Shegog v. Bd. Education, 99-1430

• Citation: 194 F.3d 836
• Decision Date: 18 October 1999
• Docket Number: No. 99-1430,99-1430
• Parties: (7th Cir. 1999) Barbara Shegog, et al., Plaintiffs-Appellants, v. Board of Education of the City of Chicago, et al., Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 836

194 F.3d 836 (7th Cir. 1999)

Barbara Shegog, et al., Plaintiffs-Appellants, v. Board of Education of the City of Chicago, et al., Defendants-Appellees.

No. 99-1430

In the United States Court of Appeals For the Seventh Circuit

Argued September 15, 1999

Decided October 18, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 211--James B. Zagel, Judge.

Before Cudahy, Coffey, and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

Illinois revamped its School Code in 1995, and some of the changes adversely affected existing teachers. A surprisingly large volume of litigation about these changes has landed in federal court, although the teachers' principal objections concern the meaning of the state law. See, e.g., Hearne v. Chicago Board of Education, No. 98-1403 (7th Cir. July 16, 1999); Pittman v. Chicago Board of Education, 64 F.3d 1098 (7th Cir. 1995). Plaintiffs in our case, eight former teachers, contend that they were let go in violation of statutes establishing tenure. The School District concedes that the teachers had tenure, and 105 ILCS 5/34-85 says that a tenured teacher "shall not be removed except for cause." Chicago also concedes that it lacks "cause" to remove any of the plaintiffs. Nonetheless, the School Board relies on 105 ILCS 5/34-18(31), part of the 1995 package, which authorizes the School Board to "promulgate rules establishing procedures governing the layoff or reduction in force of employees and the recall of such employees."

Taking advantage of this power, Chicago adopted a policy under which tenured teachers are laid off when a school closing, drop in enrollment, change in a school's educational focus, or "remediation, probation, reconstitution or educational crisis" justify that step. Full pay and benefits continue for ten months after layoff to afford the teacher an opportunity to find a position at another school. If that time passes without success, the pay and benefits cease, though the teacher retains some reinstatement rights by virtue of seniority. Our eight plaintiffs were laid off under the new policy and did not find positions within ten months. (The Chicago Teacher's Union is a ninth plaintiff; what legal interest it has in this suit is a mystery, but not one we need to unravel.) Plaintiffs asked the district court to issue a preliminary injunction requiring the School District to continue their pay and benefits even though they were performing no work.

After exploring the interactions among provisions in the old and new school laws, the district court decided that sec.5/34-18(31) probably modifies the tenure rights otherwise established by state law, making the Board's decision substantively proper. The judge therefore declined to afford preliminary relief, although he held open the possibility that on further reflection he would reach a different conclusion about the meaning of state law. Plaintiffs immediately appealed under 28 U.S.C. sec.1292(a)(1).

What is this suit doing in federal court? All of the parties are citizens of Illinois, so 28 U.S.C. sec.1332 can't be the source of jurisdiction, and because the only issue addressed in the district court was one of Illinois law we had substantial doubts about federal-question jurisdiction under sec.1331. Before oral argument, therefore, we directed the parties to file supplemental briefs discussing the source, if any, of subject-matter jurisdiction. Pittman holds that statutes modifying the terms of teachers' job security do not transgress any substantive constitutional limitation. 64 F.3d at 1103-05. When tenure is simply an outcome of a statute requiring cause for discharge, it disappears when the statute is amended. Pittman considered and rejected the possibility that the statutes requiring cause for discharge in Illinois created individual contracts that are immune from legislative alteration. Although Pittman dealt with principals, its conclusions are equally applicable to teachers. Anyway, thinking of tenure as a contractual rather than a statutory entitlement would not supply jurisdiction. "[T]he due process clause does not require, or even permit, federal courts to enforce the substantive promises in state laws and regulations. . . . If a state's violation of its own laws and regulations does not violate the due process clause, it is hard to see how failure to keep a promise contained in a contract can violate the due process clause." Mid-American Waste Systems, Inc. v. Gary, 49 F.3d 286, 290 (7th Cir. 1995). People who contend that a state actor has violated state law or broken a contract must present their claims to state court. See also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 (1984): "[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law".

Responding to our order, plaintiffs insisted that their claim arises under the due process clause of the fourteenth amendment, and thus that 28 U.S.C. sec.1331 and sec.1343(a)(3) supply jurisdiction, because tenure is a property right, which they hold unless the School District offers notice and an opportunity for a hearing at which "cause" for discharge can be established. Yet whether 105 ILCS 5/34-18(31) modifies 105 ILCS 5/34-85 is a legislative rather than an adjudicative issue; the School District need not offer person-by-person hearings on that question. Atkins v. Parker, 472 U.S. 115 (1985); Bi- Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915); Youakim v. McDonald, 71 F.3d 1274, 1291 (7th Cir. 1995). If the School District is right about the meaning of state law, there will be no hearing to establish "cause." Likewise if plaintiffs are right about the meaning of state law, for the School District does not contend that it has "cause." No matter how the state-law issue comes out, then, no hearing is in prospect.

This situation is unlike Bishop v. Wood, 426 U.S. 341 (1976), Board of Regents v. Roth, 408 U.S. 564 (1972), and other cases in which an issue of state law set the stage for a constitutional claim. In Bishop and Roth, resolving the state-law issue one way would mean that the plaintiff had a property interest, which would lead to a hearing under the due process clause; resolving the state-law issue the other way would negate the existence of property and defeat plaintiff's demand for a hearing. By contrast, the Chicago teachers will not receive a hearing on "cause" whether they win or lose on the state-law issue. Plaintiffs did not ask the district judge to order Chicago to hold hearings; they asked the district judge to order the School Board to keep them on the payroll, a substantive rather than procedural demand. This suggests that their due-process theory is just decoration, rather than an element of a well-pleaded complaint. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983). When the parties agree about the meaning and application of federal law and disagree only about the meaning of state law, then the complaint does not "arise under" federal law; any other approach would open the door to collusive allegations of jurisdiction. Cf. 28 U.S.C. sec.1359.

One aspect of this suit fits the BishopRoth mold, however. Plaintiffs contend that they are entitled to hearings even if 105 ILCS 5/34-18(31) modifies 105 ILCS 5/34-85, and even if the Board's new procedure is valid. For then the propriety of a layoff would depend on whether there had been a decline in enrollment, a change in a school's educational focus, or "remediation, probation, reconstitution or educational crisis" that required a layoff. These are potentially person-specific issues affecting "property" interests (that is, legitimate claims of entitlement based on contestable factual propositions, see Upadhya v. Langenberg, 834 F.2d 661 (7th Cir. 1987)) to be resolved at hearings. Similarly, whether a particular teacher has found a new position within ten months is the sort of question on which notice and an opportunity to be heard could be useful. Whether 105 ILCS 5/34- 18(31) or the Board's regulations create property interests within the meaning of the due process clause is a question of federal law. So we are satisfied that the district court had subject- matter jurisdiction. State-law claims then could be entertained under the supplemental jurisdiction. 28 U.S.C. sec.1367. This understanding of which claims arise under...