In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3277
C ANDACE H ARBAUGH,
Plaintiff-Appellant,
v.
B OARD OF E DUCATION OF THE C ITY OF C HICAGO
and B ARBARA B YRD -B ENNETT, in her official
capacity as the Chief Executive Officer of
the Chicago Public Schools,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 2799—Rebecca R. Pallmeyer, Judge.
A RGUED M AY 31, 2012—D ECIDED M AY 17, 2013
Before B AUER, S YKES, and T INDER, Circuit Judges.
S YKES, Circuit Judge. From 1996 to 2003, Candace
Harbaugh worked on and off for the Chicago Public
Jean-Claude Brizard, the former CEO of the Chicago Public
Schools, was previously named in the caption. Barbara Byrd-
Bennett has replaced him, so pursuant to F ED . R. A PP . P. 43(c),
we have substituted her as a defendant-appellee.
2 No. 11-3277
Schools as a substitute music teacher. Beginning in
August 2003, she was hired as a “full-time basis substi-
tute,” and the following year she was appointed to a full-
time probationary tenure-track teaching position. In
the spring of 2008, the principal at Harbaugh’s school
recommended against renewing her contract. The
Chicago Board of Education accepted that recommenda-
tion and terminated her appointment effective at the
end of the semester.
Harbaugh sued the Board alleging that it violated
her due-process rights under the federal and state con-
stitutions by terminating her employment without
a hearing. She also claimed that the termination was
unlawful under the Illinois School Code. At issue here
is the federal due-process claim, which is viable only
if Harbaugh achieved the status of a tenured teacher
under Illinois law and thus had a constitutionally pro-
tected property interest in continued employment.
Illinois awards tenure after four years of successful proba-
tionary teaching; in other words, a teacher becomes
tenured at the beginning of her fifth year of full-time
employment on the tenure track. Harbaugh contends
that her year as a full-time-basis substitute teacher
should count toward the four-year requirement. The
district court disagreed and entered summary judg-
ment for the Board.
We affirm. Under Illinois law substitute teachers—even
those employed on a full-time equivalent basis—are
not considered probationary, tenure-track teachers. Har-
baugh was appointed as a probationary teacher in
No. 11-3277 3
July 2004, so she would have achieved tenure at the
start of the 2008-2009 school year. She did not make it
that far, and the year she spent as a full-time-basis sub-
stitute teacher cannot be included toward the required
four years as a probationary teacher. Because Har-
baugh’s employment was terminated at the end of the
spring 2008 semester, during the final year of her proba-
tionary period, she did not achieve tenure. Accordingly,
she has no due-process claim.
I. Background
Harbaugh holds a bachelor’s degree in music educa-
tion. In December 1995 the Illinois State Board of Educa-
tion certified her as a substitute teacher, and beginning
in 1996 she started working as a day-to-day sub-
stitute music teacher for the Chicago Public Schools. At
the beginning of August 2002, the State Board of Educa-
tion certified her to teach music education in grades
K through 12. Later that month the Chicago Public
Schools hired her as a full-time-basis substitute teacher
at Ravenswood Elementary School. That assignment
lasted through February 2003, when she was returned
to the day-to-day substitute pool.
In August 2003 the school district reassigned
Harbaugh as a substitute music teacher at the James G.
Blaine Elementary School, again as full-time-basis sub-
stitute. At the end of her first year at Blaine, the
Chicago Teachers Union and the Board of Educa-
tion struck a deal that eliminated the full-time-basis
substitute-teacher classification. On November 5, 2003,
Arne Duncan, then the Chief Executive Officer of the
4 No. 11-3277
Chicago Public Schools, sent a letter to all teachers an-
nouncing that “all regularly certified full-time basis
(FTB) substitute teachers in vacant teaching positions
not being held for teachers on leave will be classified as
appointed (probationary) teachers.” A follow-up letter
from the department of human resources advised
Harbaugh that she was reclassified as a probationary
appointed teacher effective July 1, 2004. The letter also
informed her that to obtain tenure, she had to com-
plete four full school years of satisfactory proba-
tionary teaching; if she successfully completed this pro-
bationary period, she would “attain tenure with the
Chicago Public Schools at the start of the fifth year
of appointment.”
Harbaugh served her first year as a full-time proba-
tionary teacher at Blaine. At the end of the school
year—the 2004-2005 term—the principal recommended
that she not be reappointed. The principal at Stephen T.
Mather High School hired her for the next school
year—the 2005-2006 term—and she remained at
Mather for the 2006-2007 and 2007-2008 school years.
In March 2008 a new principal at Mather recom-
mended termination of her appointment. The Board
a cc epted the principal’s recom m end a tion an d
terminated her employment effective at the end of
June 2008. She was unable to find a full-time teaching
position at any other school in the district.
Harbaugh sued the Board alleging that it terminated
her employment without due process in violation of
her rights under the Fourteenth Amendment and the
No. 11-3277 5
Illinois Constitution. She also alleged that the termina-
tion violated the Illinois School Code. The Board
removed the case to federal district court, and the
district judge resolved it on cross-motions for sum-
mary judgment, focusing primarily on the federal due-
process claim. This claim, in turn, raised a question of
state law: Did Harbaugh meet the requirements for
tenure under the Illinois School Code? If so, then she
had a constitutionally protected property interest in
her job; if not, her due-process claim necessarily failed.
Harbaugh acknowledged that she lost her job before
completing four full years as a probationary appointed
teacher, but she argued that her year of work at Blaine
as a full-time-basis substitute in 2003-2004 should be
counted toward the total. The district judge rejected
this argument as contrary to the Illinois teacher-tenure
statutes. Because Harbaugh had not achieved tenure, the
termination of her employment did not implicate due-
process protections. Her remaining state-law claims were
likewise predicated on the question of tenure, so the
judge’s rejection of the tenure argument resolved the
entire case. The court entered summary judgment for
the Board, and this appeal followed.
II. Discussion
This case raises a single question: Did Harbaugh have
tenure, entitling her to constitutional due process before
her employment could be terminated? A tenured teacher
may be fired only for cause, see 105 ILL. C OMP. S TAT. 5/34-
85, conferring a legitimate expectation of continued
employment and thus a protected property interest that
6 No. 11-3277
may not be terminated without due process, see Gleason
v. Bd. of Educ. of City of Chi., 792 F.2d 76, 79 (7th Cir.
1986) (“[A] tenured teacher [has] a protectible property
interest in continued employment[,] . . . [and] due process
principles require that a public employee who has a
protectible interest in continued employment . . . be
afforded a meaningful opportunity to rebut dismissal
charges brought by the employer.”). The question of
tenure is governed by state law. Kodish v. Oakbrook
Terrace Fire Prot. Dist., 604 F.3d 490, 494 (7th Cir. 2010)
(explaining that job tenure is a property right and state
law defines the right). Illinois courts “strictly construe”
the teacher-tenure statutes because they replace the
common-law principle of at-will employment and “inter-
fere with the responsibility of local boards to efficiently
operate the educational systems.” Johnson v. Bd. of Educ. of
Decatur Sch. Dist. No. 61, 423 N.E.2d 903, 906 (Ill. 1981).
Under Illinois law a teacher must complete four years
of satisfactory service on probationary status before
achieving tenure. See 105 ILL. C OMP. STAT. 5/34-84.
Harbaugh’s employment was terminated just before
she completed four full years as a full-time appointed
probationary teacher. She argues, as she did in the
district court, that her year at Blaine Elementary as a full-
time substitute teacher must also count toward tenure
under the Illinois School Code.1
Illinois law divides education professionals into
several categories, each of which has its own rules for
1
Harbaugh concedes that her day-to-day substitute teaching
does not count toward tenure.
No. 11-3277 7
certification, employment, assignment, evaluation, and
termination. We have previously explained the various
classifications that apply in the Chicago Public
Schools under Article 34 of the School Code:
Public schools in Chicago employ several different
categories of teacher, each with its own moniker
and level of job stability. The most secure are
tenured teachers, whom a principal can only remove
for “cause.” 105 [ILL. C OMP. S TAT.] 5/34-84. Below
tenured teachers are tenure-track or “appointed”
[also called “probationary”] teachers who work full
time with a particular class at a specific school, and,
as their name suggests, can eventually obtain sub-
stantial job security. There are also at least two
kinds of non-tenure-track teachers: “cadre” substitute
teachers move from school to school to cover tempo-
rary vacancies on a daily basis; and full-time basis
or “assigned” substitutes work at one school full
time, just like tenure-track teachers only with less
seniority and without the potential job security.
Filar v. Bd. of Educ. of City of Chi., 526 F.3d 1054, 1057
(7th Cir. 2008).
To be certified as a substitute teacher in Illinois, an
applicant needs only a bachelor’s degree from an accred-
ited or recognized institution of higher learning. See 105
ILL. C OMP. S TAT. 5/21-9(a). By contrast, a new proba-
tionary teacher must
(1) have completed an approved teacher preparation
program, (2) [be] recommended by an approved
teacher preparation program, (3) have successfully
completed the Initial Teaching Certification examina-
8 No. 11-3277
tions required by the State Board of Education, and
(4) have met all other criteria established by the
State Board of Education in consultation with the
State Teacher Certification Board.
Id. 5/21-2(b).2 An “approved teacher preparation pro-
gram” requires a bachelor’s degree reflecting completion
of a required number of education-related courses,
plus student teaching, an internship, or a practicum. See
Illinois State Board of Education, Directory of Approved
Programs for the Preparation of Educational Personnel in
Illinois Institutions of Higher Education (Apr. 2013),
http://www.isbe.net/profpre/PDFs/directory.pdf, at 77-78
(last visited May 2, 2013). Completion of these require-
ments and the remaining statutory criteria qualifies an
aspiring teacher for an initial teaching certificate. An
initial teaching certificate ripens into a standard
teaching certificate after four years of full-time teach-
ing—the same length of time required to earn tenure.
See 105 ILL. C OMP. S TAT. 5/21-2(c)(1).
The hiring process varies according to certification
and position. A school principal “appoints” certified
probationary teachers to the faculty, but substitute
teachers are “assigned” to the school by human re-
sources. See id. 5/34-8.1, 5/34-84. A probationary “ap-
pointed” teacher achieves tenure after satisfactory com-
2
These requirements were in effect during Harbaugh’s term
of employment. They are set to expire on June 30, 2013, when
a new system of educator licensure takes effect. Compare 105
ILL. C OMP. S TAT. 5/21, with 105 ILL. C OMP. S TAT. 5/21B-20.
No. 11-3277 9
pletion of four full years of teaching, see id. 5/34-84, and
probationary tenure-track teachers are subject to a
more rigorous system of evaluation than full-time-
basis substitutes, see id. 5/34-85c. Moreover, a principal
or human-resources officer may much more easily
transfer a full-time-basis substitute between classroom
assignments. See Filar, 526 F.3d at 1057. If a principal
decides to terminate a probationary teacher’s employ-
ment, the teacher is entitled to a written explanation
of the reasons for nonrenewal. See 105 ILL. C OMP . S TAT.
5/34-84. A full-time-basis substitute has no such right.
Thus, from hiring through firing, Illinois law dis-
tinguishes between probationary “appointed” teachers
and substitute teachers—even substitutes working on
a full-time basis.
Illinois caselaw confirms this understanding of the
teacher-tenure rules. Most directly applicable here is
Booker v. Hutsonville School District No. 1, which holds
that a full-time substitute teacher is not the same as a
probationary teacher when calculating service toward
tenure. 437 N.E.2d 937, 941 (Ill. App. Ct. 1982) (“We are
of the opinion that the status of a probationary teacher
is separate and distinct from that of a substitute
teacher. . . . [A] substitute teacher is generally regarded
as one employed on a temporary basis as a replacement
for a regular teacher.”). Subsequent cases are in accord.
See Woods v. E. St. Louis Sch. Dist. No. 189, 498 N.E.2d
801, 805 (Ill. App. Ct. 1986) (citing Booker as holding
that a “substitute teacher [is] not entitled to protection
afforded probationary and full-time teachers under
tenure law”); Kuykendall v. Bd. of Educ. of Evanston Twp.
10 No. 11-3277
High Sch. Dist. No. 202, 444 N.E.2d 766, 770 (Ill. App. Ct.
1982) (“[N]either part-time teaching (Johnson) nor substi-
tute teaching (Booker[]) is probationary service which
can be relied upon by a non-tenured teacher to
establish tenure.”).
Booker, in turn, drew on the reasoning of an earlier
case that also involved a substitute teacher, though one
who moved from classroom to classroom. See People
ex rel. Thomas v. Bd. of Educ. of City of Chi., 188 N.E.2d
237 (Ill. App. Ct. 1963). In Thomas a substitute teacher
sought to combine her years of substitute teaching with
her years as a probationary appointed teacher to
achieve tenure. The Illinois appellate court rejected this
reading of the tenure statutes, holding that substitute
teachers are “mere temporary employees [who] cannot,
by performing such services as temporary employees,
gradually acquire civil service or tenure rights.” Id. at 240.
Harbaugh essentially asks us to take a functional ap-
proach to evaluating her time as a full-time-basis
substitute at Blaine. She points out that she worked
the same hours as a tenured or tenure-track teacher,
received the same pay, and was responsible for the
same daily educational duties. Viewed from the stand-
point of the day-to-day instruction in the classroom
at Blaine, the only thing separating her from the other
teachers was the label on her personnel file. But
the distinction makes a difference under Illinois law.
Substitute teachers—even long-term substitutes—are
simply not the same as tenured or tenure-track teachers.
Substitutes are treated differently for certification,
No. 11-3277 11
hiring, assignment, evaluation, and termination; the im-
portant difference here is that service as a substitute
teacher does not qualify towards tenure. Booker, 437
N.E.2d at 941. Harbaugh’s year as a full-time-basis sub-
stitute therefore does not count as part of her proba-
tionary period. Because she did not achieve tenure, she
has no constitutionally protected property interest
in continued employment, a “necessary predicate” to
her due-process claim. Cromwell v. City of Momence,
2013 WL 1490099, at *1 (7th Cir. Apr. 12, 2013). The
district court properly granted summary judgment for
the Board.
A FFIRMED.
5-17-13