Opposition Brief — Board of School Trustees of Madison Consolidated Schools, et al., Petitioners v. Joseph R. Elliott

No. 17-1259

IN THE

Supreme Court of the United States

___________

BOARD OF SCHOOL TRUSTEES OF MADISON

CONSOLIDATED SCHOOLS, ET AL.,

Petitioners,

v.

JOSEPH R. ELLIOTT,

___________

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit

___________

BRIEF IN OPPOSITION

___________

ERIC HYLTON

Riley Bennett &

Egloff, LLP

141 E. Washington St.

Fourth Floor

Indianapolis, IN 46204

(317) 636-8000

May 4, 2018

ALICE O’BRIEN

Counsel of Record

JASON WALTA

KRISTEN HOLLAR

ZACHARY CHASE

National Education

Association

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 822-7035

aobrien@nea.org

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:09

i

TABLE OF CONTENTS

Page

Table of authorities.................................................. ii

Introduction .............................................................. 1

Statement of the case and facts ............................... 2

I.

The contractual nature of teacher tenure

in Indiana ........................................................ 2

II. The impairment of Elliott’s contractual

tenure rights.................................................... 7

III. Proceedings below ......................................... 11

Reasons for denying the petition............................ 13

I.

The petition does not present a

compelling question that merits review

under this Court’s standards for granting

certiorari ........................................................ 13

II. The Court should decline Petitioners’

invitation to grant certiorari for the

purpose of overruling Anderson.................... 16

A. Anderson is correctly decided .................... 16

B. Considerations of stare decisis strongly

counsel against revisiting Anderson ......... 22

C. This case would be a poor vehicle for

revisiting Anderson .................................... 28

Conclusion ............................................................... 30

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Agostini v. Felton, 521 U.S. 203 (1997) .................. 24

Allied Structural Steel Co. v. Spannaus, 438

U.S. 234 (1978) ..................................... 18, 19, 20

Atl. Coast Line R. Co. v. Phillips, 332 U.S.

168 (1947) ................................................... 21, 22

Babb v. Indep. Sch. Dist. No. I-5., 829 P.2d

973 (Okla. 1992) ................................................. 7

Boys Markets, Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235 (1970) ........................ 25

Bruck v. State ex rel. Money, 91 N.E.2d 349

(Ind. 1950)................................................... 14, 24

Burnet v. Coronado Oil & Gas Co., 285 U.S.

393 (1932) ......................................................... 24

Campbell v. Aldrich, 79 P.2d 257 (Or. 1938) ......... 26

City of El Paso v. Simmons 379 U.S. 497

(1965) .......................................................... 19, 20

Coats v. Bd. of Educ., Unified Sch. Dist. No.

353, 662 P.2d 1279 (Kan. 1983) ......................... 7

Dodge v. Bd. of Educ., 302 U.S. 74 (1937) ....... 26–27

Durham ex rel. Estate of Wade v. U-Haul

Int’l, 745 N.E.2d 755 (Ind. 2001) ........... 6, 14, 25

iii

Elliott v. Bd. of Sch. Trustees of Madison

Consol. Sch., 876 F.3d 926 (7th Cir.

2017) ............................................... 11–13, 15, 23

Energy Reserves Grp., Inc. v. Kan. Power &

Light Co., 459 U.S. 400 (1983) ......................... 16

Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938) ................................................................ 21

Gen. Motors Corp. v. Romein, 503 U.S. 181

(1992) ................................................................ 21

Heffner v. White, 47 N.E.2d 964 (Ind. 1943) ............ 6

Home Building & Loan Assn. v. Blaisdell,

290 U.S. 398 (1934) ................................ 5, 19–20

Ind. ex rel. Anderson v. Brand, 303 U.S. 95

(1938) ........................................................ passim

Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401

(2015) .............................................. 22, 22, 23, 35

Malone v. Hayden, 197 A. 344 (Pa. 1938) .............. 26

Montejo v. Louisiana, 556 U.S. 778 (2009) ............ 23

Morgan v. Potter, 298 N.W. 763 (Wis. 1941).......... 26

Minnesota Ass’n of Pub. Schs. v. Hanson, 178

N.W.2d 846 (Minn. 1970) ................................. 26

iv

Nat’l R.R. Passenger Corp. v. Atchinson

Topeka & Santa Fe Ry. Co., 470 U.S. 451

(1985) .......................................................... 18, 27

Payne v. Tenn., 501 U.S. 808 (1991) ...................... 22

Phelps v. Bd. of Educ., 300 U.S. 319 (1937) ... passim

Pierce v. Underwood, 487 U.S. 552 (1988) ............... 6

Sch. Dist. No. 1 v. Masters, 413 P.3d 723

(Colo. 2018) ..................................................... 5–6

Square D Co. v. Niagara Frontier Tariff

Bureau, Inc., 476 U.S. 409 (1986) .................... 25

State ex rel. Anderson v. Brand, 5 N.E.2d 531

(Ind. 1937) .......................................................... 3

State v. Miller, 141 N.E. 60 (Ind. 1923) ....... 6, 14, 25

Stewart v. Fort Wayne Cmty. Sch., 564

N.E.2d 274 (Ind. 1990) ................................... 2, 7

U.S. Trust Co. v. New Jersey, 431 U.S. 1

(1977) ........................................................ passim

United States v. Winstar Corp., 518 U.S. 839

(1996) .......................................................... 21, 27

Watson v. Burnett, 23 N.E.2d 420 (Ind. 1939) ..... 2, 7

Constitutional Provisions and Statutes

U.S. Const. art. I, § 10 .................................... passim

v

28 U.S.C. § 1292(b) ................................................. 11

1927 Ind. Acts 259 .......................................... passim

1933 Ind. Acts 719 .................................................... 3

1965 Ind. Acts 131 .............................................. 6, 18

2011 Ind. Legis. Serv. P.L. 90 (West)............. passim

Ind. Code § 20-6.1-4-1 et seq. (1997)………………… 6

Ind. Code § 20-6.1-4-9 (1997)............................. …...7

Ind. Code § 20-6.1-4-10 (1997).................................. 7

Ind. Code § 20-28-6-1 et seq. (1997)………………… 6

Ind. Code § 20-28-7.5-1 ................................. 9, 10, 28

Ind. Code § 20-28-11.5-4 ..................................... 9, 10

Ind. Code § 26-6967.1 et seq. (1927)………………… 6

4 N. J. Comp. Stat. § 106a (1910)………………….. 17

Other Authorities

James W. Ely Jr., Whatever Happened to the

Contract Clause?, 4 Charleston L. Rev.

371 (2010) ......................................................... 19

Brief of Amicus James W. Ely Jr., Sveen v.

Melin, 138 S. Ct. 542 (No. 16-1432) ................. 19

vi

Oliver W. Holmes, The Path of the Law, 10

Harv. L. Rev. 457 (1897) .................................. 15

Jack Metzler, Cleaning Up Quotations, J.

App. Prac. & Process (forthcoming 2018),

https://perma.cc/43XE96W5 ............................... 2

S. Ct. R. 10 ........................................................ 13, 14

1

INTRODUCTION

The Contract Clause of the United States Constitution provides that no state shall pass any “law impairing the obligation of contracts.” U.S. Const. art. I,

§ 10. Although this prohibition is far from absolute, it

“long has been established” that it imposes meaningful limits on “the power of the States to modify their

own contracts.” U.S. Trust Co. v. New Jersey, 431

U.S. 1, 17 (1977). The court below found that Petitioners violated their duties under the Contract

Clause when Respondent Joseph Elliott was terminated from his position as a tenured teacher based on

a newly enacted Indiana law purporting to override

existing protections for tenured teachers during

layoffs.

Those protections arose from the Indiana Tenure

Law, which this Court construed in Ind. ex rel. Anderson v. Brand, 303 U.S. 95 (1938). Anderson held

that the distinctive features of the Law conferred

binding contractual rights on teachers who had

earned tenure. In the many years since Anderson was

decided, other jurisdictions have looked to the decision as a guide to drafting their own laws. Some have

done so to ensure that teacher tenure is only a statutory—not contractual—right. Indiana, by contrast,

has ratified and adopted Anderson’s contractual view

of the Tenure Law, both by expanding the categories

of teachers entitled to the Law’s protections and by

declining to modify the Law’s core contractual provisions in response to this Court’s decision.

The petition, which asks that Anderson be overruled, does not raise an issue fit for this Court’s consideration. The Seventh Circuit correctly applied the

governing precedent to the case at hand, and that

governing precedent should not be revisited or dis-

2

turbed. The petition raises no important federal question, given that Indiana is the only state to which

Anderson has direct application and the State has

long embraced its holding. Moreover, Anderson is correct on its merits (indeed, it is difficult to imagine legislation that could express an intent to create binding

contractual rights more clearly than the Tenure

Law). And, in all events, stare decisis counsels strongly against revisiting long-standing precedent that

governs contract rights on which parties are likely to

rely. The petition should therefore be denied.

STATEMENT OF THE CASE AND FACTS

I.

The Contractual Nature of Teacher Tenure

in Indiana

A. Indiana first enacted its Tenure Law in 1927.

1927 Ind. Acts 259. The Law mandated that teachers

serving under contracts with a public-school district

for five successive years be classified as “permanent”

teachers1 who continue to serve thereafter under “indefinite contracts” that allow them to be fired only for

statutorily-specified grounds. Anderson, 303 U.S. at

101–03 & n.14 (quoting the 1927 Law). The “primary

legislative intent” of the Tenure Law was to promote

“the public good through the creation of a competent

cadre of teachers in the state . . . by preventing the

removal of capable and experienced teachers at the

political or personal whim of changing officeholders.”

Stewart v. Fort Wayne Cmty. Sch., 564 N.E.2d 274,

278 (Ind. 1990) (cleaned up2).

1 This “permanent” status is frequently referred to as “ten-

ure.” See, e.g., Watson v. Burnett, 23 N.E.2d 420, 423 (Ind. 1939).

See generally Jack Metzler, Cleaning Up Quotations, J.

App.

Prac.

&

Process

(forthcoming

2018),

https://perma.cc/43XE96W5.

2

3

B. In 1933, the Indiana General Assembly passed

an amendment to the Tenure Law that purported to

remove existing tenure protections for teachers in

more rural “township” schools, while leaving them in

place for teachers in other municipalities. 1933 Ind.

Acts 716. A township school teacher who had obtained tenure under the 1927 Law, but was subsequently discharged without cause pursuant to the

1933 amendment, challenged the action as a violation

of the Contract Clause. The Indiana Supreme Court

rejected her claim, reasoning that tenure rights were

wholly statutory in nature and that the amendment

removing those rights therefore impaired no contract

for purposes of Article I, Section 10. See State ex rel.

Anderson v. Brand, 5 N.E.2d 531, 532–33 (Ind. 1937),

rev’d, 303 U.S. 95 (1938).

By a seven-to-one majority, this Court reversed

the state court’s decision and held that the 1933

amendment unconstitutionally impaired contractual

rights created by the 1927 Tenure Law. See Anderson, 303 U.S. at 104. While noting that the “principal

function of a legislative body is not to make contracts

but to make laws which declare the policy of the state

and are subject to repeal when a subsequent Legislature shall determine to alter that policy,” this Court

recognized that legislation may nevertheless “contain

provisions which, when accepted as the basis of action by individuals, become contracts between them

and the State or its subdivisions within the protection” of the Contract Clause. Id. at 100.

On the question of whether such a contract exists,

this Court confirmed that the issue was one of federal

law that the Court was “bound to decide for” itself,

while still giving “respectful consideration” to the

views of a state’s highest Court. Id. at 100 & n.9 (citing Phelps v. Bd. of Educ., 300 U.S. 319, 322 (1937)).

4

A careful examination of both the text of the Tenure

Law and the Indiana Supreme Court’s decisions construing the Law convinced this Court that teachers

who satisfied the requirements for tenure were “assured of the possession of a binding and enforceable

contract against school districts.” Id. at 105.

With respect to the Tenure Law’s text, this Court

observed that both the title and body of the Law were

“couched in terms of contract” and that the Law’s repeated references to the term “contract” in defining

the relationship between the teacher and school

board were “not used inadvertently or in other than

its usual legal meaning.” Id. Of the key section of the

Tenure Law—which provided that the “contract of a

permanent teacher ‘shall be deemed to continue in

effect for an indefinite period and shall be known as

an indefinite contract’”—this Court said, “[n]o more

apt language could be employed to define a contractual relationship.” Id. (quoting the 1927 Law). This

Court also noted that such express contractual language distinguished the case before it from Phelps,

decided just a year prior, in which the Court unanimously concluded that the terms of a New Jersey

tenure statute were insufficient to create a contract

for purposes of the Contract Clause. See id. at 107.

With respect to decisions from Indiana’s highest

court construing the Tenure Law, this Court noted

that, “[u]ntil its decision in the present case,” the

state court had “uniformly held that the teacher's

right to continued employment by virtue of the indefinite contract created pursuant to the act was contractual.” Id. at 105. Thus, in deciding which of the

state court’s decisions was deserving of “respectful

consideration” in determining the contractual status

of teacher tenure under Indiana law, this Court ultimately concluded that the decision before it ran coun-

5

ter to the “explicit mandate” of the Tenure Law, to

“the policy evinced by” the Law, and to the state

court’s “earlier decisions construing its provisions.”

Id. at 100, 107.

Having determined that the Tenure Law creates

contract rights protected by Article I, Section 10, this

Court then examined whether the 1933 amendment’s

impairment of those rights was nevertheless justified

as “a proper exercise of the police power . . . for an

end which is in fact public” and by a means “reasonably adapted to that end.” Id. at 107–09 & n.17 (citing

Home Building & Loan Assn. v. Blaisdell, 290 U.S.

398, 438 (1934)). As this Court concluded, the 1933

amendment fell short of that standard. Because the

Tenure Law’s existing grounds for cancelling a permanent teacher’s contract covered “every conceivable

basis for such action growing out of a deficient performance of the obligations undertaken by the teacher,” there were already “ample reservations in aid of

the efficient administration of the school system,”

thereby making the 1933 repeal of tenure protections

for township school teachers an unreasonable impairment of protected contract rights. Id. at 108.

C. Although the Indiana legislature could have

responded to Anderson by modifying the Tenure Law

to eliminate or alter the contractual nature of its protections, it did not do so.3 On the contrary, the Tenure

3 The contrast between this Court’s decisions in Anderson

and Phelps provided Indiana and other state legislatures a clear

line distinguishing between legislative language that creates

binding contractual rights and language that creates only statutory rights that are subject to later revision. See, e.g., Sch. Dist.

No. 1 v. Masters, 413 P.3d 723, 728–29 (Colo. 2018) (comparing

Colorado law regarding the termination of teachers with the

language of the Indiana Tenure Law and concluding, based on

(continued . . .)

6

Law’s provisions regarding the employment and dismissal of teachers remained fundamentally unchanged between 1927 and 2011. Compare Ind. Code

§ 26-6967.1 et seq. (1927), and Ind. Code § 20-6.1-4-1

et seq. (1997), with Ind. Code. §§ 20-28-6-1 through

20-28-7-15 (2010). Under longstanding principles of

Indiana law, such inaction in the face of a judicial decision interpreting a statute is understood to mean

that the Anderson Court “correctly interpreted the

will of the legislature,” Durham ex rel. Estate of Wade

v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001), or at

least that the legislature had effectively adopted Anderson’s holding by acquiescence, see Heffner v. White,

47 N.E.2d 964, 965 (Ind. 1943).

Moreover, the changes the legislature did make to

the Tenure Law during this period served to further

reinforce Indiana’s commitment to tenure as a contractual obligation. Most notably, in 1965, the legislature reinstated the full protections of the Tenure Law

for teachers at the very township schools affected by

the 1933 amendment at issue in Anderson. See 1965

Ind. Acts 131. This sort of reenactment of the “features of [a] law after the Supreme Court had given it

a construction” operated under Indiana law as a “legislative adoption of the construction” this Court gave

to the Tenure Law. State v. Miller, 141 N.E. 60, 61

(Ind. 1923); see also Pierce v. Underwood, 487 U.S.

552, 567 (1988) (“[R]eenactment, of course, generally

includes the settled judicial interpretation.”).

Anderson, that the former did not create contractual rights because its provisions are not couched in terms of contract).

7

II. The Impairment of Elliott’s Contractual

Tenure Rights

A. Joseph Elliott worked as a teacher for Petitioner Madison Consolidated Schools (“Board”). In

August of 1998, he entered into his sixth successive

contract with the Board, making him a “permanent”

—or tenured—teacher under the Tenure Law. Ind.

Code § 20-6.1-4-9 (1997).

Just as it did when this Court decided Anderson,

the Tenure Law in place in 1998 provided that a

teacher’s indefinite contract could only be cancelled

for specified reasons, including a “justifiable decrease

in the number of teaching positions.” Id. § 20-6.1-4-10

(1997). In order for the Tenure Law’s purpose to be

“fully realized,” the Indiana Supreme Court had long

construed this ground for cancellation to mean that,

before a school can remove a tenured teacher during

a reduction-in-force, it must first remove any nontenured teachers from positions in which the tenured

teacher is licensed to teach.4 Stewart, 564 N.E.2d at

278; see also Watson v. Burnett, 23 N.E.2d 420, 423

(Ind. 1939). As that court has explained, any alternative rule would “be contrary to the entire spirit and

purpose” of the Tenure Law and would permit school

board trustees to “nullify” the Law’s protections by

using reductions-in-force as a pretext to fire tenured

teachers “without cause.” Watson, 23 N.E.2d at 423.

4 This feature of Indiana’s Tenure Law is far from unique.

See, e.g., Coats v. Bd. of Educ., Unified Sch. Dist. No. 353, 662

P.2d 1279, 1284–85 (Kan. 1983) (adopting a similar standard of

priority for tenured teachers in school layoffs and collecting cases from other jurisdictions that do the same); Babb v. Indep.

Sch. Dist. No. I-5., 829 P.2d 973, 975–76 & n.11 (Okla. 1992)

(same).

8

This rule does not mandate that reductions-inforce be conducted by seniority. If a layoff necessitates the removal of tenured teachers, the rule does

not preclude a school board from for considering or

even prioritizing issues of performance in selecting

which tenured teachers’ contracts to cancel.

B. During his nineteen years of employment with

the Board, Elliott received a series of ten written

evaluations that assessed his performance in various

categories. (Elliott’s Evaluations, COA Dkt. 12 at 53–

72.) Throughout these evaluations, Elliott was consistently rated in either the highest (“strengths”) or

next-highest (“satisfactory”) rating category. Following each of these evaluations, he was recommended

for renewal.

There was only one instance where Elliott received a rating below “satisfactory” in any category.

In his 2002 evaluation, he received “needs improvement” ratings in three “interpersonal relationships”

categories of his evaluation; in the other eleven performance categories of the evaluation he received ratings of either “strength” or “satisfactory.” (Id. at 63.)

His principal at the time praised Elliott in the comments to the evaluation as “very dedicated to education,” and she commended Elliott’s “extensive

knowledge” of the subject matter that he “brings . . .

to the classroom.” (Id. at 64.) The principal also noted

that Elliott sometimes had “difficulty accepting, graciously, a different point of view,” but she recommended that his contract be renewed. (Id.)

Subsequent to that, Elliott continued to receive

ratings of at least “satisfactory” in every performance

category on his evaluations, and in 2009 he received

“strengths” ratings in two “interpersonal relationships” categories. (Id. at 69–70.)

9

C. In 2011—more than a dozen years after Elliott

earned tenure—the Indiana General Assembly enacted Senate Bill 1 (“SB 1”), which made a variety of

changes to laws concerning the employment of public

school teachers. See 2011 Ind. Legis. Serv. P.L. 90

(West). These changes included adding a provision to

the Tenure Law (“the RIF Provision”) mandating that

“[a]fter June 30, 2012, the cancellation of teacher’s

contracts due to a justifiable decrease in the number

of teaching positions shall be determined on the basis

of performance rather than seniority.” Id. at § 31

(codified at Ind. Code § 20-28-7.5-1(d)).

The “performance” requirement in the RIF Provision was linked to changes SB 1 made to teachers’

performance evaluations. The new law mandated

that school boards annually evaluate teachers based

in significant part on “[o]bjective measures of student

achievement and growth.” Ind. Code § 20-28-11.54(a), (c)(2). SB 1 further required that the evaluations

sort employees into one four performance “categories”: “Highly effective,” “Effective,” “Improvement

necessary,” or “Ineffective.”5 Id. § 20-28-11.5-4(c)(4).

Taken together, these changes meant that teachers placed in lower-rated performance categories under the new evaluation system could not be retained

over teachers in higher-rated categories during a reduction-in-force. Id. § 20-28-7.5-1(d).

C. On June 7, 2012—that is, after SB 1 had

passed but before its RIF Provision had formally gone

5 Although most of SB 1’s provisions went into effect on July 1, 2011, and the RIF provision became effective on June 30,

2012, Ind. Code § 20-28-7.5-1(d), the new law’s evaluation mandates were not required to be implemented until the 2012-13

school year, see id. § 20-28-11.5-4(a).

10

into effect, see Ind. Code § 20-28-7.5-1(d)—Elliott received a letter from the Board notifying him that his

permanent contract had been cancelled due to a “justifiable decrease in the number of teaching positions.”

(Non-renewal Notice, DCT Dkt. 41-6.) Exercising his

rights under the Tenure Law, Elliott requested a full

evidentiary hearing with the Board. (Elliott Hearing

Request, DCT Dkt. 41-19.)

In support of its termination decision, the Board

cited the 2002 evaluation that assigned Elliott ratings of “needs improvement” in the three “interpersonal relationships” categories, and a comment on his

2012 evaluation advising him to “be compassionate

and nurturing.” (Board Findings of Facts and Conclusions of Law, COA Dkt. 12 at 103–105.) Apart from

these comments and the decade-old evaluation, the

Board relied entirely on post-hoc statements from

principals who that had voted to select Elliott for

termination. (Id.)

Because it had not yet implemented SB 1’s requirement for annual teacher evaluations, the Board

made no effort to rank Elliott or other teachers for

layoff using assessments based in significant part on

“[o]bjective measures of student achievement and

growth.” Ind. Code § 20-28-11.5-4(c)(2). Nor did the

Board endeavor to show that, even based on pre-SB 1

evaluations, Elliott’s performance was inferior to that

of other teachers who were retained. And no such

showing could have been made because, in reality,

the Board retained no fewer than sixteen teachers—

including two non-tenured teachers—who held positions for which Elliott was licensed and whose evaluations in 2012 were objectively inferior to Elliott’s.

(COA Dkt. 28 at 39–107.)

Despite these facts, and despite Elliott’s status as

a tenured teacher with protected contract rights un-

11

der the Tenure Law, the Board voted to uphold Elliott’s termination as part of the reduction-in-force.

(COA Dkt. 12 at 103–05.)

III. Proceedings Below

A. Elliott filed a state-court action against the

Board in 2013, which the Board subsequently removed to federal court. (COA Dkt. 12 at 106–08.) Elliott’s amended complaint alleged that his termination was unlawful because the Board’s application of

SB 1’s RIF Provision impaired his contractual tenure

rights in violation of the United States and Indiana

Constitutions. (COA Dkt. 12 at 96–101.) In addition,

the complaint alleged that the Board’s termination

decision was not authorized as a matter of state law.

(Id.) The State of Indiana intervened in the district

court to defend the constitutionality of SB 1 as applied to Elliott. (COA Dkt. 12 at 95.)

The parties submitted cross-motions for summary

judgment, and on March 12, 2015, the district court

granted judgment in Elliott’s favor on his claim that

the Board’s application of SB 1 violated the Contract

Clause and the cognate provision of the Indiana Constitution. (Pet. App. 26a–56a.) Petitioners moved to

certify those issue for interlocutory appeal under 28

U.S.C. § 1292(b). (DCT Dkt. 95.) The district court

granted the motion (COA Dkt. 12 at 5–7), but the

Seventh Circuit denied the petition and directed the

district court to resolve the outstanding issue of a

remedy. (COA Dkt. 12 at 4.) The district court did so

on November 21, 2016, with an award of damages

and attorney fees, resulting in a final judgment. (Pet.

App. 57a.)

Petitioners appealed that judgment to the Seventh Circuit, a panel of which unanimously affirmed

the district court. See Elliott v. Bd. of Sch. Trustees of

12

Madison Consol. Sch., 876 F.3d 926 (7th Cir. 2017).

The panel concluded that, while statutes typically do

not create contracts, the Indiana Tenure Law used

“contractual language” that induced “public reliance”

and therefore created a contract under this Court’s

decision in Anderson. Id. at 932. It further concluded

that applying SB 1’s RIF provision to Elliott was a

substantial impairment of his tenure contract because it represented an “unforeseeable backtracking

by the State” on a “central term” that induced teachers to work in Indiana for less money in exchange for

greater job security. Id. at 934–36.

The panel also concluded that the impairment of

Elliott’s contract was neither reasonable nor necessary, given that the State had a multitude of options

for meeting its stated policy goals without impairing

the contracts of tenured teachers. Id. at 936–39. In

response to Petitioners’ suggestion that ruling in Elliott’s favor would prevent the State from enacting

desirable education reforms, the Seventh Circuit explained:

The Contract Clause does not saddle the

State forever with a teacher-tenure system

that its policymakers have come to think is

bad for public education. The Constitution

does not prevent the State from changing the

promises it makes on a prospective basis to

new teachers. Also, if the State were to conclude that retroactive changes to tenure are

necessary, the Contract Clause would give

the State the option (much like the Takings

Clause) of paying the individuals who would

otherwise lose out from the change. (After

all, a party to a contract is ordinarily free to

breach the contract as long as it is willing to

pay damages to the other party.) The State

13

can make the changes it wants, but it cannot

foist the costs onto private parties, other

than through general taxes. Having restricted tenure for new teachers, the State and its

school districts were and are free to buy out

the tenure rights of more senior ones.

Id. at 938.

REASONS FOR DENYING THE PETITION

I.

The Petition Does Not Present a Compelling

Question that Merits Review Under This

Court’s Standards for Granting Certiorari

“A petition for a writ of certiorari will be granted

only for compelling reasons,” S. Ct. R. 10, none of

which are present here. The decision below faithfully

applied this Court’s long-standing precedent to undisputed facts. No further review is warranted.

A. The most common grounds for a grant of certiorari are obviously not present here. Petitioners do

not claim that the Seventh Circuit’s decision in any

way conflicts with that of another court. Nor do they

claim that this case involves any unsettled but important question of federal law. Instead, in a tacit

concession that the lower court correctly applied this

Court’s governing precedent, they now ask for that

precedent to be overruled.6

6 Petitioners do, however, devote a portion of their submission to arguing that, in conducting the standard Contract

Clause analysis, the lower court failed to properly balance the

State’s interest in altering its education laws against Elliott’s

contractual rights created by the Tenure Law. See Pet. at 24–29.

Even if such a charge had merit, certiorari is not appropriate for

a routine complaint of a “misapplication of a properly stated rule

of law.” S. Ct. R. 10.

14

But Petitioners’ call to overrule Anderson does

not present an “important federal question.” S. Ct. R.

10. By Petitioners’ own admission, Anderson’s direct

application is confined to a single state. See Pet. at

10. Moreover, Petitioners’ claims that Anderson has

“stopped the clock” on Indiana’s Tenure Law and left

the State “hamstrung” in efforts to improve educational outcomes are vastly overstated.

If Indiana had desired to make teacher tenure a

statutory rather than contractual commitment, it had

more than six decades in which to do so between this

Court’s decision in Anderson and when Elliott earned

tenure in 1998. Instead, as noted supra at 5–7, the

State effectively ratified and adopted Anderson’s

holding in the years that followed, both by reenacting the Tenure Law’s protections to apply to

township teachers and by declining to modify the

Law’s core contractual provisions in response to this

Court’s decision. See Durham, 745 N.E.2d at 759;

Miller, 141 N.E. at 61.

Furthermore, if Indiana now wants to substantially modify the contours of contracts under the

Tenure Law, or even abandon tenure as a contractual

commitment altogether, it has a range of options for

doing so that do not require this Court’s intervention.

First, it can enact those changes prospectively, just as

it has done with other educational reforms. See, e.g.,

Bruck v. State ex rel. Money, 91 N.E.2d 349 (Ind.

1950) (construing a newly enacted statute requiring

all tenured teachers' indefinite contracts to expire at

age of 66 to apply only to teachers who attain tenure

after the new law’s passage). Indeed, that approach is

already in effect for the RIF Provision at issue here,

for there is no dispute that the provision continues to

apply to teachers who had not yet earned tenure at

the time of SB 1’s enactment.

15

Second, the State can apply whatever contract

changes it desires to currently tenured teachers, provided it compensates them for any loss occasioned by

the change. “The duty to keep a contract at common

law means a prediction that you must pay damages if

you do not keep it,—and nothing else.” Oliver W.

Holmes, The Path of the Law, 10 Harv. L. Rev. 457,

462 (1897); see also Elliott, 876 F.3d at 938 (“Having

restricted tenure for new teachers, the State and its

school districts were and are free to buy out the tenure rights of more senior ones.”).

Finally, the State can enact even substantial alterations to a teacher’s indefinite contract, without

any corresponding obligation to pay compensation, if

the changes are both reasonable and necessary for

the accomplishment of an important public purpose.

See U.S. Trust, 431 U.S. at 25. Such modifications are

generally permissible when “subsequent changes” in

circumstances cause the original contract “to have a

substantially different impact” than anticipated and

the state avoids imposing “a drastic impairment

when an evident and more moderate course would

serve its purpose equally well.” Id. at 31–32. Although the RIF Provision at issue here did not satisfy

that standard, there is ample reason to think that

more moderate or focused policy interventions would

do so.

The holding of Anderson that Petitioners complain about here is limited in its scope, and it can be

redressed through legislation in any event. This is

not a situation that calls out for this Court to intervene.

16

II. The Court Should Decline Petitioners’ Invitation to Grant Certiorari for the Purpose of

Overruling Anderson

Even if the effects of Anderson’s holding were

more far-reaching, the decision should still not be revisited. To begin with, Anderson is plainly correct

under current Contract Clause principles, and this

Court does not need to grant review just to reaffirm

it. Moreover, Anderson is long-settled law on a question involving reliance-inducing contract rights, and

stare decisis demands that it remain settled. In any

event, this case does not present a clean vehicle for

considering the question presented, since a raft of

state-law and fact-bound issues would complicate the

Court’s examination of the Contract Clause question.

A. Anderson is correctly decided

1. Under this Court’s long-standing precedent,

the Contract Clause does not operate as a categorical

prohibition on laws that modify existing contractual

obligations. Instead, it calls for a balancing of private

contractual rights against the States’ “necessarily reserved” sovereign power to protect the general welfare. U.S. Trust, 431 U.S. at 21. To that end, a plaintiff seeking to establish a violation of the Contract

Clause must show not only that a change in state law

has substantially impaired a contractual relationship,

but also that the impairment was not reasonable and

necessary to serve an important public purpose. See

Energy Reserves Grp., Inc. v. Kan. Power & Light Co.,

459 U.S. 400, 411–13 (1983).

In both its reasoning and outcome, Anderson is

fully consistent with that standard. First, although

legislation ordinarily does not create contract rights,

17

Anderson was correct to hold that the Tenure Law

speaks with unusual clarity on this topic by declaring

that school boards must enter a binding contract with

a teacher who satisfies the requirements for tenure.

The Anderson Court explained how the intent to

create contract rights thoroughly suffused the text of

the 1927 Law:

The title of the act is couched in terms of contract. It speaks of the making and canceling

of indefinite contracts. In the body the word

‘contract’ appears ten times in section 1, defining the relationship; eleven times in section 2, relating to the termination of the employment by the employer, and four times in

section 4, stating the conditions of termination by the teacher.

303 U.S. at 105.

Such repeated references to “contract” rights, this

Court observed, were “not used inadvertently or in

other than its usual legal meaning.” Id. On the contrary, this Court focused on the core provisions of the

Law—which establish that the “contract of a permanent teacher ‘shall be deemed to continue in effect for

an indefinite period and shall be known as an indefinite contract”—and found that “[n]o more apt language could be employed to define a contractual relationship.” Id.7

7 By contrast, the New Jersey tenure statute at issue in

Phelps eschewed any references to contract and provided only

that after three years of continuous employment with a school

district, a teacher shall not “be dismissed or subjected to reduction of salary in said school district except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause.” 300

U.S. at 320–21 (quoting 4 N.J. Comp. Stat. § 106a (1910)). This

Court therefore had little difficulty concluding that the law “did

(continued . . .)

18

Petitioners do not dispute the settled principle

that statutes can, under proper circumstances, create

contract rights protected by Article I, Section 10.

They also decline to engage the actual text of Tenure

Law and do not argue that the Law’s plain language

speaks in anything other than explicitly contractual

terms. As a result, Petitioners fail to mount any

meaningful challenge to Anderson’s conclusion that

the Tenure Law creates contractual rights.

The fact is that Anderson is fully consistent with

contemporary precedent, which recognizes that the

ordinary presumption against legislative contracts

must be disregarded in the face of a “clear indication

that the legislature intends to bind itself contractually.” Nat'l R.R. Passenger Corp. v. Atchison Topeka &

Santa Fe Ry. Co., 470 U.S. 451, 465–66 (1985) (citing

Anderson, 303 U.S. at 104–105). And here there is the

clearest indication possible: not only was the 1927

Law completely “couched in terms of contract,” Anderson, 303 U.S. at 105, but the Indiana legislature

added a new category of school districts to the coverage of the Law in 1965, knowing that it had been definitively construed to protect contract rights. 1965

Ind. Acts 131.

Second, Anderson correctly took account of the

State’s sovereign interest by asking whether the 1933

amendment was “a proper exercise of the police power . . . for an end which is in fact public” and by a

means “reasonably adapted to that end.” Id. at 108–

09 & n.17 (citing Blaisdell, 290 U.S. at 438). The rejection of the governmental interests asserted there

not amount to a legislative contract with the teachers of the

state and did not become a term of the contracts entered into

with employes [sic] by boards of education.” Id. at 322–23.

19

was particularly appropriate given both the degree of

the impairment and the State’s self-interest. As this

Court’s subsequent cases have recognized, both of

these are factors that raise the applicable level of

scrutiny. See Allied Structural Steel Co. v. Spannaus,

438 U.S. 234, 245 (1978) (“The severity of the impairment measures the height of the hurdle the state

legislation must clear.”); U.S. Trust, 431 U.S. at 25–

26 (“[C]omplete deference to a legislative assessment

of reasonableness and necessity is not appropriate

because the State's self-interest is at stake.”).

2. Petitioners try to discredit Anderson by casting

it as a relic from a bygone era in which the application of legislation to existing contracts was routinely

invalidated. See Pet. at 16–17. That effort withers

under scrutiny: although a significant doctrinal shift

has undoubtedly taken place in this Court’s Contract

Clause jurisprudence, that shift was complete by the

1938 Anderson decision.

The scholarly literature relied on by Petitioners

proves the point. It acknowledges that this Court’s

use of the Contract Clause as “a muscular restraint

on state authority” through much of the 19th Century

had already begun a “slow retreat” by the turn of the

20th Century, which accelerated even more during

World War I, and resulted in a “near-fatal punch” in

1934 with Blaisdell, the decision that forms “the basis for the modern reading of the Contract Clause.”

James W. Ely Jr., Whatever Happened to the Contract

Clause?, 4 Charleston L. Rev. 371, 374–88 (2010); see

also Brief of Amicus James W. Ely Jr. at 10–18,

Sveen v. Melin, 138 S. Ct. 542 (No. 16-1432) (recounting the same timeline).

This Court has also recognized that the preAnderson decision in Blaisdell operated as a seachange in this Court’s Contract Clause jurisprudence.

20

In United States Trust, this Court called Blaisdell

“the leading case in the modern era of Contract

Clause interpretation.” 431 U.S. at 15. And in City of

El Paso v. Simmons, Blaisdell was described as “a

comprehensive restatement of the principles underlying the application of the Contract Clause.” 379 U.S.

497, 508 (1965).

Anderson fully incorporates Blaisdell’s modern

approach to the Contract Clause. Upon finding that

the Tenure Law creates contract rights protected by

Article I, Section 10, the Anderson Court made clear

that its analysis was not yet at an end. Citing

Blaisdell’s more generous allowance for legislation

promoting the general welfare, this Court proceeded

to examine whether the state’s impairment of the

teacher’s contractual tenure rights was nevertheless

justified as “a proper exercise of the police power . . .

for an end which is in fact public” and by a means

“reasonably adapted to that end.” 303 U.S. at 108–09

& n.17.

To be sure, the State fell short of meeting this

standard of justification in Anderson. But, contrary to

what Petitioners seem to suggest, Blaisdell and its

progeny are not a guarantee that the government will

always prevail. “[T]he Contract Clause remains part

of the Constitution. It is not a dead letter.”

Spannaus, 438 U.S. at 241.

3. Similarly flawed is Petitioners’ suggestion that

Anderson is the product of a time in which this Court

routinely deemed legislation to create contractual

rights. Pet. at 16–20. That claim cannot be squared

with this Court’s decision in Phelps, which was decided just a year before Anderson and yet found that a

New Jersey tenure statute conferred only statutory,

rather than contractual, rights. 300 U.S. at 322–23.

Even more to the point, a strong presumption against

21

recognizing legislative contracts that would bind the

body’s successors has been part of this Court’s law

since the middle of the 19th century. See United

States v. Winstar Corp., 518 U.S. 839, 874 (1996)

(plurality opinion). In other words, Anderson’s conclusion that the Tenure Law creates contract rights

was not the result of outmoded legal principles, but of

the unmistakable clarity with which the Indiana legislature wrote those rights into the statute.

4. Petitioners are badly mistaken in claiming

that, because Anderson reversed the Indiana Supreme Court’s conclusion that the Tenure Law does

not create contractual rights for purposes of Contract

Clause, the case is somehow in tension with this

Court’s seminal decision in Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938). See Pet. at 17–20.

Erie deals with adjudication of state-law claims in

federal court under its diversity jurisdiction. In that

context, giving conclusive deference to a state’s highest court is necessary to vindicate fundamental principles of federalism.

The Contract Clause, by contrast, is a federal

constitutional guarantee, where Erie has no application. See 304 U.S. at 78 (“Except in matters governed

by the Federal Constitution or by acts of Congress, the

law to be applied in any case is the law of the state.”)

(emphasis added). Accordingly, this Court has long

recognized that the underlying determination

“whether a contract was made is a federal question

for purposes of Contract Clause analysis.” Gen. Motors Corp. v. Romein, 503 U.S. 181, 187 (1992) (emphasis added). That is so even when the existence of a

contract question “turns on issues of general or purely local law,” because this Court cannot “surrender

the duty to exercise [its] own judgment” on federal

questions. Id. (cleaned up). See also Atl. Coast Line R.

22

Co. v. Phillips, 332 U.S. 168, 170 (1947) (“A claim

that a State statute impairs the obligation of contract

is an appeal to the United States Constitution, and

cannot be foreclosed by a State court’s determination

whether there was a contract or what were its obligations.”).

Anderson was correct when it was decided in

1938, and it remains correct today. The Seventh Circuit’s decision below faithfully applied Anderson to

the facts before it. There is nothing here that warrants this Court’s review.

B. Considerations of stare decisis strongly

counsel against revisiting Anderson

Of course, correct judgments have no need for the

principle of stare decisis “to prop them up.” Kimble v.

Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015). And,

here, we have shown that Anderson is correct and

need not be revisited. But even if this Court harbors

some doubt about whether Anderson remains correctly decided, this is an instance where the values of

stare decisis are at their very strongest and should

therefore be followed in denying this petition.

Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes

to the actual and perceived integrity of the judicial

process.” Payne v. Tenn., 501 U.S. 808, 827 (1991).

Thus, “an argument that [this Court] got something

wrong—even a good argument to that effect—cannot

by itself justify scrapping settled precedent.” Kimble,

135 S. Ct. at 2409. Instead, to revisit a prior decision,

this Court generally requires a “special justification—

over and above the belief that the precedent was

wrongly decided.” Id. (cleaned up).

23

Those special justifications are lacking here. And

even more than that, there are countervailing considerations make the case far stronger for leaving Anderson untouched.

1. This Court is particularly reluctant to review

cases, like Anderson, that have remained on the

books for an extended period of time. Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009) (noting that the

“antiquity of the precedent” factors in favor of stare

decisis). And the considerations favoring stare decisis

reach their very “acme” in cases, also like Anderson,

that determine contract rights. Kimble, 135 S. Ct. at

2410 (cleaned up). The reason for adhering to longstanding precedent involving contractual rights is

straightforward: “parties are especially likely to rely

on such precedents when ordering their affairs.” Id.

Those contract-based reliance interests come into

play here because there is more than a “reasonable

possibility” that the guarantees created by the Tenure Law would influence how Indiana teachers made

their career choices. Id. As the Seventh Circuit explained below, “teachers rely on a stable job-security

scheme to plan their personal and professional lives,

their investments of time and money, and their retirements.” Elliott, 876 F.3 at 935. They “cannot have

do-overs in their careers, either to earn more money

to make up for the lost job security or to find better

job security in another school district or in another

field entirely.” Id.

That sort of reliance is entirely sensible. For more

than seven decades following this Court’s decision in

Anderson, the Indiana legislature left the Tenure

Law’s substantive provisions fundamentally unchanged and even expanded the categories of teachers covered by those provisions. Moreover, since Anderson, Indiana courts have consistently recognized

24

that “teacher tenure is wholly contractual,” such that

tenure contracts “must be held to remain valid and

enforceable to the end, under the laws in force at the

time of [their] execution, no matter what changes the

law has undergone in the lifetime of the contract.” Bruck, 91 N.E.2d at 352–54 (cleaned up). Indiana teachers had every reason to believe this would

remain true and to plan their affairs accordingly.

2. This is not an instance where the constitutional nature of the decision in Anderson should diminish

the force of stare decisis. To be sure, the imperative to

follow to a prior decision is weaker when its effects

can be “altered only by constitutional amendment or

by overruling . . . prior decisions.” Agostini v. Felton,

521 U.S. 203, 235 (1997). But when it comes to the

holding of Anderson that Petitioners ask to have

overruled here—namely, that the provisions of the

1927 Indiana Tenure Law created a binding contractual commitment for teachers who satisfy the requirements for earning tenure—it is far “more important that the applicable rule of law be settled than

that it be settled right,” Burnet v. Coronado Oil &

Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).

Notwithstanding Anderson’s holding, Indiana has

always possessed a broad range of legislative options

to modify or eliminate the contractual nature of

rights under the Tenure Law. See supra at 14–15.

Thus, this is hardly a situation where stare decisis

must yield because “correction through legislative action is practically impossible.” Burnet, 285 U.S. at

406 (Brandeis, J., dissenting).

But more than that, following stare decisis here

gives effect to those steps the Indiana legislature did

take—not to correct a perceived mistake in the decision—but to ratify and adopt Anderson’s holding. See

25

supra at 5–7. The State unquestionably has the authority to enact legislation creating binding contractual rights for tenured teachers. And, for the decades

that followed Anderson, their response to the decision

would have been deemed to do just that. See Durham,

745 N.E.2d at 759; Miller, 141 N.E. at 61. As a result,

this Court cannot overrule Anderson without effectively nullifying Indiana’s long-standing embrace of

its holding. This provides all the more reason to respect and maintain the decision as precedent. See

Kimble, 135 S. Ct. at 2409–10; see also Boys Markets,

Inc. v. Retail Clerks, 398 U.S. 235, 257–58 (1970)

(Black, J., dissenting) (“When the law has been settled by an earlier case then any subsequent ‘reinterpretation’ of the statute is gratuitous and neither

more nor less than an amendment: it is no different

in effect from a judicial alteration of language that

[the legislature] itself placed in the statute.”).

3. There is also no merit to Petitioners’ claim that

Anderson has become unworkable as precedent. On

the contrary, the decision “is simplicity itself to apply,” Kimble, 135 S. Ct. at 2411, and operates as “an

established guidepost” for subsequent legislative developments, Square D Co. v. Niagara Frontier Tariff

Bureau, Inc., 476 U.S. 409, 423 (1986).

Anderson completes a series of decisions this

Court issued in the late 1930’s that establish the

metes and bounds for when state statutes conferring

employment benefits on teachers will be understood

to create contracts for purposes of the Contract

Clause. In Phelps, this Court affirmed a judgment of

the New Jersey Supreme Court holding that a 1909

teacher tenure law “did not amount to a legislative

contract with the teachers” because the lower court’s

decision was consistent with the overall statutory

scheme. 300 U.S. at 322–23.

26

The following term, in Dodge v. Board of Education, 302 U.S. 74 (1937), this Court found that a statute creating a retirement annuity paid in addition to

teachers’ pensions did not create contractual rights

both because the statute did not use the “normal language of a contract” and because Illinois Supreme

Court decisions had found similar programs to be

non-contractual.

And, of course, in Anderson this Court found that

the clarity of the contractual commitment in Indiana’s Tenure Law defeated the ordinary presumption

that statutes do not create contracts. In reaching that

conclusion, the Anderson Court explicitly distinguished both Phelps and Dodge based on the statutory language at issue in both cases and prior court decisions. Anderson, 303 U.S. at 100–08.

Taken together, the decisions in Phelps, Dodge,

and Anderson draw a clear line: legislation will create

contractual rights for purpose of Article I, Section 10

only where the statutory scheme is clearly “couched

in terms of contract.” Anderson, 303 U.S. at 105. That

line provides invaluable assistance to state legislatures drafting or revising their laws. Those states

wishing to treat tenure as a purely statutory matter

may do so through legislation that hews closer to

Phelps and Dodge by using non-contractual language.

See, e.g., Campbell v. Aldrich, 79 P.2d 257, 214–17

(Or. 1938); Malone v. Hayden, 197 A. 344, 353–54

(Pa. 1938); Morgan v. Potter, 298 N.W. 763 (Wis.

1941). And those states wishing to create a contractual commitment can model their legislation on the

Indiana Tenure Law. See, e.g., Minnesota Ass’n of

Pub. Schs. v. Hanson, 178 N.W.2d 846, 852 (Minn.

1970) (noting that the Minnesota law at that time

was “very similar” to the Indiana law at issue in Anderson).

27

The line drawn by Phelps, Dodge, and Anderson

has application beyond the context of the teacher

tenure laws, as well. For example, in noting that a

change to a statutory transportation covenant was

subject to Contract Clause scrutiny in United States

Trust, this Court specifically referenced Dodge and

Anderson as examples of how the Court determines

when legislation creates—or does not create—

contractual obligations. 431 U.S. at 17 n.14. And in

National Railroad Passenger Corp., this Court relied

heavily on Dodge and Anderson in explaining why a

statute regulating railroad employee passes did not

create contract rights. 470 U.S. at 465–66.

Petitioners fail to acknowledge Anderson’s role in

demarcating when legislation does or does not create

contractual rights. As a result, they do not come to

grips with the potential for confusion that could arise

if Anderson were overruled. After all, states have a

strong interest in maintaining the capacity to order

their affairs through contract when they wish to do

so. Yet, if Anderson is overruled, even the clearest

and most explicit contractual commitments in legislation might be treated as revocable by later action of

the legislature. Such an expansion of the state’s “abilities for contractual abrogation” would have the “certain result of undermining [its] credibility at the bargaining table and increasing the cost of its engagements.” Winstar, 518 U.S. at 884 (plurality opinion).

This Court should be reluctant to disregard precedent

in a manner “that would weaken the Government's

capacity to do business.” Id. at 886.

This case presents no “special justifications” for

overruling the long-standing precedent in Anderson.

On the contrary, all of the relevant considerations

point strongly in the opposite direction. Stare decisis

therefore demands that Anderson be let alone.

28

C. This case would be a poor vehicle for revisiting Anderson

As a final matter, even if this Court believes that

Anderson should be revisited, this case presents a

poor vehicle for doing so.

In asking this Court to reverse the Seventh Circuit’s judgment, Petitioners stake a great deal of their

argument on the overarching importance of the educational reforms contained in SB 1. Pet. at 24–29. Indeed, the efficacy of these reforms, and the manner in

which the legislature intended they be accomplished,

are the lynchpin of Petitioners’ claim that any contractual impairment was reasonable and necessary to

improve educational outcomes in the State. Id. Yet,

this case presents a raft of issues that would muddle

this Court’s consideration of that question.

Most significantly, this Court would have to consider the legislative interest advanced by SB 1 on a

record in which it is not even clear that the key portion of the law at issue, the RIF Provision, was meant

to apply to Elliott’s termination. On its very face, the

RIF Provision did not go into effect until after June

30, 2012, see Ind. Code § 20-28-7.5-1(d), while Elliott

was given notice of his termination more than three

weeks before that, on June 7, 2012. (DCT Dkt. 41-6.)

And the Board’s decision to apply the RIF Provision

before its effective date sowed further confusion that

is hard to reconcile with SB 1’s stated aims and its

interlocking requirements.

In particular, because the Board had not yet implemented SB 1’s requirement for annual performance assessments based on objective measures of

student achievement, it could not follow the law’s requirement for using those assessments to sort teachers into performance categories for purposes of mak-

29

ing layoff decisions. Instead, it based its layoff decision on little more than a freewheeling kibitzing session among school principals, which resulted in a decision to remove Elliott despite the fact that his preSB 1 performance ratings were superior to those of

many of the teachers the Board retained. (COA Dkt.

12 at 103–105; Dkt. 28 at 39–107.) So, whatever the

merits might be of the policy that animated SB 1

generally and the RIF Provision in particular, it is far

from clear that they are truly implicated in Elliott’s

layoff.

Such complicating factors make this a poor vehicle for re-examining Anderson. This Court should

therefore deny the petition.

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ERIC HYLTON

Riley Bennett &

Egloff, LLP

141 E. Washington St.

Fourth Floor

Indianapolis, IN 46204

(317) 636-8000

ALICE O’BRIEN

Counsel of Record

JASON WALTA

KRISTEN HOLLAR

ZACHARY CHASE

National Education

Association

1201 Sixteenth St., N.W.

Washington, D.C. 20036

(202) 822-7035

aobrien@nea.org

Counsel for Respondent Joseph R. Elliott

May 4, 2018