In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-2563

CAROLYN MASCOW and LOCAL 571 OF THE ILLINOIS 

FEDERATION OF TEACHERS,

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF FRANKLIN PARK SCHOOL DISTRICT 

NO. 84; DAVID KATZIN, ITS SUPERINTENDENT; and HEIDY 

LAFLEUR,

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.

____________________

ARGUED FEBRUARY 20, 2020 — DECIDED MARCH 3, 2020

____________________

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, 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. 19-2563

ing again—as it did. She contends 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 and 

that the “unsatisfactory” rating violated the First Amendment, applied to the states through the Fourteenth. The district court dismissed the due-process claim on the pleadings 

and in a second order granted summary judgment to defendants on the first-amendment claim. 2019 U.S. Dist. LEXIS

120074 (N.D. Ill. July 18, 2019).

Local 571 of the Illinois Federation of Teachers joined 

Mascow as a plaintiff. Although the notice of appeal named 

both 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. During the summer of 2014 she 

told the school’s principal that a planned assembly that 

would require all teachers to stay 30 minutes after the end of 

school would violate the collective bargaining agreement. 

The next summer 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 the 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 made 

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 in 
No. 19-2563 3

2010, met with school officials often, 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 “excellent” rating.

Mascow’s contention boils down to post hoc ergo propter 

hoc, which is the name of a logical error rather than a way to 

prove a violation of the Constitution. This makes it unnecessary to consider the extent to which the First Amendment, as 

opposed to state law, 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 Association v. Perry Local 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).

These decisions, and many others, hold that a person may 

not be deprived of property without notice and 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 opportunity to present her po-
4 No. 19-2563

sition to the decisionmaker. Mascow contends that defendants did not offer her such an opportunity.

The district court dismissed Mascow’s due-process theory, observing that Illinois does not offer hearings to laid-off 

teachers, whether 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 concluded.

The district court did not cite any case for the proposition 

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, 153–54 (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 law 

and hold that, if state law creates a legitimate claim of entitlement, then federal law alone determines whether a hearing is required. By reviving Justice Rehnquist’s bimer-withthe-sweet approach, the district court made a legal error. The 

Justices are free to overrule ArneD, Loudermill, and similar 

decisions, but we are bound by them.
No. 19-2563 5

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 which 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 

state 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 reduction 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 with 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 

ahead 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 mamer whether she used or bypassed 

an opportunity in February 2017; a state need not offer more 

than one opportunity for a hearing about a subject.
6 No. 19-2563

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 oral 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 chain 

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 opportunities satisfy the constitutional need for “some kind of hearing.” Goss, 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 

subjects 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. 19-2563 7

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