(CN) - In a split decision, the 7th Circuit found that tenured, laid-off teachers have a property interest in their continued employment which is protected by the Due Process Clause.
The appeals court ordered Chicago's Board of Education to create a recall procedure which will allow laid-off teachers the opportunity to fill vacant positions.
The dispute stems from lay-offs which occurred in June 2003. Facing budget deficits, the board "honorably discharged" 1,289 teachers.
Notices of termination were accompanied by information for how to search for and apply for vacant teaching positions within the Chicago Public School system. The Board also invited teachers to attend a resume and interviewing workshop and two job fairs open only to displaced teachers.
The Board recalled 715 tenured teachers in 2010, after federal funds were increased. However, no formal recall procedure exists.
The Chicago Teachers Union and American Federation of Teachers filed suit, asserting the teachers' alleged property interest in their jobs. The district court granted a permanent injunction, requiring the Board to create a recall procedure.
The decision was stayed and expedited to the 7th Circuit, which affirmed in a 2-to-1 vote.
"The teachers contend that they are entitled to a recall procedure. We agree. The teachers should be given a meaningful opportunity to show that they are qualified for new vacancies for a reasonable period of time," Judge Ann Claire Williams wrote for the majority.
"Without any procedures for recall, the risk of deprivation to teachers is significant." (emphasis in original)
However, the 7th Circuit held that the Board need not consult with the Union in creating its recall procedure: "there is nothing in [Illinois statute] that requires cooperation with the Union, and we decline to impose such a requirement," Williams wrote.
The court affirmed that teachers are not entitle to back pay or to be placed on payroll going forward, but ordered the Board to formally classify them as "laid-off teachers" so that the forthcoming recall procedures can apply to them.
The decision has been hailed as a victory by both sides.
Chicago Public Schools Attorney Patrick Rock said, "The court held that the school code required the Board of Education have such a process. In fact, we say we did have such a process, but it was not formalized."
Judge Manion, dissented in part, wrote, "The court's decision takes a vague enabling statute giving the Board the power to make recall procedures and turns it into an affirmative right for Union members to have recall procedures."
Manion reasoned that no property right exists because the union never negotiated for recall procedures in case of an economic layoff and because the current statutory language does not create such a right.
Failure to negotiate such procedures was not an oversight since the union did negotiate recall procedures for non-economic layoffs. Currently, "the Board may create recall procedures but is not required to do so," Manion wrote.
"To be clear, the teachers have a property interest in their jobs, but once they lost their jobs, and the process that attaches to it is honored, they have no more rights that the Due Process Clause protects."
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