was appealed to the U.S. Court of Appeals for the Seventh Circuit. In a 2-1 split, a three-judge panel ruled that Chicago teachers who were laid off for economic reasons have Fourteenth Amendment due process rights to recall procedures when new positions become available; however, the state education code does not require the school board to consult with the union in promulgating those procedures. While the Seventh Circuit panel agreed with the federal district court on the existence of the due process right, it found nothing in the relevant provision of the Illinois School Code that required CBOE to cooperate with CTU to develop and implement such procedures. The panel, therefore, ordered the lower court to modify its injunction to conform with the panel’s ruling.
CBOE subsequetly filed a motion for rehearing, contending that the panel misinterpreted Illinois law. The Seventh Circuit panel concluded that it should afford the Illinois Supreme Court an opportunity to interpret Illinois law. Accordingly, the panel granted the petition for rehearing, vacated its prior opinion, and certified the following questions for the Illinois Supreme Court:
1. Section 34-84 of the Illinois School Code provides that appointments of teachers become “permanent” after 3 years. This is commonly referred to as tenure. Does section 34-84 give laidoff tenured teachers either (1) the right to be rehired after an economic layoff, or (2) the right to certain procedures during the rehiring process? If so, what is the scope of that right?
2. Section 34-18(31) of the Illinois School Code empowers the Board of Education to promulgate rules governing layoff and recalls. It also provides certain criteria that the Board should consider when formulating those rules. In this case, no rules were formulated. Does section 34-18(31) or the limits it places on the Board’s discretion give laid-off tenured teachers either (1) the right to be rehired after an economic layoff, or (2) the right to certain procedures during the rehiring process? If so, what is the scope of that right?
3. If neither section 34-84 nor section 34-18(31) standing alone gives laid-off tenured teachers substantive or procedural rights related to rehiring, when read in combination do they give those teachers either (1) the right to be rehired after an economic layoff, or (2) the right to certain procedures during the rehiring process? If so, what is the scope of that right?
Ruling/Rationale: A majority of the Illinois Supreme Court concluded that sections 34-18(31) and 34-84 do not confer on laid-off tenured teachers either (1) the right to be rehired after an economic layoff, or (2) the right to certain procedures during the rehiring process. While acknowledging that whether the teachers have a property interest protectable under the Fourteenth Amendment is a question of federal constitutional law, it pointed out that the threshold question of whether the property interest exists is one of state law.
After scrutinizing the language of section 34 of the Illinois School Code, the majority concluded that neither section 34-18(31) nor section 34-84, individually or in combination, give laid-off tenured teachers the substantive right to be rehired after an economic layoff. The court’s caselaw established that “section 34-84’s provision of tenure and removal only for cause does not exempt tenured teachers from layoff.” The court had concluded in a previous decision that when the state legislature amended section 34 in 1995, “the 1995 amendment ‘did not eliminate or reduce’ the Board’s long-established power to lay off tenured teachers.”
Addressing the Seventh Circuit’s question of whether section 34-18(31) provides laid-off tenured teachers with the substantive right to be rehired after an economic layoff, the majority rejected CTU’s argument that while the section “may authorize a recall ‘procedure,’ *** its mandatory criteria imply a limited ‘substantive’ right of preference over new hires.” The plain language of section 34-18(31) demonstrated that the “legislature intended merely to confer a power which the Board could exercise or not, as it saw fit,” and, therefore, ” … section 34-18(31) cannot be the basis of a substantive right to be rehired after an economic layoff.”
The majority also stated:
In the present case, the existence of a recall provision in one section of the School Code and the absence of such a provision in another is further indication that section 34-18(31) does not give laid-off tenured Chicago public school teachers a substantive right to be rehired after an economic layoff. Had the legislature intended to provide substantive rehire rights to laid-off tenured Chicago public school teachers, it would have done so, as it did for all other school districts in Illinois.”
As to the CTU’s contention that section 34-18(31) must be “balanced” with section 34-84′s conferral on teachers of the right to “permanent appointment,” based on the Illinois Supreme Court’s decision in Powell v. Jone, 56 Ill. 2d 70 (1973), the majority concluded that “Powell does not stand for the proposition that an enabling statute that authorizes the adoption of layoff procedures requires the adoption of recall procedures.”
Chicago Teachers Union, Local No. 1 v. Board of Educ. of the City of Chicago, 2012 IL 112566 (Ill. Feb. 17, 2012)
[Editor's Note: In June 2011, the Seventh Circuit panel granted CBOE’s motion for rehearing and vacated its March 2011 decision. “At this juncture," the panel explained, "we believe that affording the Supreme Court of Illinois an opportunity to interpret the application of Illinois law would be the best course of action. Notably, in this case, the district court issued an injunction. The federal injunction means that there will be no opportunity for a state court to correct our interpretation of state law if it is erroneous, even though the issue is one of substantial and ongoing importance. We therefore grant the petition for rehearing, vacate our opinion issued on March 29, 2011, and respectfully certify the following questions to the Illinois Supreme Court: ….”
Check out Legal Clips' April 2011 summary of the Seventh Circuit panel’s vacated March 2011 decision here.
The Illinois Supreme Court's interpretation of the school code hands CBOE a victory in the midst of pitched battles with community groups over school closures. The Wall Street Journal reports that Mayor Rahm Emanuel's aggressive stance on education overhauls mirrors those of a number of Democratic mayors nationwide. The mayor's efforts have resulted in actions such as CBOE's vote on February 22, 2012 to shake up the teaching staffs at 17 low-performing public schools. The board voted to close five elementary schools, phase out one high school and "turn around" 10 schools by firing all the teachers and making them reapply for jobs. One other high school will convert to a new school with a health-science focus. WSJ reported that the move is Mr. Emanuel's latest in a year-long effort to overhaul a school system where one in five fourth-graders pass national reading exams and 50% of students drop out before they graduate from high school.]
