Ill. SC: State law doesn't give laid-off teachers right to be rehired

By Jessica M. Karmasek | Feb 23, 2012


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court last week ruled that the state's School Code does not give laid-off tenured teachers the right to be hired again after an economic layoff.

The Court's majority filed its 10-page opinion Friday, answering two certified questions of law from the U.S. Court of Appeals for the Seventh Circuit.

The Seventh Circuit asked whether sections 34-18(31) and 34-84 of the Illinois School Code give laid-off tenured teachers either the right to be rehired after a layoff or the right to certain procedures during the rehiring process.

Justice Charles E. Freeman, who wrote the majority opinion, said the two sections -- considered separately or together -- do not confer those rights.

The City of Chicago's school board, facing significant budget deficits for the 2010-11 school year, was forced to lay off more than 1,200 teachers.

All laid-off teachers received notice of their termination. With their notices, the school 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 resume 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.

In August 2010, due to an increase in federal funding, the school board was able to recall about 715 tenured teachers. The teachers were not recalled pursuant to an official recall policy.

Those laid-off teachers who were not rehired later complained that many of the positions were filled with new hires instead of with laid-off tenured teachers.

The Chicago Teachers Union subsequently filed a complaint in the U.S. District Court for the Northern District of Illinois against the board, alleging violations of federal due process. The union also filed a motion for preliminary and permanent injunctive relief.

Following a hearing, the federal court granted the union's motion for injunctive relief. The court concluded that section 34-18(31) of the School Code "provides tenured teachers some residual property rights in the event of an economic layoff" and "contemplates not only rights concerning layoffs, but rights concerning recall procedures as well."

The court entered a permanent injunction ordering the school board to rescind the discharges of tenured teachers; 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 enjoining the board from conducting future layoffs in a similar manner until it promulgates recall rules.

A divided panel of 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 Seventh Circuit's 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."

The school board then requested a rehearing, arguing that the federal court misinterpreted Illinois law.

The Seventh Circuit concluded it should afford the state Supreme Court an opportunity to interpret Illinois law. Accordingly, it granted the petition for rehearing, vacated its prior opinion and certified the two questions to the state's high court.

The Court, in its ruling, pointed to the state Legislature's amendment of article 34 of the School Code in 1995. Lawmakers removed all statutory references to "reserve teachers," deleting the language regarding layoffs and recall from section 34-84 and adding section 34-18(31).

"While not eliminating or reducing the (school) board's power, the 1995 amendment reflects a clear legislative intent to change the statutory rights of tenured teachers in a layoff," Freeman wrote. "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 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 economic layoff."

As for section 34-18(31), the Court said it is 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," Freeman wrote.

Had state lawmakers 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 the state, the Court said.

Further, section 34-18(31) does not create a right to recall procedures, the Court said.

"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,'" Freeman wrote.

"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.'"

From Legal Newsline: Reach Jessica Karmasek by email at

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