established teachers to at will dismissal no president says that such unusual rights must extend to priority over better teachers during a legitimate reduction in force brand itself acknowledged that permanent status was subject to legitimate reductions in force so accordingly even though the brain remains the supreme court's determination there are two ways to rule in favor of medicine consolidates who corporation into up sold the reduction of force statute as a price as applied to elliot first is to hold that brand means only protection against at will dismissal were at the very least does not mean immunity against foreseeable changes to riff priorities second to hold that any substantive impairment of brain protected rights is justified by the state's compelling interest in improving student educational outcomes indeed with respect to the latter rationale we think we've achieved you know taylor where they the district court said that the more narrowly tailored option here would have been to dismiss elliot for costs in the midst of a reduction in force in other words to come up with reasons why he was a poor have different levels of performance they come through the reviews of the teachers within the same performance category seniority and performance are both taken into account so it's not as if seniority is out the window in all cases so in any in any event whether it's because brain doesn't reach this far or because the state has a substantial overriding interest in terms of applying the statute to an established teacher we think that the the state can apply the to overrule it i don't think that's necessary i think going and is only a determination that the legislature cannot wipe out tenure completely other option this trick or didn't talk the classroom but because he wasn't popular with are sufficiently soft hearted to students or popular with his colleagues at least that's that's an argument that could be made but another option would simply be to buy out a teacher who has tenure rights that you're trying to take away well but of course the whole reason for the reduction of forces that you're trying to save say the costs and i think that's an unnecessary cost imposition depend look at the supreme court's more recent contract was cases in the ones i'm focusing on in particular the u s trust company case and allied structural steel we have the court telling us that reliance interests expectation interests of bondholders and employers are protected under the contract clause even if it's more expensive to do so and i guess i'm not clear on why reliance the interests of employees who build careers on the expectation of somewhat lower salaries but greater job security or not also entitle to similar protection well i think in the end so will the needy us trust company case i think the focus there was on the sort of the self interested business of the self dealing of what the government was trying to do it wasn't just reliance interests ok what if you would agree that education is a constitutional obligation of the state of indiana absolutely i would why is this not you know since the sta restructuring the contracts of its own agents to carry out that constitutional mission well that is undoing the contract protections provided to teachers who are who are who are employed to carry out that mission by a local school boards well i think what we've got from us trust is in a recognition that there are that there are legitimate public policy interests and then there are more it sorry of self interested financial interests that we can divide the world between those two in some rough sense and this is because it's in pursuit of achieving that the job with that compelling that required educational the public educational obligation of the state i don't think can be fairly categorized as something similar to what was going on u s trust now i mean even though you've got you've got a policy change right respecting the contractual rights of teachers with tenure in this situation would cost some extra money  and and you feel the state has has has for generations promised teachers this form of security you won't be fired for without good cause you individual case we have this exception for reduction is in force but since the one nine hundred thirty eight nine hundred thirty nine the statute has been interpreted definitively by the indiana supreme court to say that you can't fire qualified tenured teachers before you fire a layoff untenured teachers we had a supreme court determination that that's what the prior statute meant now bear in mind if we're talking about making things up as a as step person soffit and the court saying that's not authorized by statute and that mean that's right in saying that the executive the tactic that the state is trying to defend now was contrary to the contractual promises that were made in the statutes in the earlier versions well another way to look at matson as well is to say that it is to observe that there was no discussion of whether there are performance  measurements in place that were you know the basis for distinguishing between the tenure to the non tenured teacher all you have there really in some ways exactly what the supreme court was talking about embrace and when it said that you know that the point of tenure is not to permit personal free rein in selecting people for reductions in force in free rein right this is not free rate we're not talking about free rein we're talking about a systematic process for evaluating teachers and wasn't wasn't confronted with that scenario it was confronted with a much more sort of i would trailer or you know sort of ad hoc scenario now beyond that in terms of the expectations that have gone into this with respect to elliot or or of many other teachers and i'm not aware of any circumstance where elliot was teaching where madison went through a reduction in force so he was able to depend on orbit or come to be guided by the prior with procedures so i think it's a little bit based heavily on seniority right and if you have somebody deep into his career with a particular school district like mr elliot has to start over again it's going to be added in another district it's going to be a deep discount right and the longer the longer he stays the more he's relying on this assurance that if you're going to refer people you're not going to riff the tenured folks in less and less you've already to rush to the non tenured folks well i don't think what's a student watching gives us quite that much on one hand i think it talks about in terms of sort of arbitrary or personal decisions it doesn't tell us exactly all of that the dimension think beyond that you know if we if we're before going to suggest that there is a reliance interest at stake a legitimate reliance interest at stake that is really a matter of whether the state has a as a sufficient overriding policy justification in terms of benefiting the education of students mr elliott was the local teachers union president i think that's right and he was chosen for a laid off right and that's a pattern that's pretty familiar under federal labor law there's a closer you know more problem i don't think there's much to do with the constitutional issue that's being argued here right but it has a lot to do with the state court claims right if we were to agree with you on the constitutional claim what do you think we should do with the state court claims i think they i don't think the question addressed them i think they should be they because the district court did it remain dismissed subject to ellie and whatever  resolved i'm not sure that it's a sound basis for federal jurisdiction to continue on with the state law claims people just want what i'm i'm i'm suggesting if we were to agree with you on a constitutional federal constitutional the appropriate step would be to remain under the district court with instructions to remain under state court for seedings on the state law coins fair enough i think there's a technical procedural matter i'm not sure that's necessary course would be to certify the state law question about the meaning of watson to the sort out the meaning of lots of there you know they're going to see that and i can't i can't explain what they're going to see on that i guess i i don't have much of a response other than to say we think we don't need to do it but you know if i can go back to this really matters i'm not sure the you have to  would be ok i don't have any objection to that all i'm observing is that the district court dismissed those stay claims as moot and they could just be refiled on their own well what i'm what i'm concerned about in that scenario is defense counsel arguing that there's been some kind of passage of time or some other obstacle to reviving claims in state court whatever the procedural method would be right if you can tell me that you would that there would be no such objection and that would be a comfort otherwise i'll have to worry about the technicalities if we were to go in that direction i can't i can't represent that because i don't represent the school and you're arguing for them but i understand you don't have  firefighters in indiana who have comparable tenure protections well i thought well i had with respect to those in again this may sound formalistic but with respect to those officials we don't have those those employees we don't have the same starting rights as a tenured teacher under indiana law were unconstitutionally impaired when he was terminated from his teaching job during a reduction in force there's one issue i would like that took up a bit of time on the other side's argument that i'd like to turn to you very quickly which is kind of paper called contract every year correct and that document could incorporate the nine hundred twenty seven statute waive rights under the nine hundred twenty seven statute it could do a whole bunch of things what does it do since we don't have it we do really weird to have a case arising under the contracts clause of the u s constitution where the contractors and in the record it is in the record i'd maybe even have rights under the nine hundred twenty seven stare or for that matter than twenty elements there it but it's but the overriding point is that there are two contracts and that the chamber's case will you must not have been listening to  a document can waive rights under a statute and people waive rights under statutes all the time it seems weird to say well the statute is read into the personal contract without seeing the contract to see whether it incorporates the statue or waves rights under the statute or draws cartoons about the statue short sure to see that document and the document is the record i am happy to point statute and that is a matter of state run so you have these two contractual regimes that exist side by side you have the indefinite contract that provides the basics of tenure in indiana it would be illegal for a teacher to negotiate with a school district and say and the indefinite and even if the school board is willing to offer money to school teachers and they want to take the money indiana law just prevents them from making that deal with it the purposes of the definite contract are very circumscribed by state offices i just care what indiana certainly they want to your full of arguments about purposes and what was good public policy which had nothing to do with our case but that clearly in this case may be not there was no idea individually negotiate a contract that says we understand we're buying you out of your rights are you know the state takes a look at brand and says well it's just this kind of vague abstraction overwatch the tenure track statute actually says it's not the actual terms of the tenure statu and that's the statute and then it also says that the contract includes not only expressed terms but also the contemporaneous state laws pertaining to the interpretation and enforcement of a contract that's from footnote seventeen of us trust courts including the stuart case that's cited in our brief and so it lays down this rule that is incorporated into the contract protections that he has and so that is the contract that he had and the district correctly found that there was a substantial impairment of that contract created by the two thousand and eleven statute which as the state asserts did away with the protections of threats and said that teachers teachers did not have any priority over non tenured teachers in the event of a layoff in front of the impairment created by the twenty eleven law was not reasonable or necessary to serve a significant public purpose most  supreme court jurisprudence under the contract clause which invites us to consider whether the steps are reasonable and necessary seems to invite us to become educational policymakers well i don't think so because i think  that the concern about attracting and retaining a quality workforce has been in existence they were in existence when brand was decided they were in existence when black was decided i mean that the fundamental issue in all of those was how do we attract and retain good teachers and so all of those have already been considered in the contract itself and us track trust you know essentially says that when that is taken place when the contracting parties have agreed over these issues it is not up to the state to kind of we visit them and impair the contract on that basis and you know for example the chief justice and u trust in his concrete and he was very clear he said that statement sure but it did not and could not have known the impact of a contract on state interest at the time that the contract was made and here you know the underlying purpose of tenure is to is to make a bargain the teachers that you will you will be part of our stable and competent workforce and in exchange for that you will get you a good job security and we will pay you less and so the contract is should remain in force unless there are some kind of unforeseeable our unforseen circumstances that really call for a change and that that would necessitate an impairment and i think the confounding thing about the state's position here and this is something that you remarked on such hamilton is a little regard they show for the controlling cases like rand and watson and really how little regard they show for the animating principle of the contracts clause you know that the most basic level the contract clause means the much concede that brand is not close to what the supreme court would say now and it has the curious effect that there's a teacher tenure system as a matter of constitutional law in indiana but not in any of the other forty nine states well i don't think that's true in both minnesota and alabama have followed brand and said art they can do whatever they want to see the matter as a matter of their domestic law but the current supreme court view is that statutes are not contracts and statutes can be freely amended at any time without violating the contracts close well i would to say good or bad but it is their current bid to well i would disagree that that specific features of the statute in indiana that the court held that it was that it created contract rights and so what i think brand stands for and continues to stand for is that the court is not going to like me and for that a contract has been created but when the legislature speaks in very specific terms indicating as creating a contract that will enjoy the protections of article one section ten and i want to remark on  full knowledge of the contract rights that brand creates at any time they could have created a different statute that would have operated prospect prospectively that would have made tenure surely statutory they can do that today if they like the legislature has always operated with firm knowledge of what it's doing in terms of creating this contract where it's and so the sense of unfairness i think is unjustified here to what extent maybe this is what you are referring to but to what extent does your a depend upon reliance or interest well i think the bryants interests here are incredibly strong you have you know an unbroken line of cases from brand going tell the president saying that indiana teachers contractual tenure rights will be honored they said and you know you have grant you have brock where the indiana supreme court essentially read would read changes to operate only push back prospectively and say oh indiana teacher has that kind of further knowledge of brand robson brought all of which say that your rights as a tenured teacher are contractual in nature they're going to be honored and they're not going to be paid impaired and that any changes to the ten year old regime are going to operate pro specht of lee but that your rights that you obtained when you got tenure will continue to be  on there's some question about the attorneys fees but that's really a separate judgment and i think that we would have gotten the pinout of treatment out here if i had tried to cross appeal and you know gotten more pages and a separate appeal to try to ask for a judgment that gave me the exact same relief as the judgment i already got this court reviews judgments and not statements and opinions so i think those issues are clearly before the court should they want to reach th me that those virtues and vices don't have anything to do with the federal contractual or federal constitutional claim i think that's exactly right those really deal with the substantial evidence claim did anybody suggest to the district  claim and it was removed from state court we could have gotten it back in state court i assume by just dismissing our federal contract claim and you know pursuing a claim under the state analog both parties have been content to have the federal courts decide both the federal and state law cases issues throughout the case so if you have no further questions thank you for your time  thank you very much the case is taken under advisement our next case for argument this morning