Blue State with Right-wing Enemy of Free Speech, Academic Freedom and Tenure: the Illinois Supreme Court

The Illinois Supreme Court in a lawless act of judicial incompetence, CHICAGO TEACHERS UNION, LOCAL No. 1, AMERICAN FEDERATION OF TEACHERS, Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Appellants  is denying basic human rights to tenured faculty. Specifically, a reactionary, anti-education majority is allowing the Chicago Public Schools to fire tenured professors and not rehire them as staffing openings occur. In a 5-2 decision that reflect the judicial activism of antidemocratic jurisprudential vandals, tenured faculty laid off in 2010 are not to be given priority in when vacancies appear. Note the two justices who demonstrated objectivity and appropriate judicial temperament were Justice Mary Jane Theis who wrote the dissenting opinion, joined by Chief Justice Thomas L. Kilbride. The other five should resign and stop imposing their right-wing agenda on the citizens and CHILDREN of Illinois.

The five cronies who wrote or consented to this decision are obviously ignorant of basic American law and in particular as it applies to education in the US. 1) Tenure is an obligation on the part of an academic institution to grant a teacher annual contracts until retirement. 2) The purpose of tenure is to protect the students. To protect them from mindless patriotism, prosyletising or indoctrination by the state and teachers who are too afraid to question the canon and enslave themselves to mindless testing. 3) The justices of the Illinois Supreme Court should read the US Constitution and they will see that federal appointees to the bench have tenure. It is to protect them from political currents that can blow heavily around a courtroom. If federal judges have tenure, then so can teachers. 4) Tenure is a means of protecting academic freedom: the freedom to teach in one’s own name, the freedom to publish without fear of censorship or coercion; the right to engage in extramural utterances despite Garcetti v Ceballos and criticise and condemn injustice and maladministration as they see fit. 5) A tenured faculty member can only be fired for cause and the appointment is permanent after an initial probationary period.

More than 60% of 1,300 teachers who were laid off in 2010 had tenure but according to the Chicago Tribune only about 400 were rehired. None of the laid-off teachers were fired or discharged. Their competence and skills were not an issue and Justice Theis wrote they have “recall rights.” While financial exigency or programme termination is indeed acceptable in laying off tenured faculty in higher education and derivatively secondary ed, the American Association of University Professors has established guidelines for higher ed that should prevail in the public schools as well. In its Recommended Institutional Regulations for Academic Freedom and Tenure, AAUP requires that a college or university attempt to find a suitable alternative position before firing a tenured faculty member due to financial exigency. The faculty member should also be allowed the opportunity to relocate into another area of the institution or in this case a school district even if it requires “a reasonable period of training.”

Of particular relevance is the AAUP requirement that an institution not “make new appointments except in extraordinary circumstances…The appointment of a faculty member with tenure will not be terminated in favor of retaining a faculty member without tenure.” Also AAUP states specifically that the elimination of a tenured-faculty position resulting from a financial exigency “will not be filled by a replacement within a period of three years, unless the released faculty member has been offered reinstatement.” This is basically an assertion of recall rights as Justice Theis referred to in her brilliant dissent.

The Illinois Supreme Court should apply these regulations for post-secondary education to secondary education. Tenure is a sacred trust that our students need. To viciously and arbitrarily use your power to deny tenured faculty the right of return is a violation of their contract, a violation of best practices and an unseemly, arbitrary disregard of the obligation to protect tenure and its underpinning of the structure of progressive education in the United States. Shame on you and your autocratic use of power.

I urge the Chicago Teachers Union to appeal this decision to the Court of Appeals, seventh circuit that has a tradition of upholding the law and respecting the Constitution of the United States: qualities that the Illinois Supreme Court, or at least a majority, lacks. The vigilante Ill Supreme Court is merely joining the liberal-moderate attack on tenure as a means to protect incompetence and careerism. No, tenure is not perfect; it is not intended to create a lifetime appointment for the sake of the teacher. Again the purpose of tenure is to protect society and its students from the winds of change that can blow heavily and force one to kiss the flag, the Air Force Academy, the imperialistic ways of America and the racist canon of white American exceptionalism.

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