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.
S UBMITTED FOR R EHEARING A PRIL 27, 2011—
D ECIDED JUNE 13, 2011
Before M ANION and W ILLIAMS, Circuit Judges, and
C LEVERT, District Judge.
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
P ER C URIAM. Plaintiff Chicago Teachers Union
(“Union”) brought this suit against the Chicago Board of
Education (“Board”) to require the Board to give tenured
teachers who were laid off during the summer of 2010
but were not rehired consideration for vacant positions
and preference over new hires. The Union claimed that
tenured teachers have “permanent” appointments under
Illinois law, and may be laid off only with recall rights.
It is the Union’s position that those rights give rise to
a federal property interest protected by the Due Process
Clause of the Fourteenth Amendment.
The Union sought an injunction, which the district
court granted. The Board appealed and we affirmed, with
Judge Manion dissenting. Upon review after the filing
of the Board’s “petition for rehearing and petition for
rehearing en banc,” we grant the petition for rehearing,
vacate our opinion, and certify three questions to the
Supreme Court of Illinois.
I.
Facing significant budget deficits on the eve of the
2010-2011 school year, the Board laid off nearly 1,300
teachers over the summer. Due to an increase in
federal funding in August 2010, the Board recalled about
a half of those teachers. Since the layoff ended, teaching
vacancies have become available within the Chicago
Public School System. 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.
No. 10-3396 3
The Union brought this suit in the United States
District Court for the Northern District of Illinois against
the Board seeking to enjoin the dismissals of the ten-
ured teachers without any further employment rights,
including a right to recall. The Union argued that
under section 34-84 of the Illinois School Code, 105 ILCS
5/34-84, tenured teachers have “permanent” appoint-
ments, and can only be laid off with recall rights, as
contemplated by section 5/34-18(31) of the code, 105
ILCS 5/34-18(31). The Union further contended that the
teachers’ rights to permanent appointments and to recall
under state law give rise to a federally protected
property interest, and that the Board deprived the
teachers of due process when it failed to give them a
meaningful opportunity to demonstrate that they were
qualified for openings within the Chicago Public School
System.
The district court held a hearing on the merits of the
permanent injunction, and found that section 5/34-18(31)
gave rise to a federal property interest protected by due
process. On September 15, 2010, the court entered a
permanent injunction: (1) ordering the Board to rescind
the discharges of tenured teachers; (2) directing the
Board to promulgate a set of recall rules compliant with
section 5/34-18(31) within 30 days; and (3) enjoining the
Board from conducting similar unlawful discharges in
a similar manner until recall rules were promulgated.
The Board appealed. This court considered the appeal on
an expedited basis.
On March 29, 2011, a divided panel of this court af-
firmed. We concluded that the limits on the Board’s
4 No. 10-3396
discretion found in section 34-18(31), which empower
the Board to create regulations for layoff and recall,
along with the teachers’ “permanent” appointments
under section 34-84, gave rise to a legitimate expecta-
tion that laid-off teachers would be considered for
new vacancies for a reasonable period of time. Chicago
Teachers Union v. Bd. of Educ. of Chi., ___ F.3d ___, 2011
WL 1126037, *3-7 (7th Cir. Mar. 29, 2011). Our deci-
sion has important implications for tenured teachers,
for the Chicago Public School System, and ultimately for
the state.
We began our analysis by acknowledging that federal
property interests are “created” and their “dimensions
are defined” by state law. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546-47 (1985); see also Town of
Castle Rock v. Gonzalez, 545 U.S. 748, 771 (2005) (“federal
process protects the property created by state law”)
(Souter, J., concurring). We read Illinois law to afford
laid-off tenured teachers a right to continued employ-
ment which, in turn, entitled them to a meaningful op-
portunity to be considered for new openings. However,
no Illinois court has considered whether tenured teachers
have a right to be recalled in the event of a good faith
economic layoff. We discussed Land v. Board of Education
of Chicago, 781 N.E.2d 249 (Ill. 2002), which held that
the Board retained the authority to lay off teachers after
the amendment of section 34-84 and the addition of
section 34-18(31) to the Illinois School Code in 1995, but
concluded that Land did not offer much guidance be-
cause that case held only that teachers could not hold on
to their positions indefinitely by virtue of being tenured.
No. 10-3396 5
See Land, 781 N.E.2d at 256. Land did not decide
whether tenured teachers have recall rights following
a layoff. See id.
Having found that Illinois law gave rise to a protected
property interest under federal law, we then held that
the teachers were entitled to a procedure, pursuant to
the Due Process clause, to protect that right. We held
that the Board had to give the teachers a meaningful
opportunity to demonstrate that they are qualified for
new vacancies as they arise for a reasonable period of
time.1 Recognizing that the district court lacked the
institutional competence to define the contours of those
procedures, we affirmed the district court’s grant of an
injunction requiring the Board to enact, under section
34-18(31), rules for recall.2
In dissent, Judge Manion believed that the teachers’
claim was to a process and not a substantive entitle-
1
We also noted that although the Union claimed that the
teachers were entitled to preference over new hires, the avail-
ability of a post-termination procedure by which the teachers
can show that they are qualified for vacancies was all that
was necessary to satisfy due process.
2
We also directed the district court to modify its injunction to
the extent that the injunction ordered the Board to consult
with the Union because section 34-18(31) does not require the
Board to consult with the Union in enacting the regulations.
Further, we noted that rescinding the discharges only allows
the teachers to take advantage of the opportunity to show
their qualifications for new vacancies, but that their “laid-off”
status does not implicate past or future payments or benefits.
6 No. 10-3396
ment—that is, a claim to mere recall procedures and not
a claim to be rehired after an economic layoff.
Regardless of how the teachers’ claim is characterized,
he asserted that Illinois state law did not give tenured
teachers such a right. In brief, he had three principal
points of disagreement with the court’s analysis of
Illinois law. One, the teachers’ tenure rights are limited
to what the legislature has enacted and what the Union
has negotiated through contract. Two, section 34-18(31)
is a general enabling statute giving the Board the right
to make recall procedures. The statute focuses on perfor-
mance based criteria; it does not bestow upon tenured
teachers any right to recall procedures; and although
empowered to do so, the Board did not create recall
procedures. Three, nothing in Illinois case law provides
that the concept of “tenure” furnishes unenumerated
rights for teachers beyond their time of employment.
Thus, after an economic layoff the teachers do not have
any such rights under Illinois law.
II.
On April 12, 2011, the Board requested a panel
rehearing or, in the alternative, a rehearing en banc. In
its petition, the Board claimed that the panel erred in
its interpretation of Illinois law. At this juncture, we
believe that affording the Supreme Court of Illinois an
opportunity to interpret the application of Illinois law
would be the best course of action. Notably, in this case,
the district court issued an injunction. The federal in-
junction means that there will be no opportunity for a
state court to correct our interpretation of state law if
No. 10-3396 7
it is erroneous, even though the issue is one of
substantial and ongoing importance. We therefore
grant the petition for rehearing, vacate our opinion
issued on March 29, 2011, and respectfully certify the
following questions to the Illinois Supreme Court:
1. Section 34-84 of the Illinois School Code pro-
vides that appointments of teachers become
“permanent” after 3 years. This is commonly
referred to as tenure. 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 procedures during the rehiring pro-
cess? If so, what is the scope of that right?
2. Section 34-18(31) of the Illinois School Code
empowers the Board of Education to promul-
gate rules governing layoff and recalls. It also
provides certain criteria that the Board should
consider when formulating those rules. In this
case, no rules were formulated. Does section 34-
18(31) or the limits it places on the Board’s discre-
tion give laid-off tenured teachers either (1) the
right to be rehired after an economic layoff, or
(2) the right to certain procedures during the
rehiring process? If so, what is the scope of that
right?
3. If neither section 34-84 nor section 34-18(31)
standing alone gives laid-off tenured teachers
substantive or procedural rights related to
rehiring, when read in combination do they give
those teachers either (1) the right to be rehired
8 No. 10-3396
after an economic layoff, or (2) the right to certain
procedures during the rehiring process? If so,
what is the scope of that right?
We invite reformulation of any of the questions pre-
sented if necessary, and nothing in this certification
should be read to limit the scope of the inquiry to be
undertaken by the Supreme Court of Illinois. Further
proceedings in this court are stayed while this matter
is under consideration by the Supreme Court of Illinois.
Q UESTIONS C ERTIFIED.
6-13-11