640 F.3d 221 (7th Cir. 2011), 10-3396, Chicago Teachers Union, Local No. 1, American Federation of Teachers v. Board of Educ. of City of Chicago

Docket Nº:10-3396.
Citation:640 F.3d 221
Opinion Judge:WILLIAMS, Circuit Judge.
Attorney:Thomas H. Geoghegan (argued), Attorney, Despres, Schwartz & Geoghegan, Robin B. Potter, Attorney, Potter & Associates, Chicago, IL, for Plaintiff-Appellee. Sally J. Scott (argued), Attorney, Franczek Radelet, Chicago, IL, for Defendants-Appellants.
Judge Panel:Before MANION and WILLIAMS, Circuit Judges, and CLEVERT, District Judge.[*] MANION, Circuit Judge, dissenting in part, concurring in part.
Case Date:March 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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640 F.3d 221 (7th Cir. 2011)



BOARD OF EDUCATION OF the CITY OF CHICAGO, et al., Defendants-Appellants.

No. 10-3396.

United States Court of Appeals, Seventh Circuit.

March 29, 2011

Argued Jan. 7, 2011.

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Thomas H. Geoghegan (argued), Attorney, Despres, Schwartz & Geoghegan, Robin B. Potter, Attorney, Potter & Associates, Chicago, IL, for Plaintiff-Appellee.

Sally J. Scott (argued), Attorney, Franczek Radelet, Chicago, IL, for Defendants-Appellants.

Before MANION and WILLIAMS, Circuit Judges, and CLEVERT, District Judge.[*]

WILLIAMS, Circuit Judge.

Facing significant budget deficits, the Chicago Board of Education was forced to 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 requiring the Board to collaborate with the Union to promulgate regulations to establish recall procedures pursuant to Section 34-18(31) of the Illinois School Code. While we agree that the Board should promulgate the regulations, there is nothing in Section 34-18(31) that requires cooperation with the Union. We therefore direct the court to modify the injunction to make it conform to this opinion.


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

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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 layoffs through a series of resolutions issued over the summer. 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 termination. 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 ré sumé 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 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 complaint.1 Three days later, it filed a motion for a preliminary 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 requirements for obtaining a permanent injunction. First, it concluded there was no adequate remedy at law because the teachers sought an opportunity to be considered for a position, and it would be impossible to place a monetary

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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 entered 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 promulgate, 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 expedite this appeal, which was granted.


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).

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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To prevail on a claim for deprivation of property without due process, a plaintiff must establish that she holds a protected property interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546-47, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Property interests are not created by the Constitution, but are " created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. at 561, 105 S.Ct. 1487. 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, 92 S.Ct. 2701. 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, 105 S.Ct. 1487.

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 removal for cause in the manner provided by Section 34-85.

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105 ILCS 5/34-84 (emphasis added). Section 34-85 provides: " 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, 105 S.Ct. 1487 (state statute providing that classified civil service employees were entitled to retain their positions 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, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (written contract with an explicit tenure provision evidenced a formal understanding that supported 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 hearing...." Id. at 1058. We have, however, recognized...

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