thank you my name is sally scott and with my colleague abusers and say we represent the defendant appellants in this case the board of education of the city of chicago and the individual named defendants this case is an unusual posture before it because it is before the court pursuant to supreme court rules funny as this court agreed to answer questions certified to it from the seventh circuit court of appeals the certified questions address the interpretation of two sections of the illinois school code as they applied to laid off tenured teachers within the chicago public school system the questions asked whether the sections of the school code either separately or together give laid off tenured teachers a right to be rehired after production force or a right to certain procedures during the rehiring process the answer to both questions is no now over the last two decades t chicago public school system has undergone dramatic legislative changes by the illinois general assembly designed to fundamentally change how the school operates and this process began in the one nine hundred eighty s there was a grassroots movement to change the chicago school system communities for with the conditions in the local public schools and wanted change the primary focus of the reforms was to shift from centralized bureaucracies just school base to governance and the balance of power shifted from the board of education and labor unions to the local school through their local school councils and authority given to the principals and this was hot fide in article thirty four the school code in article thirty four is specific to chicago public schools and there it states that the general assembly intends to make the individual local school the essential unit for educational governance and improvement and the general assembly placed primary responsibility for school improvement in the hands of the parents the community the teachers and the school principal at the school level their personnel and the latitude that they needed in hiring decisions and it's that pillar of school reform that is at issue today these reforms come before they came after public school employees under the civil service commission rules which apply to those employees they had a specific right to layoff and they had a specific right to recall that was set by the civil service commission personnel rules those civil service commission rules were also actually eliminated as part of the reform legislation those rules do not apply to teachers so it's a different group of employees under a different statutory framework that does not apply to the post reform legislation era and specifically it does and in the legislative history that led to the reforms there is actually a dialogue  that provision is an enabling statute and so it gives the board the authority if it wants to establish procedures governing the layoff or reduction force and the republic such employees but it's an enabling statute does not mandate that they provide recall rules it then goes on to say that they can establish criteria for layoffs reductions in force or we call rights and there we have the disjunctive but that provision importantly applies to all three employees so it applies to janitors custodial employees food service workers office employees anyone in the business office it's in contrast section thirty four eighty four specifically addresses tenure and it addresses what rights tenured teachers have and that describes how teachers are appointed how tenuous attained states that their appointments are permanent subject to removal for causes that set forth in the next section thirty four eighty five it is completely silent however unlike off and recall what it does say that oh is that if there are vacancies that the principal makes the decision to fill new and vacant teaching positions consistent with section thirty four eight point one eight point one in turn states that positions are to be filled based on a candidate skill and ability in that particular position without regard to seniority or length of service now the legislative history on that section and the amendment to section thirty four eighty four is instrumental in answering the question certified by the seventh circuit which is whether tenured teachers have a right to be rehired after an economic layoff prior to nine hundred ninety five section thirty four eighty four addressed layoff and recall and it had very specific provisions in it tenured teachers whose positions were eliminated for reasons other than cause remained on the payroll for twenty five months they had entitlements to interim teaching positions and vacant positions the school code required that the board of the seats you had to bargain procedures for the teachers to apply for vacanc behind the shifting of this language from thirty four eighty four was not to completely delete the the principles that had been there earlier but rather to allow the board to be more creative in its rules and regulations not be bound by the specifics of the supernumeraries and all that many things well and i agree with what the court said there and how you read it the intent of the legislative changes was to eliminate the mandatory procedures that were in place and to give the board the authority if they were going to conduct a layoff to establish their own procedures now what the court noted inland was that the procedure the board established with layoffs were by seniority and that was how the layoffs were done in land and this court found the board had the right to establish their own procedures and it lay out contacts i believe the same principle exactly applies here the board has the right to decide whether or not there's going to be a recall if they have a recall thirty four eight hundred thirty one sets forth criteria that they look at and they can apply as they deem appropriate they've got to select the criteria that are listed there and any other criteria they deem appropriate they get to give the weight to that criteria but it's again it's enabling so if they choose to have a recall they would they have the authority then to set the criteria for that recall as opposed to pre reform where they did not have the ability it was mandated what had to occur both in terms of lay off whether or not they were recall rights and the procedures to be followed suit you agree that the board has the authority to provide for recall despite the sections that you were describing to us moments ago about the authority of principals in terms of hiring if they choose to have a recall i believe they haven't the authority to do so but that authority cannot negate or vitiate eight point one with the principals right to choose or select the staff at their schools so that those two provisions would have to any recall rights have to be consistent with a point one as well are you saying that a principal on his her own initiative made make a decision to employ someone and has the authority to employ but input one also says that the principal makes the appointment and selects the individuals for the school consistent with the minimal requirements the board has the stablished and then the board criteria so for example that if you're going to hire a middle school teacher the middle school teacher must be certified in the subject that they're teaching minimal criteria like that if that teacher me some minimal criteria and yes i believe the board does approve that appointment statutorily to follow through with that in the land case later in the in case there's this discussion about whether or not the board can delegate its authority story that we just were talking about here principals to principals yes it could delegate it to others it could delegate it to the superintendent it could but the board itself have to act on the layoff of the teachers that's right just as the board to affirmatively employ the teacher but it's still the principal who makes the recommendation on appointment for the teacher similarly the principal can make recommendations on the layoff but only the board as the statutory employer has the actual authority to lay off and in eight point one the legislature gave the principals more authority and the left in candidates for hiring in terms of what it set forth with the criteria than it did on layoffs effect saying or not that we've been the argument you're making is saying you know you still can't discharge list you prove cause but you can lay somebody off without cause and never hire them back without ever finding ca chance and in the land case have distinguished between discharges for cause and layoff it discharged for cause suggest some level of misconduct lack of performance or malfeasance the protections for tenure teachers or out of the classroom if you're laid off you have a classroom you're on the streets o c correct so getting back into the classroom whether through a grievance arbitration procedure on the destruction challenge we're coming back because there's there's now more economic need or is this really just subterfuge subterfuge that you know we could we could lay everybody off tomorrow and tomorrow bring them selectively back and never just charge one person well it's not that's the most extreme it is not a subterfuge because the court in land you know references a good faith lay off the basis of the layoff in this case has not been challenge that it was for economic necessity it was not a dis terminating teachers for cause so there is a distinction i would also say that is the outcome of what the general assembly did the general assembly retained the protections for tenure teachers with cause dismissals removed the provisions on layoff and recall and replaced it with a statement of how vacancies are to be filled that was the intent of the general assembly again going back to the fundamental premise that the principle is responsible for what happens in that his or her school and they have to have the ability to select their staff because they are accountable now for their school  of how the statute now refers to how new positions and vacancies are filled now there is and i refer to this member of section four point five the illinois education labor relations act  states that decisions to lay off are permissive subjects of targeting not mandatory so the board can implement a layoff without having to bargain it but the impact of that decision does need to be bargained if the union request impact includes any sort of recall or rehiring rights so it is certainly possible that the union can go to the board and request to bargain over the impact is i understand what you're saying today though if the layoff was pretextual or tantamount to what amounted to a bad faith type of effort to to discharge where they thought they had cause and didn't want to go through the procedures for crimes would be your position then there'd be a viable action by the tenured teachers to show there wasn't a good faith effort i mean something like a proclaim correct correct that option would be available to them whether it be some sort of you know first amendment constitutional free speech claim retaliation a violation of the grievance process there would be recourse for that if  there is no dispute that there is no issue really into the atmosphere is correct i see my light is on from the fair for the customs thank you consistent with eight point one what does eight point one say eight point one says that the right to employ discharge or layoff shall be vested solely with the board the principal shall fill positions by appointment and may make recommendations regarding the employment discharge or layoff of any individual were on all fours in complete agreement with this court's two thousand two land decision and the statement in the land decision in particular that the principals were all under eighteen thirty one where the principal is not even mentioned the principals role in eight hundred thirty one is entirely advisory eight point one does say that appointments are made by the principal but if you look at the fifth paragraph where that eight point one where that language appears and we've the whole quote it says made by the principal in accordance with procedures a staff leash and provided by the board procedures that could be under eight hundred thirty one procedures under which the principal has no role whatsoever so it's easy and it's actually the desirable to give effect to both these provisions principles can select from a recall list a stablished and provided by the board why do we know that that was going on here because that's what was going on under the old lady for you it wasn't just by rote seniority i mean the principal has some selection procket but it's  under procedures established by the board it's selection from a recall list the board sends up or three the principal may take one or other the teacher doesn't necessarily want to go to the school as there's usually some sort of mutual consent it's worked out in that way but that doesn't negate eight hundred thirty one and it's a fairly strange notion that one sentence in section eighty four that the principals have the right to select negates the board's power u r eighteen thirty one it doesn't make any sense so if you look at the new twenty four twelve which was just passed by the legislature it's a great call procedure for outside chicago that's pretty much what is going on here they have breaking news of teachers by recall but the principal is going to have some power to select which particular teacher comes along land in our view settled conclusive the argument that the board is making in this case land of says that hiring is vested solely with the board why does land say that because section eight point one says that the right to employ discharge or lay off shall we've bested soley what the board this court great emphasis to that in the land decision what is going on in this case what is at the heart of this case is that the board just refuses to implement eight hundred thirty one it refuses to have truly office instead of hiring firings it's refusing to use the detailed mandatory these are mandatory criteria for filling vacancies that were set out with great to tell by the legislature nine hundred thirty one judge court in the united states district court decision said you know  such employees now it's true that when it gets to the quite sure the language goes into the destructive but that could also be read in the country on top of that it would be illogical if the board had to have roles for layoff and recall but the criteria which are supposed to be mandatory optional or only modifies criteria that should be used in the process the obligation is to help lay off and recall and why because these teachers have both and but the second perhaps maybe the more important argument is that the board that the statute has uses the terminology to lay off in discharge differently so for example go back to the point one which is quite focused on then assuming that the employee has some tenure right and you can have a stronger ten year right than permanent appointment paul says that if there is a ten year write a discharge eliott that is a discharge would require due process hearing so in  the district court in this case said closely resemble eight hundred thirty one given the recall girls that existed there the court this court would not require a due process hearing because the employee had a chance to continue employment so due process hearing because there is not a complete cessation of employment if you interpret section eight hundred thirty one to get the more the power to lay off i e discharge teachers with permanent appointments this court's decision and power would require constant due process hearing you don't want to go there so the logical way of been trumpeting eight hundred thirty one which does use the word layoff and not discharge which is used elsewhere in the statute is used in section eighty four it's used in section eighty five it's not just in section eight hundred thirty one it's used in section eight point one it's not used in section eight hundred thirty one the logical way of reading it is not just the literal way and not just the way that the internal logic of the school cook requires but it's the way that power found a implied or existing right to recall to avoid the constitutional problem of turning the layoff of  remove that we call a male procedure from section eighty four which gave the teachers a permanent appointment and an eight hundred thirty one they specifically in this is just plain language say that the board has the power to establish rules providing for lay off the rejection and force of employees and recall of such employees it's both and but term not term and of all logically if the  code is using the word layoff and not just charge which it uses in another context there there is also that additional internal logic is there is i think from reading it as counsel would argue and you're not going to have a chance to get up here so again so ok so i want to hear hear your and i think and i don't want to put words in the mouth of counsel but as i understand the argument that i think they would say the right of crisis is a far cry from the right to be there isn't a right to be hired this is a right to be recalled we disagree with the formulation of the seven circuits question if you have a recall right you continue as an employee that doesn't guarantee you're going to be recalled and the board has flexibility in setting up the recall procedure but there has to be a recall procedure let me put it this way under section before the permanent appointment implies a right to be recalled certainly over new hires off the street which is what is going on in this case they're hiring hundreds of new hires filling vacancies like we put out an exhibit elop our appendix here there are thirty five pages of bacon positions there going to new hires up the street not to these teachers most of whom have superior next line of valuations and are highly qualified for these positions so under section eighty four there is a implied right for an employee with a permanent appointment to be considered for this in preference to new hires under eighteen thirty one there is a substantive right to recall under eighteen thirty one or so the recall procedure is exhausted in preference to new hires let last question because i don't i really do want to hear your  position on this why is as opposing counsel state a better rate reading of eighteen thirty one is not that it grants teachers a right to a process but rather grants to the board the power to establish a recall and eight hundred thirty one says you have to have in place rules for layoff or reduction in force of employees and we call it such in place and it has mandatory quite curious you know the legislature it's clearly concerned to have merit based selection if there's going to be a reduction in force what's happened best possible teaching complement that exists even if it's smaller so there are all these criteria that have to be considered the problems considering none of those and it's bringing in new hires up the street this is not just a legal interpretation this is a huge disservice to the children chicago these are new teachers who are throwing these thirty five pages of vacancies who've never been in a classroom they've never taught we don't know if they're going to control a class the board's own agency the consortium for school research says that the majority of them wash out after four years those people are being put in right now in preference to people who have excellent spirit valuations that's a travesty and that is why  of the legislative history to tell this what we were god is a perry tale about how everything was turned over to local principles aside from the fact it would be a lot more honest with the board came up here and said we're asking you to reverse land land settled this decision but it's an excellent decision we agreed that there is a right to lay off employees who have permanent appointments but that power is limited third these are permanent appointments permanent in the dictionary sense permanent but it's been permanent for the hottest sixty seventy years in the school code it wasn't the union that put this in there weren't any teacher unions then permanent as in the dictionary permanent by state law permanent must mean something more than day to day at will employment and they're coming up before the court and said why don't you give us an interpretation that turns it into day to day i will employment this quote should not do that and there's just no statutory text or anything or even a citation from legislative history that says that they were getting rid of ten year or that they were not centralizing power in the board when they put in the language that says exclusive power to hire discharge layoff is vested sole in the board the principals role is entirely advisory as this court said in miami how can how can they make this argument in light of land unless they ask the court viewed as a permanent situation and in this case the court goes on to say the very statute with authorizes such action requires preferential treatment as to reemployment what was that statute section eight of the civil service code the u s district court said the statute closely resembles eighteen thirty one and it's true that the civil service commission complied with the statute and it's true section four point five of the illinois education labor relations act makes recall a bargain to both subject well the union and we agree collective bargaining is fine it's a good it's a great thing but section ten b of the illinois education labor relations act makes clear that nothing that you do in collective bargaining can trump can supersede the parties for collective bargaining process shall not affect or implemented provision in the collective bargaining agreement if the implementation would be in violation of inconsistent with or in conflict with any statute or statutes and acted by the general assembly and it's our view that there is no principle for all that requires the saying that you know our view of this is that there we call procedure is part of the substantive right to a permanent employee appointment that goes back to hankinson and other cases wrong not to do this and what's going on right now in chicago schools the replacement of tenured teachers with new hires off the street bookies have never been in a class we should not be doing that to our children thank you as i'm sure you expect on behalf of the board of education we have to strenuously object to the characterization of the new teachers out here are being brought into chicago public schools because we cannot disagree more strongly on the merit of the teachers regardless though that's not the issue before this court because this case came to the court on certified questions and the first certified question is to tenured teachers have a right to be rehired under either thirty four eighty four or thirty four eight thirty one after an economic reduction in force i understood my opposing counsel to say during his argument they did not have a right to be rehired which i believe answers the seventh circuit question now he said that was the wrong question that the question is whether or not they have a right to recall but and recall frankly has not been used in this case consistent with the term that we call it is which means the individual has a right to be called no such provision in article thirty four that was removed from the statute and all the counsel sadness article thirty four implies a right to be recall the exact contrary is what it sat article thirty four eighty four is what defines tenure and says what tenure me it's what the general assembly intends tenure to mean and there they say vacancies are mandate to recall is simply specious that you cannot from looking at that high in language find a right to a vacancy it's directly contrary to what the general assembly intended as part of the school reform i also i disagree very strenuously as well as to the characterization of the legislative history but we covered that extensively in our brief and i'll rely on our brief for that but the principals are accountable to their local school council the local school council elects a principal or recollects them to the position every four years they are responsible for the educational plan and outcomes of their building to do so they need to be able to select the staff they believe appropriate in their school which is why the general assembly did not create a blanket right to recall into the schools because that would vitiate the principal's right to select their staff and article twenty four which does have a right to recall has no principal selection in the process if you are the most senior teacher you get the open p regardless of which school it is there is not the principal selection here the general assembly listening to the grassroots efforts the community organization sad we want principals to have that right to choose and gave it to the principals also want to point out back to the description of the powell versus jones case in that case the teachers had a right to light off it wasn't implied it was there it said in the personnel code that they had a right to be recalled after a layoff which is different than our case where we have the enabling statute that allows the board to implement a recall does not mandate a recall because it's not statutorily required then going back to your honor's question about section four point five we are not saying that that four point five somehow overrides an obligation from for that if they wanted to not that the board had to agree to it but they could have proposed that they chose not to do so and instead pursued this avenue of litigation finally the courts this course decision in land versus board of education i do think it's very much on point and i think that if what we're asking for in this case is consistent with the board or this court's decision in land in land the employees who were laid off position within the chicago public school system were notified of their honorable terminations or laid off and their employment with the school district ended they did not have a recall white board of ed has never had a recall right for those ten d teachers subsequent to the legislative amendments so this case actually is very much on point with this court's decision in land