No.

112566

IN THE SUPREME COURT OF ILLINOIS

CHICAGO TEACHERS UNION, LOCAL NO. 1, AMERICAN FEDERATION OF TEACHERS, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, a body politic and corporate, MARY RICHARDSON-LOWRY, NORMAN BOBINS, TARIQ BUTT, ROXANNE WARD, PEGGY DAVIS, ALBERTO CARRERO, JR., and RON HUBERMAN, in their official capacities, Defendants-Appellants.

Certified Questions under Supreme Court Rule 20 On Appeal Before the The United States Court of Appeals for the Seventh Circuit Case No. 10-3396 District Court Judge David H. Coar

REPLY BRIEF OF DEFENDANTS-APPELLANTS

FRANCZEK RADELET P.C. James C. Franczek, Jr. Sally J. Scott Abizer Zanzi 300 South Wacker Drive, Suite 3400 Chicago, IL 60606 (312) 986-0300

BOARD OF EDUCATION OF THE CITY OF CHICAGO Patrick J. Rocks Susan M. O'Keefe 125 South Clark Street, Suite 700 Chicago, IL 60603 (773) 553-1700 Attorneys for Defendants-Appellants

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POINTS AND AUTHORITIES Page INTRODUCTION 105 ILCS 5/34-18(31) and 5/34-84 ARGUMENT 105 ILCS 5/34-18(31) and 5/34-84 I. The term "permanent appointment" in Section 34-84 does not give tenured teachers a right to be rehired after an economic layoff A. This Court has already rejected CTU's argument that Section 34-84 precludes honorable terminations or layoffs 105 ILCS 5/34-18(31) and 5/34-84
Land v. Board of Educ. of the City of Chicago,

1 1, 2 3 4 4 4 4, 5 5 5 6 6, 7 7 7 7

202 I11.2d 414, 417-418, 422-24 (2002)

Powell v. Jones, 56 I11.2d 70, 80 (1973) B. The legislative history compels the answer that laid off tenured teachers do not have a right to be rehired into vacancies

105 ILCS 5/34-8.1 and 5/34-84

C. CTU's reliance on recall rights for other public employees is unavailing

105 ILCS 5/34-84

Birk v. Board of Educ. of Flora Comm., Sch. Dist. No. 35,

104 I11.2d 252 (1984)

Donahoo v. Board of Educ. of Sch. Dist. No. 303 of Moultrie County, 413 Ill. 422 (1952) Deem v. Board of Educ. of Triad Comm. Unit Sch. Dist. No. 2,

200 I11.App. 3d 903 (1990)

Johnson v. Board of Educ. of Decatur Sch. Dist. No. 61,

85 I11.2d 338 (1981)

Lenard v. Board of Educ. of Fairfield Sch. Dist. No. 112,

8 8
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74 I11.2d 260 (1979)

Hankenson v. Board of Educ. of Waukegan Twp., 15 I11.App. 2d 440, 446-447 (1957)

8 8 8 8 8 8 9 9-14 10 10 11 11 13 13

105 ILCS 5/24-12

Adames v. Sheahan, 233 I11.2d 276, 311 (2009) Mims v. Board of Education, 523 F2d 711 (7 th Cir. 1975) Powell v. Jones, 56 Il1.2d 70, 80 (1973)

20 ILCS 415/1, et seq

II. Section 34-18(31) of the School Code does not create a right to be rehired or impose mandatory procedures or criteria for recall

105 ILCS 5/34-18(31) and 5/34-8.1

Elementary Sch. Dist. 159 v. Schiller, 221 I11.2d 130, 145 (2006) Powell v. Jones, 56 I11.2d 70, 79-80 Land v. Bd. of Educ. of the City of Chicago, 202 I11.2d at 425 C.H. Sprague & Son Co., 175 N.L.R.B. 378, 384 n.8 (N.L.R.B. Dec. & Order Apr. 16, 1969)

115 ILCS 5/4.5 Ill. Pub. Act. 97-0008 (eff. June 13, 2011)
III. CTU's interpretation of the School Code would require this Court to improperly invalidate Section 34-8.1's requirement that local principals select their staff

14 14, 15 15 16 16 16

105 ILCS 5/34-8.1 105 ILCS 34-84 Pub. Act 85-1418 & Pub. Act 86-1477
CONCLUSION

105 ILCS 5/34-18(31) and 5/34-84

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INTRODUCTION

This matter is before the Court for the limited purpose of deciding certified questions of state law. Specifically, the Seventh Circuit has asked this Court to decide whether two provisions of the Illinois School Code, 105 ILCS 5/34-84 and 105 ILCS 5/34-18(31), separately or together, give Chicago Public School tenured teachers the right to be rehired after an economic layoff or the right to certain procedures during the rehiring process : In its response, Plaintiff-Appellee Chicago Teachers Union attempts to color this Court's opinion by repeatedly asserting that Defendants-Appellants (collectively, the Board) have discharged hundreds of highly qualified tenured teachers while at the same time hiring hundreds of unqualified, inexperienced and incompetent teachers. CTU goes so far as to assert that principals hire teachers "without any regard to merit." (P1. Br. at 15.) Not surprisingly, CTU cites no record evidence to support its inflammatory characterizations because there is nothing in the record to cite; its contentions have absolutely no factual basis. Rather, CTU is simply wrong, and it is nonsensical to assert that the Board of Education is laying off "elite" teachers so that it can replace them with unqualified teachers. As this Court would expect, it is the Board's position that principals select candidates for vacancies based on merit and ability, as required by the School Code, and that the most qualified persons are selected for open positions. Both the CTU's and Board's version of facts are irrelevant to this Court's consideration, however. This Court is not charged with deciding, and lacks jurisdiction to decide, factual issues in this case or to apply the law to any facts in this case. The Court is tasked only with interpreting

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specific statutory provisions of the Illinois School Code, which the Seventh Circuit will then consider in ruling on the Fourteenth Amendment due process claims pending before it. As such, CTU's distorted version of the facts in this case is a diversion and should be disregarded. Also in its response, CTU has side-stepped the questions certified by the Seventh Circuit and instead addresses whether a tenured teacher has a right to fill a vacancy over an equally or less qualified teacher without experience. (P1. Br. at 10, 11). Presumably it has done so to present a fact pattern that it perceives to be more favorable and so more likely to attain its desired result. However, the questions presented by the Seventh Circuit do not assume a pre-designated fact pattern, and this Court's statutory interpretation should not do so either. Notably, however, CTU does not contend that a tenured teacher has an absolute right to be rehired in a reduction in force, as under its statutory interpretation a more qualified "new hire" would be entitled to a vacancy over a laid off tenured teacher. Nothing in CTU's response changes the conclusion that Sections 34-84 and 3418(31) do not allow the finding of a right to be rehired after an economic reduction in force or a right to certain procedures during rehiring. CTU's argument that vacancies should be filled with laid off tenured teachers is a policy position; it is not the law. For decades, state legislatures across the country have debated how to respond to the challenges of improving student performance in large urban areas. Not surprisingly, there are many differing policy positions on how to improve urban public education. In Illinois, the General Assembly decided the superior policy position to address the public education challenges of Chicago was to decentralize the CPS system and give staffing

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authority to local principals, while giving the Board maximum flexibility to manage its workforce and respond to fiscal and operational exigencies by eliminating mandatory procedures for laid off teachers. CTU may disagree with these policy choices and legislative changes, but the General Assembly was entitled to make them. CTU advocates a return to the pre-school reform legislation era, when laid off tenured teachers had a right to vacant positions throughout the school district. But the reform legislation was passed, and neither statutory section gives CTU the rights it seeks. CTU wants to eradicate the concept of principal selection, codified in Section 34-8.1 of the School Code, which requires principals to select teaching staff for their schools based on merit and ability and without regard to seniority. For the Court to find that tenured teachers have a system-wide right to be rehired following an economic layoff, it would need to invalidate Section 34-8.1, which has governed the staffing of CPS's schools for more than two decades, and in so doing reverse groundbreaking public school reform legislation. Simply put, the plain language of the School Code and the clear and undisputed legislative history preclude this Court from finding a substantive right to rehire or a right to a specific procedure for rehire following an economic layoff. Therefore, and for the following reasons, the Board urges this Court to answer the Seventh Circuit's certified questions in the negative and find that no such rights exist. ARGUMENT Earlier in this case, CTU stated on the record that it "wishes to make clear that no teacher has a substantive statutory 'right' to a vacant position" in the CPS system. (Ex. 1, P1. Reply Br. in Supp. Mot. for Prel. Inj.). Now, in an about-face, CTU contends that

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Sections 34-84 and 34-18(31) of the School Code each independently give laid off CPS tenured teachers a preferential and substantive right to vacancies within the CPS system over equally or less qualified new teachers without experience. CTU further argues that the Board must create recall rules with specific weighted criteria that would give tenured teachers preference for vacant positions over new hires. Finally, CTU argues that local principals have no discretion to select teachers to fill its vacant positions and must fill those positions according to a prescribed formula rigged to favor laid off tenured teachers over new teachers. CTU's interpretation of the School Code has no merit. There is no support for the CTU's newly asserted preferential hiring rights in the plain text of the School Code, in the legislative history of the School Code, or in case law interpreting the School Code. In order for the Court to find in favor of CTU, it must invalidate sections of the School Code which have stood for more than a decade. It is not an overstatement to say that adopting CTU's interpretation of the School Code would have dramatic consequences for the nation's third largest school system and obliterate over two decades of school reform legislation. But that is exactly what CTU is asking this Court to do.
I.
The term "permanent appointment" in Section 34-84 does not give tenured teachers a right to be rehired after an economic layoff A. This Court has already rejected CTU's argument that Section 34-84 precludes honorable terminations or layoffs

In response to the certified question of whether 105 ILCS 5/34-84 gives Chicago Public School tenured teachers the right to be rehired after an economic layoff or the right to certain procedures during the rehiring process, CTU contends that Section 34-84 "requires the Board to prefer any qualified tenured teacher for a vacant position over an equally or less qualified new teacher without experience." (P1. Br. at 11). 4
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CTU's contention that tenure status gives a preference for vacant positions over equally qualified candidates is not supported by the plain statutory language. Section 3484 states that "appointments and promotions of teachers shall be made for merit only," describes how tenure is attained, and provides that tenured teachers appointments are "permanent" subject to removal for cause as set forth in Section 34-85. 105 ILCS 5/3484. Section 34-84 does not address layoffs or recall rights, but does address how vacancies are to be filled: "[t]he school principal shall make the decision in selecting teachers to fill new and vacant positions consistent with Section 34-8.1." Id. CTU cites to a dictionary definition of "permanent" to argue that failing to provide a laid off tenured teacher with a vacant position is the same as discharging the teacher, and, because discharges may be only for cause, the Board cannot end the employment of a tenured teacher by layoff. But CTU's argument has already been considered and rejected by this Court, which has stated that discharges for cause and layoffs are separate and distinct employment actions. Land v. Board of Educ. of the City
of Chicago, 202 Il1.2d 414, 422-24 (2002); Powell v. Jones, 56 Il1.2d 70, 80 (1973)

(explaining that discharge carries an adverse effect while a layoff does not reflect unfavorably on an employee). In Land, the Board "honorably terminated," or laid off, 138 tenured teachers. Land, 202 Il1.2d at 417-418. Five of those teachers sued, alleging that their honorable terminations violated Section 34-84 because they could be removed only for cause. This Court affirmed that Section 34-84 and Section 34-18(31) are separate statutory provisions and that Section 34-84's provision of a "permanent" appointment does not exempt tenured teachers from layoff or honorable terminations. Id. at 424-425. CTU attempts to distinguish Land by stating that the plaintiffs there received

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Appendix H benefits and so went into a "reassignment pool" before they were honorably terminated. (Pl. Br. at 20). But CTU then states that Appendix H is not a recall procedure, so the fact that plaintiffs may have been placed in a reassignment pool before they were laid off without recall rights does not distinguish the present case from Land.
(Id.).

B.

The legislative history compels the answer that laid off tenured teachers do not have a right to be rehired into vacancies

CTU gives short shrift to the legislative history of Section 34-84 and summarily states that the 1988 and 1995 school reform legislation did not change the grant of a "permanent" appointment with removal only for cause. But the reform legislation did significantly alter tenured teachers' rights during a reduction in force. Prior to the 1995 amendments to the Illinois School Code, Section 34-84 designated tenured teachers whose positions were eliminated for reasons other than cause as "reserve teachers," who remained on the Board's payroll for 25 months and were entitled to interim teaching positions and appointments to unfilled vacancies for which they had proper certification. 105 ILCS 5/34-84 (1995). In 1995, the General Assembly removed this provision and eliminated any right arising from Section 34-84 for tenured teachers to fill new or existing vacancies after a reduction in force. Instead, the General Assembly mandated in Section 34-84 that principals must select teachers to fill new and vacant positions consistent with Section 34-8.1. Section 34-8.1 requires that appointments are made by the principal in each school "based upon merit and ability to perfoain in that position without regard to seniority or length of service." 105 ILCS Section 5/34-8.1. Given these substantive changes, there is only one possible answer to the Seventh Circuit's question of whether Section 34-84 gives laid off tenured teachers a right to be 6
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rehired into a vacancy. The answer is no, and there is no merit to CTU's argument that the current version of Section 34-84 gives laid off tenured teachers a substantive right to be rehired into vacant positions within CPS. CTU's position that tenure status gives laid off teachers a right to a vacancy in any of the 675 Chicago schools cannot be reconciled with Section 34-84's requirement that vacancies be filled in accordance with Section 8.1. Rather, Section 34-84 requires that principals select teachers for their school without regard to seniority or length of service, so that tenure status does not matter in filling vacancies. While it may be understandable that as an advocate for its members, CTU wants to return to the pre-reform legislation era when laid off tenured teachers were entitled to vacant positions, that is not the current law. Finally, CTU does not address whether Section 34-84 gives laid off tenured teachers the right to certain procedures during the rehiring process, and so the Board understands that CTU concedes that point.

C.

CTU's reliance on recall rights for other public employees is unavailing

Because CTU cannot point to any statutory language in Section 34-84 that grants the right to rehire it seeks for its laid off tenured teacher members, it points to the explicit statutory rights of other public employees and tries to claim those rights as its own. The cases which CTU cites in support of its contention that Illinois courts have protected layoff and recall rights of tenured teachers involve school districts subject to Article 24 of the Illinois School Code, which is statutorily inapplicable to CPS. See Birk v. Board of Educ. of Flora Comm, Sch. Dist. No. 35, 104 Ill.2d 252 (1984) (cited at Pl. Br. at 15); Donahoo v. Board of Educ.of Sch. Dist. No. 303 of Moultrie County, 413 Ill. 422 (1952) (cited at Pl. Br. at 15); Deem v. Board of Educ. of Triad Comm. Unit Sch. Dist. No. 2, 200

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Ill. App. 3d 903 (1990) (cited at Pl. Br. at 15); Johnson v. Board of Educ. of Decatur Sch. Dist. No. 61, 85 Il1.2d 338 (1981) (cited at Pl. Br. at 16); Lenard v. Board of Educ. of Fairfield Sch. Dist. No. 112, 74 Il1.2d 260 (1979) (cited at P1. Br. at 16); Hankenson v. Board of Educ. of Waukegan Twp., 15 Ill.App. 2d 440 (1957) (cited at Pl. Br. at 16-17). 1 Article 24 of the School Code contains an explicit recall provision for laid off tenured teachers for all Illinois school systems outside of Chicago. 105 ILCS 5/24-12. The fact that an explicit recall provision exists in Article 24, and does not exist Article 34, makes it clear that the legislature did not intend to give laid off CPS tenured teachers the postlayoff recall rights that are afforded to non-CPS teachers. See Adames v. Sheahan, 233 Il1.2d 276, 311 (2009). Second, CTU relies on two cases which found that civil service employees had post-layoff recall rights based on explicit recall rules promulgated under a decades-old version of the Civil Service Commission Personnel Code. Mims v. Board of Education, 523 F.2d 711 (7th Cir. 1975) and Powell v. Jones, 56 Ill.2d 70, 80 (1973); see also 20 ILCS 415/1, et seq. CTU admits that tenured teachers "are not under the jurisdiction of the Civil Service Commission." (Pl. Br. at 9) (emphasis in original). Nevertheless, it argues, without basis, that tenured teachers should have "more emphatic" post-layoff rights than administrative staff who were covered under the then-existing civil service rules. (Id. at 14). As with the non-CPS tenured teachers, the fact that the civil service employees in Powell and Mims had explicit post-layoff recall rights does not mean CPS tenured teachers also have the right to be rehired into a vacant position.

CTU erroneously claims that the court in Hankenson "found a preferential right for tenured over nontenured teachers. . . based on the very fact of tenure and nothing more." In fact, the court there relied on specific language in Article 24 that required non-tenured teachers to be laid off before tenured teachers. Hankenson, 15 Ill. App.2d at 446-447. 8
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Third, CTU curiously highlights a contractual provision in the parties' collective bargaining agreement, referred to as Appendix H. Appendix H allows displaced teachers to remain on the payroll for a ten-month period while some of these teachers await interim assignments to vacant positions. This provision only applies to displacements resulting from specifically defined changes to an attendance center or program none of which are at issue in this lawsuit. For its part, CTU admits that Appendix H is not at issue in this proceeding, but nevertheless complains that the Board did not apply Appendix H to the 2010 economic layoffs. CTU's reference to Appendix H is completely immaterial; District Court Judge David Coar ruled that Appendix H did not apply in this case October 4, 2010, and CTU did not appeal that ruling. This Court is solely charged with interpreting certain statutory provisions of the School Code, not the meaning of contractual clauses or whether those contractual clauses apply to the 2010 economic layoffs, which would be decided instead pursuant to the parties' grievance procedure set forth in their collective bargaining agreement. II.
Section 34-18(31) of the School Code does not create a right to be rehired or impose mandatory procedures or criteria for recall

In response to the Seventh Circuit's second certified question of whether Section 34-18(31) gives laid off tenured teachers a right to be rehired, CTU contends that the mandatory criteria in Section 34-18(31) gives laid off tenured teachers the right to fill vacant positions district-wide over equally or less qualified new teachers. (Pl. Br. at 19, 28). Logically, then, CTU does not assert that all laid off tenured teachers have a right to be rehired, as more qualified candidates would have a right to a vacancy over laid off tenured teachers. Regardless, Section 34-18(31) does not give laid off tenured teachers a

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right to be rehired; rather, selection of staff is governed by Section 34-8.1 which authorizes principals to select staff they deem qualified. CTU also contends that the Board is required to implement recall rules if it conducts a layoff and that the recall rules must favor tenured teachers laid off in an economic reduction in force. The Court need only read the plain and unambiguous language of Section 34-18(31) to conclude that CTU's interpretation of the statute is a representation of what CTU wishes the law were, rather than what the statutory provision actually is. As an initial matter, the Board is not required to implement recall rules when it implements a layoff. Section 34-18(31) states that the Board "shall have the power . . . to promulgate rules establishing layoff procedures governing the layoff or reduction in force of employees and the recall of such employees." 105 ILCS 5/34-18(31). This simply means that the Board has two enumerated powers: (1) to promulgate layoff procedures; and (2) to promulgate recall procedures. Id. The Board is not obligated to promulgate either.' Further, the Board's powers "include[e], but [are] not limited to, criteria for such layoffs, reductions in force or recall rights of such employees and the weight to be given to any particular criterion." Id. (emphasis). The Court must assume that the General Assembly chose the word "or" when drafting Section 34-18(31) deliberately, and that this use of the disjunctive means what it says that the Board has the power to determine criteria for layoffs or recall. See Elementary Sch. Dist. 159 v. Schiller, 221 I11.2d 130,
CTU analogizes Section 34-18(31) to Section 8 of the Civil Service Commission Personnel Code and wrongly asserts that this Court in Powell v. Jones found that Section 8 required rules for recall. In Powell this Court observed that the Civil Service Act provided for the adoption of rules and that rules were adopted in that case which did, in fact, provide explicit recall rights to laid off civil service employees. Powell, 56 Ill. 2d 70, 79-80. The Powell decision does not stand for the proposition that an enabling statute that authorizes the adoption of recall rules requires the adoption of recall rules.
2

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145 (2006). The legislature's grant of authority to the Board to decide criteria for layoffs
or recall does not mandate that the Board must decide criteria for layoffs and recall if it

decides criteria for layoffs. Further, nothing in Section 34-18(31) mandates that the Board rehire laid off tenured teachers.' Section 34-18(31) states that the Board "shall have the power" to implement recall procedures and the criteria for recall. Section 34-18(31) contains no mandatory terms. The 1995 amendments removed the only mandatory procedures within the School Code for reappointing CPS tenured teachers after a layoff, which had previously existed in the reserve teacher system codified in Section 34-84. Section 3418(31) is not the reserve teacher system that was eliminated in 1995. It is an entirely distinct provision that gives the Board the authority and complete discretion to promulgate recall procedures in an economic layoff. In Land, this Court held that Section 34-18(31) "gave the Board the authority to formulate and implement its own rules and procedures . . . rather than binding the Board to a legislatively mandated procedure."
Land, 202 Il1.2d at 425. CTU acknowledges as much when it states that Section 34-

18(31) gave the Board "more flexibility in fashioning the rules for layoff and recall." (Pl. Resp. Br. at 18). CTU cannot reconcile its position that Section 34-18(31) imposes mandatory obligations on the Board with the legislative history and the Land decision. If the Board elects to establish recall rules, the statute makes clear that the Board can set the criteria and weight of each criterion for recall selections at its discretion. 105 ILCS 5/34-18(31). Notably absent from the listed criterion, however, are the two factors
Notably, neither the District Court not the Seventh Circuit Court of Appeals found that the laid off tenured teachers were entitled to "recall" as that term is correctly defined. See C.H. Sprague & Son Co., 175 N.L.R.B. 378, 384 n. 8 (N.L.R.B. Dec. & Order Apr. 16, 1969) (clarifying that to "recall" is to call an employee back to a position). Neither Court found the teachers were entitled to a vacant position.
3

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relied upon by CTU to assert that its laid off tenured members are entitled to be rehired over "new" hires: seniority and length of service. Further, to assume that, in any given situation, a laid off tenured teacher will be better qualified to fill a vacancy than a new hire is an unsupportable generalization. No two teaching positions within the CPS system are identical. To suggest otherwise is to ignore the complexities of the third largest urban school system in the country. A tenured teacher may or may not be the best qualified candidate for a vacancy. This is precisely the reason why principal selection is so important and must be upheld. One can imagine a plethora of reasons why a laid off tenured teacher may not be as qualified as an applicant not previously employed by CPS. Some examples include: The applicant may have been employed as a teacher elsewhere with relevant and valuable experience; The laid off tenured teacher may be certified to teach Spanish and math, but may not have taught Spanish for 15 years, while an applicant may have current experience in Spanish; The laid off tenured teacher may never have worked in a school with a high poverty population, where the applicant may have significant experience with the specific population; The applicant may have dual certifications that allow him or her to fill current and future needs of the school unlike the laid off tenured teacher who is not dual certified. CTU's insistence that Section 34-18(31), on its own, gives tenured teachers a district-wide right to new and existing vacancies over less qualified new hires is

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unsupportable. Section 34-18(31) makes absolutely no mention of filling vacancies or district-wide rights. Most significantly, it makes no mention of tenured teachers. It is an enabling provision that simply gives the Board authority to create recall rules for all its employees. Nothing more. When reading the statute as the legislature drafted it, there is no basis for the CTU's argument. To fully understand why Section 34-18(31) does not impose any mandatory recall procedures, the Court must read Section 34-18(31) in pan materia with Section 4.5 of the Illinois Educational Labor Relations Act, which makes bargaining over the impact of layoffs including the recall rights, if any, that tenured teachers would have a mandatory subject of bargaining. 115 ILCS 5/4.5. Under Section 4.5, the Board is obligated to bargain over a request for a recall right or post-layoff preferences to vacancies if CTU makes a timely request to bargain over the issue. Id. However, the Board is ultimately not obligated under the statute to agree to any proposal or to make any concessions, and so has no statutory obligation to establish a right to recall or retention. Id. A right to certain procedures after a layoff would arise only if and when, following a timely request to bargain over the impact of layoffs, the parties reach agreement on those impact issues. Id. Section 4.5 confirms that the General Assembly did not mandate recall procedures, but left it to the Board and its unions to bargain if the union chose to do so. Finally, CTU's description of Senate Bill 7 and its legislative process is specious. Senate Bill 7, which became effective June 13, 2011, significantly amended certain provisions of the School Code, but did not modify Section 34-18(31). Ill. Pub. Act. 970008 (eff. June 13, 2011). CTU contends that the fact that the General Assembly made

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no changes to Section 34-18(31), even though a federal district court issued an injunction against the Board based on its interpretation of Section 34-18(31), is "clear evidence" that the General Assembly agreed with the district court's interpretation of Section 34-18(31). (Pl. Br. at 23). First, at the time Senate Bill 7 was introduced in April 2011, the district court had stayed its injunction and the matter was pending before the Seventh Circuit on appeal, so there was no final judicial determination. Second, CTU notably neglects to mention that it also was actively participating in the legislative process and that it advocated for modifications the School Code to provide laid off tenured teachers an explicit right to vacancies across the district and published draft legislation entitled the "Accountability for All Act" that proposed amendments to Section 34-18(31). (Donovan Atli, Ex. 2, 2). If Section 34-18(31) already provided those rights, as CTU contends, there would have been no reason for its proposed amendment. The bottom line is nothing can be inferred from the fact that the General Assembly did not amend Section 3418(31), particularly while there was litigation pending over that section. III. CTU's interpretation of the School Code would require this Court to improperly invalidate Section 34-8.1's requirement that local principals select their staff Section 34-8.1, which requires principals to select staff for their own schools "based upon merit and ability to perform in [the] position without regard to seniority or length of service," is one of the cornerstones of public education reform in Chicago. It was enacted based on the premise that Chicago, the third largest city in America, has broad economic and demographic diversity among its territory, and that a one-size-fits-all approach to teacher recruitment would not satisfy the particular needs, challenges and circumstances of individual city neighborhoods. The notion of principal selection

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empowers local communities to hire principals who share their local vision for educating their children, while allowing principals to select teachers who also share that vision. Since Section 34-8.1 was enacted in 1988, a local school council's right for its principal to select his or her own staff has stood undisturbed. Indeed, the 1995 legislative amendments added language to Section 34-84 reaffirming that "[t]he school principal shall make the decision in selecting teachers to fill new and vacant positions consistent with Section 34-8.1." 105 ILCS 34-84. If CTU's interpretation is allowed, principals will lose the right to select their staff and instead be forced to take laid off tenured teachers who may not be the most qualified or the best fit for their schools. The above language in Section 34-84, the tenure provision, is an unambiguous limitation on the scope of tenure in the Chicago Public School system. Despite this clear directive, CTU insists that Section 34-8.1 does not apply in a layoff situation because only the Board is vested with the power to "employ, discharge or layoff' teachers. See Pl. Br. at 24; 105 ILCS 5/34-8.1. CTU's position is misleading. It is undisputed that the Board is vested with the sole authority to employ teachers and public employees, because the Board is a statutory public employer. Principals are not. However, the Board's statutory authority to serve as a public employer does not in any way diminish a principal's explicit statutory right and obligation to select his or her own staff as set forth in Section 8.1. Further, CTU's proposed requirement that the Board adopt a mechanical formula for filling vacancies would be untenable. Principals are responsible for developing and implementing the educational plan for the school, and are accountable to the Board and its local school council for the success of the plan. It is not a coincidence that the same

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school reform efforts that led to Section 34-18(31) also eliminated tenure status for principals. (See Pub. Act 85-1418 & Pub. Act 86-1477). Principals have to seek reelection at their school every four years, which is why Section 8.1 is so important as it is the tool they use to chose the best candidates for their schools. For reasons explained above, it is expected that principals from different schools will have different educational plans based on the particular needs of the attending population. Selecting teachers who will best serve a particular school's vision is a qualitative case-by-case process. It is impossible to create a single one-size-fits-all formula that will satisfy every school's needs. Moreover, a weighted formula that is designed to favor laid off tenured teachers would likely prove impossible to comply with particularly where several laid off tenured teachers apply for the same vacancy.

CONCLUSION
The plain and unambiguous language of Section 34-84 and 34-18(31) of the School Code, and other relevant sections of the School Code and the IELRA, provide a simple and clear answer to the Seventh Circuit's certified questions that tenured teachers have no rights to rehire or to certain rehiring procedures following an economic layoff. Moreover, the legislative history of the School Code, and the General Assembly's deliberate actions to eliminate mandatory post-layoff retention procedures from the tenure provision of the School Code and to give the Board broad flexibility to manage its workforce preclude any finding of such rights. The Chicago Teachers Union cannot overcome the statutory text and legislative history of the School Code. Instead of arguing what the law is, CTU is arguing what it thinks the law should be. It is not surprising that CTU is advocating for recall rights for

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laid off tenured teachers. However, the rights requested in CTU's response brief go far beyond the four corners of the School Code. If CTU wants to change the law, the proper forum to do so is the General Assembly. However, this Court should not create employment rights by judicial decree that the General Assembly did not grant.

Respectfully submitted,

One of the A torn FRANCZEK RADELET P.C. James C. Franczek, Jr. Sally J. Scott Abizer Zanzi 300 South Wacker Drive, Suite 3400 Chicago, IL 60606 (312) 986-0300 Dated September 15, 2011

for Defendants-Appellants

BOARD OF EDUCATION OF THE CITY OF CHICAGO Patrick J. Rocks Susan M. O'Keefe 125 South Clark Street, Suite 700 Chicago, IL 60603 (773) 553-1700

17
697069.2

Certificate of Compliance with Rules 341(a) and (b)

The undersigned attorney hereby certifies that the foregoing brief confouns to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 17 pages.

7/1
ally J. Scott James C. Franczek, Jr. - 00860662 Patrick J. Rocks Susan M. O'Keefe Board Of Education Of The City Of Chicago 125 South Clark St., Suite 700 Chicago, IL 60603 (773) 553-1700

jcf@franczek.com
Sally J. Scott - 06204350

sjs@franczek.com
Abizer Znazi - 06287744

az@franczek.com
Franczek Radelet P.C. 300 South Wacker Drive, Suite 3400 Chicago, IL 60606 (312) 986-0300

697069.2

CERTIFICATE OF SERVICE The undersigned counsel for Defendants-Appellants hereby certifies that on September 15, 2011, three copies of the Reply Brief of Defendants-Appellants, were delivered by U.S. Mail, postage prepaid, to the parties identified below: Michael P. Persoon Thomas H. Geoghegan Jorge Sanchez Depres, Schwartz & Geoghegan, Ltd. 77 W. Washington St., Suite 711 Chicago, IL 60602 Robin B. Potter Robin Potter & Associates P.C. 111 East Wacker Dr., Suite 2600 Chicago, IL 60601 Robert E. Bloch Omar Josef Shehabi Down, Bloch & Bennett 8 S. Michigan Ave., Suite 1900 Chicago, IL 60603

Sally J. Scott James C. Franczek, Jr. - 00860662

jcf@franczek.com

Sally J. Scott - 06204350

sjs@franczek.com

Abizer Znazi - 06287744

az@franczek.com

Franczek Radelet P.C. 300 South Wacker Drive, Suite 3400 Chicago, IL 60606 (312) 986-0300

Patrick J. Rocks Susan M. O'Keefe Board Of Education Of The City Of Chicago 125 South Clark St., Suite 700 Chicago, IL 60603 (773) 553-1700

697069.2

No. 112566

IN THE SUPREME COURT OF ILLINOIS

CHICAGO TEACHERS UNION, LOCAL NO. 1, AMERICAN FEDERATION OF TEACHERS, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, a body politic and corporate, MARY RICHARDSON-LOWRY, NORMAN BOBINS, TARIQ BUTT, ROXANNE WARD, PEGGY DAVIS, ALBERTO CARRERO, JR., and RON HUBERMAN, in their official capacities, Defendants-Appellants.

Certified Questions under Supreme Court Rule 20 On Appeal Before the The United States Court of Appeals for the Seventh Circuit Case No. 10-3396 District Court Judge David H. Coar

EXHIBIT LIST TO REPLY BRIEF OF DEFENDANTS-APPELLANTS DESCRIPTION

Plaintiff's Reply Brief in Support of Motion for Preliminary Injunction, Case No. 10-cv-4852, Northern District of Illinois Affidavit of Stephanie Beauregard Donovan

TAB 1 2

699244.1

TAB 1
Case: 1:10 cv 04852 Document #: 45 Filed: 09/14/10 Page 1 of 10 PagelD #:427
-

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Chicago Teachers Union, American Federation of Teachers, Local No. 1;
Plaintiff. v.

) ) )
) ) )
)

Case No. 10-cv-4852 Judge David H. Coar Magistrate Judge Nan R. Nolan

Board of Education of the City of Chicago; a body ) politic and corporate, and Mary Richardson ) Lowery, Norman Bobins, Tariq Butt, Roxanne ) Ward, Peggy Davis, Alberto Carrero, Jr., and Ron ) Huberman, in their official capacities; ) )
Defendants. ) )

PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION Introduction To restate the case: Plaintiff CTU relies on the holding in Mims v. Board of Education of
the City of Chicago, 523 F.2d 711 (7th Cir. 1975) that laid off tenured workers have the due

process right to present their qualifications for positions that open up. As in Mims, the Board may conduct a layoff but there must be a procedure for the laid off teacher to demonstrate that he or she is qualified to be retained in some capacity before being discharged. In Mims the Seventh Circuit held that when a teacher is laid off, there is a due process right to some type of retention procedure. The Seventh Circuit stated: "We recognize that a layoff is less drastic than discharge... But we think that plaintiffs had a property interest in their continued active employment, not just in their status as civil servants." Subparagraph 31 of 105 ILCS 5/34-18

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 2 of 10 PagelD #:428

calls for such a retention procedure some weighing of the qualifications of teachers. But the Board has not implemented Subparagraph 31. It has no criteria. It has no recall rights. It has issued no rules except to cover a small number of teachers with unsatisfactory evaluations. It has otherwise failed to promulgate rules with such criteria as Subparagraph 31 requires. The only chance for the laid off teacher to show why he or she should be retained is to go into the "reassignment pool" that is, the procedure for reassignment to a new or vacant position used by Appendix H of the collective bargaining agreement. But that is not simply a collective bargaining right. The right to go into the "reassignment pool" after lay off is also set out in Board Rule 4-6 of the Rules of the Board of Education of the City of Chicago. See Exhibit A, attached. As the only meaningful procedure for retention, that Rule adopts section 504.2 of the Policies of the Board of the City of Chicago. See Exhibit B, attached. Section 504.2 adopts the same procedures for reassignment that are in Appendix H, including the use of the "reassignment pool." Plaintiff CTU seeks to place the laid off teachers in the reassignment pool and to reinstatement them to employment for that purpose as a way of enforcing the only meaningful procedure for the teachers to get the consideration required by Mims. Plaintiff CTU asks this Court to order the Board defendants to rescind the discharges of the tenured teachers and afford them either the retention procedure available under Section 504.2 of the Chicago Public Schools Policy Manual ("Reassignment and Layoff of Regularly Certified and Appointed Tenured Teachers") or some equally constitutional procedure for retention or reassignment. While the teacher may not obtain such reassignment, the teacher has a constitutional right to some opportunity to demonstrate why the teacher could fill some other position prior to final discharge.

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 3 of 10 PagelD #:429

Argument

I. Mims controls this case.

The Board defendants recognize that the summary discharge of these teachers cannot be justified under Mims v. Board of Education of the City of Chicago, 523 F.2d 711 (7 th Cir 1975). In Mims the Seventh Circuit held that while the Board is free to conduct a lay off for a good faith reason, the teacher has a right to some opportunity to demonstrate he or she ought to continue in some capacity. That opportunity arises before not after the teacher is discharged. Simply tossing out the teacher and saying the teacher is free to apply like any one else is not a retention procedure that passes constitutional muster. In Mims, supra, the Seventh Circuit held that the defendant Board of Education of the City of Chicago fired employees unlawfully without considering their qualifications for other open positions: "The defendant board failed in its duty to establish a procedure by which an employee could obtain review of a layoff decision.... to demonstrate that he or she should have been retained..." Unable to explain away Mims, the Board defendants argue it is no longer good law because of the enactment of Subparagraph 31 of 105 ILCS 5/34-18. But that section actually calls for the type of retention procedure that Mims required before a laid off teacher could be finally discharged. If anything, Subparagraph 31 gives statutory authorization to what
Mims required as due process before a laid off teacher may be discharge. Under subparagraph

31, the Board may not conduct a lay off except by rules that contain "weighted criteria" that take into account "qualifications, certifications, experience" and other factors that apply with special force to the retention of tenured teachers. But as pointed out before, the Board defendants have not implemented Subparagraph 31. They have no rules except for the rule that authorizes lay off of teachers with an unsatisfactory

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 4 of 10 PagelD #:430

evaluation. Otherwise, they have no rules with the criteria called for by Subparagraph 31, no weighted criteriajust no rules at all. Subparagraph 31 is perfectly consistent with Mims because it provides an opportunity for the teacher to show in a way specific to that teacher why he or she should be retained in some capacity. The only retention procedure that allows for a Mims-type review of the original lay off decision the only procedure that gives the laid off teacher a chance to be retained is set out in Section 504.2 of Chicago Public Schools Policy Manual. It is also the same procedure that is in Appendix H of the collective bargaining agreement. The firing of the teacher and the exclusion of the teacher from this or any other retention procedure is the Due Process violation for which plaintiff CTU seeks relief. Since the Board defendants have refused to issue rules under Subparagraph 31 or use the criteria it requires, it is odd to claim that Subparagraph 31 authorizes them to act here without any focus on the qualifications of these teachers for retention. Subparagraph 31 makes clear that as stated in Mims, tenured teachers do have rights to be considered for retention on the merits before the lay off decision can lead to a final discharge. Indeed, subparagraph 31 imposes a mandatory obligation on the Board defendants to issue rules for "recall rights." Nonetheless, while Subparagraph 31 is consistent with Mims ' requirement of a retention procedure, the Board defendants argue that none is necessary now because the teachers do not really have a property interest in tenure any more. They claim that "unlike the plaintiffs in
Minis, CPS tenured teachers have no statutory entitlement to vacant positions... nor do they have

recall rights." Def. Opp. (Dkt 42), p. 9. Plaintiff CTU wishes to make clear that no teacher has a substantive statutory "right" to a vacant position. Nor did Mims declare such a right. Mims stated that based on tenure, the

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 5 of 10 PagelD #:431

teacher had an active continued interest in employment. And the 1995 amendments did not "abolish tenure" in the Chicago public schools. Teachers still receive "peiinanent appointments" and are subject to removal only under statutory procedures. See Land v. Board of Education of
the City of Chicago, 202 Ill. 2d 414, 423-25 (2002).

As to layoffs, the Illinois Supreme Court stated in Land that school boards have always had the right to lay off teachers for economic reasons. In that respect the 1995 amendments did not give the Board any new authority with respect to layoffs that it did not have at the time Mims was decided. Indeed, Mims recognized that a board of education any board has the power to lay off teachers for economic reasons. The holding in Mims was that because of tenure the teacher was entitled to some due process for possible retention before final discharge. The "continued active interest" in employment cited in Mims is just as valid now since permanent appointment of tenured teachers continues in the City of Chicago just as before the 1995 amendments. It is true as set out in Hearne v. Board of Education of the City of Chicago, 185 F.3d 770 (7th Cir. 1999), that the General Assembly removed some of the procedural protections for a tenured teacher facing discharge "for cause" Under 105 ILCS 5/34-85. For example, the discharge decision is no longer made by an independent hearing officer instead the officer can only make a recommendation. But these procedural niceties do not change the fact that the teacher still has tenure, i.e., a permanent appointment as an employee under state law with the accompanying property rights in their continued employment. See Land, 202 Ill. 2d 423-25. Under state law, a Chicago public school teacher is still a civil servant with a permanent appointment just as at the time of Mims. Furthermore, there is no logical reason why a change in the procedural rights of a tenured teacher in a disciplinary hearing should change the rights of a

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 6 of 10 PagelD #:432

teacher in a lay off procedure. If anything, by adding subparagraph 31 with the requirement of using rules with specific weighted criteria, the 1995 amendments increased the rights of laid-off teachers to a review or retention procedure prior to final discharge. II. Mims and Shegog are consistent.
Mims is consistent with Shegog v. Board of Education of the City of Chicago, 2000 U.S.

Dist. LEXIS 6099 (N.D. Ill. May 4, 2000)(On remand from Shegog v. Bd. of Ed. of the City of
Chicago, 194 F.3d 836 (7th Cir. 1999))(Attached as Exhibit C). Mims states that a laid off teacher

should have a review procedure of some kind before the lay off leads to final discharge. Shegog states that at some point a final discharge can occur. In Shegog, the District Court distinguished
Mims because the plaintiff was not seeking to demonstrate her qualifications for retention with

"person specific reasons." Rather in Shegog the teachers had reached the stage of final discharge and had apparently not been able to demonstrate they could be retained in some other position and were challenging the original lay off decision after they had been provided the constitutionally required due process. As the District Court pointed out, the original lay off decision occurred under very general considerations that did not require any "person-specific" information as in Mims. In other words, the plaintiffs in Shegog were not seeking a review procedure or a retention procedure but challenged the right of the Board to conduct a lay off at all. Here by contrast, plaintiff CTU seeks only to put in place a constitutionally compliant review or retention procedure without challenging the original lay off decisions. Plaintiff CTU does challenge the validity of the final discharges, however, absent the kind of retention procedure that Section 504.2 provides (or Appendix H) or the constitutional equivalent of such a procedure.

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 7 of 10 PagelD #:433

That is, contrary to what the Board defendants claim, the plaintiff CTU does not seek any change in the status quo. It seeks the same reassignment procedure that every laid off teacher had previously come to expect. By the same token, plaintiff CTU does not seek a new "system wide" bumping procedure to remove probationary employees out of their jobs. While subparagraph 31 may allow the Board to adopt such a system and even seems to call for it, the plaintiff CTU seeks only in effect to preserve the retention procedure which laid off teachers have come to see as the insurance policy for their permanent appointments under as teachers under 105 ILCS 5/34-84. Likewise, unlike plaintiffs in Shegog, the plaintiff CTU does not seek a due process hearing as to the original lay off decision. It is true that in Count II, which concerns teachers laid off or singled out for lay off solely because of a prior "unsatisfactory" evaluation, plaintiff CTU does seek an opportunity for that teacher to be heard as to that negative evaluation, so as to prevent a "layoff' from being used as a disguised "for cause" termination. But that cannot be conflated with an argument that a legitimate lay off decision itself requires a due process hearing. For the hundreds of laid off teachers, plaintiff CTU seeks not a "hearing" as in a disciplinary hearing, as the Board defendants would like to portray it but just an opportunity as set out in
Mims to demonstrate that the teacher can fill and should fill one of the many vacancies that

arise.' And this right to due process depends on the teacher still being employed, as the teacher is employed as a day-to-day substitute or assigned as a permanent substitute to one school (as a "CADRE teacher") when looking for work under Section 504.2 (the analogue to Appendix H).

In answer to Plaintiffs Interrogatories, Defendants identified that in the 2007-08 school year there were 1,484 new hires, in 2008-09 there were 995 new hires, and from June 1, 2009 until May 31, 2010 there were 730 new hires. Also in answer to Plaintiffs Interrogatories, Defendants have identified in excess of 100 new teachers who have been hired since May31, 2010. 7

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 8 of 10 PagelD #:434

Certainly not every violation of a collective bargaining agreement is a violation of due process. But if the only procedure for retention as required in Mims is set out in the collective bargaining agreement, the very fact it is in the collective bargaining agreement does not insulate a violation of due process from judicial review. While the Board defendants talk about the cost of this procedure, it is worth nothing that plaintiff CTU is not seeking to restore the positions that have been cut. Rather the plaintiff CTU is seeking a procedure that will give tenured teachers a foot in the door to fill vacant positions that the Board would fill anyway. Indeed, it is far more prudent for the Board to put the teachers

in the reassignment pool now rather than expose itself to liability if the CTU succeeds either in this litigation or in the grievance procedure to show that tenured teachers should have been considered through the reassignment pool instead of seeking new hires for these vacancies off the street. Conclusion For all the reasons set forth above, plaintiff CTU seeks an order: (1) directing the Defendants to rescind the discharges of the tenured teachers under Defendants' resolution of June 15, 2010, (2)directing the Defendants to provide a procedure for review and retention of such teachers under Section 504.2 of the Chicago Public Schools Policy Manual or under Appendix H of the collective bargaining agreement or some equivalent procedure consistent with the requirements of Mims v. Board of Education of the City of Chicago, and (3) preliminarily and permanently enjoining the Defendants from conducting future layoffs or "honorable dismissals" in a similarly unlawful manner.

Dated: September 24, 2010

Respectfully submitted, s/ Michael P. Persoon 8

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 9 of 10 PagelD #:435

Michael P. Persoon (mpersoon@dsgchicago.com ) Thomas H. Geoghegan (admin@dsgchicago.com ) Jorge Sanchez (attysanchez@gmail.com ) Despres, Schwartz & Geoghegan, Ltd. 77 W. Washington St., Ste. 711 Chicago, Illinois 60602 Ph: (312) 372-2511 Fax: (312) 372-7391 Robin B. Potter (robin@potterlaw.org ) Robin Potter & Associates P.C. 111 East Wacker Drive Suite 2600 Chicago, Illinois 60601 Ph: (312) 861-1800 Fax: (312) 861-3009 Robert E. Bloch (efile@dbb-law.com ) Omar Josef Shehabi (oshehabi@dbb-law.com ) Dowd, Bloch & Bennett 8 S. Michigan Avenue Suite 1900 Chicago, Illinois 60603 Ph: (312) 372-1361 Fax: (312) 372-6599

Case: 1:10-cv-04852 Document #: 45 Filed: 09/14/10 Page 10 of 10 PagelD #:436

CERTIFICATE OF SERVICE
I, Michael P. Persoon, hereby certify that on this 14 th day of September, 2010, the foregoing PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION was forwarded and served to all counsel of record via electronic filing pursuant to Local Rule 5.9, Electronic Filing.

Dated: September 14, 2010

By,

s/ Michael P. Persoon

Despres, Schwartz & Geoghegan, Ltd. 77 W. Washington St., Ste. 711 Chicago, Illinois 60602 Ph: (312) 372-2511 Fax: (312) 372-7391

10

TAB 2

No. 112566 IN THE SUPREME COURT OF ILLINOIS CHICAGO TEACHERS UNION, LOCAL NO. 1, AMERICAN FEDERATION OF TEACHERS, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, a body politic and corporate, MARY RICHARDSON-LOWRY, NORMAN BOBINS, TARIQ BUTT, ROXANNE WARD, PEGGY DAVIS, ALBERTO CARRERO, JR., and RON HUBERMAN, in their official capacities, Defendants-Appellants. On Appeal Before the The United States Court of Appeals for the Seventh Circuit Case No. 10-3396 District Court Judge David H. Coar

Certified Questions under Supreme Court Rule 20

AFFIDAVIT OF STEPHANIE BEAUREGARD DONOVAN

I, Stephanie Beauregard Donovan, being first duly sworn, have personal knowledge of the facts contained in this Affidavit, which are true and accurate to the best of my knowledge and belief, and depose and state as follows: 1. I am an attorney with the law firm Franczek Radelet P.C. I represented the Board of Education for the City of Chicago during the negotiations chaired by Illinois State Senator Kimberly A. Lightford that led to the drafting of Senate Bill 7 that was eventually enacted on June 13, 2011 as Public Acts 097-0007 and 097-0008. 2. During the negotiations, the Chicago Teachers Union, who was actively participating in the negotiations, advocated for modifications to the School Code to provide laid off tenured teachers an explicit right to vacancies across the district and published draft legislation entitled the "Accountability for All Act," which contained proposed amendments to Sections 34-18(31) and 34-84 of the School Code. A true and correct copy of the sections of the Accountability for All Act, which pertain to Sections 34-18(31) and 34-84, is attached to this Affidavit as Exhibit A.

699030.1

FURTHER AFFIANT SAYETH NAUGHT.

ilor -AirAinill d Donovan tephan i - Beaur

Subscribed and Sworn to me this if day of September, 2011.

Notary Public My commission expires:

j-/ -13

2
699030.1

1/4/2011 10:45 AM

A BILL FOR

3 4 5

AN ACT concerning education.

Be it enacted by the People of the State. represented by the General Assembly: Illinois,

6 Section 1. Short title. This Act may be cited as the 7 Illinois Accountability for All Act of 2011. 8 9 10 11 12 13 14 15 16 17 18 19 The Pension Code is amended by changing Section 16-158 as follows:
Section 5.

(40 ILCS 5/16-158) (from Ch. 108 1/2, par. 16-158) Sec. 16-158. Contributions by State and other employing units. (a) The StWe shall make contributions to the System by means of app,roiMiations from the Common School Fund and other State funds of Amounts which, together with other employer contributionS; employee contributions, investment income, and other incomewill be sufficient to meet the cost of maintaining and adretiniStering the System on a 90% funded basis in accordance with actuarial recommendations.

The Board shall determine the amount of State 20 21 contributions required for each fiscal year on the basis of the 22 actuarial tables and other assumptions adopted by the Board and 23 the recommendations of the actuary, using the formula in 24 subsection (b-3).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

receives a Race to the Top Grant, or September 1, 2012, if the State of Illinois does not receive a Race to the Top Grant, the State Board of Education must execute or contract for the execution of the assessment referenced in item (10) of subsection (a) of this Section to determine whether the school district evaluation systems developed pursuant to this Act have been valid and reliable, contributed to the development of staff, and improved student performance. (c) Districts shall submit data and information to the State Board on teacher and principal performance evaluation8 and evaluation plans in accordance with procedures and requirements for submissions established by the State Board. .Such data shall include, without limitation, (i) data on the perforMance rating given to all teachers in contractual continued service, (ii) data on district recommendations to renew or not renew teachers not in contractual continued service, and (iii) data on the performance rating given to all principals. (d) If the State Board of Education does not timely fulfill any of the requirements set forth in Sections 24A-7 and 24A-20, and adequate and sustainable federal, State, or other funds are not provided to the State 'Boa .rd of Education and school districts to meet their responsibi),-ities under this Article, the applicable implementation date shall be postponed by the number of calendar days equal to tho e needed by the State Board of Education to fulfill such: 're'quirements and for the adequate and sustainable funds to be provided to the State Board of Education and school districts. The'determination as to whether the State Board of EducatiOn has' fulfilled any or all requirements set forth in Sectibn 24A-7 and 24A-20 and whether adequate and sustainable funds have been provided to the State Board of Education and sChobl districts shall be made by the State Board of Education.in d'Onsultation with the P-20 Council.

(105 ILCS 5/34-18)(from Ch. 122, par. 34-18)

36 Sec. 34-18. Powers of the board. The board shall exercise . 37 ge nera-l` supervision and jurisdiction over the public education 38 and the public school system of the city, and, except as 39 otherwise provided by this Article, shall have power: 40 41 1. To make suitable provision for the establishment and 42 maintenance throughout the year or for such portion thereof as 43 it may direct, not less than 9 months, of schools of all grades 44 and kinds, including normal schools, high schools, night 70

1 schools, schools for defectives and delinquents, parental and 2 truant schools, schools for the blind, the deaf and the crippled, schools or classes in manual training, constructural 3 and vocational teaching, domestic arts and physical culture, 4 vocation and extension schools and lecture courses, and all 5 including facilities, courses and 6 other educational establishing, equipping, maintaining and operating playgrounds 7 and recreational programs, when such programs are conducted 8 adjacent to, or connected with any public school under t..p.e 9 general supervision and jurisdiction of the board; provided 10 that the calendar for the school term and any changes must be 11 submitted to and approved by the State Board of..,'Education 12 before the calendar or changes may take effect, :Hand , provided 13 that in allocating funds from year to year for the 'operation of 14 all attendance centers within the district, the. board shall 15 ensure that supplemental general State aid funds are allocated 16 and applied in accordance with Section 18-8or 18-8.05. To 17 admit to such schools without charge foreign exchange students 18 who are participants in an organized exchange student program 19 20 which is authorized by the board..Thebard shall permit all students to enroll in apprenticeshipprbgrams in trade schools 21 operated by the board, whether 'those programs are union22 23 sponsored or not. No student, sha41be refused admission into or 24 be excluded from any course of instruction offered in the that student's sex. No student 25 common schools by reason 26 shall be denied equal - ..,.acc,ess to physical education and supported from school 27 interscholastic atl-qetiC- . ..programs district funds or denied participation in comparable physical 28 29 education and athletic`:- programs solely by reason of the student's sex. Equal Atcess to programs supported from school 30 district funds and comparable programs will be defined in rules 31 promulgated by, the State Board of Education in consultation 32 High School Association. Notwithstanding any with the Iilind 33 other proon'of this Article, neither the board of education 34 nor any..16cad school council or other school official shall 35 recoMickendthat children with disabilities be placed into 36 regular, education classrooms unless those children with 37 di s abilities are provided with supplementary services to assist 38 39 !:.. thejno that they benefit from the regular classroom instruction and are included on the teacher's regular education 40 I 41 'clsss register; 42 2. To furnish lunches to pupils, to make a reasonable 43 charge therefor, and to use school funds for the payment of 44 such expenses as the board may determine are necessary in 45 conducting the school lunch program; 46 71

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46

3. To co-operate with the circuit court; 4. To make arrangements with the public or quasi-public libraries and museums for the use of their facilities by teachers and pupils of the public schools; 5. To employ dentists and prescribe their duties for the purpose of treating the pupils in the schools, but accepting such treatment shall be optional with parents or guardian7 6. To grant the use of assembly halls and classrooms when not otherwise needed, including light, heat,,,...and attendants, for free public lectures, concerts, and other eduCational and social interests, free of charge, under s:Uchprovisions and control as the principal of the affected attendance center may prescribe; 7. To apportion the pupils to the several schools; provided that no pupil shall be excludecLfrom or segregated in any such school on account of his color, race, sex, or nationality. The board shal.l take into consideration the prevention of segregation and the elimination of separation of children in public schoolbecaPfse of color, race, sex, or nationality. Except that j: children may be committed to or attend parental and socia*:adjustffient schools established and maintained either for'bdys or girls only. All records alteration or revision of pertaining to the' , creation, attendance areas shaal be open to the public. Nothing herein shall limit the bbatd's authority to establish multi-area attendance centets )(Dr other student assignment systems for desegregatioh%pur&ses or otherwise, and to apportion the pupils to_the several schools. Furthermore, beginning in school year 199479'.5, pursuant to a board plan adopted by October 1, 1993, the board shall offer, commencing on a phased-in basis, the opportunity for families within the school district to apply, dr enrollment of their children in any attendance center wfthin the school district which does not have selective adtiz.sion requirements approved by the board. The appropriate geographical area in which such open enrollment may be 'exercised shall be determined by the board of education. Such children may be admitted to any such attendance center on a space available basis after all children residing within such attendance center's area have been accommodated. If the number of applicants from outside the attendance area exceed the space available, then successful applicants shall be selected by 72

lottery. The board of education's open enrollment plan must 1 include provisions that allow low income students to have 2 access to transportation needed to exercise school choice. Open 3 enrollment shall be in compliance with the provisions of the 4 Consent Decree and Desegregation Plan cited in Section 34-1.01; 5 6 8. To approve programs and policies for providing 7 transportation services to students. Nothing herein shalIpe 8 construed to permit or empower the State Board of Education to 9 order, mandate, or require busing or other transportation of 10 i pupils for the purpose of achieving racial balance in any 11 12 school; 13 to 9. Subject to the limitations in this, : Article, 14 establish and approve system-wide curricu'l'um 'objectives and 15 standards, including graduation standards, \ni,ch reflect the 16 multi-cultural diversity in the city and areconsistent with 17 State law, provided that for all purposes of this Article 18 courses or proficiency in American :: Sign Language shall be 19 deemed to constitute courses 20 . . . proficiency in a foreign language; and to employ principals :and teachers, appointed as 21 provided in this Article, and fix tbeir compensation. The board 22 shall prepare such reports related to minimal competency 23 testing as may be requested by the State Board of Education, 24 and in addition shall monitor.. and approve special education and 25 bilingual education prog rams :and policies within the district 26 to assure that approptiateservices are provided in . accordance 27 federal laws to children requiring with applicable State` 28 services and educati -On'in those areas; 29 30 10. To employ non-teaching personnel or utilize volunteer 31 requiring not duties non-teaching -far: personnel 32 instructional *Pigment or evaluation of pupils, including 33 library clues; - and (ii) supervising study halls, long distance 34 teaching reception areas used incident to instructional 35 progrAms '.transmitted by electronic media such as computers, 36 video:,. and audio, detention and discipline areas, and school37 sponsored extracurricular activities. The board may further 38 39 'Utilize volunteer non-certificated personnel or employ noncertificated personnel to assist in the instruction of pupils 40 . 'under the immediate supervision of a teacher holding a valid 41 certificate, directly engaged in teaching subject matter or 42 conducting activities; provided that the teacher shall be 43 continuously aware of the non-certificated persons' activities 44 and shall be able to control or modify them. The general 45 superintendent shall determine qualifications of such personnel 46 73

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and shall prescribe rules for determining the duties and activities to be assigned to such personnel; 10.5. To utilize volunteer personnel from a regional School Crisis Assistance Team (S.C.A.T.), created as part of the Safe to Learn Program established pursuant to Section 25 of the Illinois Violence Prevention Act of 1995, to provide assistance to schools in times of violence or other traumatic incidents within a school community by providing crisis intervention services to lessen the effects of emotional trauma on individuals and the community; the School Crisis Assistance Team Steering Committee shall determine the qualifications for volunteers; 11. To provide television studio facilities in not to exceed one school building and to provide programs for educational purposes, provided, however, that-the board shall not 'construct, acquire, operate, or maintain a television transmitter; to grant the use of its studio facilities to a licensed television station located in--the school district; and to maintain and operate not to exceed one school radio transmitting station and provide programs for educational purposes; 12. To offer, if deemed appropriate, outdoor education courses, including field trips within the State of Illinois, or adjacent states, and.,.-to . 'us school educational funds for the educational programs, whether expense of the said. within the school,,ditriCt or not; 13. During thap period of the calendar year not embraced within the regularschool term, to provide and conduct courses in subject'-mats normally embraced in the program of the schools -during 'the regular school term and to give regular school credit for satisfactory completion by the student of such courses as may be approved for credit by the State Board of Education; 14. To insure against any loss or liability of the board, the former School Board Nominating Commission, Local School Colincils, the Chicago Schools Academic Accountability Council, or the former Subdistrict Councils or of any member, officer, agent or employee thereof, resulting from alleged violations of civil rights arising from incidents occurring on or after September 5, 1967 or from the wrongful or negligent act or omission of any such person whether occurring within or without 74

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the school premises, provided the officer, agent or employee was, at the time of the alleged violation of civil rights or wrongful act or omission, acting within the scope of his employment or under direction of the board, the former School Board Nominating Commission, the Chicago Schools Academic Accountability Council, Local School Councils, or the former Subdistrict Councils; and to provide for or participate -in insurance plans for its officers and employees, including but not limited to retirement annuities, medical, surgical and hospitalization benefits in such types and amounts as May be determined by the board; provided, however, that- the board shall contract for such insurance only with an insurance company authorized to do business in this State. Such_ insurance may include provision for employees who rely Ontreatment by prayer or spiritual means alone for healing, in accordance with the tenets and practice of a recognized religious' denomination; 15. To contract with the corporate authorities of any municipality or the county board of any county, as the case may be, to provide for the regulation of traffic in parking areas of property used for school purposes, in such manner as is provided by Section 11-209 of The Illinois Vehicle Code, approved September 29, 1969, as amended; - 16. (a) To provide, on an equal basis, access to a high school campus and studentdireCtory information to the official recruiting representatives .of the armed forces of Illinois and the United States fotthepurposes of informing students of the educational and career opportunities available in the military if the board 44s provided such access to persons or groups acquaint students with educational or whose purpose is . occupational'opport6nities available to them. The board is not required togive,: . greater notice regarding the right of access to recruiting representatives than is given to other persons and grollps.jn this paragraph 16, "directory information" means a high.scho01 student's name, address, and telephone number.
. .

(b) . If a student or his or her parent or guardian submits a signed, written request to the high school before the end of the student's sophomore year (or if the student is a transfer student, by another time set by the high school) that'indicates that the student or his or her parent or guardian does not want the student's directory information to be provided to official (a) of this recruiting representatives under subsection Section, the high school may not provide access to the recruiting to these student's directory information 75

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representatives. The high school shall notify its students and their parents or guardians of the provisions of this subsection (b). (c) A high school may require official recruiting representatives of the armed forces of Illinois and the United States to pay a fee for copying and mailing a student's directory information in an amount that is not more than the actual costs incurred by the high school. Information received by an official recruiting (d) representative under this Section may be used only to provide information to students concerning educational and career opportunities available in the military and may not be released to a person who is not involved in recruiting students for the armed forces of Illinois or the United States;. 17. (a) To sell or market any computer program developed by an employee of the school district, provided that such employee developed the computer p,rogram as a direct result of his or her duties with the schoor. district or through the utilization of the school district resources or facilities. The employee who developed the computer' program shall be entitled to share in the proceeds . of such sale or marketing of the computer program. The distribution of such proceeds between the employee and the school `district shall be as agreed upon by the employee and the schOO1 district, except that neither the employee nor the school district may receive more than 90% of such proceeds. ,The n4gotiation for an employee who is represented by 4n exclusive bargaining representative may be conducted by sucf]:b bargaining representative at the employee's request. (b) the purpose of this paragraph 17:

(.1) 'Computer" means an internally programmed, general purpose, digital device capable of automatically accepting data, 'processing data and supplying the results of the oPiex.ation. of coded (2) "Computer program" means a series instructions or statements in a form acceptable to a computer, which causes the computer to process data in order to achieve a certain result. (3) "Proceeds" means profits derived from marketing or 76

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sale of a product after deducting the expenses of developing and marketing such product; 18. To delegate to the general superintendent of schools, by resolution, the authority to approve contracts and expenditures in amounts of $10,000 or less; 19. Upon the written request of an employee, to withhold from the compensation of that employee any dues, payrri'ehts :or contributions payable by such employee to any labor organization as defined in the Illinois Educational .Labor Relations Act. Under such arrangement, an amount.Shall be withheld from each regular payroll period which is equal to the pro rata share of the annual dues plus any -. payments or contributions, and the board shall transmit such withholdings to the specified labor organization within 1a working days from the time of the withholding; 19a. Upon receipt of notice from the comptroller of a municipality with a population of 500,000 or more, a county with a population of 3,000,000 or mbre,' the Cook County Forest Preserve District, the Chicago Park District, the Metropolitan Water Reclamation District, the Chicago Transit Authority, or a housing authority of a municipality with a population of 500,000 or more that a debt''is due and owing the municipality, the county, the Cook. County Forest Preserve District, the Chicago Park District, - the Metropolitan Water Reclamation District, the Chjxago Transit Authority, or the housing authority by an emploYee of the Chicago Board of Education, to withhold, from the corripensation of that employee, the amount of the debt that is ,due and owing and pay the amount withheld to the municipality, the county, the Cook County Forest Preserve District, -the 'Wicago Park District, the Metropolitan Water Reclamation- Didtrict, the Chicago Transit Authority, or the housing authority; provided, however, that the amount deducted one salary or wage payment shall not exceed 25% of the from net amount of the payment. Before the Board deducts any amount from any salary or wage of an employee under this paragraph, the .municipality, the county, the Cook County Forest Preserve District, the Chicago Park District, the Metropolitan Water Reclamation District, the Chicago Transit Authority, or the housing authority shall certify that (i) the employee has been afforded an opportunity for a hearing to dispute the debt that is due and owing the municipality, the county, the Cook County Forest Preserve District, the Chicago Park District, the Metropolitan Water Reclamation District, the Chicago Transit 77

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Authority, or the housing authority and (ii) the employee has received notice of a wage deduction order and has been afforded an opportunity for a hearing to object to the order. For purposes of this paragraph, "net amount" means that part of the salary or wage payment remaining after the deduction of any amounts required by law to be deducted and "debt due and owing" means (i) a specified sum of money owed to the municipality, the the county, the Cook County Forest Preserve District, Chicago Park District, the Metropolitan Water Reclamatibn District, the Chicago Transit Authority, or the housing the period authority for services, work, or goods, after granted for payment has expired, or (ii) a specified sum of money owed to the municipality, the county, the. Cook County Forest Preserve District, the Chicago Park '-,pistrict, the Metropolitan Water Reclamation District, the 'Chicago Transit Authority, or the housing authority pursuant:: ta a court order or order of an administrative hearing officer after the exhaustion of, or the failure to exhaust, judicial review; 20. The board is encouraged tp employ a sufficient number of certified school counselors tomalntain a student/counselor ratio of 250 to 1 by July 1, .1!990.Each counselor shall spend contact with students at least 75% of his work time 'in such and shall maintain a record-..of suah time; 21. To make available t6 students vocational and career counselingandtoesh 5 special career counseling days for students and verenesg On these days representatives of local businesses andIndustries shall be invited to the school campus and shgll inform students of career opportunities available to ,,,-thei4 in the various businesses and industries. Special consideration shall be given to counseling minority students as toVcareer opportunities available to them in various fields. For the purposes of this paragraph, minority studentmeans7a person who is: ('-a), Black (a person having origins in any of the black racial groups in Africa); (b) Hispanic (a person of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean islands, regardless of race); (c) Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands); or 78

1 2 (d) American Indian or Alaskan Native (a person having 3 origins in any of the original peoples of North America). 4 5 Counseling days shall not be in lieu of regular school 6 days; 7 8 22. To report to the State Board of Education the annual 9 student dropout rate and number of students who graduate from; 10 transfer from or otherwise leave bilingual programs; 11 12 23. Except as otherwise provided in the Abused and 13 Neglected Child Reporting Act or other applicable ; State or 14 federal law, to permit school officials to withhold, from any 15 person, information on the whereabouts of any child removed 16 from school premises when the child has Nbeen taken into 17 protective custody as a victim of suspected child abuse. School 18 officials shall direct such person to the Department of 19 Children and Family Services, or to . the local law enforcement 20 agency if appropriate; 21 22 24. To develop a policy, based on the current state of 23 existing school facilities, , projected enrollment and efficient utilization of available resource's, for capital improvement of 24 25 schools and school buildings',within the district, addressing in 26 that policy both the relative priority for major repairs, 27 renovations and additidnsn. to school facilities, and the 28 advisability or necessity,y of building new school facilities or closing existing,. e.Chools to meet current or projected 29 demographic patterns.within the district; 30 31 32 25. To mace available to the students in every high school 33 attendance ''center"` the ability to take all courses necessary to 34 comply with. the' Board of Higher Education's college entrance 35 criteria.effective in 1993; 36 To encourage mid-career changes into the teaching 37 f N p rofession, whereby qualified professionals become certified 38 39 :rtekeheis, by allowing credit for professional employment in related fields when determining point of entry on teacher pay 40 41 scale; 42 43 27. To provide or contract out training programs for administrative personnel and principals with revised or 44 expanded duties pursuant to this Act in order to assure they 45 have the knowledge and skills to perform their duties; 46 79

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28. To establish a fund for the prioritized special needs programs, and to allocate such funds and other lump sum amounts to each attendance center in a manner consistent with the provisions of part 4 of Section 34-2.3. Nothing in this paragraph shall be construed to require any additional appropriations of State funds for this purpose; 29. (Blank); 30. Notwithstanding any other provision of this Act or any other law to the contrary, to contract with third parties for services otherwise performed by employees, inclp'dng those in a bargaining unit, and to layoff those employees . upon 14 days written notice to the affected employees. Those .contracts may be for a period not to exceed 5 years and may be awarded on a system-wide basis. The board may not operate more than 30 contract schools, provided that the board may operate an additional 5 contract turnaround schoOls 'pursuant to item (5.5) of subsection (d) of Section 34-8.3 of thd:'s Code; 31. To promulgate rules ,,,, establishing procedures governing the lay ff or reduction in forceoytmployecs and the recall f such empl ycc,, including but 4bt limited to, criteria for such layoffs, reductionihforce or recall rights of such employees and the weight to be given to any particular . o,g.1,,,,,,'% criterion. Such crLtcrishall take into account factors including, n t be limited to, qualifications, but , ,,,% N, certifications, cxper4cncc, performance ratings or evaluations, and any other:- f4eUrs relating to an employee's job performance; Aa)',,,,Od and after the effective date of this , ,, ,. amendatory Att,of the 97th General Assembly, in the event that the boardeterla,ihes in good faith that the layoff of teachers and otheeMploS'f'ees providing educational services is necessary to eliiitinate a projected budget deficit in the next school yeariN:::the,, board shall be authorized to promulgate rules and protedi'l. res for the layoff and recall of tenured and probationary teachers and such other employees providing such , :, services. Upon a good faith determination made by the board 60 days prior to the submission of a final budget for the upcoming "school year that a budget deficit can be remedied only by the layoff of teachers and such employees, the board shall be authorized to conduct such layoffs of such employees, subject to the conditions herein. Notwithstanding the above, the board shall be authorized to postpone the submission of a final budget and layoffs necessary to eliminate such projected 80

1 deficit for a period of 120 days from the start of the school 2 year if there is a reasonable likelihood that the assumptions 3 underlying the projected deficit may change. In order to meet 4 any such deficit, the board shall give priority to the 5 retention of teachers and persons providing educational 6 services and to the maximum extent possible conduct the layoffs 7 of teachers and other employees so as to avoid or minimize any 8 increase in the average class size prejudicial to the students 9 of the district. The board shall conduct layoffs of. teachetS 10 and other employees exclusively upon criteria that giVe.maximum 11 weight to the qualifications and length of service of the 12 teachers. The board shall use and apply these criteria on a 13 district wide basis, in order to ensure the re'tenton . of the 14 most qualified and experienced teaching personnel within the 15 district as a whole. Teachers displaced orAaid,off shall have 16 rights of recall for 24 months from the date of their 17 displacement, into positions for which they are qualified. 18 Notwithstanding any other provisions of this School Code, 19 including 105 ILCS 5/34-8.1, the Board shall fill any vacant 20 teaching positions that may arise With qualified teachers 21 available for recall before it " May. - consider filling such 22 positions with candidates having no 'sUth recall rights or prior 23 employment experience with the:: board. All displaced teachers 24 having recall rights for 24:monthS'shall have a right of notice 25 during such period to all ,available teaching positions without 26 exception, a right to . request and obtain interviews with local 27 principals or other persbndesignated by the Board to present their qualifications' for 1,such positions, and a right to appeal 28 29 any layoff or recall" decisions that arbitrarily or unfairly 30 ignore the criteaadOPted under this section by the board. 31 32 (b) (1) - '0h .1;i' after the implementation date of an for teachers in a district as specified by 33 evaluatiohl ,sys 34 Section 24Xt2.5'of this Code, incorporating changes recommended 35 in the ,Or,es'each-based study specified in Section 24A-20(a)(10), 36 the bqa.raj6intly with the exclusive bargaining representative 37 of,f-,teachers if any, shall develop procedures governing 38 17offignd recall of teachers, including, but not limited to, 39 ,p 'd'ri't.,,e,ria for such layoff and recall of such teachers and the 40 priority to be given to any particular criterion. Such criteria , _, 41 'shall take into account factors including, but not limited to, 42 legal qualifications, certifications, performance evaluation 43 ratings resulting from a performance evaluation instrument and 44 process that meets the requirements for the development and implementation of a teacher evaluation plan established 45 46 pursuant to Public Act 96-861, the Performance Evaluation 81

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Reform Act (PERA), length of continuing service and any other factors which the board and the exclusive bargaining representative of its teachers have agreed to and incorporated in a collective bargaining agreement; provided that the cost of each teacher's salary and benefits is prohibited from being a factor. Such procedures shall require that certifications and qualifications be given the greatest weight and that performance evaluation ratings be given significant weight but no more than equal weight to any other remaining criteria in determining reductions of teachers. The weight "(liven to performance evaluation ratings shall be agreed to by the 'School board and the exclusive bargaining representation of its teachers, if any.

32. To develop a policy to prevent nepotism in the hiring of personnel or the selection of contractors; 33. To enter into a partnership .agreement, as required by Section 34-3.5 of this Code, and,, notwithstanding any other provision of law to the contrary, 'to promulgate policies, enter into contracts, and take any other action necessary to accomplish the objectives and -z-implement the requirements of that agreement; and 34. To establish a labor Management Council to the board comprised of represenptrVt of the board, the chief executive officer, and those4A0or.organizations that are the exclusive representatives of,Mlyees of the board and to promulgate policies and pro4ed4eYfor the operation of the Council.
A

The specificata?ons of the powers herein granted are not to be construedastlusive but the board shall also exercise all other powerS that they may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the other provisions of this Article or provisions of this Code which apply to all school districts. ', In addition to the powers herein granted and authorized to be exercised by the board, it shall be the duty of the board to review or to direct independent reviews of special education expenditures and services. The board shall file a report of such review with the General Assembly on or before May 1, 1990.

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(105 ILCS 5/34-84) (from Ch. 122, par. 34-84) Sec. 34-84. Appointments and promotions of teachers. (a) Appointments and promotions of teachers shall be made and after satisfactory service for a for merit only, probationary period of 3 years with respect to probationary employees employed as full timc tcachcrs in thc public school system of thc district before January 1, 1998 and 4 years, with full time tcachcrs in thc public school system of t.hc district on or after January 1, 1998 (during which period the.board may dismiss or discharge any such probationary emplOyee: :,.upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools,-)- andafter',which period appointments of teachers shall become permanent, subject to removal for cause in the manner provided by Section 34-85.
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16 (b) For any teacher who is firs employed as a full-time 17 teacher by a school district on or after.the implementation date 18 of an evaluation system for teachers in a district as specified 19 by Section 24A-2.5 of this Code,' incorporating changes 20 recommended in the research-based study specified in Section 21 24A-20(a)(10), the probationary period shall be 4 consecutive 22 school terms of service. -.and the teacher shall enter upon given written notice of 23 contractual continued service : 24 dismissal stating the 'spacific reason therefor, by certified 25 mail, return receipt.,requksted by the employing board at least 26 45 days before the end , of - such period. During such period, the 27 teacher must receive :.overall annual evaluations of "proficient" 28 or "excellent",se'rvice in 3 school terms (including the last 29 school term) Abefore; . the teacher shall enter upon contractual 30 continued sOrviOe;.:- provided that the probationary period shall 31 be 3 consecutive' school terms of service for a teacher who "proficient" or evaluations of annual 32 receives, overall in each of the first 3 school terms. On or after the 33 "excelike 34 impLemeharion date of an evaluation system for teachers in a 35 district as specified by Section 24A-2.5 of this Code, for any 36 taC'her who has already entered upon contractual continued 4 37 )service in another school district pursuant to this Section or 38 Section 24-11 of this Code, the probationary period shall be 2 39 consecutive school terms of service and the teacher shall enter 40 upon contractual continued service unless given written notice 41 of dismissal stating the specific reason therefor, by certified 42 mail, return receipt requested by the employing board at least 43 45 days before the end of such period. During such period, the
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teacher must receive overall annual evaluations of "proficient" or "excellent" service in both school terms before the teacher shall enter upon contractual continued service; provided that if the teacher does not receive evaluations of "proficient" or "excellent" service in both school terms, the probationary period shall be 4 consecutive school terms of service. Failure of a school board to perform an overall annual evaluation !Of., a teacher in a school term shall result in the teacher - being considered to have received a "proficient" overall evaluation. Any full-time teacher who is completing the last year of the probationary period described in this subsection .: , (b) shall enter upon contractual continued service, unless`" -given written notice of dismissal stating the specific reasohtherefore, by certified mail, return receipt requested by,thg - ertiploying board at least 45 days before the end of such period. Any full-time teacher who is not completing the last year of.the probationary period described in the preceding paragraph, or any teacher employed on a full-time basis not later than January 1 of the school term, shall receive written notice from the employing board at least 45 days before the '6*hpof.'"any school term whether or not he will be re-employed fpt th'g e011owing school term. Any teacher to which this subsecti&p, (g) applies who receives an overall annual evaluation r.f"exgllent" shall be re-employed for the following school. term, 'unless laid off pursuant to procedures developed undgi Se c tion 34-18(31); provided further that a teacher who r6:Ceix'zes a "proficient" overall annual receives written notice from the evaluation but nongtikele employing board that he will not be re-employed for the following schooLiteghall be provided specific reasons in writing for not being re-employed. If the board fails to give such notice, Ate eafloyee shall be deemed reemployed, and not later than ,:the 610se of the then current school term the board regular contract to the employee as though the shall issU board had.. reemployed him in the usual manner.

.(:c) . AS used in this Article, "teachers" means and includes 35 36 all members of the teaching force excluding the general 37 superintendent and principals. 38 39 40 41 42 43 (d) There shall be no reduction in teachers because of a decrease in student membership or a change in subject requirements within the attendance center organization after the 20th day following the first day of the school year, except that: (1) this provision shall not apply to desegregation positions, special education positions, or any other positions 84

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funded by State or federal categorical funds, and (2) at attendance centers maintaining any of grades 9 through 12, there may be a second reduction in teachers on the first day of the second semester of the regular school term because of a decrease in student membership or a change in subject requirements within the attendance center organization. (d) The school principal shall make the decision -,jn selecting teachers to fill new and vacant positions consistent with Section 34-8.1. After the implementation date 'of an evaluation system for teachers in a district as _specified by Section 24A-2.5 of this Code, incorporating changeS'recommended in the research-based study specified in Section- 24A-20(a)(10), the selection of teachers to fill new and vacant positions shall be made by the principal in accordance with procedures jointly developed by the board with the excits4ve bargaining representative of its teachers, if any, tnless otherwise provided under Section 24-12. These procedures shall include, but not be limited to, criteria for such decisions and the priority to be given to any particular criterion. Such criteria shall take into account factors including, but not limited to,. legal qualifications, certificatiots,' performance evaluation ratings resulting from a performance - evaluation instrument and process that meets the requirements for the development and implementation of a teacheKevalualion plan established pursuant to Public Act 96-861, the Performance Evaluation Reform Act (PERA), length of continting service and any other factors which the board and the p161uSive bargaining representative of its teachers have agreep and incorporated in a collective bargaining agreem6gbvided that the cost of each teacher's salary and benefkts :is prohibited from being a factor. Such and legal ,require that certifications procedures 5411 qualificatiphs be,ogiven the greatest weight and that performance evaluationyratings be given significant weight but no more than equal weIghto any other remaining criteria in determining the The weight given to performance selection,,,of teachers. evaluatratings shall be agreed to by the board and the exckusiv. ebargaining representation of its teachers, if any. If pr-ihcipal selects a teacher to fill a new or vacant position who has less length of continuing service than other candidates, theApecific reasons for selecting that teacher must be provided in writing to all candidates and the exclusive bargaining representative, if any.

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