A federal appeals court determined that a tenured teacher, RIF’d before the Illinois law allowing appeal of an unsatisfactory rating took effect, may have a right to due process, such as a hearing, upon receiving an unsatisfactory evaluation rating.
In February 2017, Carolyn Mascow (“Mascow”), a tenured teacher working for Franklin Park School District No. 84, received an unsatisfactory rating on her job performance for the 2016-17 school year. Later, the School Board eliminated one teacher position. As a result of her rating, Mascow was first in line for the Board’s layoff and did not have recall rights when the Board began hiring again.
Mascow later filed suit in the federal district court alleging that the Board violated the Due Process Clause of the Fourteenth Amendment because she was entitled to a hearing before her layoff and that her “unsatisfactory” rating violated the First Amendment as applied to the state of Illinois through the Fourteenth Amendment. Mascow specifically argued that she received her unsatisfactory rating as a result of her union activities as co-president in 2014 and 2015.
Mascow lost before the district court, which dismissed Mascow’s due process claim noting that Illinois does not offer hearings to laid-off teachers, regardless of tenure status. It concluded that because Mascow did not have a right to hearing under state law, she did not have a federal constitutional claim. The district court also held that a reasonable jury could not find that Mascow’s union activities in 2014 and 2015 caused her unsatisfactory rating because she had become the union’s co-president in 2010, met with the school officials often, and initially received good ratings.
When Mascow appealed, the Seventh Circuit Court of Appeals (which governs Illinois) came to a different conclusion. As to Mascow’s due process claim, the Seventh Circuit found that the district court made a legal error when it concluded that the absence of a right to a hearing under state law defeats a due process claim under federal law. The Seventh Circuit reasoned that as a tenured teacher, Mascow could only be fired for cause or as part of a reduction in force and this gave her a legitimate property interest in her job as a matter of constitutional law. Meaning, in sum, that Mascow could not be deprived of her position without notice or an opportunity for a hearing. The Seventh Circuit noted that the hearing may be informal but the holder of the property interest, Mascow, must have some opportunity to present her position to the decision maker, the Board.
The Seventh Circuit reasoned that Mascow could have contested her unsatisfactory rating because, had Mascow received a proficient or higher rating, someone else would have been laid off and if she had received a needs improvement rating she would have kept her recall rights. If she had been given the opportunity for a hearing when she received the unsatisfactory rating she would not have been entitled to a second hearing when laid off. It would not have mattered whether Mascow used or bypassed the opportunity for hearing in February 2017; as a state does not have to offer more than one opportunity for a hearing about a subject.
The Seventh Circuit took note of the fact that, at the time, neither Illinois nor the Board offered a formal process for contesting a performance rating, however both parties agreed that teachers had informal opportunities to seek review. Mascow previously used this informal process in 2015. At that time Mascow took her concerns to her school’s principal who allowed her to submit additional information. After considering the additional information, Mascow received a higher rating in one of the categories. At oral argument, the Board argued that an opportunity for face-to-face discussion and written submission provided all the due process required for an adverse evaluation. However, Mascow countered that she was not afforded this opportunity in 2017.
Ultimately, the Seventh Circuit decided to overturn the district court’s ruling to the extent it addressed Mascow’s claim under the Due Process Clause. The court reasoned that neither the district court nor the litigants had addressed how tenured teachers could obtain review of their ratings and whether those opportunities satisfy the constitutional need for some type of hearing. The Seventh Circuit sent the case back to the district court to consider those issues.
The case calls into question whether a district may layoff a tenured teacher based upon an unsatisfactory performance rating without providing an avenue for the teacher to contest the rating. Now that the Illinois General Assembly has enacted SB1213, teachers who receive an unsatisfactory evaluation rating have a right to an appeal before the Board of Education, in a manner to be collectively bargained between the Union and the Board. Accordingly, this court case may no longer have much of a practical effect on school districts. However, should SB1213 ever been overturned or challenged, this case may uphold a tenured teacher’s constitutional right to appeal an unsatisfactory rating.
For all your RIF or tenured teacher evaluation questions, please contact Tina Christofalos, Jeff Goelitz, Frazier Satterly, or your regular labor attorney.