### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 2563
C AROLYN M ASCOW and L OCAL 571 OF THE I LLINOIS F EDERATION OF T EACHERS , Plaintiffs

- Appellants ,

v.

B OARD OF E DUCATION OF F RANKLIN P ARK S CHOOL D ISTRICT N O

. 84; D AVID K ATZIN , ITS S UPERINTENDENT ; and H EIDY L A F LEUR , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17

- cv

- 6441

— Sharon Johnson Coleman
, Judge

.

____________________
A RGUED F EBRUARY 20, 2020

— D ECIDED M ARCH 3, 2020

____________________

Before B AUER , E ASTERBROOK , and M ANION , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Carolyn Mascow, a teacher who had tenure under Illinois law , was laid off in 2017. Because her latest rating was “unsatisfactory,” she was not only first in line for layoff when the school lost one position but also lacked any recall rights if the school district began hir-2 No. 19

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ing again

— as it did. She conte nds in this suit under 42 U.S.C. §1983 that the Due Process Clause of the Fourteenth Amendment entitled her to a hearing before the layoff andthat the “unsatisfactory” rating violated the First Amendment, applied to the states through the Fourteenth. The district court dismissed the due

- process claim on the pleadingsand in a second order granted summary judgment to defendants on the first

- amendment claim. 2019 U.S. Dist. L EXIS 120074 (N.D. Ill. July 18, 2019).
Local 571 of the Illinois Federation of T each ers joined Mascow as a plaintiff. Although the notice of appeal named bot h Mascow and Local 571 , their joint brief does not make any argument on the Union’s behalf. We treat its claims as abandoned

. Mascow became co

- president of Local 571 in 2010, and her first

- amendment claim rests on two times she acted as the Union’s representative. D uring the sum mer of 2014 she told the school’s principal that a planned assembly that would require all teachers to stay 30 minu tes after the end of school would violate the collective bargaining agreement. The next sum mer she told the district’s superintendent that a proposed motivational speech would violate the collective bargaining agreement by requiring teachers to stay late. The school cancelled one event and revised th e other in a way that Mascow agreed would satisfy the collective bargaining agreement . Mascow contends that her evaluations suffered as a result, leading to the “unsatisfactory” rating that mad e her first in line for layoff and nixed any recall rights.
The district court held that a reasonable jury could not find that the 2014 and 2015 meetings caused a reduction in Mascow’s ratings. She became the Union’s co

- president inNo. 19

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2010, met with school officials oft en, and initially retained good ratings . A bad rating in 2017 could not reasonably be amributed to two specific meetings in the summers of 2014 and 2015

— especially not when Mascow’s co

- president, who amended the 2015 meeting , retained an “ex cellent” rating.

Mas cow’s contention boils down to post hoc ergo propter hoc , which is the name of a logical error rather than a way toprove a violation of the Constitution. This makes it unnecessary to consider the extent to which the First Amendment, as opposed to state la w, protects the interests of union representatives engaged in collective bargaining with public schools. Cf. Minnesota State Board for Community Colleges v. Knight , 465 U.S. 271 (1984) ; Perry Education Associati on v. Perry Lo cal Educators’ Association , 460 U.S. 37 (1983)

. Likewise we need not consider the potential application of GarceDi v. Ceballos , 547 U.S. 410 (2006) , to a union representative’s speech that concerns workplace management

. The due

- process claim stands differently, however. Mascow, who had worked as a teacher in Illinois for more than 20 years, had tenure under state law and could be fired only for cause or as part of a reduction in force. 105 ILCS 5/34

- 84, 34

- 85; Land v. Board of Education , 202 Ill. 2d 414 (2002). This gave her a legitimate claim of entitlement, which is to say a property interest in her job, as a mamer of constitutional law. See, e.g., Board of Regents v. Roth , 408 U.S. 564 (1972 ) ; Cleveland Board of Education v. Loudermill , 470 U.S. 532 (1985). T hese decision s, and many others, hold that a person may not be deprived of property without notice a nd an opportunity for a hearing. Process sometimes may be informal, see Goss v. Lopez , 419 U.S. 565 (1975 ), but the holder of the property interest must have some opport unity to present her po-4 No. 19

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sition to the decisionmaker. Mascow contends that defendants did not offer her such an opportunity.
The district court dismissed Mascow’s due

- p rocess theory, observing that Illinois does not offer hearings to laid

- off teachers, wheth er or not they have tenure . Because Mascow did not have a right to a hearing under state law, she did not have a property right either and lacks a constitutional claim, the district court conclud ed. The district court did not cite any case for the proposit ion that the absence of a right to a hearing under state law knocks out a due

- process claim under federal law, but the view is not novel. Justice Rehnquist espoused it in ArneD v. Kennedy , 416 U.S. 134, 15 3

– 5 4 (1974), concluding that a litigant must take the bimer with the sweet

— that a substantive claim of entitlement (the sweet) is limited by a statutory denial of hearings (the bimer), adding up to no property interest. The problem for defendants is that Justice Rehnquist was joined by only two others ( Chief Justice Burger and Justice Stewart), while the remaining six Justices rejected the conclusion. See 416 U.S. at 166

– 67 (Powell, J., concurring, joined by Blackmun, J.); 416 U.S. at 177

– 78 (White, J., concurring in part); 416 U.S. at 209

– 11 (Marshall, J., dissenting, joined by Douglas & Brennan, JJ.). Post

- ArneD decisions such as Loudermill routinely treat substance as a mamer of state l aw and hold that, if state law creates a legitimate claim of entitlem ent, the n federal law alone determines whether a hearing is required. By reviving Justice Rehnquist’s bimer

- with

the

- sweet approach, the district court made a legal error. T he Justices are free to overrule ArneD , Loudermill , and similar decision s, but we are bound by them

.No. 19

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What could Mascow contest at a hearing? Not Illinois’s rule that tenured teachers with low ratings are laid off ahead of untenured teachers with bemer ratings. The Due Process Clause does not entitle people to hearings at whic h they will contest the wisdom of substantive legislative choices. Atkins v. Parker , 472 U.S. 115 (1985)

. Nor would Mascow be entitled to a hearing to address whether she should have been given time to improve before the layoff. Again that is a mamer of

s tate substantive law. Hearings deal with adjudicative facts, not legislative ones. Bi

- Metallic Investment Co. v. State Board of Equalization , 239 U.S. 441 (1915)

. Mascow might in principle contest defendants’ contention that she was laid off as part of a r eduction in force, but she appears to concede that her school lost one position for her specialty, and as the lowest

- rated teacher in that specialty she was automatically the one to go. This leaves the possibility of contesting the “unsatisfactory” rating. If Mascow’s rating had been “proficient” or higher , someone else would have been laid off

— and, although a “needs improvement” rating would not have prevented her layoff, it would have provided recall rights that teachers rated “unsatisfactory” do not have

. The problem wi th this potential subject is that Mascow was rated “unsatisfactory” in February 2017, one month before being told that she would be laid off (and four months

a head of the layoff’s effective date) . If she had an opportunity for a hearing when she received the “unsatisfactory” rating, she would not be entitled to a second hearing when laid off. And it would not mam er whether she used or bypassed

an opportunity in Febru ary 2017 ; a state need not offer more than one opportunity for a hearing about a subject.6 No. 19

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Neither Illinois nor Mascow’s school district offers a formal process for contesting a rating. The litigants agree, however, that teachers have informal opportunities to seek review . In 2015, when Mascow was rated “proficient” and disagreed with her evaluation on some categories, she complained to Heidy LaFleur, the school’s principal, who invited her to submit additional information. After considering Mascow’s submissions, LaFleur raised her rating in one of the categories. At ora l argument counsel for defendants contended that an opportunity for face

- to

- face discussions and wrimen submissions supplies all the process due for an adverse evaluation. Mascow’s lawyer responded that in 2017 she asked David Karin, the school district’ s superintendent, to raise her “unsatisfactory” rating, and that he refused even
to entertain the possibility. Mascow submits that this shows the absence of an opportunity for review; defendants say that it shows, instead, that someone who bypasses the cha in of command cannot expect success. Neither the district judge nor the parties ’ briefs in this court address just how teachers can obtain review of their ratings and whether those opport unities satisfy the constitutional need for “ some kind of h earing.” G oss , 419 U.S. at 579 (emphasis in original) . Neither the district judge nor the litigants has amempted to apply the approach prescribed by Mathews v. Eldridge , 424 U.S. 319 (1976), for determining what kind of process is due in a given situation. It would be inappropriate for an appellate court to try to resolve these sub jects without briefs focused on the vital issues. They should be considered first by the district court. The judgment is vacated to the extent that it addresses Mascow’s claim under the Due Process Clause and other-No. 19

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wise is affirmed. The case is remanded for proceedings consistent with this opinion.