                           ILLINOIS OFFICIAL REPORTS
                                        Supreme Court




     Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago,
                                    2012 IL 112566




Caption in Supreme         CHICAGO TEACHERS UNION, LOCAL No. 1, AMERICAN
Court:                     FEDERATION OF TEACHERS, Appellee, v. THE BOARD OF
                           EDUCATION OF THE CITY OF CHICAGO et al., Appellants.



Docket No.                 112566
Filed                      February 17, 2012


Held                       The statutes governing the public schools of the City of Chicago do not
(Note: This syllabus       give tenured teachers a substantive right to be rehired after an economic
constitutes no part of     layoff or the right to certain procedures during the rehiring process.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Certified question from the United States Court of Appeals for the
Review                     Seventh Circuit, the Hon. David H. Coar, Judge, presiding.


Judgment                   Certified questions answered.
Counsel on                James C. Franczek, Jr., Sally J. Scott and Abizer Zanzi, of Franczek
Appeal                    Radelet P.C., and Patrick J. Rocks and Susan M. O’Keefe, all of Chicago,
                          for appellants.

                          Thomas H. Geoghegan and Michael P. Persoon, of Despres, Schwartz &
                          Geoghegan, Ltd., Robert E. Bloch and Omar Josef Shehabi, of Dowd,
                          Bloch & Bennett, and Robin Potter and Jennifer N. Purcell, all of
                          Chicago, for appellee.

                          Elaine K.B. Siegel, of Chicago, for amici curiae Parents United for
                          Responsible Education and Designs for Change.


Justices                  JUSTICE FREEMAN delivered the judgment of the court, with opinion.
                          Justices Thomas, Garman, Karmeier, and Burke concurred in the
                          judgment and opinion.
                          Justice Theis dissented, with opinion, joined by Chief Justice Kilbride.



                                            OPINION

¶1         This court accepted certified questions of law from the United States Court of Appeals
      for the Seventh Circuit. Ill. S. Ct. R. 20 (eff. Aug. 1, 1992). The court of appeals asks
      whether sections 34-18 (31) and 34-84 of the School Code (105 ILCS 5/34-18(31), 34-84
      (West 2010)) “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?” We conclude that sections 34-18(31) and 34-84 do not confer
      these rights.

¶2                                     I. BACKGROUND
¶3        The Board of Education of the City of Chicago (Board) exercises “general supervision
      and jurisdiction over the *** [Chicago] public school system.” 105 ILCS 5/34-18 (West
      2010). The right to employ, discharge, and layoff teachers is vested solely with the Board.
      105 ILCS 5/34-8.1 (West 2010). The Chicago Teachers Union (Union) is the teachers’
      exclusive bargaining representative.
¶4        In the summer of 2010, the Board faced significant budget deficits for the 2010-2011
      school year. Consequently, in several phases that summer, the Board was forced to lay off
      1,289 teachers. All laid-off teachers received notice of their termination. 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

                                                -2-
     a Web site listing vacancies and included invitations to attend a resume and interviewing
     workshop and two job fairs that were open solely to displaced teachers. However, not all
     vacancies were listed on the Web site, and laid-off teachers were not given preference for
     other teaching jobs.
¶5        In August 2010, due to an increase in federal funding, the Board recalled approximately
     715 tenured teachers. These teachers were not recalled pursuant to an official recall policy.
     According to Rachel Resnick, the Board’s labor relations officer: “A teacher who is laid off
     may be rehired, but we have no recall policy.” Subsequent to the layoff, teacher vacancies
     have become available within the Chicago public school system. 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.
¶6        In August 2010, the Union filed a complaint in the United States District Court for the
     Northern District of Illinois against the Board alleging, inter alia, violations of federal due
     process. The Union also filed a motion for preliminary and permanent injunctive relief on
     its due process claim. Following a hearing, the district court granted the Union’s motion for
     injunctive relief. The court concluded that section 34-18(31) of the School Code (105 ILCS
     5/34-18(31) (West 2010)) “provides tenured teachers some residual property rights in the
     event of an economic layoff” (Chicago Teachers Union v. Board of Education of the City of
     Chicago, No. 10 C 4852, slip op. at 14 (N.D. Ill. Oct. 4, 2010)), and “contemplates not only
     rights concerning layoffs, but rights concerning recall procedures as well.” Id. at 13. The
     court found that this property interest is protected by the fourteenth amendment to the United
     States Constitution. The court entered a permanent injunction: (1) ordering the Board to
     rescind the discharges of tenured teachers; (2) directing the Board, within 30 days, to
     promulgate, in consultation with the Union and after good-faith negotiations, recall rules
     compliant with section 34-18(31); and (3) enjoining the Board from conducting future layoffs
     in a similar manner until it promulgates recall rules. The district court granted the Board’s
     motion to stay the permanent injunction pending the outcome of the Board’s appeal.
¶7        A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed
     “the district court’s finding that tenured, laid-off teachers have a residual property right in
     the event of an economic layoff,” but narrowed the scope of the district court’s injunction.
     The appeals court majority concluded: “Although consultation with the Union may expedite
     the process of promulgating the rules, there is nothing in Section 34-18(31) that requires
     cooperation with the Union, and we decline to impose such a requirement.” Chicago
     Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 640 F.3d 221,
     232 (7th Cir. 2011), vacated, 662 F.3d 761 (7th Cir. 2011) (per curiam). A dissenting judge
     asserted that Illinois law did not give tenured teachers a substantive entitlement to be rehired
     after an economic layoff. Id. at 233 (Manion, J., dissenting).
¶8        The Board requested rehearing, contending that the federal court misinterpreted Illinois
     law. The court concluded that it should afford this court an opportunity to interpret Illinois
     law. Accordingly, the court granted the petition for rehearing, vacated its prior opinion
     (Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 662
     F.3d 761 (7th Cir. 2011) (per curiam), vacating 640 F.3d 221, and, pursuant to its Rule 52
     (7th Cir. R. 52), certified the following questions to this court:

                                               -3-
                   “1. Section 34-84 of the Illinois School Code provides 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 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?
                   2. Section 34-18(31) of the Illinois School Code empowers the Board of
               Education to promulgate 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
               discretion 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 after an
               economic layoff, or (2) the right to certain procedures during the rehiring process?
               If so, what is the scope of that right?” Chicago Teachers Union, Local No. 1, 662
               F.3d at 764-65.
       Further, the court of appeals expressly invited “reformulation of any of the questions
       presented if necessary,” and stated that “nothing in this certification should be read to limit
       the scope of the inquiry to be undertaken by the Supreme Court of Illinois.” Id. at 765. The
       court of appeals stayed proceedings in that court during our consideration of this matter.
¶9         This court accepted certification pursuant to Supreme Court Rule 20 (Ill. S. Ct. R. 20 (eff.
       Aug. 1, 1992)). We subsequently granted Parents United for Responsible Education, and
       Designs for Change, leave to submit an amici curiae brief in support of the Union. Ill. S. Ct.
       R. 345 (eff. Sept. 20, 2010).

¶ 10                                        II. ANALYSIS
¶ 11                         A. State Law Must Create Property Interest
¶ 12        The court of appeals promulgated the certified questions based on a familiar analytical
       framework. The due process clause of the fourteenth amendment protects against the
       deprivation of life, liberty, or property without due process of law. U.S. Const., amend. XIV.
       The fourteenth amendment’s procedural protection of property is a safeguard of property
       interests that a person has already acquired in specific benefits. Board of Regents of State
       Colleges v. Roth, 408 U.S. 564, 576 (1972). Of course, the federal Constitution does not
       create property interests. “ ‘Rather, they are created and their dimensions are defined by
       existing rules or understandings that stem from an independent source such as state
       law—rules or understandings that secure certain benefits and that support claims of
       entitlement to those benefits.’ ” Wilson v. Bishop, 82 Ill. 2d 364, 368-69 (1980) (quoting
       Roth, 408 U.S. at 577). “ ‘Therefore, the starting point in any procedural due process analysis
       is a determination of whether one of those protectable interests is present, for if there is not,
       no process is due.’ ” Wilson, 82 Ill. 2d at 368 (quoting Polyvend, Inc. v. Puckorius, 77 Ill. 2d

                                                 -4-
       287, 293-94 (1979)); see Buttitta v. City of Chicago, 9 F.3d 1198, 1201 (7th Cir. 1993)
       (same).
¶ 13       Whether a property interest is protectable under the fourteenth amendment is ultimately
       a question of federal constitutional law. However, resolution of the federal issue begins with
       a determination of what state law provides. Town of Castle Rock v. Gonzales, 545 U.S. 748,
       756-57 (2005); id. at 771 (Souter, J., concurring, joined by Breyer, J.) (“the federal process
       protects the property created by state law”). “State law can create a property interest in
       employment.” Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 106 (1990); see
       Buttitta, 9 F.3d at 1202 (same). Therefore, the court of appeals asks this court whether the
       School Code grants laid-off tenured teachers any statutory rights.

¶ 14                                 B. Article 34 of School Code
¶ 15       The certified questions involve several sections of the School Code. The primary
       objective in construing a statute is to ascertain and give effect to the intention of the
       legislature. All other rules of statutory construction are subordinate to this cardinal principle.
       Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990); Electrical Contractors Ass’n of City of
       Chicago, Inc. v. Illinois Building Authority, 33 Ill. 2d 587, 591-92 (1966). The most reliable
       indicator of legislative intent is the language of the statute, which must be given its plain and
       ordinary meaning. A statute is viewed as a whole. Therefore, words and phrases are
       construed in light of other relevant statutory provisions and not in isolation. Hubble v. Bi-
       State Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268
       (2010); Williams v. Staples, 208 Ill. 2d 480, 487 (2004). Each word, clause, and sentence of
       a statute must be given a reasonable meaning, if possible, and should not be rendered
       superfluous. Williams, 208 Ill. 2d at 487; A.P. Properties, Inc. v. Goshinsky, 186 Ill. 2d 524,
       532 (1999). The court may consider the reason for the law, the problems sought to be
       remedied, the purposes to be achieved, and the consequences of construing the statute one
       way or another. Hubble, 238 Ill. 2d at 268; Williams, 208 Ill. 2d at 487. Statutory
       construction presents a pure question of law that we review de novo. Yang v. City of
       Chicago, 195 Ill. 2d 96, 103 (2001).
¶ 16       Article 34 of the School Code “applies only to cities having a population exceeding
       500,000.” 105 ILCS 5/34-1 (West 2010). Section 34-18 provides in pertinent part:
               “Powers of the board. The board shall exercise general supervision and jurisdiction
               over the public education and the public school system of the city, and, except as
               otherwise provided by this Article, shall have power:
                                                  ***
                    31. To promulgate rules establishing procedures governing the layoff or reduction
               in force of employees and the recall of such employees, including, but not limited to,
               criteria for such layoffs, reductions in force or recall rights of such employees and the
               weight to be given to any particular criterion. Such criteria shall take into account
               factors including, but not be limited to, qualifications, certifications, experience,
               performance ratings or evaluations, and any other factors relating to an employee’s
               job performance[.]” 105 ILCS 5/34-18(31) (West 2010).

                                                  -5-
       Further, section 34-84 of the School Code provides in pertinent part: “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.” 105 ILCS 5/34-84 (West 2010).
       In turn, section 34-85 sets forth the process for removing a tenured teacher for cause,
       including written notice of charges and a hearing. 105 ILCS 5/34-85 (West 2010).

¶ 17                 1. Substantive Right to Be Rehired After Economic Layoff
¶ 18       In a series of questions, the court of appeals first asks whether section 34-18(31) or 34-84
       of the School Code, individually or in combination, give laid-off tenured teachers the
       substantive right to be rehired after an economic layoff. We conclude they do not.
¶ 19       As set forth above, section 34-84 establishes a system of “permanent” appointment of
       teachers, also known as tenure, subject to removal for cause as prescribed in section 34-85.
       The Board contends that section 34-84 does not provide any substantive rights to tenure after
       a layoff. The Union contends that, solely “by virtue of the teacher’s ‘permanent’
       appointment” under section 34-84, a laid-off tenured teacher has the substantive right to
       continued employment in preference to an equally or less qualified new teacher without
       experience, and “should have a preferential right to a vacant position over an equally or less
       qualified new teacher without experience.” We reject the Union’s argument.
¶ 20       In Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414 (2002), this court
       concluded that section 34-84’s provision of tenure and removal only for cause does not
       exempt tenured teachers from layoff. The Land court recognized that the Board has the long-
       established power to lay off tenured teachers. Id. at 424 (collecting cases). The court
       observed that prior to 1995, section 34-84 limited the Board’s power to lay off tenured
       teachers. At that time, tenured teachers whose positions were eliminated for reasons other
       than “cause” were designated “reserve teachers.” 105 ILCS 5/34-84 (West 1994). Reserve
       teachers remained on the Board’s payroll for 25 months and were entitled to interim teaching
       positions and appointments to vacancies for which they had proper certification. Id.; see
       Land, 202 Ill. 2d at 424-25. However, in 1995, the legislature amended article 34 of the
       School Code by: removing all statutory references to “reserve teachers,” deleting the
       language regarding layoffs and recall from section 34-84, and adding section 34-18(31). 105
       ILCS 5/34-18(31), 34-84 (West 2010). The Land court concluded that the 1995 amendment
       “did not eliminate or reduce” the Board’s long-established power to lay off tenured teachers.
       Land, 202 Ill. 2d at 425.
¶ 21       While not eliminating or reducing the Board’s power, the 1995 amendment reflects a
       clear legislative intent to change the statutory rights of tenured teachers in a layoff. When the
       legislature amends an unambiguous statute by deleting certain language, it is presumed that
       the legislature intended to change the law in that respect. In re K.C., 186 Ill. 2d 542, 548
       (1999); Lingwall v. Hoener, 108 Ill. 2d 206, 212 (1985). In the case at bar, the General
       Assembly’s removal of layoff and recall procedures from section 34-84 eliminated any
       substantive right arising from section 34-84 for tenured teachers to be rehired after an



                                                 -6-
       economic layoff.1
¶ 22       The court of appeals also asks whether section 34-18(31) of the School Code provides
       laid-off tenured teachers with the substantive right to be rehired after an economic layoff.
       According to the Board, section 34-18(31) involves procedures rather than substantive rights.
       However, the Union contends that “the right to recall under Section 34-18(31) by itself is an
       independent substantive right.” The Union argues that while section 34-18(31) “may
       authorize a recall ‘procedure,’ *** its mandatory criteria imply a limited ‘substantive’ right
       of preference over new hires.”
¶ 23       We reject the Union’s argument. The plain language of section 34-18(31) provides that
       the Board “shall have the power” to promulgate layoff procedures and to promulgate recall
       procedures. Section 34-18(31) is plainly an authorizing or enabling provision and does not
       contain any mandatory terms. The legislature intended merely to confer a power which the
       Board could exercise or not, as it saw fit. Accordingly, section 34-18(31) cannot be the basis
       of a substantive right to be rehired after an economic layoff.
¶ 24       In contrast, for all other school districts in Illinois, the legislature has mandated that laid-
       off tenured teachers, with satisfactory or better evaluations, have a right to recall. Subject to
       their certification and seniority, such teachers have the right to be rehired into new vacancies
       in their districts for a period of one or two years, depending on the size of the layoff. 105
       ILCS 5/24-12 (West 2010). When the legislature includes particular language in one section
       of a statute but omits it in another section of the same statute, courts presume that the
       legislature acted intentionally and purposely in the inclusion or exclusion (In re J.L., 236 Ill.
       2d 329, 341 (2010); Adames v. Sheahan, 233 Ill. 2d 276, 311 (2009)), and that the legislature
       intended different meanings and results (In re K.C., 186 Ill. 2d at 549-50; Carver v.
       Bond/Fayette/Effingham Regional Board of School Trustees, 146 Ill. 2d 347, 353 (1992)).
       In the present case, the existence of a recall provision in one section of the School Code and
       the absence of such a provision in another is further indication that section 34-18(31) does
       not give laid-off tenured Chicago public school teachers a substantive right to be rehired after
       an economic layoff. Had the legislature intended to provide substantive rehire rights to laid-
       off tenured Chicago public school teachers, it would have done so, as it did for all other
       school districts in Illinois.2
¶ 25       The Union further argues that the Board’s authority to promulgate layoff procedures and
       recall procedures pursuant to section 34-18(31) “must be balanced with the teacher’s right
       to a ‘permanent’ appointment under section 34-84.” Citing this court’s decision in Powell
       v. Jones, 56 Ill. 2d 70 (1973), the Union reasons that the Board is required to promulgate
       recall procedures because the power to lay off under section 34-18(31) cannot be equal to the
       power to remove a teacher permanently under sections 34-84 and 34-85

               1
                The dissent appears to assign pretextual motives to the Board’s economic layoff of tenured
       teachers. Infra ¶ 41 (Theis, J., dissenting, joined by Kilbride, C.J.). However, it is undisputed that
       the layoffs in this case were based on nonpretextual economic reasons.
               2
                The dissent acknowledges this statutory distinction (infra ¶ 45 (Theis, J., dissenting, joined
       by Kilbride, C.J.)), yet fails to recognize its legal significance in construing these statutes.

                                                    -7-
¶ 26       We cannot accept this argument. In Powell, this court observed that the Civil Service Act
       provided for the adoption of layoff rules and recall rules for civil service employees, which
       were actually adopted. This court held that the recall rules afforded adequate procedural due
       process based on the qualitative differences between layoff and discharge. Powell, 56 Ill. 2d
       at 79-82. That case has no bearing on what rights the laid-off teachers have pursuant to this
       statute. Powell does not stand for the proposition that an enabling statute that authorizes the
       adoption of layoff procedures requires the adoption of recall procedures.

¶ 27                       2. Procedural Rights During Rehiring Process
¶ 28       In a series of questions, the court of appeals next asks whether section 34-18(31) or 34-
       84, individually or in combination, give laid-off tenured teachers any procedural rights
       during the rehiring process. Initially, we agree with the Union that this set of certified
       questions does not require this court to give an opinion as to the procedures that the due
       process clause of the fourteenth amendment may require. So viewed, the issue is one of
       federal constitutional law. See Gonzales, 545 U.S. at 756-57. Rather, this set of questions
       seeks answers about “procedures” only if teachers have no substantive rights to recall and
       continued employment.
¶ 29       According to the Board, just as section 34-84 does not give laid-off tenured teachers a
       substantive right to be rehired after an economic layoff, so too section 34-84 does not give
       such teachers a right to certain procedures during the rehiring process. We agree. The 1995
       amendment to the School Code removed from section 34-84 legislatively mandated
       procedures for rehiring tenured teachers after a layoff.
¶ 30       Further, section 34-18(31) does not create a right to recall procedures. If the Board
       chooses to promulgate criteria for recall procedures, it is directed to “take into account
       factors including, but not *** limited to, qualifications, certifications, experience,
       performance ratings or evaluations, and any other factors relating to an employee’s job
       performance.” (Emphasis added.) 105 ILCS 5/34-18(31) (West 2010). These mandatory
       legislative factors do not give tenured teachers a right to recall procedures. This section does
       not guarantee that after any layoff the most qualified or most experienced tenured teacher
       will be recalled. Rather, all it provides is that if the Board promulgates recall procedures, it
       will take into account factors that include qualifications, experience, and “any other factors
       relating to an employee’s job performance.” Id. The Union cannot reasonably read section
       34-18(31) and infer from the fact that the Board will consider qualifications, certifications,
       and job performance when promulgating recall procedures that they have a statutory right to
       recall procedures.

¶ 31                                   III. CONCLUSION
¶ 32       For the foregoing reasons, we conclude that neither section 34-18(31) nor section 34-84
       of the School Code, considered separately or together, gives laid-off tenured teachers either
       a substantive right to be rehired after an economic layoff or a right to certain procedures
       during the rehiring process.


                                                 -8-
¶ 33       Certified questions answered.

¶ 34        JUSTICE THEIS, dissenting:
¶ 35        After today’s decision, the Chicago Board of Education may de facto discharge tenured
       teachers without cause during an economic layoff. Because I believe this result gives
       insufficient weight to the term “permanent” in section 34-84 of the School Code, I dissent.
¶ 36        Section 34-84 provides that appointments and promotions of teachers “shall be made for
       merit only,” and that appointments “shall become permanent, subject to removal for cause”
       for teachers who satisfactorily complete a probationary period. 105 ILCS 5/34-84 (West
       2010). As the Seventh Circuit noted, permanent or tenured teachers have a property interest
       in their continued employment (Chicago Teachers Union, Local No. 1 v. Board of Education
       of the City of Chicago, 640 F.3d 227, 227 (7th Cir. 2011), vacated, 662 F.3d 761 (7th Cir.
       2011) (per curiam)), and may not be discharged unless the Board of Education complies with
       the notice and hearing requirements in section 34-85. The teachers here were not discharged,
       but rather were laid off. This distinction is crucial. See Mims v. Board of Education of the
       City of Chicago, 523 F.2d 711, 715 (7th Cir. 1975) (“a layoff is less drastic than a discharge”
       (citing Powell v. Jones, 56 Ill. 2d 70 (1973))). The issue here, as I see it, is what does
       “permanent” mean in the context of a layoff?
¶ 37        The legal framework is familiar, and presented well in the majority opinion. Under the
       fourteenth amendment, the state may not deprive a person of life, liberty, or property without
       due process of law. U.S. Const., amend. XIV. An initial requisite for a due process claim,
       then, is the existence of a protected interest. Here, the Union claimed a deprivation of
       property. What constitutes property, or a property interest, is defined by state law. Cleveland
       Board of Education v. Loudermill, 470 U.S. 532, 561 (1985) (Rehnquist, J., dissenting).
       Thus, our analysis must focus on the statutes here.
¶ 38        Before 1995, tenured teachers in Chicago whose services were “no longer required
       because of a decrease in student membership, a change in subject requirements within the
       attendance center organization, or the closing of an attendance center” (105 ILCS 5/34-1.1
       (West 1992 & Supp. 1993)) enjoyed recall rights under section 34-84. See 105 ILCS 5/34-84
       (West 1992) (“supernumerary teachers”); 105 ILCS 5/34-84 (West Supp. 1993) (“reserve
       teachers”). These rights were similar to those of tenured teachers elsewhere in Illinois. See
       105 ILCS 5/24-12 (West 1992). Then the School Code was amended. The legislature
       retained recall rights for downstate teachers, but altered such rights for Chicago teachers. The
       legislature deleted the reserve teacher provisions of section 34-84, and added section 34-
       18(31), which provides:
                “The board *** shall have power:
                                                 ***
                    *** [t]o promulgate rules establishing procedures governing the layoff or
                reduction in force of employees and the recall of such employees, including, but not
                limited to, criteria for such layoffs, reductions in force or recall rights of such
                employees and the weight to be given to any particular criterion. Such criteria shall
                take into account factors including, but not limited to, qualifications, certifications,

                                                 -9-
                experience, performance ratings or evaluations, and any other factors relating to an
                employee’s job performance[.]” 105 ILCS 5/34-18(31) (West 2010).
       Notably, section 34-18(31) does not give the Board the authority to discharge. It gives the
       Board only the authority to create layoff and recall rules, and criteria for when such rules
       apply, as well as guidance about factors relevant to the exercise of this authority.
¶ 39        We discussed these statutes in Land v. Board of Education of the City of Chicago, 202
       Ill. 2d 414 (2002). In Land, five teachers employed by the Board were laid off, and
       subsequently filed a complaint seeking a writ of mandamus to order their reinstatement and
       a declaration that the Board’s layoff policy was invalid under sections 34-84 and 34-85 of
       the School Code. The trial court granted summary judgment to the Board, and the appellate
       court reversed.
¶ 40        This court affirmed in part. We noted that the Board had long possessed the authority to
       conduct layoffs. Id. Before 1995, limits on that power appeared in section 34-84. Id. “The
       1995 amendments did not eliminate or reduce this power. Instead, by deleting the layoff
       provision from section 34-84 and adding section 34-18(31), the legislature gave the Board
       the authority to formulate and implement its own rules and procedures regarding layoffs
       rather than binding the Board to a legislatively mandated procedure.” Id. at 425. In short,
       sections 34-84 and 34-85 do not exempt tenured teachers from layoff. Id.
¶ 41        Land, however, offers only a partial resolution to the issue before us. In that case, we held
       that “permanent” under section 34-84 does not mean exempt from an economic layoff, but
       we made no comment on what “permanent” does mean in that context—or what recall rights
       Chicago teachers might still have under the 1995 amendments to the School Code. As the
       Seventh Circuit stated, neither those amendments nor Land “suggest that tenured teachers
       are not entitled to an opportunity to show that they are qualified for vacancies after an
       economic layoff.” Chicago Teachers Union, 640 F.3d at 230. That court continued: “If a
       ‘permanent’ appointment means anything, it at least means that if vacancies arise during or
       shortly after a layoff, the teachers who originally held ‘permanent’ appointments should be
       given a meaningful opportunity to show that they remain qualified to fill those positions.”
       Id. I agree. The power to lay off cannot be equal to, or substitute for, the power to discharge.
       The legislature did not intend to allow the Board simply to ignore its authority to adopt recall
       rules under section 34-18(31) and do through inaction what it cannot do under section 34-
       85—namely, terminate a tenured teacher without cause.
¶ 42        In response to the Seventh Circuit’s questions, I believe that laid-off tenured teachers
       have a property interest in or, using the majority’s terminology, a statutory right to continued
       employment, which is rooted in section 34-84 and its guarantee of permanent appointments
       subject to removal for cause. See Lalvani v. Cook County, 269 F.3d 785, 791 (7th Cir. 2001)
       (holding that a “legitimate claim of entitlement” to government employment “is typically
       rooted in statutory or contractual language indicating that the employee cannot be terminated
       but for cause”); see also Mims, 523 F.2d at 715 (holding that laid-off civil service employees
       of the Chicago Board of Education had “a property interest in their continued active
       employment, not just in their status as civil servants”). The inquiry then becomes how best
       to vindicate that interest, or what is the scope of that right.


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¶ 43       The hallmark of procedural due process is “the opportunity to be heard at a meaningful
       time and in a meaningful manner.” (Internal quotation marks omitted.) Mathews v. Eldridge,
       424 U.S. 319, 333 (1976). Under Mathews, a court considering what process is due must
       balance “[f]irst, the private interest that will be affected by the official action; second, the
       risk of an erroneous deprivation of such interest through the procedures used, and the
       probable value, if any, of additional or substitute procedural safeguards; and finally, the
       Government’s interest, including the function involved and the fiscal and administrative
       burdens that the additional or substitute procedural requirement would entail.” Id. at 335.
       Here, the tenured teachers’ property interest in continued employment and the Board’s
       interest in maintaining both its instructional quality and its fiscal health are important. But
       the risk of erroneous deprivation is high because there are no recall procedures in place, and
       accordingly the probable value of such procedures is similarly high.
¶ 44       Tenured teachers, thus, are entitled to some process in which they have a meaningful
       opportunity to demonstrate their qualifications for vacant positions with the Board. However,
       judicial imposition of that process is problematic, in light of the Board’s statutory authority
       to adopt procedures for layoffs and recalls. I believe that the federal courts were correct in
       recognizing that only the Board has the “institutional competence to define the exact
       contours of those procedures.” Chicago Teachers Union, 640 F.3d at 232. The legislature
       placed power with the Board, and the Board must exercise that power—not just with respect
       to layoffs, but more importantly with recalls—in order to protect the rights of tenured
       teachers.
¶ 45       Though the majority indicates that the Board remains free to ignore its power, I urge the
       Board to complete its work. If it refuses, I urge the legislature to clarify the recall rights of
       tenured teachers in Chicago, as it has done before, and as it does currently for tenured
       teachers elsewhere in our state.

¶ 46       CHIEF JUSTICE KILBRIDE joins in this dissent.




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