Carolyn Mascow v. Board of Education of Frankli ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2563
CAROLYN MASCOW and LOCAL 571 OF THE ILLINOIS
FEDERATION OF TEACHERS,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF FRANKLIN PARK SCHOOL DISTRICT
NO. 84; DAVID KATZIN, ITS SUPERINTENDENT; and HEIDY
LAFLEUR,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-6441 — Sharon Johnson Coleman, Judge.
____________________
ARGUED FEBRUARY 20, 2020 — DECIDED MARCH 3, 2020
____________________
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. Carolyn Mascow, a teacher
who had tenure under Illinois law, was laid off in 2017. Be-
cause her latest rating was “unsatisfactory,” she was not on-
ly first in line for layoff when the school lost one position but
also lacked any recall rights if the school district began hir-
2 No. 19-2563
ing again—as it did. She contends in this suit under 42
U.S.C. §1983 that the Due Process Clause of the Fourteenth
Amendment entitled her to a hearing before the layoff and
that the “unsatisfactory” rating violated the First Amend-
ment, applied to the states through the Fourteenth. The dis-
trict court dismissed the due-process claim on the pleadings
and in a second order granted summary judgment to de-
fendants on the first-amendment claim. 2019 U.S. Dist. LEXIS
120074 (N.D. Ill. July 18, 2019).
Local 571 of the Illinois Federation of Teachers joined
Mascow as a plaintiff. Although the notice of appeal named
both Mascow and Local 571, their joint brief does not make
any argument on the Union’s behalf. We treat its claims as
abandoned.
Mascow became co-president of Local 571 in 2010, and
her first-amendment claim rests on two times she acted as
the Union’s representative. During the summer of 2014 she
told the school’s principal that a planned assembly that
would require all teachers to stay 30 minutes after the end of
school would violate the collective bargaining agreement.
The next summer she told the district’s superintendent that a
proposed motivational speech would violate the collective
bargaining agreement by requiring teachers to stay late. The
school cancelled one event and revised the other in a way
that Mascow agreed would satisfy the collective bargaining
agreement. Mascow contends that her evaluations suffered
as a result, leading to the “unsatisfactory” rating that made
her first in line for layoff and nixed any recall rights.
The district court held that a reasonable jury could not
find that the 2014 and 2015 meetings caused a reduction in
Mascow’s ratings. She became the Union’s co-president in
No. 19-2563 3
2010, met with school officials often, and initially retained
good ratings. A bad rating in 2017 could not reasonably be
amributed to two specific meetings in the summers of 2014
and 2015—especially not when Mascow’s co-president, who
amended the 2015 meeting, retained an “excellent” rating.
Mascow’s contention boils down to post hoc ergo propter
hoc, which is the name of a logical error rather than a way to
prove a violation of the Constitution. This makes it unneces-
sary to consider the extent to which the First Amendment, as
opposed to state law, protects the interests of union repre-
sentatives engaged in collective bargaining with public
schools. Cf. Minnesota State Board for Community Colleges v.
Knight, 465 U.S. 271 (1984); Perry Education Association v. Per-
ry Local Educators’ Association, 460 U.S. 37 (1983). Likewise we
need not consider the potential application of GarceDi v. Ce-
ballos, 547 U.S. 410 (2006), to a union representative’s speech
that concerns workplace management.
The due-process claim stands differently, however. Mas-
cow, who had worked as a teacher in Illinois for more than
20 years, had tenure under state law and could be fired only
for cause or as part of a reduction in force. 105 ILCS 5/34-84,
34-85; Land v. Board of Education, 202 Ill. 2d 414 (2002). This
gave her a legitimate claim of entitlement, which is to say a
property interest in her job, as a mamer of constitutional law.
See, e.g., Board of Regents v. Roth, 408 U.S. 564 (1972); Cleve-
land Board of Education v. Loudermill, 470 U.S. 532 (1985).
These decisions, and many others, hold that a person may
not be deprived of property without notice and an oppor-
tunity for a hearing. Process sometimes may be informal, see
Goss v. Lopez, 419 U.S. 565 (1975), but the holder of the prop-
erty interest must have some opportunity to present her po-
4 No. 19-2563
sition to the decisionmaker. Mascow contends that defend-
ants did not offer her such an opportunity.
The district court dismissed Mascow’s due-process theo-
ry, observing that Illinois does not offer hearings to laid-off
teachers, whether or not they have tenure. Because Mascow
did not have a right to a hearing under state law, she did not
have a property right either and lacks a constitutional claim,
the district court concluded.
The district court did not cite any case for the proposition
that the absence of a right to a hearing under state law
knocks out a due-process claim under federal law, but the
view is not novel. Justice Rehnquist espoused it in ArneD v.
Kennedy, 416 U.S. 134, 153–54 (1974), concluding that a liti-
gant must take the bimer with the sweet—that a substantive
claim of entitlement (the sweet) is limited by a statutory de-
nial of hearings (the bimer), adding up to no property inter-
est. The problem for defendants is that Justice Rehnquist was
joined by only two others (Chief Justice Burger and Justice
Stewart), while the remaining six Justices rejected the con-
clusion. See 416 U.S. at 166–67 (Powell, J., concurring, joined
by Blackmun, J.); 416 U.S. at 177–78 (White, J., concurring in
part); 416 U.S. at 209–11 (Marshall, J., dissenting, joined by
Douglas & Brennan, JJ.). Post-ArneD decisions such as
Loudermill routinely treat substance as a mamer of state law
and hold that, if state law creates a legitimate claim of enti-
tlement, then federal law alone determines whether a hear-
ing is required. By reviving Justice Rehnquist’s bimer-with-
the-sweet approach, the district court made a legal error. The
Justices are free to overrule ArneD, Loudermill, and similar
decisions, but we are bound by them.
No. 19-2563 5
What could Mascow contest at a hearing? Not Illinois’s
rule that tenured teachers with low ratings are laid off ahead
of untenured teachers with bemer ratings. The Due Process
Clause does not entitle people to hearings at which they will
contest the wisdom of substantive legislative choices. Atkins
v. Parker, 472 U.S. 115 (1985). Nor would Mascow be entitled
to a hearing to address whether she should have been given
time to improve before the layoff. Again that is a mamer of
state substantive law. Hearings deal with adjudicative facts,
not legislative ones. Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U.S. 441 (1915).
Mascow might in principle contest defendants’ conten-
tion that she was laid off as part of a reduction in force, but
she appears to concede that her school lost one position for
her specialty, and as the lowest-rated teacher in that special-
ty she was automatically the one to go. This leaves the possi-
bility of contesting the “unsatisfactory” rating. If Mascow’s
rating had been “proficient” or higher, someone else would
have been laid off—and, although a “needs improvement”
rating would not have prevented her layoff, it would have
provided recall rights that teachers rated “unsatisfactory” do
not have.
The problem with this potential subject is that Mascow
was rated “unsatisfactory” in February 2017, one month be-
fore being told that she would be laid off (and four months
ahead of the layoff’s effective date). If she had an opportuni-
ty for a hearing when she received the “unsatisfactory” rat-
ing, she would not be entitled to a second hearing when laid
off. And it would not mamer whether she used or bypassed
an opportunity in February 2017; a state need not offer more
than one opportunity for a hearing about a subject.
6 No. 19-2563
Neither Illinois nor Mascow’s school district offers a for-
mal process for contesting a rating. The litigants agree, how-
ever, that teachers have informal opportunities to seek re-
view. In 2015, when Mascow was rated “proficient” and dis-
agreed with her evaluation on some categories, she com-
plained to Heidy LaFleur, the school’s principal, who invited
her to submit additional information. After considering
Mascow’s submissions, LaFleur raised her rating in one of
the categories. At oral argument counsel for defendants con-
tended that an opportunity for face-to-face discussions and
wrimen submissions supplies all the process due for an ad-
verse evaluation. Mascow’s lawyer responded that in 2017
she asked David Karin, the school district’s superintendent,
to raise her “unsatisfactory” rating, and that he refused even
to entertain the possibility. Mascow submits that this shows
the absence of an opportunity for review; defendants say
that it shows, instead, that someone who bypasses the chain
of command cannot expect success.
Neither the district judge nor the parties’ briefs in this
court address just how teachers can obtain review of their
ratings and whether those opportunities satisfy the constitu-
tional need for “some kind of hearing.” Goss, 419 U.S. at 579
(emphasis in original). Neither the district judge nor the liti-
gants has amempted to apply the approach prescribed by
Mathews v. Eldridge, 424 U.S. 319 (1976), for determining
what kind of process is due in a given situation. It would be
inappropriate for an appellate court to try to resolve these
subjects without briefs focused on the vital issues. They
should be considered first by the district court.
The judgment is vacated to the extent that it addresses
Mascow’s claim under the Due Process Clause and other-
No. 19-2563 7
wise is affirmed. The case is remanded for proceedings con-
sistent with this opinion.