Chicago Teachers Union Local v. Chicago Board of Education ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3396
C HICAGO T EACHERS U NION, L OCAL N O . 1,
A MERICAN F EDERATION OF T EACHERS,
Plaintiff-Appellee,
v.
B OARD OF E DUCATION OF THE C ITY OF C HICAGO, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-04852—David H. Coar, Judge.
A RGUED JANUARY 7, 2011—D ECIDED M ARCH 29, 2011
Before M ANION and W ILLIAMS, Circuit Judges, and
C LEVERT, District Judge. Œ
W ILLIAMS, Circuit Judge. Facing significant budget
deficits, the Chicago Board of Education was forced to
Œ
The Honorable Charles N. Clevert, Jr., Chief Judge of the
United States District Court for the Eastern District of Wis-
consin, sitting by designation.
2 No. 10-3396
lay off nearly 1,300 teachers in several stages during
June, July, and August of 2010. Although some of those
teachers have been re-hired, many have not, even as new
vacancies have arisen within the Chicago Public School
system. The teachers contend that they have a due
process right under the Fourteenth Amendment to an
opportunity to show that they are qualified to fill new
vacancies as they arise for a reasonable period of time.
We agree. The district court entered an injunction re-
quiring the Board to collaborate with the Union to prom-
ulgate regulations to establish recall procedures pursu-
ant to Section 34-18(31) of the Illinois School Code. While
we agree that the Board should promulgate the regula-
tions, there is nothing in Section 34-18(31) that re-
quires cooperation with the Union. We therefore direct
the court to modify the injunction to make it conform
to this opinion.
I. BACKGROUND
Appellant Board of Education of the City of Chicago
(the “Board”) is organized under Article 34 of the Illinois
School Code and is charged with the governance of the
Chicago Public School system. The Board employs over
40,000 persons, over half of whom are teachers. Appellee
Chicago Teachers’ Union (the “Union”) is the teachers’
exclusive bargaining representative.
Facing significant budget deficits on the eve of the 2010-
2011 school year, the Board was forced to lay off
nearly 1,300 teachers. The Board implemented its lay-
offs through a series of resolutions issued over the sum-
No. 10-3396 3
mer. On June 15, 2010, the Board passed a resolution
authorizing the “honorable termination” of tenured
teachers.
The Board passed a second resolution on June 23, 2010,
authorizing schools to first lay off teachers who were
under remediation and whose last performance ratings
were negative. Although the Board suggested to the
media that the layoff largely involved teachers with
unsatisfactory evaluations, most of the teachers laid off
had “excellent,” “superior,” or “satisfactory” ratings.
All laid-off teachers received notice of their termina-
tion. Along 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 a
website listing vacancies and included invitations to
attend a résumé and interviewing workshop and two
job fairs that were open solely to displaced teachers.
However, not all vacancies were listed on the website, and
laid-off teachers were not given preference for other
teaching jobs.
Throughout the summer, the Board laid off 1,289
teachers in several phases that ended on August 31,
2010. However, the record indicates that at least some
persons were hired to fill teaching positions that became
available during the summer. The teachers hired to fill
those positions were not tenured teachers.
Due to an increase in federal funding in August 2010,
the Board recalled approximately 715 tenured teachers
who had been laid off or given notices. The teachers were
not recalled pursuant to an official recall policy. As the
4 No. 10-3396
Board’s Labor Relations Officer, Rachel Resnick, stated
in her deposition, “A teacher who is laid off may be
rehired, but we have no recall policy.”
Since the layoff ended, more vacancies have opened
up within the Chicago Public School system. Natural
labor needs compel the Board to hire hundreds of new
teachers every year. The 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.
On August 10, 2010, the Union filed a five-count com-
plaint.1 Three days later, it filed a motion for a prelim-
inary injunction. On September 15, 2010, the district
court held a hearing to simultaneously address the
Union’s motion for a preliminary injunction and its
request for a permanent injunction. The court found that
the teachers had a property interest proceeding from 105
ILCS 5/34-18(31) that was protected by the Fourteenth
Amendment to the United States Constitution and that
entitled them to some kind of retention procedure.
The court then found that, in addition to succeeding on
the merits, the Union met the remaining three require-
ments for obtaining a permanent injunction. First, it
concluded there was no adequate remedy at law because
1
The Union subsequently withdrew Counts III, IV, and V of
the Complaint. Count II, which challenged the Board’s decision
to discharge 25 to 50 teachers who were chosen allegedly
for discharge because of a single “unsatisfactory” evaluation,
is not at issue in this appeal.
No. 10-3396 5
the teachers sought an opportunity to be considered for
a position, and it would be impossible to place a monetary
value on that opportunity. Second, the balance of the
equities favored the Union because the Board would
suffer no injury as the Union did not seek to restore the
teachers to their former positions but merely to have the
Board implement a procedure for the retention of laid-
off teachers. Third, there could be no conceivable harm
to the public resulting from the consideration of tenured
teachers for existing vacancies. The court therefore en-
tered an injunction: (1) directing the Board to rescind
the discharges of tenured teachers under the Board’s
June 15, 2010 resolution; (2) directing the Board to promul-
gate, in consultation with the Union and after good-
faith negotiations, a set of recall rules compliant with 105
ILCS 5/34-18(31) within 30 days; and (3) enjoining the
Board from conducting future layoffs in a similar
manner until recall rules had been promulgated.
The Board appealed. On October 13, 2010, the Board
filed a motion to stay the permanent injunction pending
the outcome of this appeal, which the district court
granted. The Union subsequently filed a motion to expe-
dite this appeal, which was granted.
II. ANALYSIS
We review the district court’s legal determinations
de novo, and its findings of fact for clear error. Pro’s Sports
Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d
865, 870 (7th Cir. 2009).
6 No. 10-3396
A. Due Process Claim
“The Fourteenth Amendment’s procedural protection
of property is a safeguard of the security of interests that
a person has already acquired in specific benefits.” Bd.
of Regents v. Roth, 408 U.S. 564, 576 (1972). To prevail on
a claim for deprivation of property without due pro-
cess, a plaintiff must establish that she holds a protected
property interest. Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 546-47 (1985). Property interests are not
created by the Constitution, but are “created and their
dimensions are defined by existing rules or under-
standings that stem from an independent source such
as state law.” Id. at 561. Property interests may arise by
way of statutes, regulations, municipal ordinances, or by
way of an express or implied contract, such as “rules or
understandings that secure certain benefits and that
support claims of entitlement to benefits.” Covell v.
Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010).
An individual has a property interest in a benefit if she
has more than an “abstract need” for, or “unilateral
expectation” of, that benefit. Roth, 408 U.S. at 577. The
individual must have a legitimate claim of entitlement.
Id. In the employment context, a property interest exists
“when an employer’s discretion is clearly limited so
that the employee cannot be denied employment unless
specific conditions are met.” Buttitta v. City of Chicago,
9 F.3d 1198, 1202 (7th Cir. 1993). If a court determines
that an individual holds a protected property interest,
the question becomes what process is due. Loudermill,
470 U.S. at 541.
No. 10-3396 7
In Illinois, tenured teachers cannot be discharged
except for cause:
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 re-
moval for cause in the manner provided by
Section 34-85.
105 ILCS 5/35-84 (emphasis added). Section 34-85 pro-
vides: “No teacher employed by the board of education
shall after serving the probationary period specified in
section 34-84 be removed except for cause.” (emphasis
added).
Thus, tenured teachers in Illinois have a property
interest in their continued employment. See Loudermill,
470 U.S. at 535-39 (state statute providing that classified
civil service employees were entitled to retain their posi-
tions during good behavior and prohibiting dismissal
except for bad behavior created a property interest in
continued employment); Perry v. Sindermann, 408 U.S.
593, 601 (1972) (written contract with an explicit tenure
provision evidenced a formal understanding that sup-
ported a teacher’s claim of entitlement to continued
employment). If a tenured teacher is fired without
cause, this is a deprivation of property, and the teacher
need only show that it was done without due process
of law to prove a violation of the Fourteenth Amendment.
See Bigby v. Chicago, 766 F.2d 1053, 1056 (7th Cir. 1985).
“The usual though not exclusive modern meaning of
[due process] is notice of charges and an opportunity for a
8 No. 10-3396
hearing . . . .” Id. at 1058. We have, however, recognized
that there is “an exception to a hearing right when [a]
discharge is caused by reorganization.” Misek v. City of
Chicago, 783 F.2d 98, 100-01 (7th Cir. 1986). Illinois courts
have also found that pre-termination hearings are unnec-
essary before good faith economic layoffs. See Land v.
Bd. of Educ. of Chi., 757 N.E.2d 912 (Ill. App. Ct. 2001)
(“Land I”) (finding that teachers who were placed in
reassignment pool for 10 months but could not find jobs
were not entitled to pre-termination hearings before
being terminated). Similarly, we have found that a pre-
termination hearing is not necessary before a layoff so
long as adequate post-termination procedures are avail-
able “to [determine] whether the termination under the
auspices of a [layoff is] permissible or not” and whether
it is “being used to mask an individualized, merit-based
action.” Lalvani v. Cook County, 396 F.3d 911, 915-17 (7th
Cir. 2005) (“Lalvani II”). But the teachers here do not
claim (although they suggest) that the layoffs were
pretextual. Instead, they argue that they are entitled to
an opportunity to show that they are qualified for vacan-
cies that continue to arise within the Chicago Public
School system.
We have not yet considered whether tenured teachers
are entitled to consideration for reassignment. We came
close to answering that question in Mims v. Bd. of Educ.,
523 F.2d 711, 715 (7th Cir. 1975). The plaintiffs in Mims
were female civil service employees of the Board who
were laid off because of a shortage of funds and sought
an opportunity to demonstrate their qualifications after
No. 10-3396 9
learning that six men were hired to temporarily fill their
positions. Id. at 713-15. We found that although “a layoff
is less drastic than a discharge and may not require all
the procedural safeguards necessary before termination
through discharge, [the laid off] plaintiffs had a property
interest in their continued employment, not just in their
status as civil servants.” Id. at 715. We stated:
Plaintiffs at least were entitled to an oppor-
tunity to demonstrate that they were capable
of performing the work assigned to the six tempo-
rary employees. The issue of whether plaintiffs
could perform the work, unlike that of the need
to cut back due to loss of federal funding, was
one on which plaintiffs might have been able to
contribute information and valid persuasion,
possibly resulting in a temporary continuation
of employment.
Id.In Mims, however, the plaintiffs, unlike the teachers
here, also claimed that they were entitled to a pre-layoff
hearing. Id. at 714. We found that the Board failed in
its duty to establish a procedure by which an employee
could obtain review of a layoff decision to ensure that
it was not for an impermissible reason or to demon-
strate that he or she should have been retained. Id. at 715.
Therefore, Mims, while guiding our analysis, does not
provide a definitive answer.
To determine whether the teachers have a property
interest that entitles them to an opportunity to be con-
10 No. 10-3396
sidered for new vacancies, we look to Illinois law. See
Loudermill, 470 U.S. at 546-47. Prior to 1995, Section 34-84
of the Illinois School Code provided that “reserve teach-
ers” had various recall rights. A reserve teacher was
defined as “a teacher not on administrative payroll, who
has a rating of satisfactory or better and whose service
is 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 (1994). Reserve
teachers were given the opportunity to apply for
filling new and vacant teaching positions in the school
system through a process collectively bargained by the
Board and the Union. 105 ILCS 5/34-84 (1994). If a reserve
teacher was not selected to fill a vacant position, the
teacher would be employed by the Board in a position
that was collectively bargained. A certified reserve
teacher not selected for a vacancy would be ap-
pointed on an interim basis for a teaching position.
Reserve teachers also had the right to remain employed
by the Board and receive full salary and benefits for a
period of 25 school months, after which time they could
be honorably terminated from service.2 Id.2
Although these protections were removed from Section 34-84,
both Appendix H of the parties’ collective bargaining agree-
ment and Section 504.2 of the Chicago Public Schools Policy
Manual (“Layoff Policy”) provide for a retention procedure
for teachers whose services are no longer required due to a
drop in student enrollment or the closure of an attendance
(continued...)
No. 10-3396 11
In 1995, the Illinois School Code underwent a sig-
nificant revision. All statutory references to reserve
teachers, along with their recall rights under Section 34-84,
were deleted, and 105 ILCS 5/34-18(31) was added.
Section 5/34-18(31) provides in relevant part that:
The board . . . shall have power . . . 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.
2
(...continued)
center. The Layoff Policy provides that teachers whose
services are no longer required are to be given a “notice of
removal.” Teachers continue to receive full pay and benefits
for a limited period of time. Upon notice of removal, the
teacher receives a list of all unencumbered vacant positions
for which he or she is qualified. During the first thirty school
days after notice of removal, the tenured teacher is permitted
to interview at schools of his or her choosing without being
assigned additional duties. School principals are obligated to
interview tenured teachers who apply unless the position is
filled before the interview takes place. The Board is also obli-
gated to offer teachers “interim assignments.” If the teacher
remains in the interim position for more than 60 days, he
or she is permanently assigned to that position. Even if the
teacher does not have an interim assignment, the teacher may
work as a substitute teacher. If after 10 school months the
tenured teacher has not been appointed to a permanent posi-
tion, he or she is honorably terminated.
12 No. 10-3396
Such criteria shall take into account factors in-
cluding, but not limited to, qualifications, certifica-
tions, experience, performance ratings or evalua-
tions, and any other factors relating to an em-
ployee’s job performance.
The Board concedes that “[p]rior to the 1995 amend-
ments, if CPS honorably dismissed or laid off a teacher,
the teacher had a clearly delineated property interest
in continued employment, which was set forth in Sec-
tion 34-84.” The Board argues, however, that Section 34-
18(31) is an authorizing statute and does not compel it
to promulgate regulations, and therefore, the teachers
are not entitled to be recalled. The Board also contends
that the teachers cannot have a property interest in a
recall procedure because a procedural safeguard for a
property interest cannot itself create a property interest.
While it is true that Section 34-18(31) is not crystal clear,
it contemplates that the Board will promulgate rules
“governing the layoff . . . and the recall of such employees,”
not layoffs alone. (emphasis added); see also Powell v.
Jones, 305 N.E.2d 166, 171 (Ill. 1973) (explaining that a
layoff is “not, ordinarily, viewed as a permanent situa-
tion”). The statute further limits the Board’s discretion
by requiring it to take various criteria (qualifica-
tions, certifications, experience, performance ratings, and
evaluations) into account.
Although there are no Illinois cases directly on point,
those cases that have examined the relationship be-
tween Sections 34-84, 34-85, and 34-18(31) do not suggest
that tenured teachers do not have a right to be con-
No. 10-3396 13
sidered for vacancies, but, rather, that it is now the
Board’s responsibility, instead of the legislature’s, to
formulate procedures governing layoff and recall. In
Land I, the Illinois Appellate Court considered whether
tenured teachers who were allowed 10 months to find
alternate employment pursuant to the Board’s layoff
policy but were unable to find new positions during that
time were entitled to a hearing prior to being terminated.
757 N.E.2d at 915-16. The court explained that prior to
the 1995 amendments, Section 34-84 gave the Board the
authority to lay off tenured teachers, but that this
authority was subject to “an explicit set of restrictions,”
which gave “reserve teachers” 25 months to obtain
an alternative position before they could be honorably
terminated from service. Id. at 920. The 1995 amend-
ments “simply eliminated all provisions referring to
‘reserve teachers’ and added subsection 31 to section 34-
18, granting the power to the Board to promulgate its
own procedures ‘governing the layoff or reduction in
force of employees.’ ” Id. After examining the Illinois
School Code both before and after the 1995 amend-
ments, the court concluded that “the amendments re-
garding layoffs were procedural changes, not substan-
tive changes.” Id.The court also made two relevant findings. First, it
concluded that the layoffs were not governed by sections
34-84 and 35-85 and the hearing procedures contained
in those sections. Id. Second, the court found that
neither the Board’s policy nor Section 34-18(31) created
a property interest in the teachers’ continued employ-
14 No. 10-3396
ment, meaning that the notice and hearing procedures
required in cases of discharges “for cause” were inap-
plicable to layoffs. Id. at 925. The court emphasized that
to require a pre-layoff hearing would “hang an anvil”
around the Board’s neck. Id.The Illinois Supreme Court affirmed the appellate
court’s finding that the Board had the authority to lay off
tenured teachers.3 In Land v. Bd. of Educ. of Chi., 781
N.E.2d 249, 256 (Ill. 2002), (“Land II”), the Court explained
that it had long been established that among the
unenumerated powers of the Board was the authority
to lay off employees in good faith for lack of work. Prior
to 1995, “limits on that power were set out in section 34-
84.” Id. The 1995 amendments did not eliminate or
reduce the Board’s power. Id. “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 proce-
dures regarding layoffs rather than binding the Board
to a legislatively mandated procedure.” Id.Neither the 1995 amendments nor the Illinois cases
construing them suggest that tenured teachers are not
entitled to an opportunity to show that they are quali-
fied for vacancies after an economic layoff. Although
3
The Court reversed in part for the trial court to determine
whether the Board properly delegated its authority to decide
whom to lay off. Id. at 261. The Court also noted that the
Board’s policy was not a “procedure” as provided in Section 34-
18(31). Id.No. 10-3396 15
in Land I the court found that the teachers could not
hold on to their positions indefinitely by virtue of being
tenured, the court did not decide whether the teachers
were entitled to be recalled, as the teachers in that case
were placed in a reassignment pool for 10 months and
only argued that they could not be subsequently termi-
nated. Land I, 757 N.E.2d at 925. Further, Land I is not
controlling on the question of whether the teachers have
a federal constitutionally protected property interest
because, although the teachers’ rights derive from state
law, it is federal law that determines whether those
rights constitute a property interest for purposes of the
Fourteenth Amendment. See Town of Castle Rock v.
Gonzales, 545 U.S. 748, 757 (2005).
Contrary to the Board’s contention, the language used
in Land I and Land II suggests that the Board now has
the authority to formulate its own procedure for layoff
and recall, not that the Board may simply have no pro-
cedure whatsoever. These limits on the Board’s discre-
tion, along with tenure, which, as we recognized in Mims,
gave plaintiffs a property interest in their continued
employment and entitled them to an opportunity to
demonstrate that they were capable of performing tempo-
rary work, give rise to a legitimate expectation that
tenured teachers who are laid off will be given the op-
portunity to show that they are qualified for new
vacancies for a reasonable period of time. For, as Mims
implicitly recognizes, if a “permanent” appointment
means anything, it at least means that if vacancies arise
during or shortly after a layoff, the teachers who orig-
inally held “permanent” appointments should be given
16 No. 10-3396
a meaningful opportunity to show that they remain
qualified to fill those positions.
And, although it is true that an entitlement to nothing
but procedure cannot be the basis for a property
interest, detailed procedural requirements are relevant
to whether a substantive property interest exists. Teigen v.
Renfrow, 511 F.3d 1072, 1081 (10th Cir. 2007); see also
Buttitta, 9 F.3d 1198, 1202-04 (7th Cir. 1993) (holding that
a provision in the Illinois Pension Code setting forth the
procedure to be followed in determining whether an
officer receiving disability benefits should be returned
to active duty created in police officers “an interest in
being returned to the department for an opportunity to
demonstrate their fitness for active duty”); Deen v.
Darosa, 414 F.3d 731, 735-36 (7th Cir. 2005) (holding that
policy directive that gave officers a right to appear
before a board to show that they could return to full
duty gave officer an interest in an opportunity to show
that he could return to full duty). Here, the limits on
the Board’s discretion found in Section 34-18(31) along
with the teachers’ right to a “permanent” appointment,
give rise to a legitimate expectation that laid-off teachers
will be considered for vacancies for a reasonable period
of time.4
4
The Board also contends that Section 4.5 of the Illinois
Educational Labor Relations Act, 115 ILCS 5/4.5, also suggests
that tenured teachers have no property interest following
an economic layoff. Section 4.5 concerns “subjects of collective
bargaining” and states that a decision to lay off employees is
(continued...)
No. 10-3396 17
Having found that the teachers have a cognizable
property interest, we now turn to the question of what
process is due to them. Whether an employee has
received all the process that would have been due in
connection with his or her termination is a question of
federal law. Lalvani v. Cook County, 269 F.3d 785, 793 (7th
Cir. 2001) (“Lalvani I”). The fundamental requirement of
due process is “the opportunity to be heard at a meaning-
ful time and in a meaningful manner.” Baird v. Bd. of
Educ. for Warren Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685,
(7th Cir. 2004) (quoting Mathews v. Eldridge, 424 U.S. 319,
348-49 (1976)). The flexible approach to due process
adopted in Mathews requires the court to weigh “the
significance of the private interest at issue and the risk
of an erroneous deprivation of that interest under the
procedures employed by the state, against the probable
benefits of any additional procedural protections and
the state’s interest in avoiding the fiscal and administra-
tive burdens that those additional protections would
impose.” Lalvani I, 269 F.3d at 793; see generally Chaney
v. Suburban Bus Div. of the Reg’l Transp. Auth., 52 F.3d
623, 627 (7th Cir. 1995) (“We apply the Mathews analysis
to both the pre-deprivation and post-deprivation phases
of [a plaintiff’s] case.”).
4
(...continued)
a “permissive” subject of bargaining between the Board and the
Union. 115 ILCS 5/4.5. Because this case does not concern the
Board’s duty or lack thereof to bargain with the Union, but
instead concerns whether the teachers have a right to be
considered for vacancies, Section 4.5 is not relevant to the
issue before us.
18 No. 10-3396
The teachers contend that they are entitled to a recall
procedure.5 We agree. The teachers should be given a
meaningful opportunity to show that they are qualified
for new vacancies for a reasonable period of time. See
Buttitta, 9 F.3d at 1204 (finding that a police officer
was given all process due to him because the police
department gave him an opportunity to show he was
qualified for active duty).
We have previously acknowledged that an employee’s
interest in retaining his or her job is substantial. Lalvani I,
269 F.3d at 793 (citing Brock v. Roadway Express, Inc., 481
U.S. 252, 263 (1987)). The Board contends that the
teachers received all of the process that was due to them
because it held two job fairs and a résumé workshop
and pointed the teachers to a website 6 listing vacancies.
However, the Board’s contention cannot be squared
with the Board’s several admissions on the record that
it has “no recall procedure in place.” The Board simply
has not established a procedure whereby laid-off
teachers can demonstrate their qualifications for new
teaching positions, nor has the Board announced the
5
The teachers also contend that they are entitled to preference
for vacancies. But the availability of a post-termination
procedure by which the teachers can show that they are
qualified for vacancies is all that is necessary to satisfy due
process. There is no guarantee of a particular substantive
outcome.
6
The district court found that many vacancies were not
listed on the website.
No. 10-3396 19
criteria to be used in evaluating teachers who apply
for teaching jobs. Without any procedures for recall,
the risk of deprivation to the teachers is significant.
Recognizing that it lacked the institutional competence
to define the exact contours of those procedures, the
district court found that the Board, in light of Section 34-
18(31), would be in a better position to do so. We
agree. In enacting Section 34-18(31), the Illinois General
Assembly contemplated that the Board would prom-
ulgate regulations establishing such procedures, presum-
ably without incurring excessive costs. Requiring the
Board to promulgate regulations under Section 34-18(31)
gives teachers the benefit of a procedure by which they
can demonstrate their qualifications for new positions,
without imposing excessive administrative and fiscal
costs on the Board.7
B. Scope of Injunctive Relief
We review the district court’s entry of preliminary
and permanent injunctive relief for an abuse of discretion.
Sierra Club v. Franklin Cnty. Power of Ill., L.L.C., 546 F.3d
918, 935 (7th Cir. 2008). “A plaintiff seeking a pre-
liminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer
7
This is not an empty formality, as the dissent asserts. While it
may turn out that not every laid-off teacher is rehired, the
teachers will get the benefit of the recall procedure enacted
by the Board pursuant to Section 34-18(31).
20 No. 10-3396
irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. NRDC, 129
S. Ct. 365, 374 (2008). The standard for a permanent
injunction is the same as for a preliminary injunction
except that the plaintiff must show actual success on
the merits. Id. at 381. Although courts use the termi-
nology “irreparable harm,” when the issue is whether
to grant a permanent injunction, the burden is on the
plaintiff to show that damages are inadequate. Walgreen
Co. v. Sara Creek Prop. Co., 966 F.2d 273, 275 (7th Cir. 1992).
The teachers succeeded on the merits. The district
court’s evaluation of the other factors was also sound.
Damages would not adequately compensate the teachers
because it would be difficult to place a value on the op-
portunity to demonstrate their qualifications for vacant
positions. The balance of the equities tips in favor of the
teachers because they have a substantial interest in re-
maining employed and requiring the Board to prom-
ulgate the rules contemplated by Section 34-18(31)
would not impose significant burdens. Nor would re-
quiring the Board to allow the teachers to show that they
are qualified for vacancies negatively impact the public.
However, the scope of the district court’s injunction
should have been narrower. The district court ordered
the Board to consult with the Union in promulgating
regulations under Section 34-18(31). Although consulta-
tion with the Union may expedite the process of promul-
gating the rules, there is nothing in Section 34-18(31)
that requires cooperation with the Union, and we
decline to impose such a requirement.
No. 10-3396 21
The district court also ordered that the teachers’ dis-
charges be rescinded. The teachers concede and we
agree that they are not entitled to back pay or to be
placed on the payroll going forward. However, the teach-
ers must have some connection to the Chicago Public
School system in order for the Board’s regulations to
apply to them. We do not reverse the decision of the
district court in rescinding the discharges, but clarify
that the teachers are still considered to be laid-off teach-
ers. As the district court explained, Section 5/34-18(31)
contemplates unique rights for laid-off, as opposed to
terminated, employees. Rescinding the discharges only
allows the teachers to take advantage of the opportunity
to show their qualifications for new vacancies for a rea-
sonable period of time. In this context, their “laid-off”
status does not implicate past or future payment
or benefits.8
III. CONCLUSION
We A FFIRM the district court’s finding that tenured, laid-
off teachers have a residual property right in the event
of an economic layoff. We also direct the court to
redraft its injunction to conform with this opinion.
8
The dissent contends that the teachers are now left in “a state
of limbo.” But as evidenced by the Board’s Layoff Policy
dealing with school closings, there is nothing unusual about
the teachers maintaining a connection to the schools after
being laid off. It makes no difference that the teachers are not
drawing a salary or receiving benefits.
22 No. 10-3396
M ANION, Circuit Judge, dissenting in part, concurring in
part. The court’s decision takes a vague enabling statute
giving the Board the power to make recall procedures
and turns it into an affirmative right for Union members
to have recall procedures. Not only does it give Union
members the right to these procedures, it elevates these
procedures to the place of property rights, covering them
with the guarantees of the Due Process Clause. Therefore,
I have two principal points of disagreement with the
court’s decision. First, neither the statute nor the sur-
rounding conditions that the court’s opinion alludes to
gives the Union members the right to recall procedures.
Second, even if the statute provided the Union members
with the right to recall procedures, a person’s right to
certain procedures is not itself a property right that
the Due Process Clause protects. Wallace v. Robinson,
940 F.2d 243, 246-47 (7th Cir. 1991) (en banc) (“Promises
of particular procedures [ ] do not create legitimate
claims of entitlement.”).
I.
For reasons not in the record, the Union never
negotiated with the Board to secure recall rights in the
case of an economic layoff. It was not an oversight, since
it did negotiate for and secure recall rights in the case of
non-economic layoffs. When an economic layoff came
around last summer the Union filed a grievance,
claiming the layoff violated its contract with the Board.
The arbitrator disagreed, finding that the Board com-
plied with the collective bargaining agreement. While
No. 10-3396 23
the Union appealed the arbitrator’s decision, it also
took its case to federal court. It didn’t claim that the
layoffs violated the contract or deprived its members of
their due process rights. Rather, it claimed that its mem-
bers were entitled to recall procedures from the layoff
and that the Board violated their due process rights by
not creating them. It wanted to make sure that every
time a position opens up, laid-off teachers would—in
the words of the district court—have “a foot in the
door.” Chicago Teachers Union v. Bd. of Educ. II, 2010 WL
3927696, at *9 (N.D. Ill. 2010). Normally these procedures
would be included in a collective bargaining contract,
but again the Union never negotiated for them. So, the
Union argued that although the procedures were not
included in the collective bargaining agreement, they
were nevertheless guaranteed to its members through
the enabling statute that gives the Board the power to
create these recall procedures. The district court agreed
and this court affirms, finding the Union members have
a property interest in yet-to-be-created recall proce-
dures that the Due Process Clause protects.
The Due Process Clause protects property interests.
To say someone has a property interest is to say they
have a legitimate claim of entitlement, that is, something
more than “an abstract need or desire” and “more than a
unilateral expectation.” Town of Castle Rock, Colo. v. Gonza-
les, 545 U.S. 748, 765 (2005) (quotation omitted). Such an
interest cannot be vague, transitory, or uncertain; it
must be affirmatively created, explicit, and secure. Burell
v. City of Mattoon, 378 F.3d 642, 647 (7th Cir. 2004); Reed
v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983).
24 No. 10-3396
In other words, there must be a “legally enforceable
right.” Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir.
2009). And to have such a right, there must be “explicitly
mandatory language” linking “specified substantive
predicates” to prescribed outcomes. Miller v. Crystal Lake
Park Dist., 47 F.3d 865, 867 (7th Cir. 1995).
The Union argues that its members have a right to
the recall procedures contemplated in Section 5/34-18(31).
The district court read “5/34-18(31) as vaguely providing
a property interest in some sort of retention procedure.”
Chicago Teachers Union, supra *8. Here, the court’s
opinion does not rest on the statute alone, which it notes
is “not crystal clear.” Op. at 12. Rather, in two ways it
finds a right to recall procedures: first, in the limits
Section 5/34-18(31) places on the Board’s discretion, and
second, in the residual and undefined interest the
members have in their jobs after being laid off. Op. at 16.
But neither a “vague” statute alone, nor a “vague” statute
plus some residual interest in a person’s former job,
gives the Union members a right to recall procedures.
The Supreme Court is clear on that point: “Nor can some-
one be safely deemed ‘entitled’ to something when
the identity of the alleged entitlement is vague.” Gonzales,
545 U.S. at 763.
Section 5/34-18(31) does not provide the Union
members with an entitlement. It is an enabling statute,
an authorizing statute that gives the Board the power to
create a recall process. It says that the Board “shall
have power” “[t]o promulgate rules” for layoffs and
recalls; it then provides criteria to guide the formation of
No. 10-3396 25
these rules. 105 ILCS 5/34-18(31). The statute does not
specify what recall procedures must be made or that
they are required in all cases, just that the Board has the
power to create them. In other words, the Board may
create recall procedures but is not required to do so. That
is the nature of an enabling statute. See Norman J. Singer,
3 Sutherland Statutory Construction, §§ 57:1 et al. (7th ed.
2008) (discussing enabling or authorizing statutes and
their attributes). As the court notes, the Board has not
chosen to create procedures for recall during an economic
layoff.
Significantly, though, the Board has enacted recall
procedures when teachers are laid off because of a school
closing. These detailed procedures, including ten months
of pay and benefits, are discussed in footnote 2 of the
court’s opinion. While the Board has enacted recall proce-
dures when a school closes, there may be good reason
for the Board to exercise its authority and choose not to
enact such procedures when an economic crisis compels
layoffs. In an economic crisis, the Board may want as
much flexibility as possible and choose to avoid the
cumbersome task of determining how to sift through
2,000 laid-off applicants vying for the 200 jobs that may
open up during the school year—not to mention the
grievances that would naturally follow. It may prefer
to have everyone apply and let the principals make their
own hiring decisions. Regardless of the reasons, there
is nothing in the enabling statute that specifies that
recall procedures are required.
Not surprisingly, we have previously dealt with the
question of whether an enabling statute creates a
26 No. 10-3396
property right, notably in Hohmeier v. Leyden Community
High Schools Dist. 212, 954 F.2d 461, 463-64 (7th Cir. 1992).
There, the school board had a “duty” to “adopt and
enforce all necessary rules for the management and
government of the public schools of their district.” Id.We held that although the Board could create a prop-
erty entitlement under the statute, it had not. Like Sec-
tion 5/34-18(31), the statute in Hohmeier had criteria for
the Board to use when making its rules. In contrast to the
court’s holding today, there we found that the criteria
“suggests that the policy is intended to guide the
internal management of the school system, rather than to
create enforceable rights against the district.” Id. at 465 (em-
phasis added). Further, in Hohmeier, as here, the statute
gave the Board the discretion to determine what rules to
promulgate. Id. And we held that since there was no
binding obligation that the plaintiffs could enforce, there
was no property interest for the Due Process Clause
to protect. Id. at 464.
Looking at the text of Section 5/34-18(31), we should
arrive at the same conclusion. The language at issue here
is, as the district court put it, “vague”; it is uncertain
and lacks binding force. Undeterred, the court notes that
while the statute is “not crystal clear,” the limits it
places on the Board’s discretion help create an expecta-
tion for Union members in recall procedures. In its words:
Here, the limits on the Board’s discretion found
in Section 34-18(31) along with the teachers’ right
to a “permanent” appointment, give rise to a
legitimate expectation that laid off teachers will
No. 10-3396 27
be considered for vacancies for a reasonable
period of time.
Op. at 16. But the criteria listed in Section 34-18(31)
do not create a right, nor do they limit the Board’s discre-
tion. When formulating the rules, the Board is supposed
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.” Id. (emphasis added). This
legislative criteria does not give tenured teachers a right
to recall procedures. The statute does not provide a
guarantee that after any layoff the most qualified or most
experienced will be recalled; all it provides is that if the
Board makes such recall rules, it will take into account
factors that include qualifications and experience and
“any other factors relating to an employee’s job perfor-
mance.” 105 ILCS 5/34-18(31). When a statute limits the
decisionmaker’s discretion so that a prescribed outcome
will follow from certain factors, then a right is created.
Miller, 47 F.3d at 867; Wallace, 940 F.2d at 247. The mere
fact that the Board will consider a non-exclusive list of
things, primarily focused on performance with no
mention of tenure, does not mean that a certain out-
come will follow.1 The Union members can’t reasonably
1
Further, the context of this statute cuts against any inference
in favor of tenure rights. We have dealt with the changes
made to this statute in several cases over the years. Shegog v. Bd.
of Educ., 194 F.3d 836, 837 (7th Cir. 1999); Hearne v. Chicago Bd.
of Educ., 185 F.3d 770 (7th Cir. 1999); Pittman v. Chicago Bd. of
(continued...)
28 No. 10-3396
read the statute and infer—from the fact that the Board
will consider qualifications, certifications, and job perfor-
mance when making recall procedures—that they have
a substantive entitlement to recall procedures. See
Gonzales, 545 U.S. at 765 (“If she was given a statutory
entitlement, we would expect to see some indication of
that in the statute itself.”). And “[a] misunderstanding of
one’s entitlements, even if reasonable, does not enlarge
those entitlements.” Upadhya v. Langenberg, 834 F.2d 661,
665 (7th Cir. 1987).
There are two other components to the court’s finding
that the teachers have the right to recall procedures:
first, its analysis of the Illinois case law interpreting the
statute; and second, the declaration that teachers have a
right to a permanent appointment, with some residual
interest after termination. Under the first, the court con-
cludes its examination of Land I and Land II by noting:
Neither the 1995 amendments nor the Illinois cases
construing them suggest that tenured teachers
are not entitled to an opportunity to show that they
are qualified for vacancies after an economic layoff.
Op. at 14 (emphasis added). That statement, indeed
much of the court’s reasoning, inverts the proper analysis.
It is not that the law must not take away a right; rather,
1
(...continued)
Educ., 64 F.3d 1098 (7th Cir. 1995). And in Hearne, we dis-
cussed how the changes aimed only at Chicago Public Schools—
which at the time this statute was passed “was in the throes
of an education crisis”—eroded the teachers’ tenure rights.
Hearne, 185 F.3d at 772-73.
No. 10-3396 29
the law must guarantee it. Nor is it the duty of the Board
to show that the teachers do not have a particular
right; rather, it is incumbent on the Union to show that
its members have one. And to have such a right the
members must have much more than an expectation of
something that the Illinois cases have not taken away.
The Union members must show that “state law has affir-
matively created an expectation that a particular employ-
ment relationship will continue unless certain defined
events occur.” Burell, 378 F.3d at 647 (quotation omitted).
That has not happened here.
Second, the court repeatedly invokes the concept of
tenure and the case of Mims v. Board of Education, 523
F.2d 711, 715 (7th Cir. 1975), as suggesting that the Union
members have a residual right to recall procedures. Op.
at 9, 14-15. This suggestion is misguided. First, rights of
this sort do not come from federal case law; “they are
created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law.” Gonzales, 545 U.S. at 758; see
also Goros v. County of Cook, 489 F.3d 857, 860 (7th Cir.
2007) (“State law defines property; federal law defines
the process that is due.” (quotation omitted)). Second, in
Mims the plaintiffs were film servicers who were laid
off after the program was cut, but before they were laid
off there were still some temporary jobs available in
dismantling the program, and the plaintiffs were not
given a chance to demonstrate they were capable of
doing the temporary positions. Mims stands for the unre-
markable proposition that due process was not followed
when the plaintiffs were laid off without a hearing.
30 No. 10-3396
Mims, 523 F.2d at 715. That case has no bearing on what
rights the Union members have under this statute to
recall procedures. And that case does not suggest—let
alone hold—that under Illinois law after a person is laid
off he has some residual rights in his former job.
Here, the teachers are all laid off; in the Board’s words,
they have been honorably discharged. The point is they
no longer have a job, and the process they are owed under
the Due Process Clause has been honored—the teachers
have not claimed they were laid off without due pro-
cess. No property rights followed the teachers out the door.
Mims does not suggest that once an employee has been
terminated she retains some residual rights in her former
employment. No case holds that. To be clear, the teachers
have a property interest in their jobs, but once they lose
their jobs, and the process that attaches to it is honored,
they have no more rights that the Due Process Clause
protects.2
2
This point is clear in Land I, which the court discusses at
length. There, the Illinois Court of Appeals was looking at
whether a traditional right to continued employment existed
in the language of Section 34-18(31), and it held it was not there:
The plaintiffs have failed to cite to any authority—and
we are unable to locate any—to support their claim that
both section 34-18(31) of the Code and the Board’s
layoff policy created a property interest in their con-
tinued employment.
Land v. Bd. of Educ. of City of Chicago, 757 N.E.2d 912, 925 (Ill.
App. Ct. 2001), rev. in part on other grounds, 781 N.E.2d 249(continued...)
No. 10-3396 31
The court’s instructions on remand also illustrate this
fact. Under the court’s direction, the layoffs are rescinded,
yet the teachers do not get back pay or get placed back
on the payroll; they are not contractual employees who
enjoy salaries and benefits. Op. at 18-19. They have an
uncertain and undefined connection to the schools;
they’re just connected with the school in a state of
limbo—undefined by statute or contract, the product
of judicial fiat. Since neither Section 34-18(31) nor the
teachers’ contract creates such a residual right which
would define a member’s status, the court must order
one. So, on remand, the teachers now have the opportu-
nity—along with every other applicant—to show their
qualifications for new vacancies. Even after rescinding
the discharges, that “opportunity” is not a right, because
there is no guarantee that the teacher will be rehired.
They just have a chance, like everyone else. See Reed, 704
F.2d at 948 (noting “property is what is securely and
durably yours . . . , as distinct from what you hold
subject to so many conditions as to make your interest
meager, transitory, or uncertain”). Nothing more.
In sum, neither the statute, nor anything else the court
cites to, gives the Union members a legitimate claim
to recall procedures in the case of an economic layoff.
Thus, I respectfully submit that the court has erred in
finding such a right.
2
(...continued)
(Ill. Sup. Ct. 2002). In Land I, once the employee was termi-
nated, that was it: he had no more property rights.
32 No. 10-3396
II.
My second point of disagreement is more fundamental:
Even if the Union members’ expectations from a vague
statute could create a right to recall procedures, recall
procedures are not substantive property rights. From
the briefs and the district court’s order, the Union’s
demand was minimal. The Union wants to ensure
its members have a chance to show principals their qual-
ifications—they want special access, or in the
words of the district court, they want a “foot in the
door.” They want a process for hiring teachers that will
favor the laid-off tenured teachers.
Here, the court finds that the Union members have a
right to recall procedures, the ones that the Board is
empowered to create under Section 5/34-18(31) but has
not yet created. The court holds that these yet-to-be-
created recall procedures constitute a property right that
the Due Process Clause protects. So, to ensure that the
Union members are not deprived of their property (i.e.,
the recall procedures) without due process, the court
has ordered the Board to create recall procedures (which
is, again, the so-called property). The logic is circular. A
process (here, the recall procedures) is not an end in
itself. The Due Process Clause protects the property
right, not the process. It bears noting the Supreme
Court’s position on the danger of conflating property
rights with procedure:
The point is straightforward: the Due Process
Clause provides that certain substantive rights—
life, liberty, and property—cannot be deprived
No. 10-3396 33
except pursuant to constitutionally adequate
procedures. The categories of substance and procedure
are distinct. Were the rule otherwise, the Clause
would be reduced to a mere tautology. “Property”
cannot be defined by the procedures provided for
its deprivation any more than can life or liberty.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)
(emphasis added). Illustrating the Supreme Court’s point,
the court’s opinion notes: “Without any procedures
for recall, the risk of deprivation to the teachers is signifi-
cant.” Op. at 19. But what is the deprivation that the
teachers would suffer? It would be nothing more than
their right to “recall procedures.” And procedures are not
protected property rights: “Process is not an end in
itself. Its constitutional purpose is to protect a substan-
tive interest to which the individual has a legitimate
claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238,
250 (1983).
By looking at the statute this way, the court conflates
the property with the process. Our precedent is clear on
this point: “Promises of particular procedures [ ] do not
create legitimate claims of entitlement.” Wallace, 940
F.2d at 248. A statute that merely provides procedures
does not include a substantive right. Cain v. Larson, 879
F.2d 1424, 1426 (7th Cir.1989) (“It is by now well-estab-
lished that in order to demonstrate a property interest
worthy of protection under the fourteenth amend-
ment’s due process clause, a party may not simply
rely upon the procedural guarantees of state law or
local ordinance.”). And “a contract that creates merely
34 No. 10-3396
a right to procedure does not create a property right
within the meaning of the due process clause.” Campbell
v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991)
(quotation omitted). Here, the Union doesn’t even have
an articulated procedure—it has only the hope of a proce-
dure. That is not the stuff of property rights.
And even the court’s remedy does not give a substan-
tive entitlement; on remand all the teachers are given is
a procedure: the court requires that their names be
placed on a list. But having your name on a list is not a
property right. It is a formality. Olim, 461 U.S. at 250(noting a property right is not “the right to demand
needless formality”).
III.
The Union failed to bargain over and secure recall
procedures for its members when there is an economic
layoff. Faced with this reality after the layoff, it has tried
to create a property right out of the statute that empowers
the Board to make such procedures. The district court
and this court have acquiesced, finding that the Due
Process Clause protects what amounts to a vague and
amorphous expectation of recall procedures, but the
Due Process Clause protects neither vague expectations
nor procedures. The substance and form of recall proce-
dures during an economic layoff should be resolved at
the bargaining table; it is not for us, fifteen years after
the statute was passed, to remedy that by calling the
expectation of “recall procedures” property rights and
placing them under the protection of the Due Process
No. 10-3396 35
Clause. Accordingly, I respectfully dissent with respect
to the finding a property right, and concur with the
judgment modifying the district court’s injunction.3
3
I do agree with the court’s opinion that the district court
overstepped its bounds by ordering the Board to negotiate
with the Union over the substance and form of recall proce-
dures. To the extent that the Court’s opinion modifies
the district court’s order on that point, I fully concur.
3-29-11