Chicago Teachers Union v. Board of Education of the City of Chicago

ILLINOIS OFFICIAL REPORTS

Supreme Court

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago,

2012 IL 112566

Caption in Supreme CHICAGO TEACHERS UNION, LOCAL No. 1, AMERICAN

Court: FEDERATION OF TEACHERS, Appellee, v. THE BOARD OF

EDUCATION OF THE CITY OF CHICAGO et al., Appellants.

Docket No. 112566

Filed February 17, 2012

Held The statutes governing the public schools of the City of Chicago do not

(Note: This syllabus give tenured teachers a substantive right to be rehired after an economic

constitutes no part of layoff or the right to certain procedures during the rehiring process.

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Certified question from the United States Court of Appeals for the

Review Seventh Circuit, the Hon. David H. Coar, Judge, presiding.

Judgment Certified questions answered.

Counsel on James C. Franczek, Jr., Sally J. Scott and Abizer Zanzi, of Franczek

Appeal Radelet P.C., and Patrick J. Rocks and Susan M. O’Keefe, all of Chicago,

for appellants.

Thomas H. Geoghegan and Michael P. Persoon, of Despres, Schwartz &

Geoghegan, Ltd., Robert E. Bloch and Omar Josef Shehabi, of Dowd,

Bloch & Bennett, and Robin Potter and Jennifer N. Purcell, all of

Chicago, for appellee.

Elaine K.B. Siegel, of Chicago, for amici curiae Parents United for

Responsible Education and Designs for Change.

Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Justices Thomas, Garman, Karmeier, and Burke concurred in the

judgment and opinion.

Justice Theis dissented, with opinion, joined by Chief Justice Kilbride.

OPINION

¶1 This court accepted certified questions of law from the United States Court of Appeals

for the Seventh Circuit. Ill. S. Ct. R. 20 (eff. Aug. 1, 1992). The court of appeals asks

whether sections 34-18 (31) and 34-84 of the School Code (105 ILCS 5/34-18(31), 34-84

(West 2010)) “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?” We conclude that sections 34-18(31) and 34-84 do not confer

these rights.

¶2 I. BACKGROUND

¶3 The Board of Education of the City of Chicago (Board) exercises “general supervision

and jurisdiction over the *** [Chicago] public school system.” 105 ILCS 5/34-18 (West

2010). The right to employ, discharge, and layoff teachers is vested solely with the Board.

105 ILCS 5/34-8.1 (West 2010). The Chicago Teachers Union (Union) is the teachers’

exclusive bargaining representative.

¶4 In the summer of 2010, the Board faced significant budget deficits for the 2010-2011

school year. Consequently, in several phases that summer, the Board was forced to lay off

1,289 teachers. All laid-off teachers received notice of their termination. With their notices,

the Board gave the teachers information on how to search and apply for vacant teaching

positions within the Chicago public school system. The notices also pointed the teachers to

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a Web site listing vacancies and included invitations to attend a resume and interviewing

workshop and two job fairs that were open solely to displaced teachers. However, not all

vacancies were listed on the Web site, and laid-off teachers were not given preference for

other teaching jobs.

¶5 In August 2010, due to an increase in federal funding, the Board recalled approximately

715 tenured teachers. These teachers were not recalled pursuant to an official recall policy.

According to Rachel Resnick, the Board’s labor relations officer: “A teacher who is laid off

may be rehired, but we have no recall policy.” Subsequent to the layoff, teacher vacancies

have become available within the Chicago public school system. Laid-off teachers who were

not rehired complain that many of those positions have been filled with new hires instead of

with laid-off tenured teachers.

¶6 In August 2010, the Union filed a complaint in the United States District Court for the

Northern District of Illinois against the Board alleging, inter alia, violations of federal due

process. The Union also filed a motion for preliminary and permanent injunctive relief on

its due process claim. Following a hearing, the district court granted the Union’s motion for

injunctive relief. The court concluded that section 34-18(31) of the School Code (105 ILCS

5/34-18(31) (West 2010)) “provides tenured teachers some residual property rights in the

event of an economic layoff” (Chicago Teachers Union v. Board of Education of the City of

Chicago, No. 10 C 4852, slip op. at 14 (N.D. Ill. Oct. 4, 2010)), and “contemplates not only

rights concerning layoffs, but rights concerning recall procedures as well.” Id. at 13. The

court found that this property interest is protected by the fourteenth amendment to the United

States Constitution. The court entered a permanent injunction: (1) ordering the Board to

rescind the discharges of tenured teachers; (2) directing the Board, within 30 days, to

promulgate, in consultation with the Union and after good-faith negotiations, recall rules

compliant with section 34-18(31); and (3) enjoining the Board from conducting future layoffs

in a similar manner until it promulgates recall rules. The district court granted the Board’s

motion to stay the permanent injunction pending the outcome of the Board’s appeal.

¶7 A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed

“the district court’s finding that tenured, laid-off teachers have a residual property right in

the event of an economic layoff,” but narrowed the scope of the district court’s injunction.

The appeals court majority concluded: “Although consultation with the Union may expedite

the process of promulgating the rules, there is nothing in Section 34-18(31) that requires

cooperation with the Union, and we decline to impose such a requirement.” Chicago

Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 640 F.3d 221,

232 (7th Cir. 2011), vacated, 662 F.3d 761 (7th Cir. 2011) (per curiam). A dissenting judge

asserted that Illinois law did not give tenured teachers a substantive entitlement to be rehired

after an economic layoff. Id. at 233 (Manion, J., dissenting).

¶8 The Board requested rehearing, contending that the federal court misinterpreted Illinois

law. The court concluded that it should afford this court an opportunity to interpret Illinois

law. Accordingly, the court granted the petition for rehearing, vacated its prior opinion

(Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 662

F.3d 761 (7th Cir. 2011) (per curiam), vacating 640 F.3d 221, and, pursuant to its Rule 52

(7th Cir. R. 52), certified the following questions to this court:

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“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 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?

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?” Chicago Teachers Union, Local No. 1, 662

F.3d at 764-65.

Further, the court of appeals expressly invited “reformulation of any of the questions

presented if necessary,” and stated that “nothing in this certification should be read to limit

the scope of the inquiry to be undertaken by the Supreme Court of Illinois.” Id. at 765. The

court of appeals stayed proceedings in that court during our consideration of this matter.

¶9 This court accepted certification pursuant to Supreme Court Rule 20 (Ill. S. Ct. R. 20 (eff.

Aug. 1, 1992)). We subsequently granted Parents United for Responsible Education, and

Designs for Change, leave to submit an amici curiae brief in support of the Union. Ill. S. Ct.

R. 345 (eff. Sept. 20, 2010).

¶ 10 II. ANALYSIS

¶ 11 A. State Law Must Create Property Interest

¶ 12 The court of appeals promulgated the certified questions based on a familiar analytical

framework. The due process clause of the fourteenth amendment protects against the

deprivation of life, liberty, or property without due process of law. U.S. Const., amend. XIV.

The fourteenth amendment’s procedural protection of property is a safeguard of property

interests that a person has already acquired in specific benefits. Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 576 (1972). Of course, the federal Constitution does not

create property interests. “ ‘Rather, they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state

law—rules or understandings that secure certain benefits and that support claims of

entitlement to those benefits.’ ” Wilson v. Bishop, 82 Ill. 2d 364, 368-69 (1980) (quoting

Roth, 408 U.S. at 577). “ ‘Therefore, the starting point in any procedural due process analysis

is a determination of whether one of those protectable interests is present, for if there is not,

no process is due.’ ” Wilson, 82 Ill. 2d at 368 (quoting Polyvend, Inc. v. Puckorius, 77 Ill. 2d

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287, 293-94 (1979)); see Buttitta v. City of Chicago, 9 F.3d 1198, 1201 (7th Cir. 1993)

(same).

¶ 13 Whether a property interest is protectable under the fourteenth amendment is ultimately

a question of federal constitutional law. However, resolution of the federal issue begins with

a determination of what state law provides. Town of Castle Rock v. Gonzales, 545 U.S. 748,

756-57 (2005); id. at 771 (Souter, J., concurring, joined by Breyer, J.) (“the federal process

protects the property created by state law”). “State law can create a property interest in

employment.” Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 106 (1990); see

Buttitta, 9 F.3d at 1202 (same). Therefore, the court of appeals asks this court whether the

School Code grants laid-off tenured teachers any statutory rights.

¶ 14 B. Article 34 of School Code

¶ 15 The certified questions involve several sections of the School Code. The primary

objective in construing a statute is to ascertain and give effect to the intention of the

legislature. All other rules of statutory construction are subordinate to this cardinal principle.

Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990); Electrical Contractors Ass’n of City of

Chicago, Inc. v. Illinois Building Authority, 33 Ill. 2d 587, 591-92 (1966). The most reliable

indicator of legislative intent is the language of the statute, which must be given its plain and

ordinary meaning. A statute is viewed as a whole. Therefore, words and phrases are

construed in light of other relevant statutory provisions and not in isolation. Hubble v. Bi-

State Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268

(2010); Williams v. Staples, 208 Ill. 2d 480, 487 (2004). Each word, clause, and sentence of

a statute must be given a reasonable meaning, if possible, and should not be rendered

superfluous. Williams, 208 Ill. 2d at 487; A.P. Properties, Inc. v. Goshinsky, 186 Ill. 2d 524,

532 (1999). The court may consider the reason for the law, the problems sought to be

remedied, the purposes to be achieved, and the consequences of construing the statute one

way or another. Hubble, 238 Ill. 2d at 268; Williams, 208 Ill. 2d at 487. Statutory

construction presents a pure question of law that we review de novo. Yang v. City of

Chicago, 195 Ill. 2d 96, 103 (2001).

¶ 16 Article 34 of the School Code “applies only to cities having a population exceeding

500,000.” 105 ILCS 5/34-1 (West 2010). Section 34-18 provides in pertinent part:

“Powers of the board. The board shall exercise general supervision and jurisdiction

over the public education and the public school system of the city, and, except as

otherwise provided by this Article, shall have power:

***

31. To promulgate rules establishing procedures governing the layoff or reduction

in force of employees and the recall of such employees, including, but not limited to,

criteria for such layoffs, reductions in force or recall rights of such employees and the

weight to be given to any particular criterion. Such criteria shall take into account

factors including, but not be limited to, qualifications, certifications, experience,

performance ratings or evaluations, and any other factors relating to an employee’s

job performance[.]” 105 ILCS 5/34-18(31) (West 2010).

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Further, section 34-84 of the School Code provides in pertinent part: “Appointments and

promotions of teachers shall be made for merit only, and after satisfactory service for a

probationary period *** appointments of teachers shall become permanent, subject to

removal for cause in the manner provided by Section 34-85.” 105 ILCS 5/34-84 (West 2010).

In turn, section 34-85 sets forth the process for removing a tenured teacher for cause,

including written notice of charges and a hearing. 105 ILCS 5/34-85 (West 2010).

¶ 17 1. Substantive Right to Be Rehired After Economic Layoff

¶ 18 In a series of questions, the court of appeals first asks whether section 34-18(31) or 34-84

of the School Code, individually or in combination, give laid-off tenured teachers the

substantive right to be rehired after an economic layoff. We conclude they do not.

¶ 19 As set forth above, section 34-84 establishes a system of “permanent” appointment of

teachers, also known as tenure, subject to removal for cause as prescribed in section 34-85.

The Board contends that section 34-84 does not provide any substantive rights to tenure after

a layoff. The Union contends that, solely “by virtue of the teacher’s ‘permanent’

appointment” under section 34-84, a laid-off tenured teacher has the substantive right to

continued employment in preference to an equally or less qualified new teacher without

experience, and “should have a preferential right to a vacant position over an equally or less

qualified new teacher without experience.” We reject the Union’s argument.

¶ 20 In Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414 (2002), this court

concluded that section 34-84’s provision of tenure and removal only for cause does not

exempt tenured teachers from layoff. The Land court recognized that the Board has the long-

established power to lay off tenured teachers. Id. at 424 (collecting cases). The court

observed that prior to 1995, section 34-84 limited the Board’s power to lay off tenured

teachers. At that time, tenured teachers whose positions were eliminated for reasons other

than “cause” were designated “reserve teachers.” 105 ILCS 5/34-84 (West 1994). Reserve

teachers remained on the Board’s payroll for 25 months and were entitled to interim teaching

positions and appointments to vacancies for which they had proper certification. Id.; see

Land, 202 Ill. 2d at 424-25. However, in 1995, the legislature amended article 34 of the

School Code by: removing all statutory references to “reserve teachers,” deleting the

language regarding layoffs and recall from section 34-84, and adding section 34-18(31). 105

ILCS 5/34-18(31), 34-84 (West 2010). The Land court concluded that the 1995 amendment

“did not eliminate or reduce” the Board’s long-established power to lay off tenured teachers.

Land, 202 Ill. 2d at 425.

¶ 21 While not eliminating or reducing the Board’s power, the 1995 amendment reflects a

clear legislative intent to change the statutory rights of tenured teachers in a layoff. When the

legislature amends an unambiguous statute by deleting certain language, it is presumed that

the legislature intended to change the law in that respect. In re K.C., 186 Ill. 2d 542, 548

(1999); Lingwall v. Hoener, 108 Ill. 2d 206, 212 (1985). In the case at bar, the General

Assembly’s removal of layoff and recall procedures from section 34-84 eliminated any

substantive right arising from section 34-84 for tenured teachers to be rehired after an

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economic layoff.1

¶ 22 The court of appeals also asks whether section 34-18(31) of the School Code provides

laid-off tenured teachers with the substantive right to be rehired after an economic layoff.

According to the Board, section 34-18(31) involves procedures rather than substantive rights.

However, the Union contends that “the right to recall under Section 34-18(31) by itself is an

independent substantive right.” The Union argues that while section 34-18(31) “may

authorize a recall ‘procedure,’ *** its mandatory criteria imply a limited ‘substantive’ right

of preference over new hires.”

¶ 23 We reject the Union’s argument. The plain language of section 34-18(31) provides that

the Board “shall have the power” to promulgate layoff procedures and to promulgate recall

procedures. Section 34-18(31) is plainly an authorizing or enabling provision and does not

contain any mandatory terms. The legislature intended merely to confer a power which the

Board could exercise or not, as it saw fit. Accordingly, section 34-18(31) cannot be the basis

of a substantive right to be rehired after an economic layoff.

¶ 24 In contrast, for all other school districts in Illinois, the legislature has mandated that laid-

off tenured teachers, with satisfactory or better evaluations, have a right to recall. Subject to

their certification and seniority, such teachers have the right to be rehired into new vacancies

in their districts for a period of one or two years, depending on the size of the layoff. 105

ILCS 5/24-12 (West 2010). When the legislature includes particular language in one section

of a statute but omits it in another section of the same statute, courts presume that the

legislature acted intentionally and purposely in the inclusion or exclusion (In re J.L., 236 Ill.

2d 329, 341 (2010); Adames v. Sheahan, 233 Ill. 2d 276, 311 (2009)), and that the legislature

intended different meanings and results (In re K.C., 186 Ill. 2d at 549-50; Carver v.

Bond/Fayette/Effingham Regional Board of School Trustees, 146 Ill. 2d 347, 353 (1992)).

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.2

¶ 25 The Union further argues that the Board’s authority to promulgate layoff procedures and

recall procedures pursuant to section 34-18(31) “must be balanced with the teacher’s right

to a ‘permanent’ appointment under section 34-84.” Citing this court’s decision in Powell

v. Jones, 56 Ill. 2d 70 (1973), the Union reasons that the Board is required to promulgate

recall procedures because the power to lay off under section 34-18(31) cannot be equal to the

power to remove a teacher permanently under sections 34-84 and 34-85

1

The dissent appears to assign pretextual motives to the Board’s economic layoff of tenured

teachers. Infra ¶ 41 (Theis, J., dissenting, joined by Kilbride, C.J.). However, it is undisputed that

the layoffs in this case were based on nonpretextual economic reasons.

2

The dissent acknowledges this statutory distinction (infra ¶ 45 (Theis, J., dissenting, joined

by Kilbride, C.J.)), yet fails to recognize its legal significance in construing these statutes.

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¶ 26 We cannot accept this argument. In Powell, this court observed that the Civil Service Act

provided for the adoption of layoff rules and recall rules for civil service employees, which

were actually adopted. This court held that the recall rules afforded adequate procedural due

process based on the qualitative differences between layoff and discharge. Powell, 56 Ill. 2d

at 79-82. That case has no bearing on what rights the laid-off teachers have pursuant to this

statute. Powell does not stand for the proposition that an enabling statute that authorizes the

adoption of layoff procedures requires the adoption of recall procedures.

¶ 27 2. Procedural Rights During Rehiring Process

¶ 28 In a series of questions, the court of appeals next asks whether section 34-18(31) or 34-

84, individually or in combination, give laid-off tenured teachers any procedural rights

during the rehiring process. Initially, we agree with the Union that this set of certified

questions does not require this court to give an opinion as to the procedures that the due

process clause of the fourteenth amendment may require. So viewed, the issue is one of

federal constitutional law. See Gonzales, 545 U.S. at 756-57. Rather, this set of questions

seeks answers about “procedures” only if teachers have no substantive rights to recall and

continued employment.

¶ 29 According to the Board, just as section 34-84 does not give laid-off tenured teachers a

substantive right to be rehired after an economic layoff, so too section 34-84 does not give

such teachers a right to certain procedures during the rehiring process. We agree. The 1995

amendment to the School Code removed from section 34-84 legislatively mandated

procedures for rehiring tenured teachers after a layoff.

¶ 30 Further, section 34-18(31) does not create a right to recall procedures. If the Board

chooses to promulgate criteria for recall procedures, it is directed to “take into account

factors including, but not *** limited to, qualifications, certifications, experience,

performance ratings or evaluations, and any other factors relating to an employee’s job

performance.” (Emphasis added.) 105 ILCS 5/34-18(31) (West 2010). These mandatory

legislative factors do not give tenured teachers a right to recall procedures. This section does

not guarantee that after any layoff the most qualified or most experienced tenured teacher

will be recalled. Rather, all it provides is that if the Board promulgates recall procedures, it

will take into account factors that include qualifications, experience, and “any other factors

relating to an employee’s job performance.” Id. The Union cannot reasonably read section

34-18(31) and infer from the fact that the Board will consider qualifications, certifications,

and job performance when promulgating recall procedures that they have a statutory right to

recall procedures.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we conclude that neither section 34-18(31) nor section 34-84

of the School Code, considered separately or together, gives laid-off tenured teachers either

a substantive right to be rehired after an economic layoff or a right to certain procedures

during the rehiring process.

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¶ 33 Certified questions answered.

¶ 34 JUSTICE THEIS, dissenting:

¶ 35 After today’s decision, the Chicago Board of Education may de facto discharge tenured

teachers without cause during an economic layoff. Because I believe this result gives

insufficient weight to the term “permanent” in section 34-84 of the School Code, I dissent.

¶ 36 Section 34-84 provides that appointments and promotions of teachers “shall be made for

merit only,” and that appointments “shall become permanent, subject to removal for cause”

for teachers who satisfactorily complete a probationary period. 105 ILCS 5/34-84 (West

2010). As the Seventh Circuit noted, permanent or tenured teachers have a property interest

in their continued employment (Chicago Teachers Union, Local No. 1 v. Board of Education

of the City of Chicago, 640 F.3d 227, 227 (7th Cir. 2011), vacated, 662 F.3d 761 (7th Cir.

2011) (per curiam)), and may not be discharged unless the Board of Education complies with

the notice and hearing requirements in section 34-85. The teachers here were not discharged,

but rather were laid off. This distinction is crucial. See Mims v. Board of Education of the

City of Chicago, 523 F.2d 711, 715 (7th Cir. 1975) (“a layoff is less drastic than a discharge”

(citing Powell v. Jones, 56 Ill. 2d 70 (1973))). The issue here, as I see it, is what does

“permanent” mean in the context of a layoff?

¶ 37 The legal framework is familiar, and presented well in the majority opinion. Under the

fourteenth amendment, the state may not deprive a person of life, liberty, or property without

due process of law. U.S. Const., amend. XIV. An initial requisite for a due process claim,

then, is the existence of a protected interest. Here, the Union claimed a deprivation of

property. What constitutes property, or a property interest, is defined by state law. Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 561 (1985) (Rehnquist, J., dissenting).

Thus, our analysis must focus on the statutes here.

¶ 38 Before 1995, tenured teachers in Chicago whose services were “no longer required

because of a decrease in student membership, a change in subject requirements within the

attendance center organization, or the closing of an attendance center” (105 ILCS 5/34-1.1

(West 1992 & Supp. 1993)) enjoyed recall rights under section 34-84. See 105 ILCS 5/34-84

(West 1992) (“supernumerary teachers”); 105 ILCS 5/34-84 (West Supp. 1993) (“reserve

teachers”). These rights were similar to those of tenured teachers elsewhere in Illinois. See

105 ILCS 5/24-12 (West 1992). Then the School Code was amended. The legislature

retained recall rights for downstate teachers, but altered such rights for Chicago teachers. The

legislature deleted the reserve teacher provisions of section 34-84, and added section 34-

18(31), which provides:

“The board *** shall have power:

***

*** [t]o promulgate rules establishing procedures governing the layoff or

reduction in force of employees and the recall of such employees, including, but not

limited to, criteria for such layoffs, reductions in force or recall rights of such

employees and the weight to be given to any particular criterion. Such criteria shall

take into account factors including, but not limited to, qualifications, certifications,

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experience, performance ratings or evaluations, and any other factors relating to an

employee’s job performance[.]” 105 ILCS 5/34-18(31) (West 2010).

Notably, section 34-18(31) does not give the Board the authority to discharge. It gives the

Board only the authority to create layoff and recall rules, and criteria for when such rules

apply, as well as guidance about factors relevant to the exercise of this authority.

¶ 39 We discussed these statutes in Land v. Board of Education of the City of Chicago, 202

Ill. 2d 414 (2002). In Land, five teachers employed by the Board were laid off, and

subsequently filed a complaint seeking a writ of mandamus to order their reinstatement and

a declaration that the Board’s layoff policy was invalid under sections 34-84 and 34-85 of

the School Code. The trial court granted summary judgment to the Board, and the appellate

court reversed.

¶ 40 This court affirmed in part. We noted that the Board had long possessed the authority to

conduct layoffs. Id. Before 1995, limits on that power appeared in section 34-84. Id. “The

1995 amendments did not eliminate or reduce this power. Instead, by deleting the layoff

provision from section 34-84 and adding section 34-18(31), the legislature gave the Board

the authority to formulate and implement its own rules and procedures regarding layoffs

rather than binding the Board to a legislatively mandated procedure.” Id. at 425. In short,

sections 34-84 and 34-85 do not exempt tenured teachers from layoff. Id.

¶ 41 Land, however, offers only a partial resolution to the issue before us. In that case, we held

that “permanent” under section 34-84 does not mean exempt from an economic layoff, but

we made no comment on what “permanent” does mean in that context—or what recall rights

Chicago teachers might still have under the 1995 amendments to the School Code. As the

Seventh Circuit stated, neither those amendments nor Land “suggest that tenured teachers

are not entitled to an opportunity to show that they are qualified for vacancies after an

economic layoff.” Chicago Teachers Union, 640 F.3d at 230. That court continued: “If a

‘permanent’ appointment means anything, it at least means that if vacancies arise during or

shortly after a layoff, the teachers who originally held ‘permanent’ appointments should be

given a meaningful opportunity to show that they remain qualified to fill those positions.”

Id. I agree. The power to lay off cannot be equal to, or substitute for, the power to discharge.

The legislature did not intend to allow the Board simply to ignore its authority to adopt recall

rules under section 34-18(31) and do through inaction what it cannot do under section 34-

85—namely, terminate a tenured teacher without cause.

¶ 42 In response to the Seventh Circuit’s questions, I believe that laid-off tenured teachers

have a property interest in or, using the majority’s terminology, a statutory right to continued

employment, which is rooted in section 34-84 and its guarantee of permanent appointments

subject to removal for cause. See Lalvani v. Cook County, 269 F.3d 785, 791 (7th Cir. 2001)

(holding that a “legitimate claim of entitlement” to government employment “is typically

rooted in statutory or contractual language indicating that the employee cannot be terminated

but for cause”); see also Mims, 523 F.2d at 715 (holding that laid-off civil service employees

of the Chicago Board of Education had “a property interest in their continued active

employment, not just in their status as civil servants”). The inquiry then becomes how best

to vindicate that interest, or what is the scope of that right.

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¶ 43 The hallmark of procedural due process is “the opportunity to be heard at a meaningful

time and in a meaningful manner.” (Internal quotation marks omitted.) Mathews v. Eldridge,

424 U.S. 319, 333 (1976). Under Mathews, a court considering what process is due must

balance “[f]irst, the private interest that will be affected by the official action; second, the

risk of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards; and finally, the

Government’s interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.” Id. at 335.

Here, the tenured teachers’ property interest in continued employment and the Board’s

interest in maintaining both its instructional quality and its fiscal health are important. But

the risk of erroneous deprivation is high because there are no recall procedures in place, and

accordingly the probable value of such procedures is similarly high.

¶ 44 Tenured teachers, thus, are entitled to some process in which they have a meaningful

opportunity to demonstrate their qualifications for vacant positions with the Board. However,

judicial imposition of that process is problematic, in light of the Board’s statutory authority

to adopt procedures for layoffs and recalls. I believe that the federal courts were correct in

recognizing that only the Board has the “institutional competence to define the exact

contours of those procedures.” Chicago Teachers Union, 640 F.3d at 232. The legislature

placed power with the Board, and the Board must exercise that power—not just with respect

to layoffs, but more importantly with recalls—in order to protect the rights of tenured

teachers.

¶ 45 Though the majority indicates that the Board remains free to ignore its power, I urge the

Board to complete its work. If it refuses, I urge the legislature to clarify the recall rights of

tenured teachers in Chicago, as it has done before, and as it does currently for tenured

teachers elsewhere in our state.

¶ 46 CHIEF JUSTICE KILBRIDE joins in this dissent.

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