Due Process Violation

Listen to this article

7^th Circuit Court of Appeals

Case Name: Carolyn Mascow, et al. v. Board of Education of Franklin Park School District No. 84; et al.

Case No.: 19-2563     

Officials: BAUER, EASTERBROOK, and MANION, Circuit Judges.

Focus: Due Process Violation

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 hiring 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. 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 matter 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.

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

Affirmed

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.