mask out against the board of education comes next may please the court my name is steve aoki and represent the plaintiff appellants in this case carol masco is a special education teacher in the franklin park school district for twenty years she was tenured between two thousand and one dollars in two thousand and thirteen she said they waited seven times by three different principals she received an excellent evaluation each time the evaluations covered eleven different categories of conduct as a teacher in two thousand and ten she assumed a leadership role her union in two thousand and twelve the defendants the individuals her principal heidi love for and david katz and came to the district as principal and superintendent in two thousand and fourteen in two thousand and fifteen this man is called by to heads with her principal and with the superintendent over scheduling issues and in that time period and t they butted heads yes which set me what it means is that it with the principle of floor are the principal wanted to schedule extra time on back to school night for the teachers to be there the mascot went to the principal and said that's required there are a contract can we do something differently the principal said i really want to do it masco said well if you really want to do it the way you want to do it it's it's not required into the contract you know she was some kind of mood you need a few she was the co president of the council of teachers and frank kampar in in the next year there was a proposal to bring a speaker that would speak for an extra couple hours after school and again miss miss calendar co president went to the superintendent this time and said we don't think that's appropriate we have some ideas how you could do it differently the superintendent opposed those ideas the meeting ended very poorly with the superintendent angry and then she the superintendent cancelled that part of the presentation w otherwise going to be mandatory he said yes both of them were meetings where people had to come in stay after school much longer than normal and the concern of the teachers union was that people structure their lives around the school day and many of them had daycare or educational commitments after school and the district was not willing to make attendance voluntary it made sense and so there were disputes over these two issues and because she had an unsatisfactorily rating the layoff was out with was without any recall rights under the school code and some isthmus cause initial argument is that the district violated due process it refused her request to re examine the rating in her valuation she received the evaluation should she have an opportunity to contest that rating when it was given no the rating was given on february nd maybe february st the two or three days after she received the evaluation she went to the superintendent she said can we talk about my rating he said no and  i will be asking triple corney the same question because it seems to me that that's what this case turns on whether that rating could be contested if it could be contested before the  point and the sequence of events in this case your honor is that she received the on satisfactory evaluation she went to the superintendent she asked if the if she could discuss the ratings in the evaluation she was told no and the layoff proceeded it was also evidence in the record that in her past evaluation she had been given a rating by the principal with respect to instruction she contested that rating the principal change the rating didn't do it on something else that she contested in there was evidence that other teachers had in the past had been a wild to raise their hands with respect to their ratings and had their ratings changed in this case you know the difference between a nun satisfactory rating and a needs improvement rating was one point she'd gotten one point extra in the domain of instruction on the grid that they use she would have received needs improvement and that's important in this case because if you are in the grouping for layoff where you have a needs improvement then you have a recall right now that's part of the rules i guess  and that's not a whatever reason it's not appealable that well but i mean that's the sort of that essence of the dispute in this case judge me and because it's our feeling and our position that because he and satisfactory rating terminated her tenure rights based upon her performance that she was entitled to some sort of due process before she could be laid off you to do something about the no no improvement needs improvement and need to improve ment doesn't terminate your tenure in the same way as an unsatisfied she protested out and she if she had gotten the needs improvement what happened alternately was said another special education teacher left the district and she would have been eligible for recall if she what of the school district said no presumably this is written down someplace it might be in the collective bargaining agreement it might be in some statute is it written down some points that she's not entitle to yes ratings all right in principles with discretion with respect to rating but but it's not written down any place what happens when you're rated on satisfactory and you are slated for layoff well and so on as i said i'll be asking mr pokorny his view about this right anyway and one way to look at it is if you think back to the loudermilk case for all i remember it doesn't tell us what rights teachers in not written down is a separate issue from whether you have to have one and that and it is our position that because this was a rating that deprived miss mask of tenure and because it was a rating based both factors together the but the rating is the thing that cuts off the recall because you have to recall right if you're rated needs improvement and you don't have a recall right if you receive it on satisfactory and as i was explaining the the margin in this case between unsatisfactory and needs improvement was very very narrow and as i have also the record also indicates that in the past when people head sought to change the ratings the school district at least listened to people coming to change the rating and that did not happen in this case or other argument in addition to the due process argument well let me let me spend a couple of minutes on the three process argument because the district court said this is a layoff case and because it's a layoff case you don't have to process you have no entitlement to d because in this case the number of students was declining and in the district to term and we need one last special education teacher however between the time of the dismissal and the time of the next school year two special education teachers left the district vacancies that this man's calculated and filled given the population that existed in the district of students coming in for the next year that is a right that she would have under the school code if she was given a needs improvement as opposed to an unsatisfactory and layoff was because of unsatisfactory the the the the the layoff was because of unsatisfactorily the loss of tenure and the loss of the right to recall was because she received on satisfactory instead of needs improvement had she received only needs improvement she would have been recall enter the school club and she would like to be able that could test the accuracy of the evaluation and we think that the cases that involve large away offs don't really apply here because those are layoffs where  they lay off one thousand people they pose a school district where you know those are the types the layoffs that you can't contest under the school code this was a way off of one person and it involved performance and we think under the law bonnie case which we discussed in our brave that a layoff that is based upon job performance implicates the same property interests as a as a dispute was under the court thank you may please the court to answer your honor's question as to whether the plaintiff miss mascot had an opportunity to contest her and satisfactory rating what the record shows is that with respect to her two thousand and fifteen evaluation this mask out did in fact raise objections to the rating which she used in that year she was allowed to present evidence to the principal missler floor to contest that rating and the principal adjusted that rating but used a ship have a right to press the on satisfactory rating that is and by right i mean notice when an opportunity for a he illinois school code does not specify that she has that right and does some document whether the collective bargaining agreement or regulations who should by the school board give her that right there is no such document in the record or our regulations are not in records is there any regulation that you threw that right there would be no regulation so the relevance authority would be the school code provisions setting out the detailed occurred and an opportunity to present his mascot his views on the evaluation that occurred in that meeting and as what occurred in two thousand and fifteen demonstrates when miss mask out presented that information in the course of the evaluation procedures under the school code to which isn't titled and to which there is no dispute she received and two thousand and seventeen this mask out his evaluation was adjusted at that time what counsel has indicated happened amended the school code to provide for a much more detailed and robust evaluation process for teachers it set forth the requirements for the training of evaluators it set forth the detailed process that schools are required to senate bill seven through two thousand and eleven before the issues here that was before the issues here this was these were the provisions in effect at the time of plaintiff's layoffs so what senate bill seven also changed with respect to the rights that the property rights that plaintiffs identify is it change from a system in which tenured teachers could only be terminated for cause or in seniority order based on a layoff to a system in which the determinations based on a layoff are based on a teacher's performance evaluations conducted using the problem which is why i've been asking about what right she had to protest the rating is that she had tenure as a teacher and the fact that illinois provides that a tenured teacher gets no hearing at all in certain circumstances is as a matter of constitutional law irrelevant that's the holding allowed her mil you can't the question is whether there are substantive criteria that determine what the right is whether there is a legitimate claim of entitlement that rule was established and brought against board of regents the very st of the teacher case and the supreme court's held repeatedly that the fact that the state says and we're not giving you a hearing to determine whether that's true is irrelevant the difficulty in this case is of the district court thought otherwise the district court said if state law says you don't get a hearing that is a matter of federal law you don't get a hearing and well i think the phrase is that's in the teeth of decisions of the supreme court so the question then becomes was there an opportunity for a hearing at a different phase that's why i'm trying to figure out whether she had an opportunity to  test the rating and it on the sound like it unless you're saying that the ability to talk to your principal is all the constitution requires well your honor if the court were to go into the nd step of the constitutional analysis which is is the process adequate we would take the position that the process provided in the evaluation procedure through the school code it does afford adequate due process for purpose of providing those of us but i would suggest your honor that there is and it seems that that needs to be looked at here when the general assembly amended the school code to provide for these new robust evaluation proceeds and it also amended the recall provision code to make a teacher is evaluation or a teacher's rights to the order of recall the order of layoff and recall its contingent upon their evaluation the school code at the legislature eliminated the teachers property rights to automatic consideration of the seniority and the order of recall or in the order of layoffs and the right to recall justice rehnquist once made that argument but he lost six to three he said what it means is you have to take the bitter with the sweet and six justices disagreed with  that i don't think we're going to go back there it might be right as a constitutional matter but it doesn't have the blessing of a majority of the supreme court well i'm not sure which case your honour's referring to but i think the the issue is that what the general assembly dead and adopting the performance based reforms in senate bill seven was to take the position that the all of the rights of the plaintiffs are arguing for in this case are contingent on the evaluation there is no property right to a particular evaluation under that is under the school code now  discretionary decision vested in the evaluators so plaintiffs certainly have a property right to the evaluation procedures that are provided in the school code and once that evaluation is made they plaintiff would have a property right to the  consequences that flow from receiving that excellent proficiency needs improvement or on satisfactory evaluation but there is no property right to that earned evaluation rating what the school code now says that issue has to be looked at by the evaluators in accordance with the school code either annually or seminar on a biennial basis for tenured teachers and it's that evaluation that determines the ongoing employment evaluation process and the evaluation instrument that's included on the record provides a detailed assessment includes an observation of missed mask out includes opportunities for mis masco to contribute her own self evaluation in the process if she is an active participant throughout this procedure that went forward according to the school code and according to whatever the agreements were with the union there is no allegation in this case that the district violated the  evaluation procedures in the school code that the district value violated any evaluation procedures that had been agreed upon between the union and the district when she would resume says factory that they were that's correct on her kid when she got there because it's when she got a layoff that caused the problem but when she got the and said inspector e reading u g have a right to go in and challenge that there's not a formal hearing  answer to that if and when you say a right to go in and challenge the writer right so here's what she receives is a meeting with the principal or union representative as presents and she is permitted to make comments on the evaluation the issue here is that what she says she did as she went to the superintendents and asked the superintendent to overturn that evaluation he declined to do that because he's not the evaluator he thought it should have been some step before him correct  and so she skipped somebody correct so again that our point here on the due process issue is that the  those are all rights that are contingent on the evaluation which under the school code is committed to the discretion of the evaluators it does have to be conducted in accordance with the school code but there is no contention in this case that the district violated any of the evaluation procedures and there's no contention in this case that the district violated anything in the school code in the way in which it did with a layoff in fact it's conceded that the district followed those procedures with respect to the  tend to summarize it in the course i do want to point out the scope of plaintiff's arguments here this is a situation in which the plaintiff served as the co president of her local union council from two thousand and ten until the end of our understanding or honor is that there would be a right to engage in certain activities on behalf of the union so it is not a point there is certainly a statutory right no one in this case seems aware that the supreme court has held in night and perry education that there is no constitutional right st amendment claims were made in those cases on behalf of somebody who wanted to pursue grievances on behalf of the union and the supreme court said the st amendment does nothing to say your honour's the record makes abundantly clear that the relationships between the union are and the administration in this case were overall excellent over the course of ms mass goes entire ten the law is clear that there is a relatively heavy burden here at the summary judgment stage for plaintiffs to present a prime aphasia case of retaliation the plaintiffs have not carried that burden the district court correctly found that there is no evidence f quote i asked him whether the district would consider any changes to the evaluation and he said no so that's a pretty authoritative rejection of changes by that what mr pokorny said is roughly if you ask the wrong person you get an irrelevant answer she was supposed to consult with the principal she decided to bypass the train of command and well there you are the principal didn't say go and talk or the superintendent didn't say go and talk to the principal that's the right chain of command in this deposition the superintendent that admitted that other evaluations have been changed in the past and quite honestly after and this wasn't raised in the district court so there is no evidence in the record about what the evaluation meeting was like with principal or but i don't think it's unreasonable for somebody who's been given and said a spectator who has received support a lot of the valuations for years  years and years to approach the superintendent in a small district and ask and i think the superintendent's word is word that makes a difference in such a situation the other point i'd like to address of the things you have to use point out that this is actually protected speak that is affected by knight and perry education but no one brought it to the attention of the district you know out or what knight says is that you don't have a right but with those cases say is that you don't have a right to have a union be a bargaining representative they don't say that you don't have a right to speak on but we're not going to argue about those cases because nobody has relied on them and you your adversary has done you the great favor of conceding in your favor something that they might well