Williette Price v. Board of Education of the City , 755 F.3d 605 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2007
WILLIETTE PRICE, on behalf of herself and
all persons similarly situated
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE CITY OF
CHICAGO and BARBARA BYRD-BENNETT,
in her official capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-cv-4463 — Edmond E. Chang, Judge.
____________________
ARGUED JANUARY 22, 2014 — DECIDED JULY 2, 2014
____________________
Before WOOD, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Williette Price was part of a mas-
sive economic layoff of Chicago Public Schools (“CPS”)
teachers in 2010. She argues that, as a tenured teacher, she
had a property interest in continued employment as a teach-
2 No. 13-2007
er anywhere within CPS before being laid off, and that the
Board of Education violated the Due Process Clause by de-
priving her of that property interest. Because Price cannot
point to any source that gives her the type of property inter-
est she asserts, we affirm the lower court’s decision to dis-
miss her complaint for failure to state a claim.
I. BACKGROUND
This case was decided on a motion to dismiss, and so we
recite all the factual allegations in the light most favorable to
the non-moving party, Williete Price. See Craig v. Rich Twp.
High Sch. Dist. 227, 736 F.3d 1110, 1115 (7th Cir. 2013).
In 2010, Price was a full-time tenured CPS teacher who
was working in a city-wide program to improve the class-
room teaching skills of other teachers. In all of her evalua-
tions, she was rated excellent or superior.
In June 2010, the Board of Education (the “Board”) au-
thorized then-CPS CEO Ron Huberman (who has since been
substituted by his replacement, Barbara Byrd-Bennett, in the
complaint) to “honorably discharge” what turned out to be
roughly 1,289 public school teachers, some of whom were
tenured. At the same time as the layoffs, Price alleges CPS
was continuing to hire teachers to fill vacant positions, in-
cluding new hires with no prior classroom experience or
prior evaluations. Price alleges that she was not considered
for any of these vacant positions, nor was she given any no-
tice of existing vacant positions prior to her layoff. She fur-
ther alleges the Board did not implement procedures to al-
low laid-off tenured teachers to show they were qualified to
fill those vacant positions.
No. 13-2007 3
Price filed a 42 U.S.C. § 1983 suit one year after the
layoffs on behalf of herself and a putative class of other simi-
larly situated teachers. The district court stayed the case
while we considered a related action, Chicago Teachers Union,
Local No. 1 v. Board of Education, 640 F.3d 221 (7th Cir. 2011),
which we discuss in more detail below. After that case was
decided, Price filed her first amended complaint, asserting a
violation of due process. After a motion by the Board, the
district court dismissed that complaint because Price did not
identify any protected property interest that could give rise
to a due process claim. This appeal followed.
II. ANALYSIS
Price argues that her complaint should not have been
dismissed because the Board violated the Due Process
Clause of the United States Constitution when it laid off her
and other similarly situated tenured teachers without con-
sidering them for open positions that they were qualified to
fill. She alleges in her complaint that she and the other ten-
ured teachers had a protectable interest “to fill or transfer
into any existing open or vacant position [within CPS] for
which they were qualified” prior to the layoffs. We review a
district court’s dismissal under Federal Rule of Civil Proce-
dure 12(b)(6) de novo. See Craig, 736 F.3d at 1115. We con-
strue all factual allegations and any reasonable inferences in
the light most favorable to the nonmoving party, Price. Id.
The Due Process Clause of the Fourteenth Amendment
prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const.
Amend. XIV, § 1. While there are both procedural and sub-
stantive components of the Due Process Clause, Price only
raises issues of procedural due process, and so we need not
4 No. 13-2007
consider substantive due process concerns. “To demonstrate
a procedural due process violation of a property right, the
plaintiff must establish that there is (1) a cognizable property
interest; (2) a deprivation of that property interest; and (3) a
denial of due process. Accordingly, a plaintiff asserting a
procedural due process claim must have a protected proper-
ty interest in that which [she] claims to have been denied
without due process.” Khan v. Bland, 630 F.3d 519, 527 (7th
Cir. 2010) (internal quotations omitted). “Although the Four-
teenth Amendment protects property rights, it does not cre-
ate them. Instead, property rights ‘are created and their di-
mensions are defined by existing rules or understandings
that stem from an independent source such as state law—
rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.’” Frey Corp. v.
City of Peoria, 735 F.3d 505, 509-10 (7th Cir. 2013) (quoting Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). “A
protected property interest in employment can arise from a
statute, regulation, municipal ordinance, or an express or
implied contract …” Covell v. Menkis, 595 F.3d 673, 675-76
(7th Cir. 2010).
To prevail on her due process claim, Price needs to iden-
tify a source, independent of the Due Process Clause, for the
protectable property interest she claims to have. Towards
that end, it is vital to understand what interest Price alleges
she has, and what she has not alleged. While at times Price
argues that the property interest at issue is continued em-
ployment generally, her complaint demonstrates she is alleg-
ing a more specific right. Price is alleging that by virtue of
being tenured, a teacher in CPS has a permanent property
interest in filling any existing open or vacant position in CPS
for which she was qualified at the time of her layoff, even if
No. 13-2007 5
it was not the position that teacher previously filled. She al-
leges in her complaint that “[b]efore they could be subject to
layoff at all, plaintiff and other tenured teachers were enti-
tled to be considered for and to fill such positions for which
they were qualified in preference to any such non-tenured
applicants.” This entitlement, she argues in her opening
brief, “is not a ‘permanent appointment’ to teach a particular
class in a particular school, or to hold a particular line item
budgeted position, but a permanent appointment to teach
anywhere in the Chicago public schools” before being laid off.
So long as there is some vacant job out there in CPS for
which Price is qualified, she claims she has a property inter-
est in that job and must be given her due process before she
can be laid off.
The question facing Price is: What is the source of that al-
leged right? Price points to 105 Ill. Comp. Stat. 5/34-84, the
Illinois tenured teacher statute, which, in relevant part,
states:
Appointments and promotions of teachers shall be
made for merit only, and after satisfactory service for
a probationary period of … 4 years … during which
period the board may dismiss or discharge any such
probationary employee upon the recommendation,
accompanied by the written reasons therefor, of the
general superintendent of schools and after which pe-
riod appointments of teachers shall become perma-
nent, subject to removal for cause in the manner pro-
vided by [105 Ill. Comp. Stat. 5/34-85].
Although the district court also considered 105 Ill. Comp.
Stat. 5/34-18(31) as a source of Price’s alleged right, Price
does not point to that section in her briefing and therefore
6 No. 13-2007
we need not consider it. See Puffer v. Allstate Ins. Co., 675 F.3d
709, 718 (7th Cir. 2012) (noting arguments that are “under-
developed, conclusory, or unsupported by law” are waived).
Nor does Price point to any other “statute, regulation, mu-
nicipal ordinance, or an express or implied contract, such as
‘rules or understandings’” that create such a property right.
Covell, 595 F.3d at 675-76. So, her case hinges on section 34-
84.
We considered section 34-84 prior to the instant case in
Chicago Teachers Union, Local No. 1 v. Board of Education, 640
F.3d 221 (7th Cir. 2011) (“CTU I”). In CTU I, a divided panel
held that tenured teachers had a property right that afforded
them a meaningful opportunity to show that they were qual-
ified for new vacancies for a reasonable time after being laid
off. However, we vacated CTU I in Chicago Teachers Union,
Local No. 1 v. Board of Education, 662 F.3d 761 (7th Cir. 2011)
(per curiam) (“CTU II”), and certified three questions to the
Illinois Supreme Court, including: “Does section 34-84 give
laid-off tenured teachers either (1) the right to be re-hired
after an economic layoff, or (2) the right to certain proce-
dures during the rehiring process? If so, what is the scope of
that right?” Id. at 764-65.
In considering the certified questions, the Illinois Su-
preme Court rejected the argument by the Teachers Union
that “solely ‘by virtue of the teacher’s permanent appoint-
ment’ under section 34-84, a laid-off tenured teacher has the
substantive right to continued employment in preference to
an equally or less qualified new teacher without experience,
and ‘should have a preferential right to a vacant position
over an equally or less qualified new teacher without experi-
ence.’” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 963
No. 13-2007 7
N.E.2d 918, 924 (Ill. 2012) (“CTU III”). The Illinois Supreme
Court began its analysis by examining a previous version of
section 34-84, which contained a “reserve teacher” clause. Id.
at 924-25. Under that pre-1995 version of section 34-84, the
“reserve teacher” clause allowed those teachers who would
have been laid off or whose positions were to be eliminated
for reasons other than cause to remain on the Board’s payroll
for 25 months as “reserve teachers” and entitled them to in-
terim teaching positions and appointments to vacancies for
which they had proper certification. Id. (citing Land v. Bd. of
Educ. of the City of Chi., 781 N.E.2d 249 (Ill. 2002)). In other
words, “reserve teachers” were entitled to a right akin to that
Price now seeks to assert: before being laid off, they could
fill any positions for which they had proper certification.
However, the Illinois legislature amended section 34-84
in 1995 and removed all “statutory references to ‘reserve
teachers,’ deleting the language regarding layoffs and recall
from section 34-84.” Id. at 925. The Illinois Supreme Court
held that the amendment “reflects a clear legislative intent to
change the statutory rights of tenured teachers in a layoff …
[T]he General Assembly’s removal of layoff and recall proce-
dures from section 34-84 eliminated any substantive rights
arising from section 34-84 for tenured teachers to be rehired
after an economic layoff.” Id. at 925. By “deleting the layoff
provision from section 34-84 … the legislature gave the
Board the authority to formulate and implement its own
rules and procedures regarding layoffs rather than binding
the Board to a legislatively mandated procedure.” Land, 781
N.E.2d at 256. Based on CTU III, we ordered the district
court to vacate the preliminary and permanent injunctions
requiring the Board to promulgate recall regulations because
of the “Illinois Supreme Court’s express determination that
8 No. 13-2007
the relevant School Code provisions do not give rise to the
substantive property rights sought by plaintiffs.” Chi. Teach-
ers Union, Local No. 1 v. Bd. of Educ., 476 Fed. Appx. 83, 84
(7th Cir. 2012) (unpublished).
The Illinois Supreme Court’s decisions in Land and CTU
III therefore stand for the proposition that tenured teachers
do not have a protected property interest in getting rehired
or in filling vacant positions for which they are qualified after
being laid off. Price argues that she is not bound by either of
those decisions because the property interest she is pointing
to is the right to fill any vacant positions before being laid off.
Yet, as noted by the district court, the reasoning behind both
of the Illinois Supreme Court’s decisions is equally applica-
ble to a pre-layoff right as a post-layoff right. Where section
34-84 once had a “reserve teacher” clause that allowed for a
teacher to keep her salary and fill vacancies before being laid
off, the legislature’s decision in 1995 to remove that clause
and any language relating to layoffs was a conscious deci-
sion to alter the protectable interests vested in tenured
teachers. Stated another way, the Illinois legislature previ-
ously instilled in tenured teachers the right to be considered
for jobs anywhere within CPS prior to being laid off. That
was the purpose of the “reserve teacher” clause and refer-
ences to layoffs in section 34-84. By deleting those provi-
sions, the Illinois legislature made a conscious decision to
redefine what interests a “permanent” or tenured teacher
has, and that includes abolishing the right Price now seeks to
assert.
Had Price’s claim arisen before the 1995 amendments, she
might have had an argument because of the “reserve teach-
er” clause and the references to layoffs. However, after the
No. 13-2007 9
1995 amendments, tenured teachers no longer have a prop-
erty interest in their jobs that allows them to seek out and fill
any vacancies in CPS before being laid off. Because section
34-84 no longer provides for this right, Price’s due process
argument fails.
As the Board notes, this result is confirmed by the legisla-
ture’s provisions for how a principal may recommend ap-
pointment of new teachers. Also as part of the same 1995
amendments, the General Assembly provided that “[t]he
school principal shall make the decision in selecting teachers
to fill new and vacant positions consistent with Section 34-
8.1.” 105 Ill. Comp. Stat. 5/34-84. Section 34-8.1 states that
principals should recommend the hiring of teachers based
on “merit and ability” and “without regard to seniority or
length of service.” 105 Ill. Comp. Stat. 5/34-8.1. If tenured
teachers have the property right Price now asserts—to con-
tinued employment in any vacant position within CPS be-
fore being laid off—then principals would not have the dis-
cretion given to them by section 34-8.1. Instead, they would
have to appoint teachers pursuant to seniority and length of
service whenever there was an opening.
Price’s citations to Mims v. Board of Education, 523 F.2d 711(7th Cir. 1975) and Harbaugh v. Board of Education, 716 F.3d
983 (7th Cir. 2013) do not help her. In Harbaugh, we stated
that “[a] tenured teacher may be fired only for cause … con-
ferring a legitimate expectation of continued employment
and thus a protected property interest that may not be termi-
nated without due process.” Id. at 986 (emphasis added, in-
ternal citation omitted). Harbaugh, in which we were discuss-
ing generally what constitutes a tenured teacher and not the
property rights that attach to that tenured status, is distin-
10 No. 13-2007
guishable because that case involved a teacher who was
fired, not laid off. Neither party here disputes that tenured
teachers cannot be fired without cause under section 34-84.
Whereas someone is usually fired because of “‘shortcomings
or deficiencies’ in an employee’s actual job performance …
[l]ayoffs, on the other hand, are unrelated to actual job per-
formance [and] customarily occur[] as the result of such out-
side forces as economic decline, reorganization or the aboli-
tion of job positions.” Land v. Bd. of Ed., 757 N.E.2d 912, 921
(Ill. App. Ct. 2001) (citation omitted), rev’d on other grounds by
Land, 781 N.E. 2d at 260. The Illinois Supreme Court has
drawn a sharp distinction between the firing and laying off
of tenured teachers, see Land, 781 N.E. 2d at 256 and CTU III,
963 N.E.2d at 925, and we will defer to its interpretation of
section 34-84. Harbaugh does not unearth the property inter-
est Price is asserting.
In Mims, we dealt with a completely different statutory
scheme, namely the property interest that civil servants have
in continued employment. 523 F.2d at 713 (noting plaintiffs
were civil servants who held “Film Serviceman I” positions).
Though we did not explicitly state the source of the property
interest, our citation to Powell v. Jones, 305 N.E.2d 166 (Ill.
1973), which in turn cites to the former version of the Illinois
Civil Service Personnel Code (20 Ill. Comp. Stat. 415/1, et
seq.) and the Personnel Department Rules and Civil Service
Commission Rules promulgated pursuant to that former
version of the Code, makes clear that the right alleged in
Mims came from statutes unrelated to section 34-84. Contra-
ry to what Price argues, Mims does not stand for the proposi-
tion that the Due Process Clause creates a federal source of
property rights that must be protected. The Due Process
Clause does not create protected property interests. Rather,
No. 13-2007 11
it merely provides an avenue to ensure property rights cre-
ated elsewhere are protected. Frey Corp., 735 F.3d at 509-10.
Therefore, pointing to any property interest the plaintiffs in
Mims had does nothing to support Price’s argument. Price
has the burden of identifying a “statute, regulation, munici-
pal ordinance, or an express or implied contract, such as
‘rules or understandings that secure certain benefits and that
support claims of entitlement.’” Covell, 595 F.3d at 675-76.
She has not met that burden.
Finally, Price’s citation to other cases around the country
relating to the rights of “tenured” teachers does not aid her
quest, either. The interests bestowed upon a tenured teacher
are specific to the terms of employment. For example, what
it means to be a tenured teacher at CPS is different than in
certain other, smaller cities or towns in Illinois, where there
is the right to recall for tenured teachers who were laid off.
See CTU III, 963 N.E.2d at 925-26 (citing 105 Ill. Comp. Stat.
5/24-12). And those “tenured” teachers throughout Illinois
might have different rights than a teacher in Indiana, or Wis-
consin, or some other state, or teachers working in colleges,
universities or other institutions. That a teacher is “tenured”
or “permanent” does not guarantee anything by its very
terms; the question is what property interests actually come
along with being tenured in that specific situation. Here, the
tenure provision does not provide the interest Price seeks or
alleges. Her due process claim therefore fails.
Because Price fails to point to any source for the property
right she alleges exists, we need not consider what process
she is entitled to protect that right. Finally, we need not con-
sider Price’s argument that the layoffs were in bad faith,
since that claim was not properly raised in her complaint.
12 No. 13-2007
Though she states generally in her complaint that “the origi-
nal layoffs should not have occurred,” she does not allege
any “bad faith” cause of action or any other cause of action
except for the due process deprivation we have discussed.
Therefore any bad faith challenge is not properly before us.
See Anderson v. Donahoe, 699 F.3d 989, 997-98 (7th Cir. 2012)
(noting party waives causes of action not asserted in com-
plaint but raised for the first time in briefing).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.