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Chapter IV

RESULTS AND DISCUSSION

This chapter contains the reports of the actual court cases involving the nonrenewal of public school professional personnel due to declining school enrollments or economic stress. Each report contains seven major items of information: (1) statue(s) appropriate to the case, (2) overview of the case, (3) the issue, (4) characteristics of the decision, (5) significant points, (6) revised statute, and (7) implications for education. The sequence of the reports begins with the earliest case and progresses to the more recent.

Wheatley v. Division Board of Education of Hancock County, 139 S.W. 969 Kentucky (1911)

Statute appropriate to caseSource – Kentucky Statutes 1909, page 2269.

4447. Visitation of school-pupil may be suspended or expelled. The board of trustees shall meet at the schoolhouse on the day of the opening of the school, and at the same place at least once a month thereafter during the session of the school. At each meeting they shall carefully examine the teacher's register, and shall consider: (1) The condition of the schoolhouse, furniture, apparatus and surroundings; (2) the work of the school (3) the attendance, and how to increase it; (4) the needs of the school, such as fuel, brooms, buckets, crayons, desks, blackboards, etc. They shall provide for any deficiency that may exist in any of these respects, and see that the teacher performs his duty; they shall see that a sufficient supply of good water is furnished within easy access of the schoolhouse for the benefit of the school during the term of school. Upon complaint of the teacher, in writing, the trustees shall have power, after investigation, to suspend a pupil or expel him from school. When the trustees shall ascertain, by examining a teacher's register or monthly

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report, that the average daily attendance for twenty consecutive days taught has been less than twenty-five per centum of the total number of pupil children of the district, as shown by the last census, they shall, with the consent of the county superintendent, dismiss the teacher, and employ another teacher to complete the session of the school, unless they shall be satisfied that the decreased attendance was due to such natural causes as high water, extremely inclement weather, epidemics, or unusual sickness in the district.

OverviewThe teacher charged that the members of the board unlawfully and

corruptly conspired together to effect her dismissal, and did unlawfully and wrongfully discharge her. It developed at the trial that the district had a total enrollment of 94 pupils. The average daily attendance for the four weeks preceding the teacher's dismissal was about 12. Prior to this time the attendance was much less. The teacher was dismissed on Saturday, October 30th. On the evening before, the teacher was notified that the Board would meet for the purpose of considering the question of her dismissal. When they met on October 30th, the teacher was present with her attorney, and there was also an attorney present to represent the Board. After the teacher's attorney presented their contentions, the teacher and attorney and all others were asked to leave the room. The Board then entered an order dismissing the teacher and it was approved by the county superintendent.

IssueCan school trustees remove a teacher where the average daily attendance

has declined for a specified period of time?

DecisionCourt decided for the Board.

Characteristics of the decisionUnder 447, all that was necessary is to give a reasonable notice. The

teacher was apprised the evening before the action was taken that the Board would meet and consider her case. All that was necessary to be considered was the attendance as disclosed by the register, and the further question whether or not the decreased attendance was due to high water, extremely inclement weather, epidemics, or unusual sickness in the district. The Court concluded that the notice of the meeting at which action was to be taken was reasonable.

Significant points1. The teacher was appraised the evening before the action was taken

that the Board would meet and consider her case. The Court

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concluded that the notice of the meeting at which action was to be taken was reasonable.

2. The statute made it perfectly clear that all that was necessary to be considered for the dismissal of the teacher was the school attendance as disclosed by the register.

Revised statueSource - Kentucky Revised Statutes, Volume 7, Chapters 146-173, page 313.

160.290. General powers and duties of board. –(1) Each board of education shall have general control and management of the public schools in its district and may establish such schools and provide for such courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the rules and regulations of the state board of education. Each board shall have control and management of all school funds and all public school property of its district and may use such funds and property to promote public education in such ways as it deems necessary and proper. Each board shall exercise generally all powers in the administration of its public school system, appoint such officers, agents and employees as it deems necessary and proper, prescribe their duties, and fix their compensation and terms of office.(2) Each board shall make and adopt, and may amend or repeal, rules, regulations and bylaws for its meetings and proceedings for the government, regulation and management of the public schools and school property of the district, for the transaction of its business, and for the qualification and employment of teachers and the conduct of pupils. The rules, regulations and bylaws heretofore made by any governing body of a school district, or hereafter made by a board of education, shall be consistent with the general school laws of the state and shall be binding on the board of education and parties dealing with it until amended or repealed by an affirmative vote of three (3) members of the board. The rules, regulations and bylaws shall be spread on the minutes of the board and be open to the public.

Implications for educationThe Board's exercise of authority, if based on a specific statute, generally

will be upheld.The earlier statute was written to cover conditions appropriate to the

period. It has been revised and is now stated in more general terms. However, the description of board authority with respect to employment issues is still very inclusive.

The statute made it perfectly clear that all that need to be considered for the dismissal of the teacher was the school attendance as disclosed by the register,

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and other regulations. The revised statute provides the board of education shall have general control and management of the public schools in its district and may establish such schools and provide for such courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the rules and regulations of the state board of education. The statute further provides that each board shall exercise generally all powers in the administration of its public school system and to appoint employees as it deems necessary and proper, prescribe their duties and fix their compensation. The board may adopt rules, regulations and bylaws for regulation and management of the public schools and for the employment of teachers.

The point was argued that some of the members of the Board stated to local patrons that they intended to dismiss the teacher and that there was no necessity for sending their children to the school. The teacher argued this was sufficient to justify the submission of the case to jury on the question of malice and conspiracy. The court, however, dismissed this evidence emphasizing there was no evidence to show that the members of the Board conspired together for the purpose of preventing the patrons from sending their children to the school. The court pointed out that the statute the case was decided on made it the duty of the members of the board to act when a state of facts such as appeared in the record was presented to them.

De Hart v. School District No. 39 St. Louis County,263 S.W. 242 Missouri (1924)

Statutes appropriate to caseSource – Revised Statutes, Missouri 1919, Volume III.

Sec. 11138. Contract construed. The contract required in the preceding section shall be construed under the general law of contracts, each party thereto being equally bound thereby. Neither party shall suspend or dismiss a teacher under said contract without the consent of the other party. The board shall have no power to dismiss a teacher; but should the teacher's certificate be revoked, said contract is thereby annulled. The faithful execution of the rules and regulations furnished by the board shall be considered as part of said contract: Provided, said rules and regulations are furnished to the teacher by the board when the contract is made. Should the teacher fail or refuse to comply with the terms of the contract or to execute the rules and regulations of the board, the board may refuse to pay said teacher – after due notice, in writing, is given by order of the board – until compliance therewith is rendered. Should the schoolhouse be destroyed, the contract becomes void (page 3490).

Sec. 11145. Schools for colored children, establishment of. When there are within any school district in this state fifteen or more colored

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children of school age, as shown by the last enumeration, the board of directors of such school district shall be and they are hereby authorized and required to establish and maintain within such school district a separate free school for said colored children; and the length of the school term for said colored children, and the advantages and privileges thereof, shall be the same as are provided for other schools of corresponding grade within such school district, and the board of directors shall in all cases conduct, manage and control said school as other schools of the district are conducted, managed and controlled; and all indebtedness incurred by said board of directors in providing suitable buildings, employing teachers and maintaining said school shall be paid for out of the appropriate funds of the district, upon warrants ordered and issued in conformity with the provisions of sections 11222 and 11223: Provided, there be no school building in such school district for said colored children, the board of directors shall be and they are hereby authorized and required to rent suitable buildings and furnish the same, and all expenses necessarily incurred shall be paid out of any funds to the credit of the building or incidental funds of such school district. Should any board of directors neglect or refuse to comply with the provisions of this section, such school district shall be deprived of any part of the public funds for the next ensuing school year: Provided, that in case the average daily attendance of colored children for any one school month shall be less than eight, then said board of directors may discontinue such school for a period not to exceed six months at any one time: Provided, that in cases where two school districts join, and in either or both of said districts the enumeration of colored children of legal school age is less than twenty-five, the boards of directors of such districts may establish a joint colored school in either of said districts, the expense of maintaining said school to be borne by the districts establishing same, in proportion to the number of colored children enumerated in each. The control of said school shall be vested in the board of directors of the district in which the schoolhouse wherein said colored school is maintained is located (page 3493).

OverviewOn July 17, 1930, the teacher was employed by the school board to teach

at the school for colored children within the district. The contract was agreed to by both the teacher and the school board and it read as follows:

That the said teacher agrees to teach in the public school of said district for the term of eight months, commencing on the 13th day of September, 1920, for the sum of $48 per month, to be paid monthly, and that for services properly rendered and reports correctly made, according to law, said board agrees to issue warrants upon the St. Louis county

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treasurer in favor of the said teacher for the amount of wages due under this agreement.

Under this contract the teacher taught in the school for colored children in the district for two school months. During the first month the average daily attendance was less than one student per day, and during the second month the school board ordered the school discontinued for the remaining six months of the term and the teacher sought legal action to recover the salary for the remaining six months.

IssueWhere a school board discontinued a colored school for lack of attendance

and discharged a teacher hired under contract for eight months, is the teacher entitled to recover wages provided for in contract?

DecisionCourt decided for the board.

Characteristics of the decisionThe main issue in the case is the right of the teacher to recover the wages

provided for in the contract for the time during which the school was discontinued by order of the school board. The issue was determined by the revised statues of Missouri 1919, Section 11145, as follows:

When there are within any school district in this state fifteen or more colored children of school age, as shown by the last enumeration, the board of directors of such school district shall be and they are hereby authorized and required to establish and maintain within such school district a separate free school for said colored children; … provided that in case the average daily attendance of colored children for any one school month shall be less than eight, then said board of directors may discontinue such school for a period not to exceed six months at any one time.

The discontinuance of the school by the school board was expressly authorized by this section, and since its provisions must be read into the contract, such discontinuance of the school was, in legal effect, authorized by the contract.

The teacher argued that the authority of the school board in relation to the teacher's contract was prescribed by the statue, and was expressly defined and limited by section 11138, which is as follows:

The contract required in the preceding section shall be construed under the general law of contracts, each party thereto being equally bound thereby. Neither party shall suspend or dismiss a school under said contract without

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the consent of the other party. The board shall have no power to dismiss a teacher; but should the teacher's certificate be revoked, said contract is thereby annulled.… Should the schoolhouse be destroyed, the contract becomes void.

The Court expressed that the provisions of section 11138 were of a general and comprehensive character, and were applicable to all public schools, whereas section 11145 was a special and restricted application, dealing exclusively with schools for colored children. In this case, special provisions must prevail over the provisions which are of general application.

The teacher argued that the school board was authorized to discontinue the school, they were not authorized to dismiss the teacher and relieve the district from the payment of wages as agreed to under the contract. Section 11138 expressly provided that "the board shall have no power to dismiss the teacher." The Court felt the argument was ingenious, but not convincing. The Court expressed there can be no school without a teacher. The teacher is an essential element to a functioning school. The discontinuance of the school necessarily contemplated the dismissal of the teacher and the discontinuance of compensation. In other words, the discontinuance of the school necessarily contemplated the discontinuance of performance of the contract.

Significant points1. The discontinuance of the school by the school board was

expressly authorized by the section in the School Code, and since its provisions must be read into the contract, such discontinuance of the school was, in legal effect, authorized by the contract.

2. Special provisions prevailed over the provisions which were of general application.

3. The Court expressed there can be no school without a teacher. The teacher is an essential element to a functioning school. The discontinuance of the school necessarily contemplated the dismissal of the teacher and the discontinuance of compensation. In other words, the discontinuance of performance of the contract.

Revised statuteSource – Vernon's Annotated Missouri Statues, Volume 11, 1975 Pocket Part, pages 127-129.

168.221. Probationary period for teachers and principals – removal of probationary and permanent personnel – hearing – demotions – reduction of personnel (metropolitan districts).

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1. The first three years of employment of all teachers and principals entering the employment of the metropolitan school district shall be deemed a period of probation during which period all appointments of teachers and principals shall expire at the end of each school year. During the probationary period any probationary teacher or principal whose work is unsatisfactory shall be furnished by the superintendent of schools with a written statement setting forth the nature of his incompetency. If improvement satisfactory to the superintendent is not made within one semester after the receipt of the statement, the probationary teacher or principal shall be dismissed. The semester granted the probationary teacher or principal in which to improve shall not in any case be a means of prolonging the probationary period beyond three years and six months from the date on which the teacher or principal entered the employ of the board of education. The superintendent of schools on or before the fifteenth day of April in each year shall notify probationary teachers or principals who will not be retained by the school district of the termination of their services. Any probationary teacher or principal who is not so notified shall be deemed to have been appointed for the next school year.

2. After completion of satisfactory probationary services, appointments of teachers and principals shall become permanent, subject to removal for any one or more causes described herein and to the right of the board to terminate the services of all who attain the age of compulsory retirement fixed by the retirement system. In determining the duration of the probationary period of employment in this section specified, the time of service rendered as a substitute teacher or substitute principal shall not be included.

3. No teacher or principal whose appointment has become permanent may be removed except for one or more of the following causes: Immorality, inefficiency in line of duty, violation of the published regulations of the school district, violation of the laws of Missouri governing the public schools of the state, or physical or mental conditions which incapacitate him for instructing or associating with children, and then only by a vote of not less than a majority of all the members of the board, upon written charges presented by the superintendent of schools, to be heard by the board after thirty days' notice, with copy of the charges served upon the person against whom they are preferred, who shall have the privilege of being present, together with counsel, offering evidence and making defense thereto. Notifications received by an employee during a vacation period shall be considered as received on the first day of the school term following. At the request of any person so charged the hearing shall be public. The action and decision of the board upon the charges shall be final. Pending the hearing of the charges, the person

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charged may be suspended if the rules of the board so prescribe, but in the event the board does not by a majority vote of all the members remove the teacher or principal upon charges presented by the superintendent, the person shall not suffer any loss of salary by reason of the suspension. Inefficiency in line of duty is cause for dismissal only after the teacher or principal has been notified in writing at least one semester prior to the presentment of charges against him by the superintendent. The notification shall specify the nature of the inefficiency with such particularity as to enable the teacher or principal to be informed of the nature of his inefficiency.

4. No teacher or principal whose appointment has become permanent shall be demoted nor shall his salary be reduced unless the same procedure is followed as herein stated for the removal of the teacher or principal because of inefficiency in line of duty, and any teacher or principal whose salary is reduced or who is demoted may waive the presentment of charges against him by the superintendent and a hearing thereon by the board. The foregoing provision shall apply only to permanent teachers and principals prior to the compulsory retirement age under the retirement system. Nothing herein contained shall in any way restrict or limit the power of the board of education to make reductions in the number of teachers or principals, or both, because of insufficient funds, decrease in pupil enrollment, or abolition of particular subjects or courses of instruction, except that the abolition of particular subjects or courses of instruction shall not cause those teachers who have been teaching the subjects or giving the courses of instruction to be placed on leave of absence as herein provided who are qualified to teach other subjects or courses of instruction, if positions are available for the teachers in the other subject or courses of instruction.

5. Whenever it is necessary to decrease the number of teachers or principals, or both, because of insufficient funds or a substantial decrease of pupil population within the school district, the board of education upon recommendation of the superintendent of schools, may cause the necessary number of teachers or principals, or both, beginning with those serving probationary periods, to be placed on leave of absence without pay, but only in the inverse order of their appointment. Nothing herein stated shall prevent a readjustment by the board of education of existing salary schedules. No teacher or principal placed on leave of absence shall be precluded from securing other employment during the period of the leave of absence. Each teacher or principal placed on leave of absence shall be reinstated in inverse order of his placement on leave of absence. Such reemployment shall not result in a loss of status or credit for previous years of service. No new appointments shall be made while there

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are available teachers or principals on leave of absence who are seventy years of age or less and who are adequately qualified to fill the vacancy unless the teachers or principals fail to advise the superintendent of schools within thirty days from the date of notification by the superintendent of schools that positions are available to them that they will return to employment and will assume the duties of the position to which appointed not later than the beginning of the school year next following the date of the notice by the superintendent of schools.

6. If any regulation which deals with the promotion of either teachers or principals, or both, is amended by increasing the qualifications necessary to be met before a teacher or principal is eligible for promotion, the amendment shall fix an effective date which shall allow a reasonable length of time within which teachers or principals may become qualified for promotion under the regulations.

Implications for educationUnder the revised statute, the board upon recommendation of the

superintendent, may cause the necessary number of teachers or principals, or both, to be placed on leave of absence without pay, beginning with those serving probationary periods. The revised statute places major emphasis on seniority.

The revised statute dealing with special provisions of decreasing the number of teachers or principals, or both, because of insufficient funds or a substantial decrease of pupil population within the school district would be special provisions which would probably prevail over the provisions which were of general application.

It is interesting to note the court expressed there can be no school without a teacher and that the teacher is an essential element of a functioning school.

Mulhall v. Pfankuck, 206 Iowa Reports 1139 Iowa (1928)

Statute appropriate to caseSource – Code of Iowa 1927, page 565.

4231. Nonemployment of teacher – when. No contract shall be entered into with any teacher to teach in any school in the school corporation when the average attendance in said school the last preceding term therein was less than five pupils, unless a showing is made to the county superintendent that the number of children of school age in said school district has increased so that seven or more will be enrolled in such school and will attend therein. In such cases, or when natural obstacles to transportation of pupils to another district, or other conditions make it clearly inadvisable that such schools be closed, the county superintendent

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may consent to maintaining or reopening a school in said district for the ensuing term. It shall be the duty of the members of the school board residing in said district to make said showing, or any resident of said district may do so upon his own motion.

OverviewIn a meeting held by a board of education, one sub-director left prior to

adjournment or before the members officially voted to close one of the schoolhouses. The teacher was contracted by the sub-director to teach school in the building which had been previously voted closed. At a later date the Board sought advice from the County Superintendent and also from the State Superintendent. Both parties recommended to keep the school open. The teacher taught for one month and the Board again voted to close the school because of the lack of students. The teacher brought suit against the sub-director for the balance of his contract sum.

IssueWas the contract valid when the school was closed for lack of students?

Characteristics of the decisionThe court rendered the decision in favor of the sub-director because the

contract was not approved officially by the Board. The court expressed that the official action of the Board in authorizing each sub-director to employ in his sub-district the teacher of his choice did not give them the authority to hire a teacher in a district where the school directors had voted the school closed for lack of students.

Significant points1. The contract was not approved officially by the Board.

2. The court expressed that the official action of the Board in authorizing each sub-director to employ in his sub-district the teacher of his choice did not give them the authority to hire a teacher in a district where the school directors had voted the school closed for lack of students.

Revised statuteSource – Iowa Code Annotated 12, Sections 257 to 279, pages 565-567.

279.13 – Contracts with teachers – automatic continuation – exchange of teachers. Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contract with another board of directors in the state of

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Iowa to teach covering the same period of time, until such contract shall have been released, and such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized, and payment by the calendar or school month, signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract but no such contract shall be entered into with any teacher for the ensuing year or any part thereof until after the organization of the board.

Boards of school directors shall have power to arrange for an exchange of teachers in the public schools under their jurisdiction with other public school corporations either within or without the state or the United States on such terms and conditions as are approved by the state superintendent of public instruction and when so arranged and approved the board may continue to pay the salary of the teacher exchanged as provided in the contract between said teacher and the board for a period of one year, and such teacher shall not lose any privileges of tenure, old age, and survivors' insurance, or certification as a result of such exchange. Said contract may be renewed each year as determined by the employing school board provided that the visiting exchange teacher is paid in full for the service rendered by the school authorities with whom his contract is made. Such exchange teachers must have qualifications equivalent to the regular teacher employed by the board and who is serving as the exchange teacher and must secure a special certificate covering the subjects designated for him to teach in the public schools in which the instruction is hereby authorized to formulate, establish, and enforce any reasonable regulation necessary to govern the exchange of teachers as provided in this paragraph, including the waiver of Iowa certification requirements for teachers who are regularly certificated or licensed in the jurisdiction from which they come.

Said contract shall remain in force and effect for the period stated in the contract and thereafter shall be automatically continued in force and effect for equivalent periods, except as modified or terminated by mutual agreement of the board of directors and the teacher, until terminated as hereinafter provided, however, no contract shall be tendered by the employing board to a teacher under its jurisdiction prior to March 1, nor be required to be signed by the teacher and returned to the board in less than twenty-one days after being tendered. On or before April 15, of each year the teacher may file his written resignation with the secretary of the board of directors, or the board may by a majority vote of the elected membership of the board, cause said contract to be terminated by written notification of termination, by a certified letter mailed to the teacher not later than the tenth day of April; provided, however, that at least ten days

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prior to mailing any notice of termination the board or its agent shall inform the teacher in writing that (1) the board is considering termination of said contract and that (2) the teacher shall have the right to a private conference with the board if the teacher files a request therefore with the president or secretary of the board within five days, and if within five days after receipt by the teacher of such written information the teacher files with the president or secretary of the board a written request for a conference and a written statement of specific reasons for considering termination, the board shall, before any notice of termination is mailed, give the teacher written notice of the time and place of such conference and at the request of the teacher, a written statement of specific reasons for considering termination, and shall hold a private conference between the board and teacher and his representative if the teacher appears at such time and place. No school board member shall be liable for any damages to any teacher if any such statement is determined to be erroneous as long as such statement was made in good faith. In event of such termination, it shall take effect at the close of the school year in which the contract is terminated by either of said methods. The teacher shall have the right to protest the action of the board, and to a hearing thereon, by notifying the president or secretary of the board in writing of such protest within twenty days of the receipt by him of the notice to terminate, in which event the board shall hold a public hearing on such protest at the next regular meeting of the board for that purpose, and shall give notice in writing to the teacher of the time of the hearing on the protest. Upon the conclusion of the hearing the board shall determine the question of continuance or discontinuance of the contract by roll call vote entered in the minutes of the board, and the action of the board shall be final. The foregoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of section 279.24. The term "teacher" as used in this section shall include all certificated school employees, including superintendents.

Implications for education

The revised statute would affirm that teaching contracts must be approved officially by the board and not individually by one of its members.

Funston v. District School Board for School District No. 1,278 P.1075 Oregon (1929)

Statute appropriate to caseSource – Oregon Laws Supplement 1921-1927, Part I, pages 551-552.

5246. Dismissal or Transfer of Teacher-hearing.

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Before being dismissed or transferred to a lower branch of the service or to a position in a different branch of the service carrying a lower salary or compensation, the board of directors shall cause a written notice of such action to be delivered to such teacher. A teacher who is not willing to abide by such order shall within five days after service of such notice serve written notice with the superintendent of his or her unwillingness to abide by such order, and the board shall thereupon within five days of the receipt of such notice to the superintendent, cause to be served upon such teacher a copy of the charges or complaints, if any, which may have been filed against such teacher, together with statement of the grounds upon which such dismissal or transfer is proposed to be made. Such statement shall also recite the recommendation of the superintendent as to the retention, dismissal or transfer of such teacher and it shall be the duty of such superintendent in all such cases to file with said board his recommendation as to the retention, dismissal, or transfer of such teacher. Before the hearing the board shall cause to be given to the teacher at least ten days' written notice of the time and place of such hearing and at such time and place shall her evidence that may be adduced in support of the charges or of the order of transfer, or of the teacher's defense or resistance thereto. Witnesses in support of the charges or transfer, not exceeding ten in number, shall be, upon request of the teacher, subpoenaed by the board and compelled to testify, and subjected to the same penalties for perjury or contempt as specified in section 5249 of Oregon Laws. Subpoenas on behalf of the teacher shall, upon request of the teacher, be issued in blank by and over the hand of the chairman of the board of directors. Proceedings before the board shall be summary and the board shall pass upon the admissibility of evidence, the length and character of arguments and other proceedings; subject, however, to its duty to give a fair and reasonable hearing to the teacher and to fully apprise the teacher of the grounds for the proposed dismissal or transfer. A teacher, as well as the board, shall have the right in all cases to be represented by counsel. If requested by, or on behalf, of the teacher, the decision of the board shall be rendered in writing with the grounds upon which it is based. If the action or dismissal or transfer is concurred in by five members of the board it shall be final and not subject to review by any other commission; if such action is concurred in by less than five members of the board, then such action shall be final, unless within twenty days after receiving written notice of such decision of the board such teacher shall file a written request with the clerk of the school board, asking for a hearing before the commission. Such teacher shall state in the written request whether the hearing shall be private or public and whether such teacher shall be represented by counsel. Such teacher shall be entitled to and given a hearing before the commission as hereinafter provided within ten days after filing such written request with the clerk of the school board, and

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shall have full benefit of witnesses and subpoenas issued in blank by and over the hand of the chairman of the commission. Said trial shall be public or private, as requested by the teacher, as above provided. If said teacher is represented by counsel, then the board of directors may also be represented by counsel at the hearing, but if the teacher does not notify the commission in the written request for hearing that she will be represented by counsel, then neither side shall be represented by counsel at said hearing. Of any such hearing such teacher and the board shall have due notice not less than three days before the date set for the hearing, and such hearing may be continued from time to time on account of sickness or absence of material witnesses, or for such other good cause as shall be determined by the commission.

Overview

In December 1912, the teacher was employed as a teacher of millinery in the schools of the district. Some time later she was granted a life certificate limited to the teaching of millinery only and there was only one school in Portland in which millinery was taught. Due to a change in the style of women's hats, the enrollment in her subject declined significantly. In the fall of 1926 it was 220, in the spring of 1927 it was only 122, and the estimated enrollment for the fall term of 1927 was 75 pupils. In the spring of 1927, due to the small enrollment, only two teachers were engaged in instruction in millinery and the teacher was assigned to other work. The board of directors on April 1, 1927, upon the recommendation of the superintendent, adopted a resolution that the teacher's services should be discontinued at the end of that school year. On April 12 th

notice of the board's action was served upon the teacher. This notice contained the following: "Reason for the discontinuance is on account of there not being sufficient classes in millinery to warrant continuance of three teachers in this work." On April 15th the superintendent received a notice from the teacher stating that she would not abide by the board's order. Three days later the board passed a resolution that the teacher be given a hearing. May 9 th the board secretary informed her that her matter would come before the board May 16 th, and on the latter day, when teacher failed to appear, the hearing was postponed until June 6 th. On May 14th the board served notice upon the teacher of the time and place of the hearing. On June 6th, when the teacher again failed to appear, the board took testimony and subsequently made and filed a resolution dismissing her from the service of the school district. The resolution stated that the number of pupils in millinery classes had declined to the point where the teacher's services as an instructor were no longer necessary. The teacher contended that, under the laws of the state regulating the hiring and discharge of teachers in her district, a lack of need for the services of a teacher who holds a life certificate is not a ground for dismissal, and second, that even if such ground was available, the board failed to comply with the procedure prescribed by the law regulating dismissals.

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IssueCan the school directors lawfully dismiss a teacher holding a life

certificate, where services were no longer needed because enrollment declined in a specific course?

DecisionCourt decided for the board.

Characteristics of the decisionWhen a teacher's professional services must be discontinued because of

the demands of economy, or by reasons of declining enrollment, the cause does not have its inception in the teacher, but arises from source foreign to them and over which they possess no control. The board had the power to organize the teaching force and to reduce it as proper management requires. Therefore, if anticipated revenues are insufficient to meet the requirements of an efficient service, the board could reduce the teaching force so that the expenditures would not exceed the appropriations. The Court concluded that when the cause of a teacher's dismissal is not personal to the teacher, the act does not require an adherence to the procedures prescribed by section 5246.

Significant points1. The board had the power to organize the teaching force and to

increase or reduce it as proper management requires.2. If anticipated revenues are insufficient to meet the requirements of

an efficient service, the board could reduce the teaching force so that the expenditures would not exceed the appropriations.

3. When the cause of a teacher's dismissal is not personal to the teacher, the act does not require an adherence to the procedures prescribed by section 5246.

Revised statuteSource – Oregon Revised Statutes #3, Public Services – General Welfare, Chapters 326-495, pages 178, 180.

342.865 Grounds for dismissal of permanent teacher.(1) No permanent teacher shall be dismissed except for: (a) Inefficiency; (b) Immorality; (c) Insubordination; (d) Neglect of duty; (e) Physical or mental incapacity; (f) Conviction of a felony or of a crime involving moral turpitude; (g) Inadequate performance; (h) Failure to comply with such reasonable requirements as the board may prescribe to show normal improvement and evidence of professional training and growth; (i) Any cause which constitutes grounds for the revocation of such permanent teacher's teaching certificate; or (j) Reduction in permanent teacher staff resulting from the district's inability to levy a tax sufficient to provide

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funds to continue its educational program at its anticipated level or resulting from the district's elimination of classes due to decreased student enrollment or reduction of courses due to administrative decision. School districts shall make every effort to transfer teachers of courses scheduled for discontinuation to other positions for which they are qualified. Merit and seniority shall be considered in determination of a teacher for such transfer. (2) In determining whether the professional performance of a permanent teacher is adequate, consideration shall be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which shall have been adopted by the board. (3) Suspension or dismissal on the grounds contained in paragraph (e) of subsection (1) of this section shall not disqualify the teacher involved for any of the benefits provided in ORS 237.195, 239.233 to 239.239 or 342.595.

342.895 Procedure for dismissal of permanent teacher.(1) Authority to dismiss a permanent teacher is vested in the district school board subject to the provisions of the fair dismissal procedures of ORS 342.00 and 342.805 to 342.955 and only after recommendations of the dismissal is given to the district school board by the superintendent. (2) At least 20 days before recommendation to a board the dismissal of the permanent teacher, the district superintendent shall give written notice to the permanent teacher by certified mail of his intention to make a recommendation to dismiss the teacher. The notice shall set forth the statutory grounds upon which the superintendent believes such dismissal is justified, and shall contain a plain and concise statement of the facts relied on to support the statutory grounds for dismissal. If the statutory grounds specified are those specified in paragraph (a), (c), (d), (g) or (h) of subsection (1) of ORS 342.865, then evidence shall be limited to those allegations supported by statements in the personnel file of the teacher on the date of the notice to recommend dismissal, maintained as required in ORS 342.850. Notice shall also be sent to the district school board and to the Fair Dismissal Appeals Board. A copy of ORS 342.200 and 342.805 to 342.955 shall also be sent to the permanent teacher. (3) The action of the district superintendent takes effect on the 20th day after notice is given the permanent teacher as required in subsection (2) of this section, if approved by the district school board. Notice of the board's action shall be given to the permanent teacher by certified mail.

342.915 Hearing procedure. The following provisions shall be applicable to any hearing conducted pursuant to ORS 342.905: (1) The hearing shall be private unless the permanent teacher requests a public hearing. (2) The hearing shall be conducted in accordance with rules and regulations adopted by the Fair Dismissal Appeals Board pursuant to ORS chapter

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183. (3) At he hearing the permanent teacher shall have the right to be present and to be heard, to be represented by counsel and to present through witnesses any competent testimony relevant to the issue of whether facts as found by the Fair Dismissal Appeals Board and as relied on to support the recommendation of the district superintendent are true and substantiated and whether those facts justify the statutory grounds cited as reason for the dismissal and whether the procedures required by law have been followed.

Implications for educationIn this case, the cause of the teacher's dismissal was not personal to the

teacher and therefore did not require a strict adherence to the procedures prescribed by the earlier statute 5246. When a teacher's dismissal is not personal, it means there are no formal charges filed against them. This is opposed to general procedures for dismissal where formal charges are filed against the teacher such as inefficiency, immorality, insubordination, neglect of duty, physical or mental incapacity, conviction of a felony or crime, inadequate performance, or incompetency.

The revised statute gives the board authority to dismiss a permanent teacher as a result of the district's inability to levy taxes sufficient enough to provide funds to continue its educational program at its anticipated level, or as a result of the district's elimination of classes due to decreased student enrollment or reduction of courses due to administrative decision. Other causes are listed. There are detailed procedures for dismissal of permanent teachers within the revised statute.

James v. School Township of Troy, 210 Iowa Reports 1059 Iowa (1930)

Statue appropriate to caseSource – Code of Iowa 1927, pages 564-565.

4229. Contracts with teachers. Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contract with another board of directors in the state of Iowa to teach covering the same period of time, until such contract shall have been released, and such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized, and payment by the calendar or school month, signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract.

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OverviewThe teacher entered into a contract with the school district for thirty-two

weeks. A small number of students attended the school. Shortly after the school term began one family decided to enroll their children in a parochial school. A meeting was scheduled on November 2 to discuss the matter, with the teacher in attendance. The Board decided to continue even though there might be even fewer students in attendance as the year progressed. At a later date the school was closed for lack of students and the teacher was asked not to return, even though her professional services were available. The teacher filed charges for the balance due on her contract, which was $640. The Board claimed that she had taught for only a portion of the year and did not fulfill the terms of said contract. She was also charged with failure to seek other employment.

IssueIs a teacher's contract valid when a school is closed for lack of students?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe Court ruled in 1930 for the teacher, claiming that the contract was

properly contracted and filed. No effort to obtain other employment was necessary and the teacher made herself available to teach. The court pointed out that a teacher who, in compliance with the direction of the board, holds herself in readiness to teach, but is furnished no pupils, does not need to show any effort to secure employment elsewhere as a teacher.

Significant points1. The contract had been properly filed.2. No effort to obtain other employment was necessary and the

teacher made herself available to teach.3. The court pointed out that a teacher who, in compliance with the

direction of the board, holds herself in readiness to teach, but is furnished no pupils, does not need to show any effort to secure employment elsewhere as a teacher.

Revised statuteSource – Iowa Code Annotated 12, Sections 257 to 279, pages 565-567.

279.13 Contracts with teachers – automatic continuation – exchange of teachers. Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contract with another board of directors in the state of

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Iowa to teach covering the same period of time, until such contract shall have been released, and such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized, and payment by the calendar or school month, signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract but no such contract shall be entered into with any teacher for the ensuing year or any part thereof until after the organization of the board.

Boards of school directors shall have power to arrange for an exchange of teachers in the public schools under their jurisdiction with other public school corporations either within or without the state or the United States on such terms and conditions as are approved by the state superintendent of public instruction and when so arranged and approved the board may continue to pay the salary of the teacher exchanged as provided in the contract between said teacher and the board for a period of one year, and such teacher shall not lose any privileges of tenure, old-age, and survivors' insurance, or certification as a result of such exchange. Said contract may be renewed each year as determined by the employing school board provided that the visiting exchange teacher is paid in full for the service rendered by the school authorities with whom his contract is made. Such exchange teachers must have qualifications equivalent to the regular teacher employed by the board and who is serving as the exchange teacher and must secure a special certificate covering the subjects designated for him to teach in the public schools in which the instruction is hereby authorized to formulate, establish, and enforce any reasonable regulation necessary to govern the exchange of teachers as provided in this paragraph, including the waiver of Iowa certification requirements for teachers who are regularly certified or licensed in the jurisdiction from which they come.

Said contract shall remain in force and effect for the period stated in the contract and thereafter shall be automatically continued in force and effect for equivalent periods, except as modified or terminated by mutual agreement of the board of directors and the teacher, until terminated as hereinafter provided, however, no contract shall be tendered by the employing board to a teacher under its jurisdiction prior to March 1, nor be required to be signed by the teacher and returned to the board in less than twenty-one days after being tendered. On or before April 15, of each year the teacher may file his written resignation with the secretary of the board of directors, or the board may by a majority vote of the elected membership of the board, cause said contract to be terminate by written notification of termination, by a certified letter mailed to the teacher not later than the tenth day of April; provided, however, that at least ten days

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prior to mailing any notice of termination the board or its agent shall inform the teacher in writing that (1) the board is considering termination of said contract and that (2) the teacher shall have the right to a private conference with the board if the teacher files a request therefore with the president or secretary of the board within five days, and if within five days after receipt by the teacher of such written information the teacher files with the president or secretary of the board a written request for a conference and a written statement of specific reasons for considering termination, the board shall, before any notice of termination is mailed, give the teacher written notice of the time and place of such conference and at the request of the teacher, a written statement of specific reasons for considering termination, and shall hold a private conference between the board and teacher and his representative if the teacher appears at such time and place. No school board member shall be liable for any damages to any teacher if any such statement is determined to be erroneous as long as such statement was made in good faith. In event of such termination, it shall take effect at the close of the school year in which the contract is terminated by either of said methods. The teacher shall have the right to protest the action of the board, and to a hearing thereon, by notifying the president or secretary of the board in writing of such protest within twenty days of the receipt by him of the notice to terminate, in which event the board shall hold a public hearing on such protest at the next regular meeting of the board for that purpose, and shall give notice in writing to the teacher of the time of the hearing on the protest. Upon the conclusion of the hearing the board shall determine the question of continuance or discontinuance of the contract by roll call vote entered in the minutes of the board, and the action of the board shall be final. The foregoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of section 279.24. The term "teacher" as used in this section shall include all certificated school employees, including superintendents.

Implications for educationThe important implication in this case is that where specific stipulations

are set forth in statutes, any deviation tends to be interpreted as a violation of procedure. Courts will support procedure as stated.

Seidel v. Board of Education of Ventnor City,164 A.297, New Jersey (1933)

Statutes appropriate to caseSource – Compiled Statutes of new Jersey, Volume 4, pages 4762-4764.

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106. Rules and regulations as to employment, etc.; contracts of employment; school month. A board of education may make rules and regulations governing the engagement and employment of teachers and principals, the terms and tenure of such employment, and the promotion and dismissal of such teachers, and principals, the salaries, and the time and mode of payment thereof, and may from time to time change, amend or repeal such rules and regulations. The employment of any teacher by such board, and the rights and duties of such teacher with respect to such employment, shall be dependent upon and shall be governed by the rules and regulations in force with reference thereto. If a board of education shall not have made rules and regulations as aforesaid, then no contract between such board of education and a teacher shall be valid unless the same be in writing, or partly written and partly printed, in triplicate, signed by the president and district clerk or secretary of the board of education and by the teacher. One copy thereof shall be filed with the board of education, one copy with the teacher and one copy with the county or city superintendent. Such contract shall specify the date when such teacher shall begin teaching, the kind and grade of certificate held by said teacher and the date when said certificate will expire, the salary, and such other matters as may be necessary to a full and complete understanding of the same. In every such contract, unless otherwise specified, a month shall be construed and taken to be twenty school days or four weeks of five school days each. The salary specified in every such contract shall be paid in equal monthly installments, not later than five days after the close of each month while the school shall be in session. Any contract or engagement between a board of education and a teacher shall cease and determine and be of no effect against said board whenever said board shall ascertain by notice in writing received from the county or city superintendent or otherwise, that said teacher is not in possession of a proper teacher's certificate in full force and effect, notwithstanding the term or engagement for which such contract shall have been made may not then have expired. The state superintendent of public instruction shall prepare and distribute blanks for contracts between the board of education and teachers.

106a. Tenure after three years' employment; dismissal or reduction of salary' procedure-Sec. 1. The service of all teachers, principals, supervising principals of the public schools in any school district of this state shall be during good behavior and efficiency, after the expiration of a period of employment of three consecutive years in that district, unless a shorter period is fixed by the employing board; provided, that the time any teacher, principal, supervising principal has taught in the district in which he or she is employed at the time this act shall go into effect, shall be counted in determining such period of employment. No principal or teacher shall be dismissed or subjected to reduction of salary in said

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school district except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause, and after a written charge of the cause or causes shall have been preferred against him or her, signed by the person or persons making the same, and filed with the secretary or clerk of the board of education having charge of the school in which the service is being rendered, and after the charge shall have been examined into and found true in fact by said board of education, upon reasonable notice to the person charged, who may be represented by counsel at the hearing. Charges may be filed by any person, whether a member of said school board or not.

106c. Reduction of number of teachers; when; dismissal of teachers without certificates-Sec. 3. Nothing herein contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when such reduction shall be due to a natural diminution of the number of pupils in said school district; and, provided further, that the service of any principal or teacher may be terminated without charge or trial who is not a holder of a proper teacher's certificate in full force and effect.

OverviewA teacher protected under tenure had been informed that she would be

assigned to teach a special class of backward and troublesome pupils and signed a general contract restricting her teaching to the special class. Having brought the class to the point where the pupils could be transferred into regular classes, the board decided that in the interest of good economy to abolish the position and discharge the teacher. The teacher argued that the abolition of her position was no more than the reduction of one teacher of the teaching force in the public school system, and that she was entitled to remain as a teacher in preference to others who had not come under the protection of the tenure statute.

IssueIn the interest of economy, can the school board abolish a special

teaching position no longer necessary and discharge a tenured teacher assigned to the position?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe board argued that the special employment of the teacher had been

restricted to the special class now abolished, and that special provisions had been written into the contract. The Court expressed the teacher was employed to teach and if the board at any time had elected to transfer her to a regular class, she could

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not legally have claimed exemption from such a service. On the other hand, the board, having assigned her under the written contract to the special class, could not deprive her of tenure as a teacher, by abolishing the class. She had the same standing as other teachers under similar general contracts, with the added advantage of indefinite tenure arising from three years service, as against those who had not served that length of time.

The school board may in the interest of economy reduce the number of teachers. If such a reduction is to be made at all, and a place remains which a tenured teacher is qualified to fill, the teacher is entitled to that position as against the retention of a teacher not protected by tenure.

Significant points1. The board, having assigned the teacher under the written contract

to the special class, could not deprive her of tenure as a teacher, by abolishing the class. The teacher had the same standing as other teachers under the similar general contracts with the added advantage of indefinite tenure.

2. The school board may in the interest of economy reduce the number of teachers. If such a reduction is to be made at all, and a place remains which a tenured teacher is qualified to fill, the teacher is entitled to that position as against the retention of a teacher not protected by tenure.

3. The Court pointed out that in cases of (a) two or more tenured teachers and only one position available, and (b) one tenured teacher and several non-tenured teachers to be discharged, the simple answers are: (a) the board must use its discretion in selecting the tenured teacher; and (b) the board must use similar discretion in selecting the non-tenured teacher to discharge. In this case, there was one position filled by a non-tenured teacher who could be discharged on expiration of the annual contract to make way for the dismissed tenured teacher.

Revised statuteSource – New Jersey Statutes Annotated, Title 18A Education, 18A:25 to 18A:65.

18A:27-4. Power of boards of education to make rules governing employment of teacher, etc.; employment thereunder, page 34. Each board of education may make rules, not inconsistent with the provisions of this title, governing the employment, terms and tenure of employment, promotion and dismissal, and salaries and time and mode of payment thereof of teaching staff members for the district, and may from time to time change, amend or repeal the same, and the employment of any person in any such capacity and his rights and duties with respect to such

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employment shall be dependent upon and governed by the rules in force with reference thereto.

18A:28-5. Tenure of teaching staff members, pages 58-59. The services of all teaching staff members including all teachers, principals, assistant principals, vice principals, superintendents, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by subarticle B of article 2 of chapter 6 of this title, after employment in such district or by such board for (a) three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or (b) three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or (c) the equivalent of more than three academic years within a period of any four consecutive academic years; provided that the time in which such teacher staff member has been employed as such in the district in which he was employed at the end of the academic year immediately preceding July 1, 1962, shall be counted in determining such period or periods of employment in that district or under that board but no such teaching staff member shall obtain tenure prior to July 1, 1964 in any position in any district or under any board of education other than as a teacher, principal, assistant superintendent or superintendent, or as a school nurse, school nurse supervisor, head school nurse, chief school nurse, school nurse coordinator, or as the holder of any position under which nursing services are performed in the public school.

18A:28-14. Teaching staff members not certified; not protected; exception, page 100. The services of any teaching staff member who is not the holder of an appropriate certificate, in full force and effect, issued by the state board of examiners under rules and regulations prescribed by the state board of education may be terminated without charge or trial, except that any school nurse appointed prior to May 9, 1947 shall be protected in her position as is provided in section 18A:28-4 of this title.

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Implications for educationAccording to the revised statute, the court probably would still decide in favor of the teacher. The board is allowed to assign a teacher under the written contract to teach a special class, but it cannot deprive him of tenure as a teacher by simply abolishing the class. Other stipulations relating to powers of boards and tenure of teach staff are given with the revised statute.

Walsh v. Board of Trustees of Redlands High SchoolDistrict, 37 P.2d 700 California (1934)

Statutes appropriate to caseSource – General laws, Volume Three, Acts 1931.

5.500, page 4179. Every employee of a school district of any type or class, who after having been employed by the district for three complete consecutive school years in a position, or positions, requiring certification qualifications, is re-elected for the next succeeding school year to a position requiring certification qualifications shall, except as hereinafter otherwise provided, at the commencement of said succeeding school year, be classified as and shall become a permanent employee of the district.

5.710, page 4190. It is hereby provided that whenever it becomes necessary to decrease the number of permanent employees in a school district on account of a decrease in the number of pupils attending the schools of such district, or on account of the discontinuance of a particular kind of service in such district, the governing board may dismiss such employee at the close of the school year.

5.711, page 4191. If the dismissal of such employee shall become necessary on account of the decrease in the number of pupils attending the schools of the district, such employee so dismissed shall be the last person engaged in the type of work so discontinued.

OverviewPrior to the school year of 1932-1933, the teacher had been employed for

more than three years by the district, during which time she had taught vocal music for four periods a day in the senior high school and the same subject for two periods a day in the junior high school. Early in May, 1932, the teaching of vocal music in the senior high school was entirely discontinued and abolished by action of the board, and notice was given to the teacher on May 3, 1932. The teaching of vocal music in the junior high school was not abolished at that time, but was continued during the school year 1932-1933. During the preceding two years another teacher had also taught vocal music in the junior high school, teaching six periods a day. She was still a probationary teacher, not having

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reached a permanent status, and her services were continued during the school year 1932-1933 for the full six periods a day. The teacher bringing legal action had been offered a contract to teach this subject in the junior high school for two periods a day, as before, and she continued to teach those periods during the school year 1932-1933. During this year she brought legal action asking that the board be compelled to reinstate and pay her as a full-time teacher in the district for that year.

IssueTeaching of vocal music in senior high school constitutes a "particular

kind of service" and it may be discontinued when finances or other reasons demand. When such a particular service is discontinued, the "position" is abolished. Is a teacher under tenure entitled to oust a probationary teacher teaching the same subject at the junior high level?

DecisionCourt decided for the board.

Characteristics of the decisionThe court pointed out distinct differences between the high school and

junior high. High schools are designed for older and more advanced students, apply different methods, allow more freedom both in choice of subjects and from the routine followed in elementary and junior high schools, and being, in many respects, comparable to some colleges. The junior high schools, usually cover the work formerly done in the first year of the senior high school, together with the work formerly given in the last two years of the elementary grades. The Court expressed that there was a very marked change in children when they leave a junior high school and enter a senior high school and both the subject matter taught and the method of teaching and handling pupils is quite different in the two classes of schools. The difference between these two kinds of schools is so marked that, in the court's opinion, it could not be held that a person teaching classes in both schools at the same time was holding one position only. In other words, senior high schools differ materially from junior high schools. While some of the subjects taught in a senior high school may be regarded as a necessary continuation of similar work in the junior high school, other subjects which may be taught in the one may be less essential in the other, and may or may not be taught there, depending upon available funds and many other conditions.

When such a particular service is discontinued, the "position" of teaching it is abolished. And a teacher who happens to also hold another "position" teaching that same subject in a different kind of school is not entitled to oust another teacher in a lower class of school on the solid ground that the general subject is still taught in that school and that her permanent standing entitles her to teach that general subject anywhere and under any circumstances where and under which it may be taught.

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The Court felt a standing as a permanent teacher is related, not only to the subject taught, but to the "position or positions" occupied, and to the kind of school or schools where the probationary period was passed.

By reason of two positions held, the teacher had acquired permanent standing in each. She could not be capriciously removed from either without being given one of equivalent rank and grade if one existed, but, when all such service of the rank and grade of one of the positions held was discontinued in the district, the statute permits her dismissal from that position. It was fully apparent to the court that the teacher was not demanding work in the subject of rank and grade equivalent to that which she lost, for none of that rank and grade remained in the district, but she was asking that she be given a new and further position of a lower rank and grade on the ground that the teaching of this subject, alone and of itself, entitled her to teach the same in any kind of school and without regard to the rank and grade of the position previously occupied and which had been abolished.

The teacher claimed the right on the ground that she had acquired permanent standing as a full-time teacher through teaching vocal music in both schools. In other words, she maintained that her rights as a permanent teacher have accrued from the subject taught, without regard to where it was taught. If she would have been correct in her contention, she would be entitled to teach full-time in the junior high school if she had done no work at all in that school, because the subject taught by her was continued in that school which is run by the school district. In the court's opinion, the statue was never intended to treat teachers as interchangeable between junior high school and senior high school without regard to qualifications or anything except the fact that one general subject may have been taught in both.

The court concluded that teaching vocal music in the senior high school was a particular kind of service in the district within the meaning of the statute, and that a discontinuance of it ended tenure rights of the teacher which had been acquired, regardless of whether or not a similar subject was continued in the junior high school maintained in the same district.

Significant points1. When a particular service is discontinued the "position" of

teaching it is abolished. A teacher who happens to also hold another "position" teaching that same subject in a different kind of school is not entitled to oust another teacher in a lower class of school on the sole ground that the general subject is still taught in that school and that her permanent standing entitles her to teach that general subject anywhere and under any circumstances where and under which it may be taught.

2. The standing as a permanent teacher is related, not only to the subject taught, but to the "position or positions' occupied, and to

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the kind of school or schools where the probationary period passed.

3. The statute was never intended to treat teachers as interchangeable between junior high school and senior high school without regard to qualifications or anything except the fact that one general subject may have been taught in both.

4. The teaching of vocal music in the senior high school was a particular kind of service in the district within the meaning of the statute, and that a discontinuance of it ended tenure rights of the teacher which had been acquired, regardless of whether or not a similar subject was continued in the junior high school maintained in the same district.

Revised statuteSource – Annotated California Codes, Education, Sections 13361 to 15000, pages 104-105.

13447. Reduction in number of permanent employees. No permanent employee shall be deprived of his position for causes other than those specified in Sections 13313, 13327 and 13338, and Sections 13403 to 13441, inclusive, and no probationary employee shall be deprived of his position for cause other than as specified in Sections 13442 and 13443, except in accordance with the provisions of Section 13319 and Sections 13447 to 13452, inclusive.

Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of either of such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.

Notice of such termination of services either for a reduction in attendance or reduction or discontinuance of a particular kind of service to take effect not later than the beginning of the following school year, shall be given

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before the 15th of May in the manner prescribed in Section 13443, and services of such employees shall be terminated in the inverse of the order in which they were employed, as determined by the board in accordance with the provisions of Sections 13262 and 13263 of this code. In the event that a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 13443, he shall be deemed reemployed for the ensuing school year.

The board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.

Implications for educationThe court expressed that there is a very marked change in children when

they leave a junior high school and enter a senior high school, and both the subject matter and the method of teaching and handling pupils is quite different in the two classes of schools.

Under the revised statute, seniority provisions are provided and no permanent employee may be terminated while a probationary employee or any other employee with less seniority is retained to render a service which a permanent employee is certificate and competent to render. The statue provides the board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitled them to render. In the revised statue, employees are entitled to cross grade level lines because of seniority rights within the district, providing their professional certification permits them to render a particular service.

Downs v. Board of Education of Hoboken District,171 A.528 New Jersey (1934)

Statutes appropriate to caseSource – Compiled Statutes of New Jersey, Volume 4

68. Boards of education; majority; action in general, page 4744. No principal or teacher shall be appointed, transferred or dismissed, not the amount of his or her salary fixed; no school term shall be determined, nor shall any course of study be adopted or altered, nor text-books selected, except by a majority vote of the whole number of members of the board of education.

106a. Tenure after three years' employment; dismissal or reduction of salary; procedures.-Sec. 1, page 4763. The service of all teachers, principals, supervising principals of the public schools in any school

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district of this state shall be during good behavior and efficiency, after the expiration of a period of employment of three consecutive years in that district, unless a shorter period is fixed by the employing board; provided, that the time any teacher, principal, supervising principal has taught in the district in which he or she is employed at the time this act shall go into effect, shall be counted in determining such period of employment. No principal or teacher shall be dismissed or subjected to reduction of salary in said school district except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause, and after a written charge of the cause or causes shall have been preferred against him or her, signed by the person or persons making the same, and filed with the secretary or clerk of the board of education having charge of the school in which the service is being rendered, and after the charge shall have been examined into and found true in fact by said board of education, upon reasonable notice to the person charged, who may be represented by counsel at the hearing. Charges may be filed by any person, whether a member of said school board or not.

106c. Reduction of number of teachers; when; dismissal of teachers without certificates.-Sec. 3, page 4764. Nothing herein contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when such reduction shall be due to a natural diminution of the number of pupils in said school district; and, provided further, that the service of any principal or teacher may be terminated without charge or trial who is not the holder of a proper teacher's certificate in full force and effect.

OverviewThere were nine elementary schools in the school district of Hoboken with

6,704 pupils in attendance in 1928. From that time forward until 1932 there was a marked decrease in attendance from year to year, so that in 1931 there were only 5,431 pupils. During the latter part of this period five more classrooms became vacant. This diminution in the number of pupils was a natural one, due to the loss of population. During this period the decrease in the number of teachers was only nine. In 1931, due to a bank failure, inability to collect taxes, and other causes, the city of Hoboken, which comprised the school district of Hoboken, found it difficult to finance its schools, difficult at first and almost if not impossible thereafter to borrow money by the use of all available credit of the city. From time to time the president of the board of education made public reference to economic problems facing the board. He referred to the fact that many of the teachers were married women, some of whom did not live in the city, and that condition he vigorously criticized. On Jun 27, 1932, a second conference was held between the bankers and the city officials in an effort to raise money, but that effort was futile in view of the position taken by the bankers that the cost of

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operating the schools must be reduced. As a result of this conference, the city commissioners met with the board of education and laid before them the situation. The result was that it was decided to close two schools. To carry out this decision the board met on June 29, 1932. At that meeting a report was made by the superintendent of schools that he had made certain transfers of teachers and other employees from and to various schools, subject to the approval of the board. The approval was unanimously given. By that transfer 26 teachers represented by the dismissed teacher were transferred to schools numbers 4 and 7. Later at the same meeting the board by resolution reciting in effect the decreased attendance, the excessive per capita cost of pupils, the necessity of economizing, and that the services of so large a number of teachers were no longer required, unanimously resolved that schools No. 4 and 7 be closed on June 30th at the close of the school year, and that the pupils attending those schools be transferred to other schools and that 34 named teachers (including the 26 and 8 others) be dismissed as of June 30, 1932, and abolished the positions of certain other employees.

All of the dismissed teachers were involved (namely, the 26 transferred to schools numbered 4 and 7), and the eight who had long served in Numbers 4 and 7), have served for more than three years, and were therefore under the protection of the tenure act.

IssueCan the board transfer teachers from various schools to a particular school

which the board determined to close for reasons of economy and declining number of pupils, thus rendering the teachers' professional services unnecessary?

DecisionCourt decided for the board.

Characteristics of the decisionAn appeal was taken to the state board of education, and that board held

that the termination of the services of 34 teachers was legal, subject to the board assigning seven of the teachers to positions held by teachers not protected by tenure. The court felt that the decision of the state board of education should not be disturbed.

The court expressed that the powers of boards of education in the management and control of the school districts are broad. They are invested with the supervision, control, and management of the public schools. They may make, amend, and repeal rules, regulations, and by-laws not inconsistent with the school law or with the rules and regulations of the state board of education, and, among other things, may employ and discharge teachers. The Board's powers are limited as to the employment and discharge of teachers only to the extent provided by School Codes 68, 106a, and 106c. These laws declare, among other things, that "nothing herein contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when

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such reduction shall be due to a natural diminution of the number of pupils in said school district."

In general, the right to transfer a teacher seems to rest in the sound discretion of the board of education, and it seemed to the court that the mere fact that the 26 teachers were transferred from their various schools to schools Numbers 4 and 7, which at the same meeting the board of education determined to close, did not render the transfers illegal. In general, the board had a right to dispense with the services of such number of teachers selected from the entire school district as it in good faith deemed necessary to effect the economy which its financial condition demanded, and whose services were no longer necessary because of the diminution of the number of pupils.

From time to time the president of the board of education made public reference to economic problems facing the board. He referred to the fact that many of the teachers were married women, some of whom did not live in the city, and that condition he vigorously criticized. It was true that the board president expressed himself forcibly. It was true that he wrote letters to the teachers in which he expressed his views. It was also true that he conducted a survey and reported the findings to the board. But the court indicated that the board did not authorize such a survey and took no action on the report with regard to nonresident and married women teachers, and that it did not authorize the president to communicate with the teachers nor to do anything in that regard. The court indicated that the board may or may not have been influenced by the board president's views. The court would not speculate on this matter. The question was, "Does this action of the president affect the legality of the transfers?" The court felt it did not. The court was satisfied from the record that the purpose of the board was to effect economy and to terminate the services of a number of teachers no longer necessary because of the diminution of pupils. The fact they dismissed married or nonresident women teachers, giving preference to residents of the school district, was not an abuse of power. The court held the board acted within the authority conferred upon it by law, and its action involved the exercise of discretion, and, in the absence of clear abuse, its action ought not to be disturbed.

Significant points1. The powers of state boards of education in the management and

control of the school districts are broad. They are invested with the supervision, control, and management of the public schools.

2. Boards of education may make, amend, and repeal rules, regulations, and by-laws not inconsistent with the school law or with the rules and regulations of the state board of education, and, among other things, may employ and discharge teachers. They are authorized by majority vote to transfer and dismiss teachers. These powers are limited as to the employment and discharge of teachers only to the extent provided by the Teachers Tenure Law.

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3. In general the right to transfer a teacher rests in the sound discretion of the board of education. The board had the right to dispense with the services of such a number of teachers selected from the entire school district as it in good faith deemed necessary to effect the economy which its financial condition demanded, and whose services were no longer necessary because of the diminution of the number of pupils.

4. The fact the board dismissed married or nonresident women teachers, giving preference to residents of the school district, was not an abuse of power. The Court held the board acted within the authority conferred upon it by law, and its action involved the exercise of discretion, and in the absence of clear abuse, its action ought not to be disturbed.

Revised statuteSource – New Jersey Statutes Annotated, Title 18A, Education, 18A:25 to

18A:65.

18A:28-5. Tenure of teaching staff members, pages 58-59. The services of all teaching staff members including all teachers, principals, assistant principals, vice principals, superintendents, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by subarticle B of article 2 of chapter 6 of this title, after employment in such district or by such board for: (a) three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or (b) three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or (c) the equivalent of more than three academic years within a period of any four consecutive academic years; provided that the time in which such teacher staff member has been employed as such in the district in which he was employed at the end of the academic year immediately preceding July 1, 1962, shall be counted in determining such period or periods of employment in that district or under any board of education other than as a teacher, principal, assistant superintendent or superintendent, or as a school nurse, school nurse supervisor, head school

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nurse, chief school nurse, school nurse coordinator, or as the holder of any position under which nursing services are performed in the public schools.

18A:28-9. Reduction of force; power to reduce and reasons for reduction, page 86. Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article.

18A:28-14. Teaching staff members not certified; not protected; exception, page 100. The services of any teaching staff member who is not the holder of an appropriate certificate, in full force and effect, issued by the state board of examiners under rules and regulations prescribed by the state board of education may be terminated without charge or trial, except that any school nurse appointed prior to May 9, 1947 shall be protected in her position as is provided in section 18A:28-4 of this title.

Implications for educationThe revised statute specifically indicates that no law relating to tenure of

service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district, whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or for other good cause upon compliance with the provisions of the section. Tenure provisions are specific within the context of the revised statue.

It is interesting to note that the president of the board of education made public reference to economic problems facing the board, criticized married women teachers because of not living within the city, wrote letters to them stating his views along with conducting a survey and presenting the results to the board. The court indicated that the board did not authorize such a survey and took no action on the report. The board did not authorize the president to communicate with teachers nor to do anything in that regard. The question was "Does this action of the president affect the legality of the transfers?" The court was of the opinion that it did not. If a similar case were before the court today, the court probably would not be of the same opinion.

Unruh v. Piedmont High School District, 41 P.2d 212 California (1935)

Statutes appropriate to caseSource – General Laws, Volume Three, Acts 1931.

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5.500, page 4179. Every employee of a school district of any type or class, who after having been employed by the district for three complete consecutive school years in a position, or positions, requiring certification qualifications, is re-elected for the next succeeding school year to a position requiring certification qualifications shall, except as hereinafter otherwise provided, at the commencement of said succeeding school year, be classified as and shall become a permanent employee of the district.

5.710, page 4190. It is hereby provided that whenever it becomes necessary to decrease the number of permanent employees in a school district on account of a decrease in the number of pupils attending the schools of such district, or on account of the discontinuance of a particular kind of service in such district, the governing board may dismiss such employee at the close of the school year.

5.711, page 4191. If the dismissal of such employee shall become necessary on account of the decrease in the number of pupils attending the schools of the district, such employee so dismissed shall be the last person engaged in the type of work so discontinued.

OverviewThe teacher was appointed by the school district in May 1928 to serve as a

teacher of music and was given the title of "head of the music department." During the school year 1928-1929, his first year of employment, he was the only instructor in the music department and he then taught both instrumental and vocal music. During the next three years he taught vocal music only, but retained the title of music head for the second and fourth years of his teaching. On May 10, 1932, the teacher received notice of honorable dismissal from the Board of education with a statement that the vocal branch of the music department was being discontinued at the high school. He received a second precautionary dismissal notice prior to May 15, 1933. The teacher held a secondary life certificate which entitled him to teach music in all public schools. During the latter three years the school had employed other teachers to teach instrumental music and at the time of the teacher's dismissal a probationary teacher was continued in this capacity. Since the teacher was qualified to teach in this capacity and was a permanent teacher, and since the music department, of which he was the head, was continued, he contended that he should have been retained instead of the probationary teacher. Also, the dismissed teacher contended the decrease in the number of pupils attending the schools of the district should justify dismissing the probationary teacher and not the permanent teacher.

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IssueWas vocal music, which was taught by the dismissed teacher, a "Particular

kind of service" to be distinguished from instrumental music which was continued in the school?

DecisionCourt decided for the board.

Characteristics of the decisionDismissal of the probationary teacher is required only when a dismissal is

made necessary on account of a decrease in the number of pupils attending the school. In this case, the dismissal was made on account of the "discontinuance of a particular kind of service." Preceding the order of dismissal, the school board determined that the "particular kind of service" performed by the teacher should be discontinued and that the teacher was performing that kind of service and that only. Although the teacher was protected under tenure, the right to tenure extends only to the "position or positions" in which he had been employed "for three consecutive years." Assuming that the position of teacher of vocal music and the position of head of the music department are separate "positions," it was undisputed that the teacher's only consecutive service was in the position of teacher of vocal music. Hence, the teacher had gained no right of tenure in the position of head of the department. If there were no separate positions, then the combination had been abolished under the authority of the board as expressed in the School Code. All the evidence supported the contention of the board that the "particular kind of service" for which the teacher had been employed for three consecutive school years was the teaching of vocal music and that, for reasons coming within the authority of the School Code, this particular service had been discontinued.

Significant points1. Preceding the order of dismissal, the school board determined that

the "particular kind of service" performed by the teacher should be discontinued and that the teacher was performing that kind of service and that only.

2. Although the teacher was protected under tenure, the right to tenure extends only to "the position or positions" in which he had been employed "for three consecutive years."

3. All evidence supported the contention of the board that the "particular kind of service" for which the teacher had been employed for three consecutive school years was the teaching of vocal music and that, for reasons coming within the authority of the School Code, this particular service had been discontinued.

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Revised statuteSource – Annotated California Codes, Education, Sections 13361 to 15000.

13447. Reduction in number of permanent employees, pages 104-105. No permanent employee shall be deprived of his position for causes other than those specified in Sections 13313, 13327 and 13338, and Sections 13403 to 13441., inclusive, and no probationary employee shall be deprived of his position for cause other than as specified in Sections 13442 and 13443, except in accordance with the provisions of Section 13319 and Sections 13447 to 13452, inclusive.

Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of either of such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.

Notice of such termination of services either for a reduction in attendance or reduction or discontinuance of a particular kind of service to take effect not later than the beginning of the following school year, shall be given before the 15th of May in the manner prescribed in Section 13443, and services of such employees shall be terminated in the inverse of the order in which they were employed, as determined by the board in accordance with the provisions of Sections 13262 and 13263 of this code. In the event that a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 13443, she shall be deemed reemployed for the ensuing school year.

The board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.

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Implications for educationUnder the revised statute, seniority provisions are provided and no permanent employee may be terminated while a probationary employee or any other employee with less seniority is retained to render a service which a permanent employee is certificated and competent to render. The revised statue places major emphasis on seniority.

Watson v. Burnett, 23 N.E.2d 420 Indiana (1939)

Statute appropriate to caseSource – Acts 1927, Indiana 75th Session

Cancellation of Indefinite contract – Hearing, Causes and Procedure, pages 260-261. Sec. 2. Any indefinite contract with a permanent teacher as defined in section 1 of this act may be cancelled only in the following manner: Not less than thirty days nor more than forty days before the consideration by any school corporation of the cancellation of any such contract, such teacher shall be notified in writing of the exact date, time of, and place where such consideration is to take place; and such teacher shall be furnished a written statement of the reasons for such consideration, with five days after any written request for such statement; and such teacher shall, upon written request for a hearing, filed within fifteen days after the receipt by said teacher of notice of date, time and place of such consideration, be given such a hearing before the school board, in the case of cities and towns, and before the township trustee, in the case of townships; such hearing shall be held not less than five days' notice of the time and place of such hearing. Such teacher, at the hearing, shall have a right to a full statement of the reasons for the proposed cancellation of such contract, and shall have a right to be heard, to present the testimony of witnesses and other evidence bearing upon the reasons for the proposed cancellation of such contract. No such contract shall be cancelled until the date set for consideration of the cancellation of such contract; nor until after a hearing is held, if such hearing is requested by said teacher; nor until, in the case of teachers, supervisors, and principals, the city or town superintendents, in cities and towns, and the county superintendents, in townships and cities and towns not having superintendents, shall have given the school corporation his recommendations thereon, and it shall be the duty of such superintendent to present such recommendations upon five days' written notice to him by such school corporation. Nothing contained in this section shall prevent the suspension from duty of any teacher pending a decision on the cancellation of such teacher's contract. Cancellation of an indefinite contract of a permanent teacher may be made for incompetency, insubordination (which shall be deemed to mean a

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willful refusal to obey the school laws of this state or reasonable rules prescribed for the government of the public schools of such corporation), neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not be made for political or personal reasons: Provided, That when the cause of cancellation of an indefinite contract is immorality or insubordination, as defined in this act, such cancellation shall go into effect at the end of the school term following such cancellation. The school board of any city or town, by a majority vote, evidenced by a signed statement in the minutes of the board, or the township trustee, by a written and signed statement recorded in his records, may cancel an indefinite contract with a teacher after compliance with the provisions of this section; Provided, That the decision of the school board shall be final: and, Provided, further, That the decision of the township trustee shall not become effective for ten days, during which time an appeal may be taken to the county superintendent, in which case the county superintendent shall investigate the case and make a final decision within five days.

OverviewHaving completed five years of teaching, the teacher entered into a written

contract for further service as a teacher in the public schools for the school year 1928-1929 and thereby became a permanent tenured teacher of the school district and the holder of an indefinite contract under the terms of the Teachers' Tenure Act of 1927. Thereafter the teacher continued to teach in the public schools of the district until the close of the school year of 1936-1937, when she was served notice by the board of their intentions to consider, on April 25, 1938, the matter of cancellation of her permanent teacher's contract. Pursuant to the hearing, the board furnished the teacher a written statement of the reasons for cancellation of her contract and that it was brought about by the decrease in pupil attendance.

IssueCan a permanent teacher with tenure be terminated and a non-tenured

teacher be retained when there is to be a decrease of teachers, brought about by decrease in pupil attendance?

DecisionCourt decided for the teacher.

Characteristics of the decisionThis case presented the question of whether a justifiable decrease in

teachers authorizes the retention by the board of a teacher who has not acquired a permanent tenure status and the cancellation of the contract of a teacher who had acquired such status and who was qualified to teach in the position of the non-tenured teacher. In the Court's opinion, the purpose of the Tenure Act was to

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secure permanency in the teaching force. If a justifiable decrease in the number of teaching positions would be held to give to the board the power to choose between tenure and non-tenure teachers, both of whom are licensed to teach in the teaching positions which remain, the board would thereby be given power to nullify the Teachers' Tenure Act, and to discharge without cause a teacher who has, by reason of having served satisfactorily as a teacher during a specified period, secured a tenure status and an indefinite permanent contract. The Court expressed that such an interpretation of the law by the board was wrong and it was not the intent of the law to let school boards do indirectly that which the law expressly forbids them to do directly.

Significant points1. In the Court's opinion, the purpose of the Tenure Act was to secure

permanency in the teaching profession.2. If a justifiable decrease in the number of teaching positions would

be held to give to the board the power to choose between tenure and non-tenure teachers, both of whom are licensed to teach in the teaching position which remains, the board would thereby be given the power to nullify the Teachers' Tenure Act, and to discharge without cause a teacher who has, by reason of having served satisfactory as a teacher during a specified period, secured a tenure status and an indefinite permanent contract. The Court expressed that such an interpretation of the law by the board was wrong and it was not the intent of the law to let school boards do indirectly that which the law expressly forbids them to do directly.

Revised statuteSource – Indiana Statutes Annotated, Titles 20, Articles 1 – 9.1.

20-6-12-2 (28-4512). Cancellation of contract – hearing, causes and procedure – Effective date, pages 389-390. Any indefinite contract with a permanent teacher as defined in section 1 (20-6-12-1) of this act may be canceled only in the following manner: Not less than thirty (30) days nor more than forty (40) days before the consideration by any such school corporation of the cancellation of any such contract, such teacher shall be notified in writing of the exact date, time, when and place where such consideration is to take place; and such teacher shall be furnished a written statement of the reasons for such consideration with five (5) days after any written request for such statement; and such teacher shall, upon written request for a hearing, filed within fifteen (15) days after the receipt by said teacher of notice of date, time and place of such school corporation; such hearing shall be held not less than five (5) days after such request is filed and such teacher shall be given not less than five (5) days' notice to the time and place of such hearing. Such teacher, at the

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hearing shall have a right to a full statement of the reasons for the proposed cancellation of such contract, and shall have a right to be heard, to present the testimony of witnesses and other evidence bearing upon the reasons for the proposed cancellation of such contract. No such contract shall be canceled until the date set for consideration of the cancellation of such contract; nor until after a hearing is held, if such hearing is requested by said teacher; nor until, in the case of teachers, supervisors, and principals, the city or town superintendent shall have given the school corporation his recommendations thereon, and it shall be the duty of such superintendent to present such recommendations upon five (5) days' written notice to him by such school corporation. Nothing contained in this section shall prevent the suspension from duty of any teacher pending a decision on the cancellation of such teacher's contract. Cancellation of an indefinite contract of a permanent teacher may be made for incompetency, insubordination (which shall be deemed to mean a willful refusal to obey the school laws of this state or reasonable rules prescribed for the government of the public schools of such corporation), neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not be made for political or personal reasons; Provided, That when the cause of cancellation of an indefinite contract is immorality or insubordination, as defined in this act (20-6-12-1 -- 20-6-12-6), such cancellation shall go into effect at once; and, Provided further, That when the cause of cancellation of an indefinite contract is not immorality or insubordination, as defined in this act, such cancellation shall go into effect at the end of the school term following such cancellation. The school board of any such school corporation, by a majority vote, evidence by a signed statement in the minutes of the board, may cancel an indefinite contract with a teacher after compliance with the provisions of this section; Provided, That the decision of the school board shall be final.

Implications for educationIn the opinion of the court, the purpose of the Teachers' Tenure Act was to

secure permanency within the teaching profession.Based on the revised statute, stipulations are given for the proper dismissal

procedures of cancellation of a professional employee's contract. Under the statute, the board would need to interpret the Teachers' Tenure Act and apply it to the prevailing situations and then act accordingly to its constraints.

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Jones v. Holes, 6 A.2d 188 Pennsylvania (1939)

Statute appropriate to caseSource – Laws of Pennsylvania 1939.

Section 1205 (a), page 485. (a) The only valid cause for termination of a contract entered into with a professional employee is accordance with the provisions of this section shall be immorality, incompetency, intemperance, cruelty (willful and) persistent negligence, mental derangement, persistent and willful violation of the school laws of this Commonwealth on the part of the professional employee (or substantial decrease in the number of pupils or students due to natural causes).

In determining whether a professional employee shall be dismissed for incompetency, the professional employee shall be rated by an approved rating system which shall give due consideration to personality, preparation technique, and pupil reaction, in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Public Instruction immediately following the effective date of this act, and to be revised, from time to time, by the Department of Public Instruction with the cooperation and advice of a committee appointed by the Superintendent of Public Instruction, including representation from county and district superintendents of schools, classroom teachers, school directors, school supervisors, and such other groups or interests as the Superintendent of Public Instruction may deem appropriate.

Nothing within the foregoing enumeration of causes, however, shall be interpreted to conflict with the retirement of professional employees upon proper evidence of disability, or the election by professional employees to retire during the period of voluntary retirement, or the authority of the board of school directors (or the board of public education) to require professional employees to retire during said period of voluntary retirement, or the compulsion on the part of professional employees to retire at the attainment of age seventy: Provided, however, that from the effective date of this act until the first day of July, one thousand nine hundred forty-one, boards of school directors (or boards of public education) may, under the provisions of this section, terminate the service of any professional employee who has attained to the age of sixty-eight; from the first day of July, one thousand nine hundred forty-one until the first day of July, one thousand nine hundred forty-three, any professional employee who has attained to the age of sixty-four; and on and after the

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first day of July, one thousand nine hundred forty-seven, any professional employee who has attained to the age of sixty-two.

OverviewThe teacher was employed by the school district as a teacher in the high

school for the school year 1936-1937. He held a certificate issued by the Department of Public Instruction authorizing him to teach English, physical sciences and social studies in any public high school of Pennsylvania. The teacher received notice March 19, 1937, that his position in the high school was declared vacant until the enrollment for the coming school year had been fully ascertained. The notice was given more than 60 days prior to the termination of the teacher's old contract. No other reason for declaring the teacher's position was going to be eliminated was given, nor did the school board hold a hearing before making the declaration. The enrollment of the school district was around 200, many of whom were drawn from outside districts, always an uncertain factor.

The teacher's dismissal was due to an increased enrollment in a four-year commercial course set up in the school, with a corresponding decrease in other departments; it was not because of a decrease in pupil population within the district.

IssueWhere there is a decrease in enrollment in various courses in a public

school, so that teachers become unnecessary, but there is no decrease in the student population as a whole, is a school board obliged to employ such teachers though they have no pupils to teach?

DecisionCourt decided for the board.

Characteristics of the decisionThe situation arose in this manner: The school board and superintendent,

prior to 1934, sent out questionnaires to parents, pupils and prospective pupils in the community, to determine the demand for a commercial training course in the Cherry Tree High School. The returns resulted in the installation of that department in the school starting with the first-year course, with additional studies in each successive year, until the full four-year course was taught. It was not intended to be a complete substitute for academic high school work, since pupils were not permitted to drop required subjects, but the course became increasingly popular each year and grew progressively. As the separate four-year classes filled up, the vast majority of pupils dropped all but the required subjects to take up the commercial course.

The school authorities, to advance the general education of the high school students, adopted a commercial course. It was a popular course, and as a natural result of this development, the enrollment in other courses suffered. Fewer

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teachers were required in them, and new teachers were needed in the commercial department, but the teachers could not qualify. If the court sustained the teacher's contention of a right to any position, the discretion accorded to school boards in their control over the courses of study would be severely limited and it would stagnate development in educational improvements. It is the administrative function of the school directors and superintendents to meet changing educational needs and conditions through the creation of new courses, reassignment of teachers, and rearrangement of curriculum.

The dismissed teacher's position cannot be brought into harmony with the general purpose of the School Code; on the contrary it materially obstructs that general purpose. It would transfer much of the discretion accorded to these administrative boards to the teachers, that they might preserve their positions indefinitely. It would impede advancement by stifling efforts to present new and varied courses to the children, and would deprive the schools of the benefit of elective courses to further the various interests of individual students. The teacher's interpretation of the law is incorrect. The Legislature's intent is to favor the public interest as against any private interest.

The Court decided that provision for termination upon a natural decrease in the number of students refers generally to enrollment in a course, school, or school district. When there is a decrease of students in a course due to the establishment of another department, such a decrease is one due to natural causes, and if a teacher is thereby rendered unnecessary to the proper operation of the school, his contract may be terminated.

The court decided there was no complaint that the school board acted arbitrarily from either personal or political motives, nor was there any evidence that in the assignment of teachers to the various courses, there as an unlawful method used to circumvent any provisions of the Tenure Act. It was evident that the teacher's professional services were not necessary for the proper conduct of the school. In the light of all the facts, the board acted impersonally, non-politically and in the best interest of the public to give a better, more efficient and more productive education to the children of the school district.

Significant points1. The board has the right to control the courses of study aimed at

educational improvements.2. The Tenure Act is intended to favor the public interest as against

any private interest.3. Boards must act impersonally, non-politically, and in the best

interests of the public to give a better, more efficient and more productive education to the children of the school district.

4. Teachers do not preserve their positions indefinitely.5. It is the administrative function of the school board,

superintendents and principals to meet changing educational needs

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and conditions through the creation of new courses, reassignment of teachers, and rearrangement of the curriculum.

6. Where there is a decrease of students in a course due to the establishment of another department, such a decrease is one due to natural causes, and if a teacher is thereby rendered unnecessary to the proper operation of the school, his contract may be terminated.

Revised statuteSource – Purdon's Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employee, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employees.

Implications for educationThe board had the right to control the courses of study aimed at

educational improvements. The revised statute is detailed and specific in reference to the curtailment of the educational program as a result of substantial decline in class or course enrollments.

Bragg v. School District of Swarthmore, 11 A.2d 152 Pennsylvania (1940)

Statute appropriate to caseSource – Laws of Pennsylvania, 1945 Statutes, pages 588-589.

No. 243, An Act. The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Paragraph (d) of section one thousand two hundred five of the act, approved the eighteenth day of May, one thousand nine hundred eleven (Pamphlet Laws, three hundred nine), entitled, "An act to establish a public school system in the Commonwealth of Pennsylvania, together with the provisions by which it shall be administered, and prescribing penalties for the violation thereof; providing revenue to establish and maintain the same, and the method of

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collecting such revenue; and repealing all laws, general, special or local, or any parts thereof, that are or may be inconsistent therewith" as last amended by the act, approved the twentieth day of June, one thousand nine hundred and thirty-nine (Pamphlet Laws, four hundred eighty-two), is hereby further amended to read as follows: (d) Before any professional employee having attained a status of permanent tenure is dismissed or refused reelection by the board of school directors (or board of public education), the secretary of the school district shall furnish such professional employee with a detailed written statement of the charges upon which his or her dismissal or refusal of reelection is based, together with a written notice signed by the president and attested by the secretary of the board of school directors of a time and place when and where such professional employee will be given an opportunity to be heard either in person or by counsel, or both, before the board of school directors (or board of public education). Before any professional employee having attained a status of permanent tenure is dismissed by the board of school directors (or board of public education) such board of school directors (or board of public education) shall furnish such professional employee with a detailed written statement of the charges upon which his or her proposed dismissal is based, and shall conduct a hearing. A written notice signed by the president and attested by the secretary of the board of school directors shall be forwarded by registered mail to the professional employee, setting forth the time and place, when and where such professional employee will be given an opportunity to be heard, either in person or by counsel, or both, before the board of school directors, and setting forth a detailed statement of the charges as hereinbefore provided. Such hearing shall not be sooner than ten (10) days nor later than fifteen (15) days after such written notice. At such hearing all testimony offered, including that of complainants and their witnesses, as well as that of the accused professional employee and his or her witnesses, shall be recorded by a competent disinterested public stenographer whose services shall be furnished by the school district at its expense. Any such hearing may be postponed, continued or adjourned by agreement by the persons charged and the board of school directors (or board of public education).

Section 2. Paragraph (f) of section one thousand two hundred five of said act is hereby amended to read as follows: (f) After fully hearing the charges or complaints and hearing all witnesses produced by the board and the person against whom the charges are pending, and after full, impartial and unbiased consideration thereof, the board of school directors (or board of public education) shall by a two-thirds vote of all the members thereof, to be recorded by roll call, determine whether or not such charges or complaints have been sustained and whether the evidence substantiates such charges and complaints, and in accordance with such determination

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shall discharge (demote or refuse to reelect) such professional employee or shall retain such professional employee (or) and dismiss the complaint.

OverviewAfter a hearing, the board passed the resolution abandoning a room and

terminating a teacher's employment since it "was in the best interests of the school district to give a more economical, efficient, productive and better education to all of its school children…." In other words, the school board terminated the elementary teacher protected under tenure, stating that her services were no longer necessary because of the elimination of the room in which she had been teaching. Elimination of the room in the school was made possible by distributing students to various other classes without exceeding the maximum load per teacher.

IssueCan a teacher be terminated on grounds their services were no longer

necessary because of a substantial decrease in student population in a room by distributing students to various other classes without exceeding the maximum load per teacher?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe teacher's contract assured her a permanent position, unless her

employment was suspended or terminated in accordance with the provisions of the Tenure Act. In the resolution dismissing the teacher, none of the statutory grounds were mentioned as the reason for terminating her contract. Instead, the Board loosely characterized the move as being "economical, efficient, productive…." The Court pointed out this amounted to saying that whenever the Board deems a teacher unnecessary for any reason whatever, the contract may be successfully terminated. The Court expressed this was not the intention of the Act; it was directly opposed to it. The purpose of the Tenure Act was "the maintenance of an adequate and competent teaching staff, free from political (and personal) or arbitrary interference, whereby capable and competent teachers might feel secure, and more efficiently perform their duty of instruction."

Finally, the elementary grade teacher position in the "Union Room" did not involve any particular department or course of study. Its curriculum was that of the regular elementary classes in the school district. Its elimination did not even amount to the abolition of a department or course, and the teacher's termination was without justification.

Significant points1. The Board's attempt to terminate the teacher was unlawful. In the

resolution dismissing the teacher, none of the statutory grounds

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were mentioned as the reason for terminating her contract. Instead, the Board loosely characterized the move as being "economical, efficient, productive and better education to all of its school children…."

2. The teacher's contract assured her a permanent position, unless her employment was suspended or terminated in accordance with the provisions of the Teachers' Tenure Act.

Revised statuteSource – Purdon's Penna. Statutes Annotated, Titles 24, pages 493-494.

11-1121. Contracts; execution; form. In all school districts, all contracts with professional employees shall be in writing, in duplicate, and shall be executed on behalf of the board of school directors by the president and secretary and signed by the professional employee.

Each board of school directors in all school districts shall hereafter enter into contracts, in writing, with each professional employee who has satisfactorily completed two (2) years of service in any school district of this Commonwealth. Said contracts shall contain only the follows:

"IT IS AGREED by and between…Professional Employee, and the Board of Directors (or Board of Public Education) of the school district of…, Pennsylvania, that said professional employee shall, under the authority of the said board and its successors, and subject to the supervision and authority of the properly authorized superintendent of schools or supervising principal, serve as a professional employee in the said school district for a term of … , months, for an annual compensation of $ … , payable monthly or semi-monthly during the school term or year, less the contribution required by law to be paid to the Public School Employes' Retirement Fund, and less other proper deductions for loss of time."

"This contract is subject to the provisions of the 'Public School Code of 1949' and the amendments thereto."

"AND IT IS FURTHER AGREED by the parties hereto that none of the provisions of this act may be waived either orally or in writing, and that this contract shall continue in force year after year, with the right of the board of school directors (or board of public education) to increase the compensation over the compensation herein stated, from time to time, as may be provided under the provisions and proper operation of the established salary schedule, if any, for the school district, subject to the provisions of law, without invalidating any other provision of this contract, unless terminated by the professional employee by written

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resignation presented sixty (60) days before resignation becomes effective, or by the board of school directors (or board of public education) by official written notice presented to the professional employee: Provided, That the said notice shall designate the cause for the termination and shall state that an opportunity to be heard shall be granted if the said professional employee, within ten (10) days after receipt of the termination notice, presents a written request for such a hearing."

Implications for educationThe Board's attempt to terminate the services of the teacher was invalid.

The Board loosely characterized the move as being economical, efficient, productive, etc. The Board should have been specific and concise, taking into immediate consideration the Teachers' Tenure Act.

Streibert v. Board of Directors, 14 A.2d 303 Pennsylvania (1940)

Statute appropriate to caseSource – Laws of Pennsylvania 1939, page 486.

Section 1205(b). Whenever it shall become necessary to decrease the number of professional employees by reason of substantial decrease of pupil population within the school district, the board of school directors (or board of public education) may suspend the necessary number of professional employees, for the causes hereinafter enumerated (but only in the inverse order of the appointment of such employees):

(1) Substantial decrease in pupil enrollment in the school district;

(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors (or board of public education), approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction;

(3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employees.

Whenever a board of school directors (or board of public education) decreases the size of the staff of professional employees under the

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provisions of this act, the suspensions to be made shall be determined by the county superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction. It shall hereafter be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each teacher employed within the district, and copies of all ratings for the year shall be transmitted to the teacher upon his or her request, or, if any rating during the year is unsatisfactory, a copy of same shall be transmitted to the teacher concerned. No teacher shall be dismissed under this act unless such rating records have been kept on file by the board of school directors.

In cases in which suspensions are to be made, professional employees shall be retained on the basis of seniority rights where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards hereinbefore referred to: Provided, That in cases in which suspensions are to be made during the school term immediately following the effective date of this act, professional employees shall be retained on the basis of seniority rights.

No employee suspended as aforesaid shall be prevented from engaging in other occupation during the period of such suspension. Such professional employees shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employees available, who are properly certified to fill such vacancies.

OverviewThe teacher was the Dean of Girls in the Senior High School in the City of York, effective April 6, 1937. Soon thereafter the School Board issued her a contract to continue in force year after year, employing her as a "professional employee" at an annual salary of $2,500. Almost a year later, in March 1938, in the interest of efficient and economical school administration, the School Board abolished the position of Dean of Girls, and at the same time elected the teacher for the following year, she being duly certified to teach History, Chemistry, English and German. She was notified of this action and informed that her contract was terminated and that she was required to sign a new contract as a "professional employee" at a salary of $2,200 a year. This she refused to do, claiming that her contract was in full force and could not be terminated in this way. The School Board would not allow her to teach until she had complied with its

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direction. She reported for duty and was continuously able and willing to serve, but remained unemployed because of not signing the new contract.

IssueIn the interest of efficient and economical school administration, can a

school board abolish the position of Dean of Girls and at the same time elect the teacher previously filling that position, to another position within the school?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe School Board contended that the contract was terminated by its action

in abolishing the office of Dean of Girls. This result did not follow because in that position the teachers was a "regular full-time employee" of the School District, "duly certified as a teacher," and as such entitled to enjoy the safeguards accorded professional employees under the Teachers' Tenure Act. The mere abolition of the office of Dean of Girls did not terminate the teacher's contract under the circumstances. While her salary was subject to reduction for proper reasons, such action could only be taken in compliance with the provisions of the Teachers' Tenure Act. In conclusion, the teacher was not arbitrary or unreasonable in refusing to sign a new contract. She should not have been asked to do so. If she was given way to the insistence of the School Board, all her rights under the old contract would have been swept away, not the least valuable of which was the guarantee of her seniority rights under the School Code, in event of a suspension because of substantial decrease of pupil population within the School District. After years of service she would have been thus reduced to a footing with new professional employees, who had just signed contracts. In view of this and the present economic conditions, it was natural and proper for her to object to any illegal action which would make the possibility of suspension more imminent.

Significant points1. The board may not abolish an office such as the Dean of Girls and

thereby dismiss a teacher protected by the Teachers' Tenure Act. The mere abolition of the office does not terminate the teacher's contract; such action can only be taken in compliance with the provisions of the Teachers' Tenure Act.

2. The teacher was asked to sign a new contract for another position but refused. If she had given way to the insistence of the School Board, all her rights under the old contract would have been swept away, not the least valuable of which was the guarantee of her seniority rights under the Tenure Act.

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Revised statuteSource – Purdon's Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employees, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employees.

Implications for educationThe board could not abolish the office of the Dean of Girls and dismiss the

teacher, especially one protected by the Teachers' Tenure Act. The termination of the teacher's contract can only be taken in compliance with the provisions within the Teachers' Tenure Act.

The teacher should not have been asked to sign a new contract, since if she had, all seniority rights under the old contract would have been lost. The guarantee of the teacher's seniority rights under the teachers' Tenure Act is a major focal point in the case.

Miller v. Stoudnour, 265 A.2d 113Pennsylvania (1942)

Statute appropriate to caseSource – Laws of Pennsylvania, 1945 Statutes, No. 243, An Act, pages 588-589.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. Paragraph (d) of section one thousand two hundred five of the act, approved the eighteenth day of May, one thousand nine hundred eleven (Pamphlet Laws, three hundred nine), entitled "An act to establish a public school system in the Commonwealth of Pennsylvania, together with the provisions by which it shall be administered, and prescribing penalties for the violation thereof; providing revenue to establish and maintain the same, and the method of collecting such revenue; and repealing all laws, general, special or local, or any parts thereof, that are or may be

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inconsistent therewith" as last amended by the act, approved the twentieth day of June, one thousand nine hundred thirty-nine (Pamphlet Laws, four hundred eighty-two), is hereby further amended to read as follows: (d) Before any professional employee having attained a status of permanent tenure is dismissed or refused reelection by the board of school directors (or board of public education), the secretary of the school district shall furnish such professional employee with a detailed written statement of the charges upon which his or her dismissal or refusal of reelection is based, together with a written notice signed by the president and attested by the secretary of the board of school directors of a time and place when and where such professional employee will be given an opportunity to be heard either in person or by counsel, or both, before the board of school directors (or board of public education). Before any professional employee having attained a status of permanent tenure is dismissed by the board of school directors (or board of public education) such board of school directors (or board of public education) must furnish such professional employee with a detailed written statement of the charges upon which his or her proposed dismissal is based, and shall conduct a hearing. A written notice signed by the president and attested by the secretary of the board of school directors shall be forwarded by registered mail to the professional employee, setting forth the time and place, when and where such professional employee will be given an opportunity to be heard, either in person or by counsel, or both, before the board of school directors, and setting forth a detailed statement of the charges as hereinbefore provided. Such hearing shall not be sooner than ten (10) days or later than fifteen (15) days after such written notice. At such hearing all testimony offered, including that of complainants and their witnesses, as well as that of the accused professional employee and his or her witnesses, shall be recorded by a competent disinterested public stenographer whose services shall be furnished by the school district at its expense. Any such hearing may be postponed, continued or adjourned by agreement by the persons charged and the board of school directors (or board of public education).

Section 12. Paragraph (f) of section one thousand two hundred five of said act is hereby amended to read as follows: (f) After fully hearing the charges or complaints and hearing all witnesses produced by the board and the person against whom the charges are pending, and after full, impartial and unbiased consideration thereof, the board of school directors (or board of public education) shall by a two-thirds vote of all the members thereof, to be recorded by roll call, determine whether or not such charges or complaints have been sustained and whether the evidence substantiates such charges and complaints, and in accordance with such determination

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shall discharge (demote or refuse to reelect) such professional employee or shall retain such professional employee (or) and dismiss the complaint.

OverviewUnder contract dated May 27, 1937, the teacher became protected under

the Teachers’ Tenure Act. The teacher taught science, including chemistry, physics and physical science, in the district for the school year 1937-1938. He also taught in the same school district during the school year 1936-1937, although no written contract for that period was produced in evidence. He was informed by correspondence, which began on February 21, 1938, that the school board considered it necessary to eliminate one teacher in the high school; that the vacancy had to be made in the science department due to the limited number of students taking science; and that the teacher’s position as last instructor hired in that department would be discontinued at the end of the school term. No charges were made, and no opportunity for a hearing before the board was afforded him.

IssueCan a teacher with tenure have their contract discontinued because of

economic stress and a limited number of students taking a course?

DecisionCourt decided for the board.

Characteristics of the decisionThere was ample evidence plainly indicating that the school district was

financially embarrassed, and that a reduction in expenditures was necessary. The teacher contended that the board did not adhere to the procedural requirements of the Teachers’ Tenure Act and that there were additional reasons for the board’s action. The court found that the board did not act for any political or arbitrary reasons, but because of the financial condition of the school district. Courts must assume that persons holding responsible public positions act in good faith, until the contrary is shown. There was no support in the evidence for the teacher’s vague assertions relative to additional reasons for the board’s action. The evidence was to the contrary. The school district had borrowed to its legal limit. It also appeared that the average pupil load in this district was 18.3 per teacher, whereas the average in all Pennsylvania districts at the time was 30 to 35. The reduction in the number of teachers would not lower the efficiency of the schools of this district, and in view of the other facts related the board would seem to have exercised sound judgment in the action taken. A school board may abolish, discontinue, or reorganize a department for financial reasons, if its action does not interfere with the branches prescribed to be taught. If a teacher must be retained under any circumstances, then the board would have no control over the school district's finances or over school policy. There were no charges against the teacher. Consequently, no hearing was required, as the board, in eliminating a

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separate science department and in rearranging the courses of study because of financial necessity, was acting within its authority to control educational policies and the finances of the school district.

Significant points1. When evidence indicated a school district was financially

embarrassed, and that a reduction in expenditures is necessary, the board may act to correct the condition of the school district, as long as it does not act for any political or arbitrary reasons.

2. Courts assume that persons holding responsible public positions act in good faith, until the contrary is shown.

3. A school board may abolish, discontinue, or re-organize a department for financial reasons, if its action does not interfere with the course prescribed to be taught.

4. Where there were no charges against the teacher, no hearing was required, as the board, in eliminating the separate department and in rearranging the course of study because of financial necessity, was acting within the authority to control educational policies and the finances of the school district.

Revised statuteSource – Purdon's Penna. Statutes Annotated, Titles 24, pages 493-494.

11-1121. Contracts; execution, form. In all school districts, all contracts with professional employees shall be in writing, in duplicate, and shall be executed on behalf of the board of school directors by the president and secretary and signed by the professional employee.

Each board of school directors in all school districts shall hereafter enter into contracts, in writing, with each professional employee who has satisfactorily completed two (2) years of service in any school district of this Commonwealth. Said contracts shall contain only the following:

"IT IS AGREED by and between … Professional Employe, and the Board of Directors (or Board of Public Education) of the district of …, Pennsylvania, that said professional employe shall, under the authority of the said board and its successors, and subject to the supervision and authority of the properly authorized superintendent of schools or supervising principal, serve as a professional employe in the said school district for a term of … months, for an annual compensation of … months, for an annual compensation of $… payable monthly or semi-monthly during the school term or year, less the contribution required by law to be paid to the Public School Employes' Retirement Fund, and less other proper deductions for loss of time.

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"This contract is subject to the provisions of the 'Public School Code of 1949' and the amendments thereto.

"AND IT IS FURTHER AGREED by the parties hereto that none of the provisions of this act may be waived either orally or in writing, and that this contract shall continue in force year after year, with the right of the board of school directors (or board of public education) to increase the compensation over the compensation herein stated, from time to time, as may be provided under the provisions and proper operation of the established salary schedule, if any, for the school district, subject to the provisions of law, without invalidating any other provision of this contract, unless terminated by the professional employe by written resignation presented sixty (60) days before resignation becomes effective, or by the board of school directors (or board of public education) by official written notice presented to the professional employe: Provided, That the said notice shall designate the cause for the termination and shall state that an opportunity to be heard shall be granted if the said professional employe, within ten (10) days after receipt of the termination notice, presents a written request for such a hearing."

Implications for educationUnder the revised statute, professional employees come under the

authority of the board, subject to the supervision and authority of the superintendent or supervising principal. The statute gives the board the power to assign teachers and it also provides specific procedures for the termination of their contracts.

When evidence indicates the school district was financially embarrassed, and that a reduction in expenditures was necessary, the board was justified in acting to correct the condition of the school district, as long as it did not act for any political or arbitrary reasons.

Since the board had the authority to assign teachers, the board definitely had the power to abolish, discontinue or reorganize a department for financial reasons, as long as the board considered the seniority rights guaranteed to employees under the Teachers' Tenure Act.

Frank v. Meigs County Board of Education,44 N.E.2d 455 Ohio (1942)

Statutes appropriate to caseSource – Laws of Ohio, Volume 119-1941

Sec. 7690-6l. Termination of contract by board; grounds; notice; hearing; decision; appeal; pages 454,455,456. The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and

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persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board of education shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his/her contract with full specification of the ground or grounds for such consideration. Unless the teacher so notified shall, within ten days subsequent to the receipt of such notice, demand in writing an opportunity to appear before the board and offer reasons against such termination, the board may proceed with formal action to terminate the contract. If, however, said teacher shall, within ten days after receipt of notice from the clerk of the board, demand in writing a hearing before said board, the board shall set a time for the hearing within thirty days from the date of said written demand and the clerk of the board shall give the teacher at least fifteen days' notice in writing of the time and place of such hearing; provided, however, that no hearing shall be held during the summer vacation without the teacher's consent. Such hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a majority of the members of the board and be confined to the aforesaid ground or grounds for such termination. The board of education shall provide for a complete stenographic record of the proceedings, a copy of such record to be furnished to the teacher. The board of education may suspend a teacher pending final action to terminate her contract if, in its judgment, the character of the charges warrants such action.

Both parties shall have the right to be present at such hearing, to be represented by counsel, to require witnesses to be under oath, to cross-examine witnesses, to take a record of the proceedings, and to require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. In case of the failure of any person to comply with a subpoena, a common pleas judge of the county in which the person resides, upon application of any interested party, shall compel attendance of the person by attachment proceedings as for contempt. Any member of the board of education shall have power to administer oaths to witnesses. After hearing, the board by majority vote may enter upon its minutes an order of termination. If the decision of the board, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes and, if the teacher has been suspended, she shall be paid full salary for the period of such suspension.

Any teacher affected by an order of termination of contract shall have the right of appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of

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such order. Such appeal shall be an original action in said common pleas court and shall be commenced by the filing of a petition against such board of education, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board of education shall forthwith transmit to the clerk of said common pleas court for filing a transcript of the original papers theretofore filed with said board and a certified transcript of all evidence adduced at the hearing or hearings before such board, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The common pleas court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.

Upon final hearing, the common pleas court shall grant or deny the relief prayed for in the petition as may be proper under the provisions of this act and in accordance with the evidence adduced in the hearing. Such an action shall be deemed to be a special proceeding within the purview of section 12223-2 of the General Code and either the teacher or the board of education may appeal therefrom. In any court action the board of education may utilize the services of the prosecuting attorney or city solicitor as authorized by section 4761 of the General Code, or may employ other legal counsel if it deems it necessary.

Sec. 7690-7. Reduction in number of teachers; procedure, page 456. When by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it shall have full authority to make reasonable reduction. But, in making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified.

OverviewThe teacher was continuously employed as a teacher in the public schools

of Meigs County for a period of 13 years prior to the date of his first employment as assistant county superintendent of schools on March 16, 1940. During all of his period of service as a teacher in the public schools of Meigs County, he was

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under the supervision of the county superintendent of schools. During his term of service as assistant county superintendent of schools he assisted in the supervision of the teachers of the schools throughout the county, including assistance in the supervision of school transportation in the county public schools.

According to the records of the state department of education, the average daily attendance in the public school system of the county between the years 1935 and 1941 decreased by 586; that the funds available from the state for such schools had decreased from $214,561.75 in 1936 to $193,185.80 in 1942; that the annual financial reports filed by the superintendent of schools with the department of education showed that all the rural school districts in Meigs County had deficits, the total of which had increased from $20,213.78 in 1936 to $88,802.23 in 1940. According to the official education directory for the school year 1941-1942 only 24 of the 88 counties in the state employed assistant county superintendents of schools.

On March 21, 1942, the board adopted a resolution to the effect that as a matter of economy the position of assistant county superintendent of schools was abolished, to take effect on July 1, 1942. The assistant superintendent was notified that he would not be reemployed and that the position of assistant county superintendent of schools had been abolished.

IssueBecause of reduced school enrollment with consequent reduction of

school revenues and by necessary requirements of economy, can a County Board of Education, after having created the position of county superintendent of schools, abolish the position and terminate the contract of the person holding the position?

DecisionCourt decided for the board.

Characteristics of the decisionThe sole claim the dismissed assistant county superintendent argued was

that the Board lacked the power to abolish the position and to terminate the contract. The Board contended that their action to terminate the contract was motivated by a reduced school enrollment with consequent reduction of school revenues and by the necessary requirements of economy. The facts supported the Board's contentions. To hold that a county board of education, having once established a position in the county public schools, has no power under the law to abolish it, even though there be a sufficient cause, would, in the opinion of the court, seriously challenge the constitutionality of the law itself. The dismissed assistant county superintendent of schools sought action to require the board to enter into a continuing contract with him for a special position in the school system, which requires him to show that he had a clear legal right to a position. In the opinion of the court, he had not shown any legal right to a position.

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Significant points1. The Board is able to take action to terminate the contract of an

assistant county superintendent of schools when it is motivated by a reduced school enrollment with consequent reduction of school revenues and by the necessary requirements of economy.

Revised statuteSource – Pages Ohio Revised Code Annotated, Titles 33, Education, Libraries.

3319.16. Termination of contract by board of education, pages 270-271. The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the grounds for such consideration. Such board shall not proceed with formal action to terminate the contract until after the tenth day after receipt of such notice by the teacher. Within ten days after receipt of such notice from the clerk of the board, the teacher may file with the clerk a written demand for a hearing before the board or before a referee, and the board shall set a time for the hearing which shall be within thirty days from the date of receipt of the written demand, and the clerk shall give the teacher at least twenty days' notice in writing of the time and place of such hearing. If a referee is demanded by either the teacher or board, the clerk shall also give twenty days' notice to the superintendent of public instruction. No hearing shall be held during the summer vacation without the teacher's consent. Such hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a referee appointed pursuant to section 3319.161 (3319.16.1) of the Revised Code, if demanded; otherwise, it shall be conducted by a majority of the members of the board and shall be confined to the grounds given for such termination. The board shall provide for a complete stenographic record of the proceedings, a copy of such record to be furnished to the teacher. The board may suspend a teacher pending final action to terminate his contract if, in its judgment, the character of the charges warrants such action.

Both parties may be present at such hearing, be represented by counsel, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings, and require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. In case of the failure of any person to comply with a subpoena, a common pleas judge of the county in which the person resides, upon application of any interested party, shall compel attendance of the person by attachment proceedings as

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for contempt. Any member of the board or the referee may administer oaths to witnesses. After a hearing by a referee, the referee shall file his/her report within ten days after the termination of the hearing. After consideration of the referee's report, the board by a majority vote may accept or reject the referee's recommendation on the termination of the teacher's contract. After a hearing by the board, the board by majority vote may enter its determination upon its minutes. Any order of termination of a contract shall state the grounds for termination. If the decision, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes, and if the teacher has suffered any loss of salary by reason of being suspended, she shall be paid the full salary for the period of such suspension.

Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original action in said court and shall be commenced by the filing of a petition against such board, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board shall immediately transmit to the clerk of said court for filing a transcript of the original papers filed with the boards, a certified copy of the minutes of the board into which the termination finding was entered, and a certified transcript of all evidence adduced at the hearing or hearings before such board or a certified transcript of all evidence adduced at the hearing or hearings before the referee, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The court shall examine the transcript and record of the hearing and shall hold such additional hearings as it deems advisable, at which it may consider other evidence in addition to such transcript and record.

Upon final hearing, the court shall grant or deny the relief prayed for in the petition as may be proper in accordance with the evidence adduced in the hearing. Such an action is a special proceeding within the purview of section 2505.02 of the Revised Code and either the teacher or the board may appeal therefrom.

In any court action the board may utilize the services of the prosecuting attorney or city solicitor as authorized by section 3313.35 of the Revised Code, or may employ other legal counsel.

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3319.17. Reduction in number of teachers; restoration; page 274. When by reason of decreased enrollment of pupils, return to duty of regular teachers after leaves of absence, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it may make a reasonable reduction. In making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified.

Implications for educationThe Board was able to take action to terminate the contract of the assistant

county superintendent when it was motivated by a reduced school enrollment with consequent reduction of school revenues and by the necessary requirements of economy. Evidently the assistant county superintendent was no longer considered a part of the teaching force and did not retain seniority rights as a teacher.

Munley v. School District of City of Pittston,37 Luzerne Leg. Reg R251 Pennsylvania (1943)

Statute appropriate to caseSource – Laws of Pennsylvania 1939, page 386.

Section 1205(b). Whenever it shall become necessary to decrease the number of professional employes by reason of substantial decrease of pupil population within the school district, the board of school directors (or board of public education) may suspend the causes hereinafter enumerated (but only in the inverse order of the appointment of such employes): (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors (or board of public education), approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

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Whenever a board of school directors (or board of public education) decreases the size of the staff of professional employes under the provisions of this act, the suspensions to be made shall be determined by the county superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction. It shall hereafter be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each teacher employed within the district, and copies of all ratings for the year shall be transmitted to the teacher upon his or her request, or, if any rating during the year is unsatisfactory, a copy of same shall be transmitted to the teacher concerned. No teacher shall be dismissed under this act unless such rating records have been kept on file by the board of school directors.

In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards hereinbefore referred to: Provide, That in cases in which suspensions are to be made during the school term immediately following the effective date of this act, professional employes shall be retained on the basis of seniority rights.

No employe suspended as aforesaid shall be prevented from engaging in any other occupation during the period of such suspension. Such professional employes shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employes available, who are properly certified to fill such vacancies.

OverviewThe teacher had been terminated as a professional employee and she

sought reinstatement on the grounds that the board of education had violated the Teachers' Tenure Act and the written contract. At the time of her termination, the board had terminated several other teachers with the approval of the superintendent of public instruction and the state department. The terminations were because of large shrinkage in the number of pupils, and that the terminations were enjoined upon the board of education as preliminary to allocation of funds to the district by the State.

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IssueAs a preliminary measure to the allocation of funds by the State and with

the approval of the superintendent of public instruction, can a board of education terminate teachers because of a large shrinkage in the number of pupils in the district?

DecisionCourt decided for the board.

Characteristics of the decisionAll teachers were terminated on the basis of seniority. The teacher

bringing legal action against the board contended at the hearing that her suspension was unlawful since it was not prompted by a "substantial" decrease in pupil enrollment in the school district as specified in the School Code. This contention of the teacher was not substantiated by the testimony. On the contrary, it was shown by the enrollment record from 1932 to 1942, that the total enrollment in the entire school district progressively declined from a high 4,402 in 1934 to a low of 3,012 in 1942.

The Court expressed that whatever may have been the motive of the board in removing the teachers, there was nothing whatever in the record to indicate bad faith or an abuse of discretion or any ulterior motive in the passage of the resolution to terminate the teachers. The testimony was uncontradicted that it was an act entirely within the sound discretion of the board of education, that it was based upon a substantial falling off in the enrollment of pupils and that it was necessary in compliance with the approval of the superintendent of public instruction's direction in order to obtain the financial help of which the district was in need.

Significant points1. The Court expressed that whatever may have been the motive of

the board in removing the teachers, there was nothing whatever in the record to indicate bad faith or an abuse of discretion or any ulterior motive in the passage of the resolution to terminate the teacher.

2. The decision was entirely within the sound discretion of the board of education, that it was based upon a substantial falling off in the enrollment of pupils and that it was necessary in compliance with the approval of the superintendent of public instruction's direction in order to obtain the financial help of which the district was in need.

Revised statuteSource – Purdon's Penna. Statutes Annotated, Titles 24, Education, page 528.

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11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards or organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Implications for educationAll teachers were terminated on the basis of seniority. The decision was

entirely within the sound discretion of the board of education. It was based on a substantial falling off in the enrollment of pupils and it was necessary in compliance with the approval of the Superintendent of Public Instruction's direction in order to obtain the financial help of which the district was in need. Although the decision to terminate the employees' contracts was entirely within the sound discretion of the board, the board definitely had to consider the seniority rights guaranteed to employees under the Teachers' Tenure Act. Having taken into consideration the seniority rights of employees under the Teachers' Tenure Act, the terminations were within the discretionary powers of the board in compliance with the superintendent of public instruction. This case and Miller v. Stoudnour reaffirm that boards must consider the seniority rights guaranteed to employees under the Teachers' Tenure Act.

Ging v. Board of Education of Duluth,7 N.W.2d 544 Minnesota (1943)

Statute appropriate to caseSource – Minnesota Statutes Volume 1, 1941, page 483.

130.25 Grounds for discharge or demotion. Causes for the discharge or demotion of a teacher wither during or after the probationary period shall be: (1) Immoral character, conduct unbecoming a teacher, or insubordination; (2) Failure without justifiable cause to teach without first securing the written release of the school board or commissioner having the care, management, or control of the school in which the teacher is employed; (3) Inefficiency in teaching or in the management of the school; (4) Affliction with active tuberculosis or other communicable disease shall be considered as cause for removal or suspension while the

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teacher is suffering from such disability; or (5) Discontinuance of position or lack of pupils.

OverviewBoth teachers had acquired permanent status under the Teachers' Tenure Act. Teacher A taught for 32 years at the High School and was the head of the social science department. He had taught in the same classroom for 25 continuous years until his discharge. Teacher B had been a primary teacher and during her 40 years she was assigned exclusively to the primary grades of an elementary school. On August 20, 1941, both teachers were notified of suspension from duty and served with a notice of hearing before the board of education on charges by the superintendent of schools that "on account of lack of pupils and reduction in enrollment of pupils in the schools of said School District, the position of…(teacher's name), a teacher of said School District, has necessarily been discontinued and there is no position in said School District to which said teacher…(teacher's name), can be assigned." The hearings on the charges were consolidated by consent. On September 23, 1941, separate decisions by the board were filed and forwarded to each teacher, indicating their teaching positions had been discontinued on account of lack of pupils in the schools of the district.

IssueWhen decrease in enrollment of pupils necessitates a reduction of teaching

staff, can the school board retain younger teachers and discharge older teachers?

DecisionCourt decided for the teachers.

Characteristics of the decisionUnless Teacher A's position as head of the social science department and

teacher of sociology and history was discontinued, the board had no right to demote or discharge him. Here the only charge against him was that his position as a "teacher of said School District has necessarily been discontinued," and the board's findings and decision were that his position "as teacher of said district" was discontinued. Not only were the charges wrong, but evidence was lacking to show that the position of teacher was in fact discontinued.

Likewise, in the case of Teacher B, the charges against her were made on the theory that her position was that of a teacher in the school district; yet it conclusively appeared that during her entire 40 years she was assigned exclusively to the primary grades of an elementary school. When a teacher has been assigned to the teaching in the primary grades for a period sufficient to establish tenure rights, she should have priority over teachers from the intermediate grades although the tenure rights of each are the same. Once a

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teacher has acquired a position as a primary teacher, the transfer of teachers from the upper grades to fill a position which would otherwise be hers is clearly arbitrary and based upon an erroneous theory of law.

To justify Teacher B's dismissal on the ground of discontinuance of position, it is not sufficient to establish merely a lack of pupils in the school district as a whole or a reduction in the number of teaching positions in the schools, but it was necessary to establish that the position which she held in the primary grades had been discontinued or that the number of such positions in the entire district had been necessarily reduced so as to require a reduction in the number of primary teachers having tenure rights. The board could not, on the basis of the loss of enrollment in the school district as a whole, shift its teachers from position to position in disregard of the rights of tenure teachers.

Granting that the board had the right to reduce the number of teachers in the primary grades on account of lack of pupils, the tenure law would be a mere gesture if teachers holding positions in the intermediate or high school grades could be transferred to the primary grades in disregard of the rights of a teacher with tenure rights holding a position in the primary grades. If after procuring voluntary retirements there remained a position in the primary grades for Teacher B, she was clearly entitled to the position against any claim of tenure teachers whose position up to that time had been in the intermediate or high school grades.

The Court pointed out that it would have been perfectly proper for the board to consider seniority and experience in giving preference to an older teacher over a younger one; but if the board in good faith adopted the contrary yardstick and determined that younger teachers should have the call because of greater vigor or because of their more recent completion of modern courses in their particular fields, no Court could set aside any such decision on the ground of error of judgment on the part of the board. The board might consider that the employment of younger teachers would result in substantial savings to the taxpayers because of the lower rate of pay to the younger teachers. Further, the Court expressed that schools are not industries, but a sound education policy might well dictate that the younger, more vigorous, and more recently graduated teachers with modern methods be preferred over the older teachers whose vigor has declined and whose own training and specialized study have not in all cases been kept up to date.

Significant points1. Unless the teacher's position as head of the department and teacher

of sociology and history was discontinued, the board had no right to demote or discharge him.

2. The board made wrong charges and evidence was lacking to show that the position of teacher was in fact discontinued.

3. When a teacher has been assigned to the teaching of primary grades for a period sufficient to establish tenure rights, she should

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have priority over teachers from the intermediate or high school grades although the tenure rights of each are the same.

4. Once a teacher has acquired a position as a primary teacher, the transfer of teachers from the upper grades to fill a position which would otherwise be hers is clearly arbitrary and based upon an erroneous theory of law.

5. To justify a teacher's dismissal on the ground of discontinuance of position, it was necessary to establish that the position which she held in the primary grades had been discontinued or that the number of such positions in the entire district had been necessarily reduced so as to require a reduction in the number of primary teachers having tenure rights.

6. The board could not, on the basis of the loss of pupil enrollment in the school district as a whole, shift its teachers from position to position in disregard of the rights of tenure teachers.

7. It would have been perfectly proper for the board to consider seniority and experience in giving preference to an older teacher over a younger one, but if the board in good faith adopted the contrary yardstick and determined that younger teachers should have the call because of their more recent completion of modern courses in their particular fields, no court could set aside any such decision on the ground of error of judgment on the part of the board. The board might consider that the employment of younger teachers would result in substantial savings to the taxpayers because of the lower rate of pay to the younger teachers.

8. The Court expressed that schools are not industries, but a sound educational policy might well dictate that the younger, more vigorous, and more recently graduated teachers with modern methods be preferred over the older teachers whose vigor has declined and whose own training and specialized study have not in all cases been kept up to date.

Revised statuteSource – Minnesota Statutes Annotated 10A, Sections 124-143. 125.17 Teacher tenure act; cities of the first class; definitions, pages 182-184.

Subdivision 1. Words, terms and phrases. Unless the language or context clearly indicates that a different meaning is intended, the following words, terms, and phrases, for the purposes of the following subdivisions in this section, shall be defined as follows:

(a) Teachers. The term "teacher" includes every person regularly employed, as a principal, or to give instruction in a classroom, or to superintend or supervise classroom instruction, or as placement teacher

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and visiting teacher. Persons regularly employed as counselors and school librarians shall be covered by these sections as teachers if certificated as teachers or as school librarians.

(b) School board. The term "school board" includes a majority in membership of any and all boards or official bodies having the care, management, or control over public schools.

(c) Demote. The word "demote" means to reduce in rank or to transfer to a lower branch of the service or to a position carrying a lower salary or compensation.

Subdivision 2. Probationary period; discharge or demotion. All teachers in the public schools in cities of the first class during the first three years of consecutive employment shall be deemed to be in a probationary period of employment during which period any annual contract with any teacher may, or may not, be renewed as the school board shall see fit. The school board may, during such probationary period, discharge or demote a teacher for any of the causes as specified in this code. A written statement of the cause of such discharge or demotion shall be given to the teacher by the school board at least 30 days before such removal or demotion shall become effective, and the teacher so notified shall have no right of appeal therefrom.

Subdivision 3. Period of service after probationary period; discharge or demotion. After the completion of such probationary period, without discharge, such teachers as are thereupon re-employed shall continue in service and hold their respective position during good behavior and efficient and competent service and shall not be discharged or demoted except for cause after a hearing.

Any probationary teacher shall be deemed to have been re-employed for the ensuing school year, unless the school board in charge of such school shall give such teacher notice in writing before April 1 of the termination of such employment. In event of such notice the employment shall terminate at the close of the school sessions of the current school year.

Subdivision 4. Grounds for discharge or demotion. Causes for the discharge or demotion of a teacher either during or after the probationary period shall be: (1) Immoral character, conduct unbecoming a teacher, or insubordination; (2) Failure without justifiable cause to teach without first securing the written release of the school board having the care, management, or control of the school in which the teacher is employed; (3) Inefficiency in teaching or in the management of a school; (4)

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Affliction with active tuberculosis or other communicable disease shall be considered as cause for removal or suspension while the teacher is suffering from such disability; or (5) Discontinuance of position or lack of pupils.

Subdivision 5. Hearing of charges against teacher. The charges against a teacher shall be in writing and signed by the person making the same and then filed with the secretary or clerk of the school board having charge of the school in which the teacher is employed. Such school board before discharging or demoting a teacher shall then accord the teacher against whom such charges have been filed a full hearing and give to the teacher at least ten days' notice in writing of the time and place of such hearing; such notice may be served personally or sent by registered mail addressed to such teacher at his last known post-office address; provided, that if the charge be made by any person not in connection with the school system the charge may be disregarded by such school board. Upon such hearing being held such school board shall hear all evidence that may be adduced in support of the charges and for the teacher's defense thereto. Either party shall have the right to have a written record of the hearing at the expense of the board and to have witnesses subpoenaed and all witnesses so subpoenaed shall be examined under oath. Any member of the school board conducting such a hearing shall have authority to issue subpoenas and to administer oaths to witnesses.

Subdivision 6. Counsel; examination of witnesses. Each party appearing before the school board shall have the right to be represented by counsel, and such counsel may examine and cross-examine witnesses and present arguments.

Subdivision 7. Hearings. All hearings before the school board shall be private or may be public at the decision of the teacher against whom such charges have been filed.

Subdivision 8. Decision, when rendered. Such hearing must be concluded and a decision in writing, stating the grounds on which it is based, rendered within 25 days after giving of such notice. Where the hearing is before a school board the teacher may be discharged or demoted upon the affirmative vote of a majority of the members of the school board. If the charges, or any of such, are found to be true, the school board conducting the hearing shall discharge, demote, or suspend the teacher, as seems to be for the best interest of the school. No teacher shall be discharged for either of the causes specified in subdivision 4, except during the school year, and then only upon charges filed at least four months before the close of the school sessions of such school year.

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Subdivision 9. Charges expunged from records. In all cases where the final decision is in favor of the teacher the charge or charges shall be physically expunged from the records.

Subdivision 10. Suspension pending hearing; salary. Upon the filing of charges against a teacher, the school board may suspend the teacher from regular duty. If, upon final decision, the teacher is suspended or removed, the school board may in its discretion determine the teacher's salary or compensation as of the time of filing the charges. If the final decision is favorable to the teacher, there shall be no abatement of salary or compensation.

Subdivision 11. Services terminated by discontinuance or lack of pupils: preference given. Any teacher whose services are terminated on account of discontinuance of position or lack of pupils shall receive first consideration for other positions in the district for which she is qualified. In the event it becomes necessary to discontinue one or more positions, in making such discontinuance, teachers shall be discontinued in any department in the inverse order in which they were employed.

Implications for educationIn this case, the teacher had been assigned to the teaching of primary

grades for a period sufficient to establish tenure rights and should have had priority over teachers from the intermediate or high school grades although the tenure rights of each are the same. Once the teacher had acquired a position as a primary teacher, the transfer of teachers from the upper grades to fill a position which would otherwise be hers was clearly arbitrary and based on an erroneous theory of law.

In a later case, Walker v. School District of the City of Scranton, teachers were examined by the School Board to determine their strongest qualifications to teach as indicated by those courses in which they specialized in college. Under the Scranton plan, the school board classified teaching assignments and properly confined the seniority rights of teachers to specific teaching assignments. The dismissal of teachers was controlled by the terms of their appointment and was not based simply on what they were licensed to do. In Ging and Walker, the court was consistent in reaffirming its ruling and confining seniority rights of teachers to specific teaching assignments.

Davidson v. Board of Education of the City SchoolDistrict of East Cleveland, 38 Ohio L Abs 6,

26 Ohio Ops 142, Ohio (1943)

Statutes appropriate to caseSource – Laws of Ohio, Volume 119-1941.

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Sec. 7690-6. Termination of contract by board; grounds; notice; hearing; decision; appeal, pages 454, 455, 456.

The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board of education shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the ground or grounds for such consideration. Unless the teacher so notified shall, within ten days subsequent to the receipt of such notice, demand in writing an opportunity to appear before the board and offer reasons against such termination, the board may proceed with formal action to terminate the contract. If, however, said teacher shall, within ten days after receipt of notice from the clerk of the board, demand in writing a hearing before said board, the board shall set a time for the hearing within thirty days from the date of said written demand and the clerk of the board shall give the teacher at least fifteen days' notice in writing of the time and place of such hearing; provided, however, that no hearing shall be held during the summer vacation without the teacher's consent. Such hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a majority of the members of the board and be confined to the aforesaid ground or grounds for such termination. The board of education shall provide for a complete stenographic record of the proceedings, a copy of such record to be furnished to the teacher. The board of education may suspend a teacher pending final action to terminate his contract if, in its judgment, the character of the charge warrants such action.

Both parties shall have the right to be present at such hearing, to be represented by counsel, to require witnesses to be under oath, to cross-examine witnesses, to take a record of the proceedings, and to require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. In case of the failure of any person to comply with a subpoena, a common pleas judge of the county in which the person resides, upon application of any interested party, shall compel attendance of the person by attachment proceedings as for contempt. Any member of the board of education shall have power to administer oaths to witnesses. After hearing, the board by majority vote may enter upon its minutes an order of termination. If the decision of the board, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes and, if the teacher has been suspended, he shall be paid his full salary for the period of such suspension.

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Any teacher affected by an order of termination of contract shall have the right of appeal to this court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original action in said common pleas court and shall be commenced by the filing of a petition against such board of education, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board of education shall forthwith transmit to the clerk of said common pleas court for filing a transcript of the original papers theretofore filed with said board and a certified transcript of all evidence adduced at the hearing or hearings before such board, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The common pleas court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.

Upon final hearing, the common pleas court shall grant or deny the relief prayed for in the petition as may be proper under the provisions of this act and in accordance with the evidence adduced in the hearing. Such an action shall be deemed to be a special proceeding within the purview of section 12223-2 of the General Code and either the teacher or the board of education may appeal therefrom.

In any court action the board of education may utilize the services of the prosecuting attorney or city solicitor as authorized by section 4761 of the General Code, or may employ other legal counsel if it deems it necessary.

Sec. 7690-7. Reduction in number of teachers; procedure, page 456. When by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it shall have full authority to make reasonable reduction, but, in making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified.

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OverviewThe position formerly held by the teacher, that of assistant superintendent,

had been abolished and there was no need for the employment of the teacher in an administrative capacity. The teacher's experience in the school district had been purely administrative, for which she was especially trained and qualified, and the Board deemed it not in the best interests of the schools now to employ her as a teacher. There was no teaching position open to which the Board deemed her adapted by training and experience. Diminishing enrollment and lack of funds made the reduction in the teaching force necessary and the Board decided it unwise to replace a teacher of known teaching experience by one who served in purely an administrative capacity.

IssueCan the Board decide it is unwise to replace a teacher of known teaching

experience by one who served in purely an administrative capacity when a reduction in the teaching force is necessary due to diminishing enrollment and lack of funds?

DecisionCourt decided for the teacher.

Characteristics of the decisionSection 7690-7 provided that preference shall be given to teachers on the

basis of seniority. It was, therefore, required by the school district to employ the teacher in the elementary schools. The opinion of the Board that the teacher's long experience in an administrative capacity disqualified her from teaching in the schools was founded upon an assumption unsupported by any evidence of fact. At the hearing on September 14, 1942, the teacher testified that on many occasions while serving as an administrator she was required as part of her duties to "demonstrate teaching" to others and that she believed she was able to regularly perform such work. The superintendent of schools, who testified on behalf of the Board, refused to state that he did not believe the teacher qualified to teach in the elementary schools. The teacher had a lifetime certificate authorizing her to engage in teaching at the elementary level. In view of the facts, the teacher was entitled to an opportunity to demonstrate whether she could teach, and to establish the truth or falsity of the assumption that her long experience in an executive capacity had disqualified her from efficiently performing the duties of a subordinate.

Significant points1. The opinion of the Board that the teacher's long experience in an

administrative capacity disqualified her from teaching in the schools was founded upon an assumption unsupported by any evidence of fact.

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2. In view of the facts, the teacher was entitled to an opportunity to demonstrate whether she could teach, and to establish the truth or falsity of the assumption that her long experience in an executive capacity had disqualified her from efficiently performing the duties of a subordinate employee.

Revised statuteSource – Pages Ohio Revised Code Annotated, Titles 33, Education, Libraries.

3319.16. Termination of contract by board of education, pages 270-271. The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the grounds for such consideration. Such board shall not proceed with formal action to terminate the contract until after the tenth day after receipt of such notice by the teacher. Within ten days after receipt of such notice from the clerk of the board, the teacher may file with the clerk a written demand for a hearing before the board or before a referee, and the board shall set a time for the hearing which shall be within thirty days from the date of receipt of the written demand, and the clerk shall give the teacher at least twenty days' notice in writing of the time and place of such hearing. If a referee is demanded by either the teacher or board, the clerk shall also give twenty days' notice to the superintendent of public instruction. No hearing shall be held during the summer vacation without the teacher's consent. Such hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a referee appointed pursuant to section 3319.161 (3319.16.1) of the Revised Code, if demanded: otherwise, it shall be conducted by a majority of the members of the board and shall be confined to the grounds given for such termination. The board shall provide for a complete stenographic record of the proceedings, a copy of such record to be furnished to the teacher. The board may suspend a teacher pending final action to terminate his contract if, in its judgment, the character of the charges warrants such action.

Both parties may be present at such hearing, be represented by counsel, require witnesses to be under oath, cross examine witnesses, take a record of the proceedings, and require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. In case of the failure of any person to comply with a subpoena, a common pleas judge of the county in which the person resides, upon application of any interested party, shall compel attendance of the person by attachment proceedings as

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for contempt. Any member of the board or the referee may administer oaths to witnesses. After a hearing by a referee, the referee shall file his report within ten days after the termination of the hearing. After consideration of the referee's report, the board by a majority vote may accept or reject the referee's recommendation on the termination of the teacher's contract. After a hearing by the board, the board by majority vote may enter its determination upon its minutes. Any order of termination of a contract shall state the grounds for termination. If the decision, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes, and if the teacher has suffered any loss of salary by reason of being suspended, they shall be paid full salary for the period of such suspension.

Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original action in said court and shall be commenced by the filing of a petition against such board, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board shall immediately transmit to the clerk of said court for filing a transcript of the original papers filed with the board, a certified copy of the minutes of the board into which the termination finding was entered, and a certified transcript of all evidence adduced at the hearing or hearings before such board or a certified transcript of all evidence adduced at the hearing or hearings before the referee, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The court shall examine the transcript and record of the hearing and shall hold such additional hearings as it deems advisable, at which it may consider other evidence in addition to such transcript and record.

Upon final hearing, the court shall grant or deny the relief prayed for in the petition as may be proper in accordance with the evidence adduced in the hearing. Such an action is a special proceeding within the purview of section 2505.02 of the Revised Code and either the teacher or the board may appeal therefrom. In any court action the board may utilize the services of the prosecuting attorney or city solicitor as authorized by section 3313.35 of the Revised Code, or may employ other legal counsel.

3319.17 Reduction in number of teachers; restoration, page 274. When by reason of decreased enrollment of pupils, return to duty of regular teachers after leaves of absence, or by reason of suspension of schools or territorial

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changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it may make a reasonable reduction. In making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified.

Implications for educationThe teacher’s long experience in purely an administrative capacity did not

disqualify her from teaching in the schools. While serving as an administrator she was required as part of her duties to “demonstrate teaching” to others and believed she was able to regularly perform such work. Although no evidence is presented in the case, the assistant superintendent was probably linked to the teacher’s salary index with additional compensation for administrative responsibilities. If this is true, she would retain seniority rights. Referring back to Frank v. Meigs County Board of Education, the assistant county superintendent was no longer considered part of the teaching force and subsequently did not retain seniority rights as a teacher.

Flannery v. Jenkins Township School Directors39 Luzerne Leg. R365,60 Pa D & C 433

Pennsylvania (1947)

Statute appropriate to caseSource – Laws of Pennsylvania, 1939, page 486.

Section 1205(b). Whenever it shall become necessary to decrease the number of professional employes by reason of substantial decrease of pupil population within the school district, the board of school directors (or board of public education) may suspend the necessary number of professional employes, for the causes hereinafter enumerated (but only in the inverse order of the appointment of such employes):

(1) Substantial decrease in pupil enrollment in the school district;

(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors (or board of public education), approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or

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educational activities required by law or recommended by the Department of Public Instruction;

(3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Whenever a board of school directors (or board of public education) decreases the size of the staff of professional employes under the provisions of this act, the suspensions to be made shall be determined by the county superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction. It shall hereafter be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each teacher employed within the district, and copies of all ratings for the year shall be transmitted to the teacher upon his or her request, or, if any rating during the year is unsatisfactory, a copy of same shall be transmitted to the teacher concerned. No teacher shall be dismissed under this act unless such rating records have been kept on file by the board of school directors.

In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards hereinbefore referred to: Provided, That in cases in which suspensions are to be make during the school term immediately following the effective date of this act, professional employees shall be retained on the basis of seniority rights.

No employe suspended as aforesaid shall be prevented from engaging in other occupation during the period of such suspension. Such professional employes shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employes available, who are properly certified to fill such vacancies.

OverviewThe teacher was first employed as a teacher in the school district in 1929

and subsequently until August 1943, at which time she and seven others were suspended from further service due to declining enrollment in the high school.

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The tenured teacher contended that the reinstatement of a teacher, her junior in tenure, instead of her, to teach guidance during the term beginning September 1944, was a violation of her seniority rights by the board. The teacher had become certified to teach guidance between the time of her dismissal and the reinstatement of the other teacher.

IssueIs a teacher who was dismissed because of decreased student enrollment

entitled to reinstatement under provisions of seniority of service rather than seniority of qualifications to teach a particular subject?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe board argued that the fundamental policy expressed in the

Constitution and underlying school laws was to obtain a better education for the children of the Commonwealth. Therefore, the action of the school board in reinstating the junior teacher, an experienced teacher, to teach guidance was justified because the teacher had prior certification in the subject of guidance. He had experience, training and knowledge acquired from teaching this subject for a full year. In the board’s opinion, he was the more capably and competently qualified to provide the best education in the teaching of guidance to the children of the district.

This argument, in the Court’s judgment, was not sound and it gave the board no discretion to ignore the tenure teacher’s seniority rights which were protected by the School Code and it made it the imperative duty of the board to reinstate the teacher first from the seven suspended high school teachers to teach any subject she was certificated to teach, among them guidance, since she had recently become certified to teach in this particular area. The board was not vested with any discretion to discriminate in favor of the junior teacher against the senior teacher out of any alleged regard for the fundamental policy expressed in the Constitution and underlying school laws. The Court pointed out if the discretion of school boards, exercised on the basis of such plausible arguments, would enable boards to override the seniority rights (designed by the Tenure Act to be so carefully safeguarded) would become a dead letter and they would be frittered away entirely by the subtle and specious actions of boards under the disguise of promoting the “cardinal purpose” of furnishing the best education for the children.

Significant points1. The board has no discretion to ignore the tenure seniority rights of

a teacher which are protected by the School Code, and it made it the imperative duty of the board to reinstate the teacher first from

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the seven suspended teachers to teach any subject they were certified to teach.

2. The board was not vested with any discretion to discriminate in favor of the junior teacher against the senior teacher out of any alleged regard for the fundamental policy expressed in the Constitution and underlying school laws of obtaining a better education for the children of the Commonwealth.

Revised statuteSource – Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Implications for educationThe court pointed out that the board could not override the tenure and

seniority rights of the teacher to discriminate in favor of the junior teacher in tenure. It was the duty of the board to reinstate the dismissed teacher to teach any subject she was certificated to teach. The teacher continued her professional preparation and subsequently became certified to serve in the area of guidance. The court expressed that the teacher had definite seniority rights protected by tenure and it was the imperative duty of the board to reinstate the dismissed teacher to serve in any capacity for which she was certified, among them guidance, since she had recently become certified to serve in this area. In this case, the teacher had seniority rights protected by tenure and then became certified in a different area and was permitted to bump another with less seniority.

Butler v. Wilkes-Barre Twp. School District,41 Luzerne Leg. Reg R13

Pennsylvania (1948)

Statute appropriate to caseSource – Laws of Pennsylvania 1939, page 486.

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Section 1205(b). Whenever it shall become necessary to decrease the number of professional employes by reason of substantial decrease of pupil population within the school district, the board of school directors (or board of public education) may suspend the necessary number of professional employes, for the causes hereinafter enumerated (but only in the inverse order of the appointment of such employees):

(1) Substantial decrease in pupil enrollment in the school district;

(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors (or board of public education), approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction;

(3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Whenever a board of school directors (or board of public education) decreases the size of the staff of professional employes under the provisions of this act, the suspensions to be made shall be determined by the county superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction. It shall hereafter be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each teacher employed within the district, and copies of all ratings for the year shall be transmitted to the teacher upon his or her request, or, if any rating during the year is unsatisfactory, a copy of same shall be transmitted to the teacher concerned. No teacher shall be dismissed under this act unless such rating records have been kept on file by the board of school directors.

In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards hereinbefore referred to: Provided, That in

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cases in which suspensions are to be make during the school term immediately following the effective date of this act, professional employees shall be retained on the basis of seniority rights.

No employee suspended as aforesaid shall be prevented from engaging in other occupation during the period of such suspension. Such professional employees shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employee available, who are properly certified to fill such vacancies.

OverviewOn June 22, 1948, at the end of the school year, the teacher was notified

by the officials of the school district that she would be suspended as a teacher due to a decrease in the student enrollment. The teacher taught art and home economics, and acted as a teacher under the terms of the contract until the end of the school term, 1948. The testimony showed that since September 1948, the subjects art and home economics, previously taught by the teacher, were taught by others on the payroll of the district who were certified as being qualified to teach the subjects. The teacher argued this was illegal and that she be reinstated to her former teaching position. The teacher was unemployed during the following school year.

IssueCan the school board suspend the necessary number of teachers where

there is a substantial decrease in pupil enrollment?

DecisionCourt decided for the board.

Characteristics of the decisionThe testimony established that there had been a decrease in the total

enrollment in the district from 1,360 pupils in the school year beginning in 1940 to 849 at the beginning of the school year 1948. The testimony also showed that for the school year 1944-1945, 296 pupils were enrolled in the art department and 152 in the department of home economics; that for the term 1945-1946 there were 171 students in the home economics department; that for the school year 1946-1947, 233 pupils were enrolled in the art department and 106 in the home economics department, and that at the time of the trial the enrollment was 223 students in the art department and 101 in the home economics department.

It thus appeared to the Court that there had been a substantial decrease in the pupils enrolled in the school district, and that this decrease was considerably reflected in the home economics department and the art department at the time of the teacher’s dismissal at the end of the school year, 1947-1948.

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The Court emphasized the operation of the schools of the district was a matter within the discretion of the members of the school board. The School Code, Section 1205(b), specifically authorized a board of school directors to suspend the necessary number of professional employes when there has been a substantial decrease in pupil enrollment in the school district. Where such a decrease appears, the discretion of the board is not subject to review, unless an abuse was shown.

The teacher had charged that as a matter of law the action of the school board was illegal. No abuse of discretion on the part of the members of the school board was alleged or proven. The board had acted in good faith for the total benefit of the school district.

Significant points1. The testimony established that there had been a definite decrease in

the total enrollment in the district from the school year beginning in 1940 to the beginning of the school year of 1948. it thus appeared to the Court that there had been a substantial decrease in pupils enrolled in the school district, and that this decrease was considerably reflected in the home economics department and the art department at the time of the teacher’s dismissal at the end of the school year, 1947-1948.

2. The Court emphasized the operation of the schools of the district was a matter within the discretion of the members of the school board. The School Code, Section 1205(b), specifically authorized a board of school directors to suspend the necessary number of professional employes when there has been a substantial decrease in pupil enrollment in the school district. Where such a decrease appears, the discretion of the board is not subject to review, unless an abuse was shown.

3. The board had acted in good faith for the total benefit of the school district.

Revised statuteSource – Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction;

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(3) Consolidation of schools, whether within a single district, through a merger or districts or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Implications for educationIt appeared to the court that there had been a substantial decrease in pupils

enrolled in the school district, and that this decrease was considerably reflected in the home economics department and the art department at the time of the teacher’s dismissal at the end of the school year, 1947-1948. Although the dismissed teacher was protected by tenure, there had been a definite decrease in students reflected in the areas of her teaching responsibilities. The board assigned the subjects previously taught by the teacher to others in the district who were certified as being qualified to teach the subjects. In eliminating one teaching position, the court expressed the fact that the board had acted in good faith for the total benefit of the school district. The board had complied with 1205(b) and did not violate any seniority or tenure rights of the teacher.

McWithy v. Heart River School District No. 22,32 N.W.2d 886 North Dakota (1948)

Statute appropriate to caseSource – North Dakota Revised Code of 1943, Volume 2, page 957.

15-2509. School Terms: Minimum; Discontinuance of Term; Arbitration. The terms in a common school district shall be arranged to accommodate pupils of all ages and to furnish school privileges equally and equitably to all pupils in the district. Each common school shall be kept in session for not less than seven months in each school year, except that any school may be discontinued when the average attendance of pupils therein shall be less than six for ten consecutive days, if proper and convenient school facilities for the pupils can be provided in some other school in the territory of the closed school until such time as the school may be reopened by the board. In determining what constitutes proper and convenient school facilities, the board shall consider the distance of each child from the nearest other school and all surrounding circumstances. The board may furnish transportation to the nearest school, or may pay an extra allowance for the transportation, or may furnish the equivalent thereof in tuition or lodging at some other public school. In case of a dispute between a patron and the board as to whether the board has furnished or arranged to furnish adequate facilities, the matter may be submitted by the patron to a board of arbitration consisting of the county superintendent of schools, one arbitrator named by the patron, and one arbitrator named by the board, and the determination of

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the arbitrators, after hearing, shall be binding. The board shall reopen any school which has been closed for lack of attendance under this section for the next ensuing term upon the written demand of the parents or guardians of six or more children of compulsory school age residing within two and one-half miles of the school, and the board may reopen such school at any time upon its own motion.

OverviewThe contract provided the teacher should teach in a school within the

school district for a term of eight months beginning September 11, 1944, at a salary of $125 per month. The contract further provided that the school might be discontinued at any time in accordance with Section 15-2509, which provides, in part, that “school may be discontinued when the average attendance of pupils therein shall be less than six for ten consecutive days…”

During the three months eight children were in attendance, only seven of whom were of compulsory school age. They belonged to two families and were all the children of school age in the district. One of these families was that of the president of the school board. The record showed the teacher had some difficulties with discipline in her school. In early November she got into a dispute with the son of the president of the school board over a matter of history in which she was clearly right. The son defied her. The father took the son’s part. He visited the school and in a rather rough manner told the teacher he was going to “shut the school and put her out.” He claimed his children were not “learning anything” in school. About November 11th the board president took his three children out of school and sent them to school at Richardton, North Dakota. He also visited the father of the other family attending school, and told him to keep his children out “for ten days – enough days so the contract of the teacher would be void.” Both families kept their children out of school for ten consecutive days. Then on November 29th the school board met and passed a resolution closing the school on grounds that the attendance was less than six for ten consecutive days. The teacher was not notified of the board’s action. Shortly after the ten days had expired the five children of the other family returned to school. The teacher continued to teach them the rest of the contract year, and she was not disturbed in her teaching responsibilities, although the president of the school board knew she was teaching. Her pupils took and passed the required examinations provided by the county superintendent. For teaching the five remaining months of the year, the teacher asked $560.75 with interest at four percent from the board for compensation. The board contested the school was closed December 1, 1944, according to the provisions of the contract and the law.

IssueIf the Board of Education fails to notify a teacher of the closing of a

school because the average attendance was less than six pupils for ten consecutive

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days, is the teacher entitled to compensation for her professional services when she continues to teach five students in the school?

DecisionCourt decided for the teacher.

Characteristics of the decisionA formal notice to the teacher of the resolution for the discontinuance of

the school was a prerequisite to the termination of the teacher’s contract as provided for under Section 15-2509. The Court expressed that the party having the right to terminate a contract must act in good faith and give reasonable notice to the other party and that “all acts done under the contract by the other party prior to the time of receiving notice of its termination are binding on both parties.” Since the teacher received no such notice she was justified in continuing to teach the five children when they returned and in believing that the threatened closing of the school had been abandoned. The Court ruled the teacher was entitled to her salary for the whole term as provided by the contract.

Significant points1. A formal notice to the teacher of the resolution of the

discontinuance of the school was a prerequisite to the termination of the teacher’s contract.

2. The party having the right to terminate a contract must act in good faith and give reasonable notice to the other party prior to the time of receiving notice of its termination are binding on both parties.

3. Since the teacher received no such notice she was justified in believing that the threatened closing of the school had been abandoned.

Revised statuteSource – North Dakota Century Code, Replacement Volume 3 1975, Pocket Supplement.

15-47-38. Legislative intent in employment of teachers – Notification of discharge or failure to renew – Hearing

1. The legislative assembly, in recognition of the value of good employer-employee relationships between school boards of this state and the teachers employed in the school systems, the need to recruit and retain qualified teachers in this state, and further in recognition of the many intangibles in evaluating the performance of individual members of the teaching profession, urges that each school board of this state ensure through formally adopted policies, that channels of communication exist between the board, supervisory personnel, and teachers employed within

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its school system. In the very sensitive area of discharge of teachers for cause prior to the expiration of the term of the teachers’ contracts, or in decisions not to renew the contracts of teachers, school boards shall give serious consideration to the damage that can result to the professional stature and reputation of such teachers, which stature and reputation were acquired only after the expenditure of substantial time and money in obtaining the necessary qualifications for such profession and in years of practicing the profession of teaching; and that in all decisions of school boards relating to discharge or refusal to renew contracts, all actions of the board be taken with consideration and dignity, giving the maximum consideration to basic fairness and decency.

2. The school board of any school district contemplating discharging a teacher for cause prior to the expiration of the term of the teacher’s contract shall notify such teacher in writing of such fact at least ten days prior to the date of contemplated discharge. Such teacher shall be informed in writing of the time and place for a special meeting of the school board to be held for such purpose prior to the final decision on the matter. Such teacher shall also be informed in writing of his right to demand a specification of the reasons for such discharge, which must on demand of the teacher be furnished not less than five days prior to said meeting to be held on the question of contemplated discharge. Such reasons shall be sufficient to justify the contemplated action of the board and shall not be frivolous or arbitrary. At the meeting with the board, if the teacher has informed the board in writing at least two days prior thereto that he will contest the charges brought against him, the board must sustain the charges with evidence produced at such hearing with witnesses who shall be subject to cross-examination by the teacher or his representative. The teacher may then produce such witnesses as may be necessary to refute the charges, which witnesses shall be subject to cross-examination. The proceedings may, at the request of either party, be transcribed by a court reporter at the expense of the person requesting such transcript and the witnesses may on demand of either party be placed under oath by a person authorized by law to administer oaths. Any person testifying falsely under oath shall be guilty of perjury and punished according to law. The meeting shall be an executive session of the board unless both the school board and the teacher requesting such meeting shall agree that it shall be open to other persons or the public. The teacher may be represented at the meeting by two representatives of his own choosing. In addition to board members, the school district clerk and the superintendent, the school board may be represented by two other representatives of its own choosing at such executive session. If the teacher so requests they shall be granted a continuance of not to exceed seven days by the board unless for good cause otherwise shown. No cause

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of action for libel or slander shall lie for any statement expressed either orally or in writing at any executive session of the school board held for the purposes provided for in this section.

3. A school board may dismiss a teacher, effective immediately, for any of the following causes: 1. Immoral conduct, insubordination, or conviction of a felony; b. Conduct unbecoming a teacher which requires the immediate removal of a teacher from his classroom duties; c. Failure without justifiable cause to perform contracted duties; d. Gross inefficiency which the teacher has failed to correct after reasonable written notice; or e. Continuing physical or mental disability which renders one unfit or unable to perform said duties as a teacher.

4. The school board by unanimous vote may suspend the teacher from regular duty if such action is deemed desirable during the process of determining if cause for dismissal exists. If, upon final decision, the teacher is dismissed, the board may in its discretion determine the teacher’s salary of compensation as of the date of suspension. If the final decision is favorable to the teacher, there shall be no abatement of salary or compensation.

5. The school board of any school district contemplating not renewing a teacher’s contract, as provided in section 15-47-27, shall notify such teacher in writing of such contemplated nonrenewal no later than April first. Such teacher shall be informed in writing of the time, which shall not be later than April seventh, and place of a special school board meeting for the purpose of discussing and acting upon such contemplated nonrenewal. Such teacher shall also be informed in writing of the reasons for such nonrenewal. Such reasons shall be sufficient to justify the contemplated action of the board and shall not be frivolous or arbitrary but shall be related to the ability, competence, or qualifications of the teacher as a teacher, or the necessities of the district such as lack of funds calling for a reduction in the teaching staff. At the meeting with the board the teacher may then produce such evidence as may be necessary to evaluate the reasons for nonrenewal, and either party may produce witnesses to confirm or refute the reasons. The school board shall give an explanation and shall discuss and confirm at such meeting its reasons for the contemplated nonrenewal of the contract. The meeting shall be an executive session of the board unless both the school board and the teacher shall agree that it shall be open to other persons or the public. The teacher may be represented at such meeting by any two representatives of his own choosing. In addition to board members, the school district clerk, and the superintendent, the school board may be represented by two other representatives of its own choosing at such executive session. Upon such

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hearing, if the teacher so requests, he shall be granted a continuance of not to exceed seven days. No cause of action for libel or slander shall lie for any statement expressed either orally or in writing at any executive session of the school board held for the purposes provided for in this section. The determination not to renew a contract if made in good faith shall be final and binding on all parties. Final notice of the determination not to renew a contract shall be given in writing by April fifteenth as provided in section 15047-27.

Implications for educationA formal notice to the teacher of the resolution of the discontinuance of

the school was a prerequisite to the termination of the teacher’s contract. Since the teacher received no such notice she was justified in believing that the threatened closing of the school had been abandoned. It is significant to note that proper notification by terms of law is very important.

Caperelli v. School District of the Borough of Winston,Volume 63 Lack Jur 269

Pennsylvania (1952)

Statutes appropriate to caseSource – Purdon’s Penna Statutes Annotated, Titles 24, Education.

11-1124. Causes for suspension, page 528. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Source – Laws of Pennsylvania, Volume II 1951-52.

Section 1166. Persons Entitled, pages 1791-1792. (a) Any person employed in the public school system of this Commonwealth who has completed ten (10) years of satisfactory service as a (teacher, or, in first class school districts, as a member of the instructional staff or department of instruction, as now defined by the local board of education)

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professional employe or member of the supervisory, instructional or administrative staff, or, in first class school districts, as a member of the instructional staff, as defined by the local board of education, shall be entitled to a leave of absence for restoration of health, study or travel, or, at the discretion of the board of school directors, for other purposes. At least five consecutive years of such service shall have been in the school district from which leave of absence is sought, unless the board of school directors shall in its discretion allow a shorter time. Such leave of absence shall be for a half or full school year, or for two half school years during a period to two years, at the option of such person. Thereafter, one leave of absence shall be allowed after each seven years of service.

A sabbatical leave granted to a regular employee shall also operate as a leave of absence without pay from all other school activities.

OverviewThere was a decrease in pupil enrollment from 535 to 289 and it was

necessary to suspend the teacher, among others. The board expressed that he had no seniority claim to employment over another teacher who was restored to employment in 1950 after a prolonged maternity leave, either in total length of service or in appropriate job classification. The dismissed teacher was guilty of failing to file his complaint more than a year after the notice of suspension, which was recommended by the superintendent of schools. The superintendent, after consideration of the financial situation of the school district, concluded that there was no need for the teacher certified and qualified to teach the subjects for which the teacher was certified.

The teacher seeking legal action against the board asserted that the hiring of the other teacher restored to employment after a prolonged maternity leave was unnecessary because other teachers remaining employed were qualified to teach the subject to which she was assigned, and the dismissed teacher could have taught a subject to replace a teacher so reassigned.

IssueWhen there is a decrease in pupil enrollment and financial stress, and it is

necessary to suspend a teacher, is it the responsibility of the administration to rearrange teaching assignments to provide protection to a teacher with seniority?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe teacher who was restored to employment in 1950 after a prolonged

maternity leave taught a course in mathematics (solid geometry and trigonometry) which had been omitted from the high school curriculum during most of her

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absence on leave and which the dismissed teacher conceded he was not qualified to teach. There were, however, as of the date of the teacher’s suspension four other teachers senior to him who were certified to teach mathematics but were actually teaching in other assignments. They were actually teaching in other assignments subjects in some of which the teacher was likewise certified to teach. The court pointed out that even though it may have been laborious, if the superintendent or the principal of the high school had rearranged teaching assignments to provide for a course in solid geometry and trigonometry, a senior teacher was certified to teach mathematics, that a place could have been found for the dismissed teacher to teach the subject for which he was certified.

It was obvious to the court that the teacher restored to employment after the prolonged maternity leave, through long experience in teaching the course to which she was assigned upon reinstatement, could be expected to put out initially at least a better performance than one who, although certified to teach mathematics, lacked any recent experience in such instruction. However, the school district had no system of qualification on separate hiring of teachers by departments or groups of studies, and the court could see no reason for depriving the dismissed teacher of employment.

Significant points1. There were, as of the date of the teacher’s suspension, four other

teachers senior to him who were certified to teach mathematics but were actually teaching in other assignments. They were actually teaching in other assignments subjects in some of which the teacher was likewise certified to teach. The court pointed out that even though it may have been laborious, if the superintendent or the principal had rearranged teaching assignments to provide for a course that a senior teacher was certified to teach, a place could have been found for the dismissed teacher to teach the subject for which he was certified.

Revised statuteSource – Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a

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merger of districts or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Source – Purdon’s Penna. Statutes Annotated, Titles 24, Education, Pocket Part, pages 137-138.

11-1166. Persons entitled. Any person employed in the public school system of this Commonwealth who has completed ten (10) years of satisfactory service as a professional employe or member of the supervisory, instructional or administrative staff, or as a commissioned officer, of any board of school directors, county board of school directors, or any other part of the public school system of the Commonwealth, shall be entitled to a leave of absence for restoration of health, study or travel, or, at the discretion of the board of school directors, for other purposes. At least five consecutive years of such service shall have been in the school district from which leave of absence is sought, unless the board of school directors shall in its discretion allow a shorter time: Provided, however, That in the case of professional employes of area vocational-technical schools or technical institutes prior service in the participating school district shall be credited toward such service requirement. Such leave of absence shall be for a half or full school term or for two half school terms during a period of two years, at the option of such person: Provided, however, if a sabbatical leave is requested because of the illness of an employe, a leave shall be granted for a period equivalent to a half or full school term or equivalent to two half school terms during a period of two years, at the option of such person: Provided, further, That if a sabbatical leave for one half school term or its equivalent has been granted and the employe is unable to return to school service because of illness or physical disability, the employe, upon written request prior to the expiration of the original leave, shall be entitled to a further sabbatical leave for one half school term or its equivalent: Provided, further, That if a sabbatical leave for a full school term or its equivalent has been granted and the employe is unable to return to school service because of illness or physical disability, the board of school directors may extend such sabbatical leave for such periods as it may determine but not to exceed one full school term or its equivalent. Thereafter, one leave of absence shall be allowed after each seven years of service. A sabbatical leave granted to a regular employe shall also operate as a leave of absence without pay from all other school activities.

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Implications for educationThe court pointed out that even though it may have been laborious, if the

superintendent or the principal had rearranged teaching assignments to provide for a course that a senior teacher was certified to teach, a place could have been found for the dismissed teacher to teach the subject for which he was certified.

In referring back to Flannery v. Jenkins Township School Directors, the court reaffirmed its position that it was the imperative duty of the board to reinstate the dismissed teacher to serve in any capacity for which she was certified, among them guidance since she had recently become certified to serve in that area.

Woods v. Board of Education of Walker County,67 So.2d 841 Alabama (1953)

Statutes appropriate to caseSource – Code Alabama 1940, Titles 52-62.

356. Grounds for cancellation of employment contract, page 126. Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons.

358. Finality of action of employing board; review, page 128. The action of the employing board of education, if made in compliance with the provisions of this chapter, and unless arbitrarily unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter, and whether such action is arbitrarily unjust, may be reviewed by bill in equity for the specific performance of such contract, filed in the county where said school system is located. No action at law shall lie for the recovery of damages for the breach of any employment contract of a teacher in the public schools.

OverviewOn April 19, 1951, teachers were notified of their reappointment as

teachers for the year 1951-1952 and they accepted the appointment. However, on July 9, 1951, it became necessary to reduce the number of teachers in the county in compliance with the financial appropriations which would be made by the State Department of Education . The teachers were given notice of this status by the county board through the district superintendent and were advised that their professional services would not be needed for the school year 1951-1952, but if the attendance should be increased where the employment of additional teachers should become necessary, their reemployment would be considered.

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When the 1951 school year started, it was determined that the annual daily attendance of students had decreased to the extent that it was necessary to suspend a number of teachers in addition to those already suspended to bring the number employed within the number designated by the State Department of Education and to stay within the limitation of financial appropriations allowed for teachers. The suspension by the county board imposed upon the local school district was with the hope that the school district’s attendance might increase to where these suspended teachers might be reemployed, but after two months of the 1951 school year had elapsed and no increase in attendance had been shown, the board considered it necessary to terminate the contracts of the teachers, as they had been previously warned.

IssueWhere there is a decrease in the number of teaching positions due to the

loss in school attendance, is a board justified in nonrenewing teachers and retaining teachers with less service?

DecisionCourt decided for the board.

Characteristics of the decisionThe School Code provided that one of the grounds for the termination of

an employment contract with a teacher on continuing service status is by reason of a “justifiable decrease in the number of teaching positions.” Where a board, such as the board of education of a county, is created for the purpose of carrying a law into execution, all legal intendments are indulged in favor of the orders of such board until proven otherwise. The board rested its ruling in terminating the contracts on the decrease of teaching positions and loss of school attendance and the evidence in support of the ruling sustained it. The fact that teachers were retained of less seniority would not of itself show any arbitrary action against the board. Nor would the fact that the county board had set up no fixed ratio between the teacher load and the minimum student attendance make the action taken arbitrary. Of necessity, the Court expressed that much must be left to the discretion of the county board and its superintendent. Together, the board and the superintendent determined that it was necessary to undertake the reduction in teacher personnel on the basis of the reduction in student attendance, and the Court felt it was proper to do so.

Significant points1. Where a board, such as the board of education of a county, is

created for the purpose of carrying a law into execution, all legal intendments are indulged in favor of the orders of such a board until proven otherwise.

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2. The board rested its ruling in terminating the contracts on the decrease of teaching positions and loss of school attendance and the evidence in support of the ruling sustained it.

3. The fact that teachers were retained of less seniority would not of itself show any arbitrary action against the board.

4. The fact that the county board had set up no fixed ratio between the teacher load and the minimum student attendance would not make the action taken arbitrary.

5. The Court expressed that much must be left to the discretion of the county board and its superintendent.

6. Together, the board and the superintendent determined that it was necessary to undertake the reduction in teacher personnel on the basis of the reduction in student attendance, and the Court felt it was proper to do so.

Revised statuteSource – Code of Alabama, Recompiled 1958; Titles 52-56.

358. Grounds for cancellation of employment contract, page 142. Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons.

360. Finality of action of employing board on contract cancellation: review, page 145. The action of the employing board shall be final in its action on cancellation of a teacher’s contract provided such action was in compliance with the provisions of this chapter and was not arbitrarily unjust. The teacher shall have the right to appeal to the state tenure commission as hereinafter established to obtain a review by the commission as to whether such action was in compliance with this chapter and whether such action was arbitrarily unjust. Such appeal shall be taken by filing within fifteen days after the decision of the employing board a written notice of appeal with the superintendent or chairman of said board. If said appeal is not taken within fifteen days after decision of the board, the board’s decision shall be final. Upon notice of appeal, the board shall cause to be made sufficient copies of the record of proceedings to provide a copy for each of the members of the commission and one for the teacher. The record shall consist of all notices given to the teacher, all papers filed with the board by the teacher in compliance with the provisions of this chapter, transcript of testimony and other evidence and the findings and decisions of the board. The requisite number of copies of the record shall be delivered to the commission and to the teacher within twenty days from

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the day of the hearing. The commission shall set a date for the hearing at which the board and the teacher, or a representative of each, shall have an opportunity to be heard. The date of such hearing shall be within forty days after the decision of the board, an the teacher and the board shall be given at least five days’ notice of the time and place where the appeal will be considered. On said appeal the commission will consider the case on the record of the proceedings before the said board and the evidence as recorded at such hearing. The commission shall by a majority vote determine the validity of the action by the board, and shall render its decision within five days after its hearing. No action at law shall lite for the recovery of damages for the breach of any employment contract of a teacher in the public schools.

Implications for educationThe revised statute does not address itself to seniority. The board of

education of the county was created for the purpose of carrying a law into execution with all legal intendments indulged in favor of the orders of such a board until proven otherwise. The revised statute is silent with respect to any Teachers’ Tenure Law and the fact that teachers were retained with less seniority would not of itself show any arbitrary action against the board. It is significant to note there are obvious differences among states and the differences must always be taken into the fullest consideration when interpreting court decisions.

Paden v. Lake-Noxen School District,Pa44 Luz erne Leg Reg R279 Pennsylvania (1953)

Statute appropriate to caseSource - Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district: (2) curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instructions; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

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OverviewThe teacher was employed in the Vocational Agriculture Department of

the school district. He had a professional employee’s contract with the district dated August 14, 1947. On August 7, 1950, the board adopted a resolution by a vote of three to two abolishing the department as a result of substantial decline in enrollment in the course. The teacher was notified that his services would not be needed after August 31, 1950.

IssueDoes the school board have the authority to eliminate a department and

thereby dismiss a teacher when there is a decline in course enrollments?

DecisionCourt decided for the board.

Characteristics of the decisionExecutive officers are clothed with the responsibility of originating and

executing plans for the public good; the presumption is that their acts are on such considerations and their decisions reached in a legal way after investigation. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden; courts can and will interfere only when it is made apparent this discretion has been abused. The board had the authority to eliminate the Vocational Agriculture Department and thereby suspend a professional employee. The board of school directors may suspend the necessary number of professional employees when there is a curtailment or alteration of the educational program on recommendation of the superintendent of schools, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction.

Significant points1. Executive officers are clothed with the responsibility of originating

and executing plans for the public good. 2. When the Board’s actions are challenged, the burden of showing to

the contrary rests on those asserting it, and it is a heavy burden. Courts can and will interfere only when it is made apparent thts discretion has been abused.

3. The board had the power to eliminate the department and thereby suspend a professional employee. The board of school directors may suspend the necessary number of professional employees when there is a curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public

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Instruction, as a result of substantial decline in the class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction.

Revised statuteSource - Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or education activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Implications for educationThe revised statue continues to allow the board of school directors to

suspend the necessary number of professional employees when there is a curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction. It is interesting to note in this case that no seniority rights of teacher in other areas were involved.

Swisher v. Darden, 511 P.2d 287 New Mexico (1955)

Statue appropriate to caseSource - New Mexico 1953, Volume eleven, chapters 73-76 page 2.

73-1-1. Authority and duties-Administration of oaths. The state board of education, pursuant to section 6, article XII, state constitution, shall be the governing authority of all public elementary and high schools of the state and shall cause the provisions of this chapter to be carried into effect to the end that the school laws of the state shall be properly and uniformly enforced. Said board shall determine educational policies of the state, and shall enact and publish by-laws for the administration of the public school

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system, which by-laws when enacted and published shall have the force of law. For the purpose of enforcing the provisions of this article, and enacting and publishing the by-laws of this board, the state board of education shall, if necessary, institute legal proceedings. The state board of education shall explain the true intent and meaning of the law, and shall decide without expense to the parties concerned, all controversies and disputes that arise under it, and their decision shall be final The secretary of the state board of education shall explain the true intent and meaning of the law, and shall decide without expense to the parties concerned, all controversies and disputes that arise under it, and their decision shall be final. The secretary of the state board of education shall have authority to administer oaths in any part of the state, to witness in any matter pending before said board.

OverviewPrior to the 1952-1953 school year, the Board of Education operated and

maintained a separate high school exclusively for colored students in the ninth, tenth, eleventh and twelfth grades. A colored teacher had been previously employed for nine successive years and her teaching contract assignment was confined to the separate high school for colored students. The teacher held a teaching contract protected under tenure. During the 1952-1953 school years, there was such a decline in average daily attendance of colored students in the separate high school that the Board of Education, in exercise of its discretion and for reasons of economy and in keeping with good administrative practices, concluded to discontinue and abandon the separate high school for colored students and integrate them with the main Las Cruces High School, effective with the 1953-1954 school year. By letter dated February 9, 1953, the teacher was informed of the action of the Board and that her services would not be required after the close of the 1952-1953 school year. The high school for colored students was discontinued and its students were integrated into the main Las Cruces High School, effective beginning with the 1953-1954 school year. Following her discharge, other teachers were employed in the school system for the school year 1953-1954, but all of such teaching assignments involved combinations of courses in some of which the teacher was qualified and others in which she was not.

Issue For economic reasons, can a teacher with tenure be terminated on

integration of schools even though there were available several positions held by nontenured teachers in the district?

Decision Court decided for the teacher.

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Characteristics of the decision The Board of Education argued their decision was arrived at in good faith,

that the services of the teacher could not be utilized in the Las Cruces school system, and therefore she was terminated. But more was required. To terminate her professional services it was necessary to show affirmatively that there was no position available which she was qualified to teach. The only grounds were set forth in the letter on February 9, 1953 sent to her and it was silent in this respect. On the contrary, there was evidence that several positions were available and were held by non-tenure teachers. A strong attack was made on the finding that the teacher was discharged because the local board felt she would be unable to teach in a classroom where there were white or where there were both white and colored students, and that she was not discharged for economic reasons or because of the closing of the separate high school exclusively for colored students caused by the decline in average daily attendance of colored students.

Significant points1. The board may discontinue a separate school exclusively for

colored students when students are integrated into other schools with the district.

2. To terminate the professional services of the colored teacher, it was necessary to show affirmatively that there was no position available for which the teacher was qualified to teach.

3. The termination notice sent to the teacher must specify that there was no position available for which the teacher is qualified to teach.

Revised statuteSource - New Mexico Statutes Annotated, Replacement Volume II, Part I, 1975 Pocket Supplement, pages 106-108.

77-2-2. State board - Duties. Without limiting those powers grated to the state board pursuant to section 77-2-1 NMSA 1953, the state board shall perform the following duties:A. Properly and uniformly enforce the provisions of the Public School Code:B. Determine policy for the operation of all public schools and vocational education programs in the state;C. Appoint a superintendent of public instruction;D. Purchase and loan instructional material to students pursuant to the Instructional Material Law (77-13-1 to 77-13-14);E. Designate courses of instruction to be taught in all public schools in the state;F. Assess and evaluate those private schools which desire state accreditation;

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G. Determine the qualifications for and issue a certificate to any person teaching, assisting teachers, supervising an instructional program, counseling, providing special instructional services or administering in public schools according to law and according to a system of classification adopted and published by the state board;H. Suspend or revoke a certificate held by a certified school instructor or administrator according to law and according to a system of classification adopted and published by the state board;I. Make full and complete reports on consolidation of school districts to the legislature;J. Prescribe courses of instruction, requirements for graduation and standards for all schools subject to its jurisdiction;K. Adopt regulations for the administration of all public schools and bylaws for its own administration;L. Require periodic reports on forms prescribed by it from all public schools and attendance reports from private schools;M. Authorize adult educational programs to be conducted in schools under its jurisdiction and promulgate and publish regulations governing all such adult educational programs; N. Require all accrediting agencies for public schools in the state to act with its approval;O. Accept and receive all grants of money from the federal government or any other agency for public school purposes and disburse the money in the manner and for the purpose specified in the grant; P. Require prior approval for any educational program in a public school which is to be conducted, sponsored, carried on, or caused to be carried on by a private organization or agency;Q. Approve all rules or regulations promulgated by any association or organization attempting to regulate any public school activity and invalidate any rule or regulation in conflict with any regulation promulgated by the state board. The state board shall have no power or control over the rules or regulations or the bylaws governing the administration of the internal organization of the association or organization;R. Review decisions made by the governing board or officials of any organization or association regulating any public school activity and any decision of the state board shall be final its respect thereto;S. Accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the state;T. Establish and maintain regional centers, at its discretion, for conducting co-operative services between public schools and school districts within and among such regions and to facilitate regulation and evaluation of school programs;

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U. Assess and evaluate for accreditation purposes at least one-third (1/3) of all public schools each year through visits by department personnel to investigate the adequacy of pupil gain in standard required subject matter, adequacy of pupil activities, functional feasibility of public school and school district organization, adequacy of staff preparation, and other matters bearing upon the education of qualified students; V. Provide for management and other necessary personnel to operate any public school or school district which has failed to meet requirements of law, state board standards or state board regulations; Provided, that such operation of the public school or district shall not include any consolidation or reorganization without the approval of the local board of such district. Until such time as requirements of law, standards or regulations have been met and compliance is assured, the powers and duties of the local school board shall be suspended; andW. Require a report from each school district by August 1 of each year which indicates by fact what effect the current distribution formula an other financial arrangement have had on educational program operations and student progress dung the prior year, and what changes if any, are needed. The state board shall evaluate each report, consolidate findings and present a state report with recommendations to the ensuing legislative session.

Implications for educationBased on the revised statute, the court would reaffirm its position that in

order to terminate the professional services of the colored teacher, it would be necessary to show affirmatively that there was no position available for which the teacher was qualified to teach. Seniority rights are reaffirmed for teachers.

Welsko v. School Board, 119 A.2d 43,Pennsylvania (1956)

Statute appropriate to case Source - Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 532.

11-1125 (b) Suspensions and reinstatements; how made. (b) In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards. Where there is a merger, jointure or union district formed, all professional employes shall retain the seniority rights they had at the time

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of such merger, jointure or union.

OverviewA teacher taught in the elementary grades of the school district from

September, 1916 to June, 1926, and then taught in the high school from September 1, 1934 to June 9, 1952, when he was suspended because of a decrease in pupil enrollment. The teacher brought legal action against the Board, stipulating that while the School Board was justified in reducing the teaching staff on account of the District’s financial condition, it was not warranted in suspending him in favor of five other retained teachers with less seniority rights than his.

IssueCan a school board suspend a teacher having seniority on account of the

financial condition of the school district, while retaining teachers with few years of service?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe School Board did not contest the general principle of seniority rights

but asserted that although five of the retained teachers had fewer years of service than the dismissed teacher, they taught subjects for which the dismissed teacher was not qualified to teach. In this connection, the dismissed teacher admits that three of those teachers taught subject for which there were no other certified teachers available and, consequently, could not be replaced. The dismissed teacher argued, however, that the subjects taught by other teachers on the teaching staff, and that, therefore, they should have been suspended prior to him.

The court was specific in its opinion that where a reduction in teaching staff is called for, the Board’s first consideration should be how to retain those teacher with the longest years of service by realigning the staff so that the remaining teachers, after the reduction has been implemented, can teach the subjects of those who, because of lesser seniority rights, have been suspended. Also, the court pointed out the very stability of our schools depends on retaining those teachers who because of long years of experience and devotion have earned the obedience of the pupils, the admiration of the parents, and the respect of the community. The court emphasized that it was not the intent of the Legislature to impose the Tenure Act so as to interfere with the control of school policy and courses of study selected by the administrative bodies. But if seniority rights of teachers could be circumvented by the expedient of reassigning teachers so that there would be no teachers with less continuous years of service teaching subjects which the suspended teacher was qualified to teach, obvious inequities would result, as happened in this case.

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Significant points1. Where a reduction in teaching staff is called for, the Board’s first

consideration should be how to retain those teachers with the longest years of service by realigning the staff so that the remaining teachers, after the reduction has been implemented, can teach the subjects of those who, because of lesser seniority rights, have been suspended.

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2. Although laborious, the administration should realign the teaching staff in such a way so that the remaining teachers, after the reduction has been implemented, can teach the subjects of those who have been suspended.

3. The very stability of our schools depends on retaining those teachers who because of long years of experience and devotion have earned the obedience of the pupils, the admiration of the parents, and the respect of the community.

Revised statuteSource - Purdon’s Penna. Statutes Annotated, Titles 24, Education, Pocket Part, 1975-1976, page 123.

11.1125. Suspensions and reinstatements; how made. (b) In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial difference in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards. Where there is a merger, jointure or union district formed or when new school districts are established as the result of reorganization of school districts pursuant to Article II, subdivision (i) of this act, all professional employes shall retain the seniority rights they had at the time of such merger, jointure, union or reorganization of school districts.

Implications for education The court expressed that where a reduction in teaching staff is called for,

the Board’s first consideration should be how to retain those teachers with the longest years of service by realigning the staff. Although laborious, the administration should realign the teaching staff in such a way so that the remaining teachers can teach the subjects of those who have been suspended. It is interesting to note that in this case seniority was considered to extend across grade levels, whereas in other cases the contrary view held. However, the teacher had taught at both levels.

Walker v. School District of the City of Scranton, 12 A.2d 46, Pennsylvania (1959)

Statute appropriate to caseSource - Laws of Pennsylvania 1939, page 486.

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Section 1205 (b). Whenever it shall become necessary to decrease the number of professional employes by reason of substantial decrease of pupil population within the school district, the board of school directors (or board of public education) may suspend the necessary number of professional employes, for the causes hereinafter enumerated (but only in the inverse order of the appointment of such employes):

(1) Substantial decrease in pupil enrollment in the school district:(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors (or board of public education), approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Whenever a board of school directors (or board of public education) decreases the size of the staff of professional employes under the provisions of this act, the suspensions to be made shall be determined by the count superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction. It shall hereafter be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each teacher employed within the district, and copies of all ratings for the year shall be transmitted to the teacher upon his or her request, or, if any rating during the year is unsatisfactory, a copy of same shall be transmitted to the teacher concerned. No teacher shall be dismissed under this act unless such rating records have been kept on file by the board of school directors.

In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards hereinbefore referred to: Provided, That in cases in which suspensions are to be made during the school term

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immediately following the effective date of this act, professional employees shall be retained on the basis of seniority rights.

No empolyee suspended as aforesaid shall be prevented from engaging in other occupation during the period of such suspension. Such professional employes shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employes available, who are properly certified to fill such vacancies.

OverviewTeachers were appointed as professional employees of the school district

under what may be referred to as the “Scranton plan of appointment.” This plan was devised by the board of school directors in an effort to ascertain those best qualified to teach the courses offered in the curriculums of the Scranton schools. In operation, the Scranton plan involved dividing teaching assignments into primary grades, intermediate grades, subjects taught in the high schools, and special departments, such as kindergarten, physical education, art and music. Teachers were examined by the school board to determine their strongest qualifications to teach those courses in which they specialized in college. They were rated by the school board and appointed to a specific teaching assignment.

The dismissed teachers, with the exception of two, held normal school certificates stating that they specialized in the intermediate curriculum which corresponds to the curriculum of the intermediate grades, and are licensed to teach the curriculum of the elementary schools, which were divided into primary and intermediate grades. The two other teachers held college certificates authorizing them to teach the curriculum of the elementary schools and high schools. All of the teachers qualified under the “Scranton plan of appointment” to teach in that teaching assignment. None of them qualified under the plan to teach in any other assignment. The school board suspended the necessary number of professional employees in each teaching assignment where a decrease in pupil population occurred. The teachers contended a general right to any position with the school district for which they were licensed to teach and that the action of the school board in limiting that right to specific teaching assignments was unfair.

Issue When it becomes necessary to decrease the number of professional

employees by reason of substantial decrease in pupil population within a school district, can the board suspend the necessary number of employees without regard to seniority?Decision

Court decided for the board.

Characteristics of the decision

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Each school board has the authority to administer the public school system within its school district. To enable it to do so efficiently and in the best interests of the children, it may adopt and enforce reasonable rules and regulations. The school board of the City of Scranton adopted the “Scranton plan of appointment” of professional employees and classified the teaching assignments. The teachers admitted that the school board acted within its authority in so doing. This being true, it necessarily follows that the teacher were appointed to the intermediate grades, which limitation definitely appeared in the minutes of the board, and, therefore, the school board properly confined the inquiry as to seniority rights to that specific teaching assignment. The teachers failed to realize that by the very provisions of the School Code, the suspension of a professional employee is controlled by the terms of his appointment and not for which they are licensed to teach. It could not be argued that the Legislature intended to impair the beneficial results of a sound and sensible plan of school management. The aim and objective of the school system is to provide the best education for the children.

Significant points1. Each school board has the authority to administer the public school

system within its school district. To enable it to do so efficiently and in the best interest of the children, it may adopt and enforce reasonable rules and regulations.

2. By the very provisions of the School code, the suspension of a professional employee is controlled by the terms of his appointment and not for which they are licensed to teach.

3. The aim and objective of the school system is to provide the best education for the children.

Revised statuteSource - Purdon’s Penna. Statutes Annotated, Titles 24, Education, page 528.

11-1124. Causes for suspension. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

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Implications for educationThe school board had the authority to administer the public school system

within the district. In administering its unique system, teachers were examined by the School board to determine their strongest qualifications to teach those courses in which they specialized in college. Under the “Scranton plan of appointment,” the school board classified teaching assignments and properly confined the seniority rights of teachers to specific teaching by the terms of their appointment and not by what they were licensed, qualified, or certified to teach. In Ging v. Board of Education of Duluth and Walker, the court was consistent in its ruling of confining seniority rights of teachers to specific teaching assignments. But in Caperelli v. School District of the borough of Winston, Flannery v. Jenkins Township School Directors, Walsh v. Board of Trustees of Redlands High School District, Seidel v. Board of Education of Ventnor City, Watson v. Burnett, Davidson v. Board of Education of the City School District of East Cleveland, Swisher v. Darden, Welsko v. School Board and Board of School Trustees v. O’Brien, where a unique local plan for appointment did not exist, teachers were entitled to teaching positions in accordance with their certification, qualifications and seniority.

Ashby v. School township of Liberty, 98 N.W.2d 848, Iowa (1959)

Statute appropriate to caseSource - Volume I, code of Iowa 1958, page 810.

279.13 Contracts with teachers–automatic continuation–exchange of teachers. Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contact with another board of directors in the state of Iowa to teach covering the same period of time, until such contract shall have been released, an such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized and payment by the calendar or school month signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract but no such contract shall be entered into with any teacher for the ensuing year or any part thereof until after the organization of the board.

Boards of school directors shall have power to arrange for an exchange of teachers in the public schools under their jurisdiction with other public school corporations either within or without the state or the United States on such terms and conditions as are approved by the state superintendent of public instruction and when so arranged and approved the board may continue to pay the salary of the teacher exchanged as provided in the

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contract between said teacher the board for a period of one year, and such teacher shall not lose any privileges of tenure, old-age, and survivors’ insurance or certification as a result of such exchange. Said contract may be renewed each year as determined by the employing school board provided that the visiting exchange teacher is paid in full for the service rendered by the school authorities with whom his contract is made. Such exchange teachers must have qualifications equivalent to the regular teacher employed by the board and who is serving as the exchange teacher and must secure a special certificate covering the subjects designated for him to teach in the public schools in which the instruction is given. The state superintendent of public instruction is hereby authorized to formulate, establish, and enforce any reasonable regulation necessary to govern the exchange of teachers as provided in this paragraph, including the waiver of Iowa certification requirements for teachers who are regularly certified or licensed in the jurisdiction from which they come.

Said contract shall remain in force and effect for the period stated in the contract and thereafter shall be automatically continued in force and effect for equivalent periods, except as modified or terminated by mutual agreement of the board of directors and the teacher, until terminated as hereinafter provided. On or before April 15, of each year the teacher may file his written resignation with the secretary of the board of directors, or the board may by a majority vote of the elected membership of the board, cause said contract to be terminated by written notification of termination by a registered letter mailed to the teacher not later than the tenth day of April; in event of such termination, it shall take effect at the close of the school year in which the contract is terminated by either of said methods. The teacher shall have the right to protest the action of the board, and to a hearing thereon, by notifying the president or secretary of the board in writing of such protest within twenty days of the receipt by him of the notice of terminate, in which event the board shall hold a public hearing on such protest at the next regular meeting of the board, or at a special meeting called by the president of the board for that purpose, and shall give notice in writing to the teacher of the time of the hearing on the protest. Upon the conclusion of the hearing the board shall determine the question on continuance or discontinuance of the contract by a roll call vote entered in the minutes of the board, and the action of the board shall be final. The foregoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of Section 279.24.

Overview The teacher entered into a written contract with the school township on

April 5, 1957, to teach in the school nine months beginning September 2, 1957. She taught until October 3 when the board closed the school because of lack of

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sufficient pupils. On March 7, 1958, the teacher brought legal action against the board to recover the salary provided by the contract for the school year less the amount paid her.

Issue Is the teacher entitled to compensation, when a school is closed because of

lack of sufficient pupils?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe 1945 amendment to the first sentence of 279.13 was the key factor in

the case. The amended sentence clearly recognized the right of both parties, the board and teacher, to terminate the contract by mutual agreement as well as by resignation by the teacher or vote by the board not later than April. Unless this was true, the language “except as modified or terminated by mutual agreement” was entirely meaningless. This was another key factor to the teacher’s defense that her contract may be terminated only by resignation of the teacher or vote of the board in April. The Court further expressed that its duty was to give interpretation to the statute and what its language calls for and not to speculate as to the probable legislative intent apart from the wording used.

The teacher was entitled to recover the salary provided by the contract for the school year less the amount paid her.

Significant points1. The 1945 amendment to the first sentence of 279.13 was the key

factor in the case. The amended sentence clearly recognized the right of both parties, the board and teacher, to terminate the contract by mutual agreement as well as by resignation by the teacher or vote by the board not later than April 15th.

Revised statueSource - Iowa Code Annotated, sections 257 to 279, pages 565-567.

279.13 Contracts with teachers - automatic continuation - exchange of teachers. Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contract with another board of directors in the state of Iowa to teach covering the same period of time, until such contract shall have been released, and such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized, and payment by the calendar or

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school month, signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract but no such contract shall be entered into with any teacher for the ensuing year or any part thereof until after the organization of the board.

Boards of school directors shall have power to arrange for an exchange of teachers in the public schools under their jurisdiction with other public school corporations either within or without the state or the United States on such terms and conditions as are approved by the state superintendent of public instruction and when so arranged and approved the board may continue to pay the salary of the teacher exchanged as provided in the contract between said teacher and the board for a period of one year, and such teacher shall not lose any privileges of tenure, old-age, and survivors’ insurance, or certification as a result of such exchange. Said contract may be renewed each year as determined by the employing school board provided that the visiting exchange teacher is paid in full for the service rendered by the school authorities with whom his contract is made. Such exchange teachers must have qualifications equivalent to the regular teacher employed by the board and who is serving as the exchange teacher and must secure a special certificate covering the subjects designated for him to teach in the public schools in which the instruction is given. The state superintendent of public instruction is hereby authorized to formulate, establish, and enforce any reasonable regulation necessary to govern the exchange of teachers as provided in this paragraph, including the waiver of Iowa certification requirements for teachers who are regularly certificated or licensed in the jurisdiction from which they come.

Said contract shall remain in force and effect for the period stated in the contract and thereafter shall be automatically continued in force and effect for equivalent periods, except as modified or terminated by mutual agreement of the board of directors and the teacher, until terminated as hereinafter provided, however, no contract shall be tendered by the employing board to a teacher under its jurisdiction prior to March 1, nor be required to be assigned by the teacher and returned to the board in less than twenty-one days after being tendered. On or before April 15, of each year the teacher may file his written resignation with the secretary of the board of directors, or the board may be a majority vote of the elected membership of the board, cause said contract to be terminated by written notification of termination, by a certified letter mailed to the teacher not later than the tenth day of April; provided, however, that at least ten days prior to mailing any notice of termination the board or its agent shall inform the teacher in writing that (1) the board is considering termination of said contract and that (2) the teacher shall have the right to a private conference with the board if the teacher files a request therefore with the

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president or secretary of the board within five days, and if within five days after receipt by the teacher of such written information the teacher files with the president or secretary of the board a written request for a conference and a written statement of specific reasons for considering termination, the board shall, before any notice of termination is mailed, give the teacher written notice of the time and place of such conference and at the request of the teacher, a written statement of specific reasons for considering termination, and shall hold a private conference between the board and teacher and his representative if the teacher appears at such time and place. No school board member shall be liable for any damages to any teacher if any such statement is determined to be erroneous as long as such statement was made in good faith. In event of such termination, it shall take effect at the close of the school year in which the contract is terminated by either or said methods. The teacher shall have the right to protest the action of the board, and to a hearing thereon, by notifying the president or secretary of the board in writing of such protest within twenty days of the receipt by him of the notice to terminate, in which event the board shall hold a public hearing on such protest at the next regular meeting of the board, or at a special meeting called by the president of the board for that purpose, and shall give notice in writing to the teacher of the time of the hearing on the protest. Upon the conclusion of the hearing the board shall determine the question of continuance or discontinuance of the contract by roll call vote entered in the minutes of the board, and the action of the board shall be final. The forgoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of section 279.24. The term “teacher” as used in this section shall include all certified school employees, including superintendents.

Implications for education The amended first sentence of 279.13 clearly recognized the right of both

parties, the board and teacher, to terminate the contract by mutual agreement as well as by resignation by the teacher or vote by the board not later than April 15 th. The important implication in this case is that where specific dates are included in statutes any deviation tends to be interpreted as a violation of procedure. Courts will support procedure as stated.

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Board of School Trustees v. O’Brien, 190 A.2d 23 Delaware (1963)

Statute appropriate to caseSource - Delaware Code Annotated, Volume 8, Titles 12-14, 1970 Cumulative Supplementary Pamphlet, page 283.

1411. Reason for termination. Termination at the end of the school year shall be for one or more of the following reasons: immorality, misconduct in office; incompetency; disloyalty; neglect of duty; willful and persistent insubordination; a reduction in the number of teachers required as a result of decreased enrollment or a decrease in education services. The board shall have power to suspend any teacher pending a hearing if the situation warrants such action.

OverviewFollowing a reorganization of various schools of the district, the teacher,

beginning in September 1961, taught instrumental music only. The responsibility for teaching the other courses of music in the district were assumed by a teacher who had not achieved tenure status. During the 1961-1962 school year, enrollment in the instrumental music program declined approximately 42%. On April 24, 1962, the Board of School Trustees voted to discontinue all instruction in instrumental music. In addition to taking this action the board notified the teacher, by the formal communication required by Code 1411, that because of the discontinuance of instruction in instrumental music, the teacher’s services were no longer necessary.

IssueWhen instruction in instrumental music is discontinued because of

decreased enrollment, can a music teacher with tenure and certification to teach all forms of music instruction be dismissed while a non-tenured teacher is retained?

DecisionCourt decided for the teacher.

Characteristics of the decisionIt was clear that the board, in making its decision, relied upon the statutory

language allowing dismissal for “a reduction in the number of teachers required as a result of decreased enrollment or a decrease in education services.”

Dismissal of tenure teachers as a result of a reduction in service or enrollment does not apply if there are non-tenure teachers teaching in the general area of competence, interest, and training of the tenure teacher.

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The position taken by the Board would, in the Court’s opinion, be inconsistent with the intent and purpose of the Tenure Law. Certainly no one would deny the right of the school board to embark upon an experimental program of instruction, and a tenure teacher may not complain of the discontinuance, even though there are no other subjects in which he is competent to teach.

The teacher was certified to teach all forms of music instruction. He did not demand the right to replace a non-tenure teacher in any subject other than that of his principal area of competence, certified training, and interest. The Court, therefore, held that the board could not properly dismiss the teacher, while, at the same time, retain a non-tenure teacher as director of the music department of the school district.

Significant points1. Dismissal of tenure teachers as a result of a reduction in service or

enrollment does not apply if there are non-tenure teachers teaching in the general area of competence, interest, and training of the tenure teacher.

2. The board cannot properly dismiss a tenure teacher, while at the same time, retain a non-tenured teacher to teach in the principal area of competence.

Revised statuteSource - Delaware Code Annotated Revised 1974, Titles 13-15, Volume 8, page 220.

1411. Reasons for termination. Termination at the end of the school year shall be for 1 or more of the following reasons: Immorality, misconduct in office, incompetency, disloyalty, neglect of duty, wilful and persistent insubordination, a reduction in the number of teachers required as a result of decreased enrollment or a decrease in education services. The board shall have power to suspend any teacher pending a hearing if the situation warrants such action.

Implications for education In this case the board could not dismiss a teacher protected by tenure

while at the same time, retaining a non-tenured teacher to teach in the principal area of professional competence. The decision in this case is consistent with the rulings in Caperelli v. School District of the Borough of Winston, Flannery v. Jenkins Township School Directors, Walsh v. Board of Trustees of Redlands High School District, Seidel v. Board of Education of Ventnor City, Watson v. Burnett, Davidson v. Board of Education of the city School District of East Cleveland, Swisher v. Darden, and Welsko v. School Board. The decision in this case is not consistent with Walker v. School District of the City of Scranton,

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where the school board under the “Scranton plan of appointment” classified teaching assignments and confined seniority rights of teachers to specific teaching assignments. It is significant to note there are obvious inconsistencies among states and the differences must always be taken into the fullest consideration when interpreting court decisions.

Linden School District No. 24 v. Porter 130 N.W.2d 76, North Dakota (1964)

Statutes appropriate to case Source - North Dakota Century Code, Annotated, Volume three, titles 13-19, pages 255-56.

15-25-08. Teachers-Employment, discharge, qualifications-Written contract. The school board shall employ the teachers of the district and may dismiss a teacher at any time for plain violation of contract, gross immorality, or flagrant neglect of duty. No person related by blood or marriage to any member of the board shall be hired as a teacher without the unanimous consent of the board. No person shall be permitted to teach in any public school who is not the holder of a teacher’s certificate or a permit to teach, valid in the county or district in which the school is situated. Every contract for the employment of a teacher shall be in writing, and shall be executed before the teacher begins to teach in such school, and each such contract shall provide that in the event of the discontinuance of a school term for lack of attendance as provided in this chapter, no compensation shall be paid to the teacher from the date of such discontinuance. Teachers holding a second grade professional certificate shall not receive less than one thousand eighty dollars per school term, and teachers holding a first grade professional certificate shall not receive less than one thousand three hundred fifty dollars per school term, but this section shall not require teachers holding certificates of the same grade to receive the same salaries.

15-25-09. School term-Minimum-Discontinuance of term-Arbitration. The terms in a common school district shall be arranged to accommodate pupils of all ages and to furnish school privileges equally and equitably to all pupils in the district. Each common school shall be kept in session for not less than one hundred seventy-five days of classroom instruction in each school year, except that any school may be discontinued when the average attendance of pupils therein shall be less than six for ten consecutive days, if proper and convenient school facilities for the pupils can be provided in some other school in the territory of the closed school until such time as the school may be reopened by the board. Any day in which classes cannot be held because of Acts of God, epidemic or failure

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of physical facilities shall be included in the one hundred seventy-five days provided for in this section. In determining what constitutes proper and convenient school facilities, the board shall consider the distance of each child from the nearest other school, and all surrounding circumstances. The board may furnish transportation to the nearest school or may pay an extra allowance for the transportation or may furnish the equivalent thereof in tuition or lodging at some other public school In case of a dispute between a patron and the board as to whether the board has furnished or arranged to furnish adequate facilities, the matter may be submitted by the patron to the board of arbitration consisting of the county superintendent of schools, one arbitrator named by the patron, and one arbitrator named by the board, and the determination of the arbitrators, after hearing, shall be binding. The board shall re-open any school which has been closed for lack of attendance under this section for the next ensuing term upon the written demand of the parents or guardians of six or more children of compulsory school age residing within two and one-half miles of the school. The parents or guardians of at least four such children must be residents of the district. The board may reopen school at any time upon its own motion.

OverviewThe teacher had been employed in the Byron School District for the school

years 1957-1959. On April 14, 1959, her contract was renewed for the year 1959-1960. The contract contained provisions required by the School Code and that the school “May be discontinued when the attendance falls below 6 for 10 consecutive days, and that no compensation shall be received by said teacher from the date of discontinuance.” At the time the teacher’s contract was renewed it was anticipated that there would be at least six students in attendance at the Bryon School during the year. However, no more than four students ever attended. In November 1959, a public meeting was held in Byron School to discuss the possibility of annexation to another district. On December 7, 1959, the Bryon District School Board and many of the patrons of the district met with the School Board of Linden District to discuss a petition for annexation. The annexation of Byron School District to Linden School district became effective on February 2, 1960. On February 15, 1960, the teacher was notified that her contract had been nonrenewed.

IssueCan a teacher’s contract be legally terminated during the school year when

the average attendance declines for a specified period of time?

DecisionCourt decided for the board.

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Characteristics of the decisionThe teacher was legally terminated. Her teaching contract contained

provisions required by law that the school “may be discontinued when the attendance falls below 6 for 10 consecutive days, and that no compensation shall be received by said teacher from the date of such discontinuance.” The School code required that “Every contract for employment of a teacher shall be in writing and shall be executed before the teacher begins to teach in such school, and each such contract shall provide that in the event of a discontinuance of a school term for lack of attendance as provided in this chapter, no compensation shall be paid to the teacher from the date of such discontinuance.”

Since at no time during the school year of 1959 -1960 did the attendance ever exceed four, the Bryon School term was legally subject to the discontinuance at any time the Board made other arrangements for the four pupils in attendance.

Significant points1. Every contract for the employment of a teacher is to be in writing

and is to be executed before the teacher beings to teach in such school, and each such contract should provide that in the event of a discontinuance of a school term for lack of attendance, no compensation will be paid to the teacher from the date of such discontinuance.

Revised statute Source - North Dakota Century code, Replacement Vol. 3, Pocket Supplement.

15-47-33. Length of elementary and secondary school year term, page 115. All elementary and secondary schools in this state shall provide at least one hundred eighty days of classroom instruction during each school term. Any three holidays selected from those listed in subsections 2 through 10 of section 15-38-04.1 which have been decided upon after consultation with the teachers, and any day in which classes cannot be held because of acts of God, epidemic, or failure of physical facilities shall be included in the one hundred eighty days provided for in this section and teachers shall be paid therefore.

15-47-38. Legislative intent in employment of teachers - Notification of discharge or failure to renew-Hearing, pages 116-118.

1. The legislative assembly, in recognition of the value of good employer-employee relationships between school boards of this state and the teachers employed in the school systems, the need to recruit and retain qualified teachers in this state, and further in recognition of the many intangibles in evaluating the performance of individual members of the teaching profession, urges that each school board of this state ensure

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through formally adopted policies, that channels of communication exist between the board, supervisory personnel, and teachers employed within its school system. In the very sensitive area of discharge of teachers for cause prior to the expiration of the term of the teacher’ contracts, or in decisions not to renew the contracts of teachers, school boards shall give serious consideration to the damage that can result to the professional stature and reputation of such teachers, which stature and reputation were acquired only after the expenditure of substantial time and money in obtaining the necessary qualifications for such profession and in the years of practicing the profession of teaching; and that in all decisions of school boards relating to discharge or refusal to renew contracts, all actions of the board be taken with consideration and dignity, giving the maximum consideration to basic fairness and decency.

2. The school board of any school district contemplating discharging a teacher for cause prior to the expiration of the term of the teacher’s contract shall notify such teacher in writing of such fact at least ten days prior to the date of contemplated discharge. Such teacher shall be informed in writing of the time and place for a special meeting of the school board to be held for such purpose prior to the final decision on the matter. Such teacher shall also be informed in writing of his right to demand a specification of the reasons for such discharge, which must on demand of the teacher be furnished not less than five days prior to said meeting to be held on the question of contemplated discharge. Such reasons shall be sufficient to justify the contemplated action of the board and shall not be frivolous or arbitrary. At the meeting with the board, if the teacher has informed the board in writing at least two days prior thereto that he will contest the charges brought against him, the board must sustain the charges with evidence produced at such hearing with witnesses who shall be subject to cross-examination by the teacher or his representative. The teacher may then produce such witnesses as may be necessary to refute the charges, which witnesses shall be subject to cross-examination. The proceedings may, at the request of either party, be transcribed by a court reporter at the expense of the person requesting such transcript and the witnesses may on demand of either party be placed under oath by a person authorized by law to administer oaths. Any person testifying falsely under oath shall be guilty of perjury and punished according to law. The meeting shall be an executive session of the board unless both the school board and the teacher requesting such meeting shall agree that it shall be open to other persons and the public. The teacher may be represented at the meeting by two representatives of his own choosing. In addition to board members, the school district clerk, and the superintendent, the school board may be represented by two other representatives of its own choosing at such executive session. If the

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teacher so requests they shall be granted a continuance of not to exceed seven days by the board unless for good cause otherwise shown. No cause of action for libel or slander shall lie for any statement expressed wither orally or in writing at any executive session of the school board held for the purposes provided for in this section.

3. A school board may dismiss a teacher, effective immediately, for any of the following causes: a. Immoral conduct, insubordination, or conviction of a felony; b. Conduct unbecoming a teacher which required the immediate removal of a teacher from his classroom duties; c. Failure without justifiable cause to perform contracted duties; d. Gross inefficiency which the teacher has failed to correct after reasonable written notice; or e. continuing physical or mental disability which renders him unfit or unable to perform his duties as a teacher.

4. The school board by unanimous vote may suspend the teacher from regular duty if such action is deemed desirable during the process of termining if cause for dismissal exists. If, upon final decision, the teacher is dismissed, the board may in its discretion determine the teacher’s salary or compensation as of the date of suspension. If the final decision is favorable to the teacher, there shall be no abatement of salary or compensation.

5. The school board of any school district contemplating not renewing a teacher’s contract, as provided in section 15-47-27, shall notify such teacher in writing of such contemplated nonrenewal no later than April first. Such teacher shall be informed in writing of the time, which shall not be later than April seventh, and place of a special school board meeting for the purpose of discussing and acting upon such contemplated nonrenewal. Such teacher shall also be informed in writing of the reasons for such nonrenewal. Such reasons shall be sufficient to justify the contemplated action of the board and shall not be frivolous or arbitrary but shall be related to the ability, competence, or qualifications of the teacher as a teacher, or the necessities of the district such as lack of funds calling for a reduction in the teacher staff. At the meeting with the board the teacher may then produce such evidence as may be necessary to evaluate the reasons for nonrenewal, and either party may produce witnesses to confirm or refute the reasons. The school board shall given an explanation and shall discuss and confirm at such meeting its reasons for the contemplated nonrenewal of the contract. The meeting shall be an executive session of the board unless both the school board and the teacher shall agree that it shall be open to other persons or the public. The teacher may be represented at such meeting by any two representatives of his own choosing. In addition to board members, the school district clerk, and the

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superintendent, the school board may be represented by two other representatives of its own choosing at such executive session. Upon such hearing, if the teacher so requests, he shall be granted a continuance of not to exceed seven days. No cause of action for libel or slander shall lie for any statement expressed either orally or in writing at any executive session of the school board held for the purposes provided for in this section. The determination not to renew a contract if made in good faith shall be final and binding on all parties. Final notice of the determination not to renew a contract shall be given in writing by April fifteenth as provided in section 15-47-27.

Implications for education It is significant to note the importance of the given statute in relation to

procedure. In Ashby v. School township of Liberty, specific dates were included in the statute and any deviation tended to be interpreted as a violation of procedure. In Linden, the teacher’s contract contained provisions required by law that the school may be discontinued when the attendance falls below a specified number for a specific number of days and that no compensation will be received by the teacher from the date of discontinuance of the school. Deviation from statutes tends to be interpreted as a violation of procedures, and courts will support procedure as stated.

Chambers v. Hendersonville City Board of Education,364 F.2d 189 North Carolina (1966)

Statute appropriate to case Source - United States Code, Annotated, Title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 188-189.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law

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which shall abridge the privileges or immunities of citizens of the united States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of person in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States or any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Overview Prior to the school year 1964-1965 the school system of Hendersonville

consisted of three “white” and one consolidated Negro schools. In that year some pupil desegregation occurred on a freedom of choice basis as the result of litigation by the Negroes, but faculties remained rigidly segregated. There were

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approximately 81 white teachers employed at the three white schools and 24 Negro teachers at the consolidated Negro school. At the end of this school year the Negro enrollment declined for 498 to 281 because 217 Negro students who had attended the consolidated Negro school from adjoining counties were by court order integrated into their respective county schools. For the school year 1965-1966, the Board abandoned its freedom of choice plan and integrated the remaining Negro pupils into the Hendersonville system on a single geographical zone basis. For this year the number of teacher jobs in the system was reduced by five. Of the twenty-four Negro teachers in the system, only eight were offered re-employment for the year 1965-1966, although every white teacher who indicated the desire was re-employed together with 14 new white teachers, all of whom were without previous experience. In may of 1965, before he knew how many vacancies would exist for the next year, the superintendent advised the Negro teachers which ones would be retained. Acting on the assumption that their jobs had gone out of existence because of the withdrawal of the 217 Negro pupils, the superintendent recommended that the School Board retain only the number of seven Negro teachers which was the approximate “pro rata” allotment based upon the number of the remaining Negro pupils under the North Carolina teacher-pupil ration. On cross-examination of the superintendent, the School Board’s attorney brought out that he and the superintendent had discussed the problem and concluded that the Negro pupils should have “adequate representation at the teacher level.” In its answer the School Board unequivocally disclosed its view of the matter by stating that the Negro teachers had “lost their jobs as a result of the social progress of integration.”

DecisionCourt decided for the teachers.

Characteristics of the decision The Negro teachers were entitled to an order requiring the Board to set up

definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the due Process and Equal Protection Clauses of the Constitution. Some of the following explanations indicate situations where unfair methods prevailed.

The school superintendent testified that he made the effective decisions of all employment contracts. The report submitted by the principal of the Negro school was the only report submitted in writing. It was extremely elaborate and meticulous, listing, with respect to each teacher such as: personality, philosophy, reputation, general appearance, physical defects, attitude, speech, optimism, love for children, age group in which interested, whether the principal wanted the teacher in his school, sense of humor, ability to discipline children, reaction of pupils and parents to teacher, and the principal’s general appraisal of the teacher. On the other hand, the white principals’ reports were oral, they could not remember details with respect to individual teachers, indeed one testified that he

20

was not required to appraise his teachers but had done so voluntarily, and none testified that their reports attempted a comparative rating of their teacher. In short, the Negro principal’s report clearly reflected the knowledge that the number of Negro teachers was to be drastically reduced; consequently, his teachers were graded comparatively while those of the white principals were used only to eliminate those teachers, who, in the opinion of the principal or the superintendent, fell below a minimum standard. The formal oral reports made by the white principals furnished no basis whatsoever for any objective rating of their teachers whether within each school or within the system or with new applicants. While the superintendent contended that his decisions were not adversely influenced by the far more detailed and critical report of the Negro principal, he did not hesitate to use the adverse aspects of that report to justify his decisions in his testimony before the court. Thus he employed some Negroes because of a favorable recommendation by the principal, but refused to employ others who had received equally favorable recommendations. Low N.T.E. scores were offered to justify failure to hire some teachers with years of experience although many teachers, both white and Negro, had never been required to take the tests. Seniority was of no help. In the case of one teacher with 39 years experience, her age was cited as a reason for refusal to hire, notwithstanding the fact that nine white teachers with 35 to 41 years of experience were retained. In a number of cases the Negro teachers’ qualifications were compared unfavorably in one aspect or another with those of a new teacher who was hired to fill the vacancy, although no white teacher who desired to remain was required to pass this test. In the case of one teacher the administration made no attempt to show that she was other than a good and competent teacher; the record evidenced no objective reason to support the failure to re-employ her, but the superintendent had simply concluded that three other teachers were better. These and other inconsistencies were represented throughout the entire case.

Finally, the long history of racial discrimination in the community and the failure of the public school system to integrate schools in the past until forced to do so by litigation must be taken into the fullest consideration. Under circumstances such as this where a history of racial discrimination exists, the burden of proof has been thrown upon the party having the power to produce the facts, in this case, the Board of Education.

Significant points1. The Negro principal’s report clearly reflected the knowledge that

the number of Negro teachers was to be drastically reduced; consequently, his teachers were graded comparatively while those of the white principals were used only to eliminate those teachers, who, in the opinion of the principal or the superintendent, fell below a minimum standard. The informal oral reports made by the white principals furnished no basis whatsoever for any objective

21

rating of their teachers either within each school or within the system or with new applicants.

2. While the superintendent contended that his decisions were not adversely influenced by the far more detailed and critical report of the Negro principal, he did not hesitate to use the adverse aspects of that report to justify his decisions in his testimony before the court. Thus, the superintendent employed some Negroes because of a favorable recommendation by the principal but refused to employ others who had received equally favorable recommendations.

3. Low N.T.E. scores were offered to justify failure to hire some teachers with years of experience although many teachers, both white and Negro, had never been required to take the tests. In a number of cases the Negro teacher’s qualifications were compared unfavorably in one aspect of another with those of a new teacher who was hired to fill the vacancy, although no white teacher who desired to remain was required to pass this test.

4. In the case of one teacher, the administration made no attempt to show that she was other than a good and competent teacher; the record evidenced no objective reason to support the failure to re-employ her, but the superintendent had simply concluded that three other teachers were better. These and other administrative inconsistencies were represented throughout the entire case.

5. The Negro teachers were entitled to an order requiring the Board to set up definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the Due Process and Equal Protection Clauses of the Constitution.

6. The long history of racial discrimination in the community and the failure of the public school system to integrate schools in the past until forced to do so by litigation must be taken into the fullest consideration. Under circumstances where a history of racial discrimination exists, the burden of proof has been thrown upon the party having the power to produce the facts, in this case, the board of education.

Revised statuteSource - United States Code, Annotated, Title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

22

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 288-289.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United

23

States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Implications for education The Negro teachers were entitled to an order requiring the Board to set up

definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the Due Process and Equal Protection Clauses of the Constitution. Beyond the racial aspects of this case is the fact that any procedure utilized by the board such as the National Teachers Examination must be universally applied if it is to constitute justification.

Wall v. Stanley County Board of Education, 378 F.2d,North Carolina (1967)

Statute appropriate to caseSource - United States Code, Annotated, Title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 288-289.

Section 1. All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of

24

persons in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in congress, or elector of president and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an office of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be vote of two-thirds of each House remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

OverviewA Negro school teacher, who had 13 years’ experience, was recommended

for reemployment in a county school system but after a shift in pupil enrollment resulting from a freedom of choice desegregation plan, was not reemployed due to a decrease in allocation of teacher spaces available in Negro school. She was not allowed by the school board to compete for another teaching position on the basis of merit and qualification with other teachers in the district.

Issue After a shift in pupil enrollment resulting from a freedom of choice

desegregation plan, can a Negro teacher with 13 years’ experience, recommended

25

for reemployment in a county school system, be not reemployed due to a decrease in allocation of teacher spaces in Negro schools?

DecisionCourt decided for the teacher.

Characteristics of the decisionThe Board considered that transfer of Negro students from a Negro school

diminished the need for Negro teachers in the Negro school, causing the teacher to lose her job. The premise of such a proposition is that the teacher was not employed as a teacher in the Stanly County School System but was employed as a Negro teacher in a Negro school. It is referred to in the Fourteenth Amendment, which “forbids discrimination on account of race by a public school system with respect to employment of teachers.”

It is firmly established by the court (1) that the fourteenth Amendment forbids the selection, retention of public school teachers on the basis of race; (2) that reduction in the number of students and faculty in a previously all-Negro school will not alone justify the discharge or failure to reemploy Negro teachers in a school system; (3) that teachers displaced from formerly racially homogeneous schools must be judged by definite objective standards with all other teachers in the system for continued employment; and (4) that a teacher wrongfully discharged or denied reemployment in contravention of these principles is, in addition to equitable remedies, entitled to an aware of actual damages.

Significant points 1. The teacher was employed as a Negro teacher in a Negro school.

This was wrong and it is referred to in the Fourteenth Amendment, which “forbids discrimination on account of race by a public school system with respect to employment of teachers.”

2. When teachers are displaced from formerly racially homogeneous schools, they must be judged by definite objective standards with all other teachers in the system for continued employment.

3. Reduction in the number of students and faculty in a previously all Negro school will not alone justify the discharge or failure to reemploy Negro teachers in a school system.

Revised statute Source - United States Code, Annotated, title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the

26

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 288-289.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in congress, or elector of president and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or

27

obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Implications for education The teacher was employed as a Negro teacher in a Negro school. This

was wrong according to the Fourteenth Amendment. When teachers are displaced from formerly racially homogeneous schools, they must be judged by definite objective standards with all other teachers in the system for continued employment. This case has implications for the utilization of any type of transfer procedure as a mechanism for eliminating certain teachers. In contrasting this case with the earlier Downs v. Board of Education of Hoboken District, the court ruled the general right transfer a teacher rested in the sound discretion of the board and it has the right to dispense with the services of teachers selected from the entire school district as long as the board acted in good faith to effect the financial condition.

Rolfe v. County Board of Education, 391 F.2d 77Tennessee (1968)

Statute appropriate to caseUnited States Code, Annotated, Title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 288-289.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United

28

States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies there. But Congress may by vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss of emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

OverviewBoth were non-tenure teachers in the county school system assigned to

West End High School, which had an all Negro faculty and all Negro student body. Until the school year 1965-1966, the county public schools were operated under a compulsory biracial system. In order to qualify for federal funds, it was contingent upon compliance with the Civil Rights Act of 1964, the board of

29

education adopted a plan of desegregation which was submitted to the United States Department of Health, Education and Welfare. In any event, only Negro teachers were employed at West End High School and only white teachers at Central High School. In May, 1965, the superintendent of schools appeared before the teachers at West End high School and told them that the “chances were” that the school would lose some of its teachers as a result of the desegregation plan.

During the first week of the 1965-1966 school year, which commenced about August 23, 1965, there was a significant decrease in pupil enrollment at the all Negro school. Many students transferred to Central and others transferred to other schools. As a result of the decrease in pupil enrollment at the all Negro school, Negro teachers were dismissed. Issue

Where a school desegregation plan results in decease in pupil enrollment in an all Negro School, can the board terminate the non-tenure teachers at the school without comparing them to other non-tenure teachers within the school system?

DecisionCourt decided for the teachers.

Characteristics of the decisionThe court pointed out that it was a foregone conclusion that if the

desegregation plan was permitted to work there would be a definite decrease in pupil enrollment at the all Negro high school, with a corresponding reduction in the faculty. The superintendent very commendably admitted as much when he appeared before the West End High School teachers in Spring (may), 1965. In determining which teachers in the school system would be terminated, both Negro teachers were entitled to have their qualifications compared with all other non-tenure teachers within the school system.

Significant points1. In determining which teachers in the school system would be

terminated, both Negro teachers were entitled to have their qualifications compared with all other non-tenure teachers within the school system.

Revised statuteSource - United States code, Annotated, Title 42.

1983. Civil action for deprivation of rights, page 201. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the

30

United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

AMENDMENT XIV. - CITIZENSHIP: PRIVILEGES AND IMMUNITIES: DUE PROCESS: EQUAL PROTECTION: APPORTIONMENT OF REPRESENTATION: DISQUALIFICATION OF OFFICERS: PUBLIC DEPT: ENFORCEMENT, pages 288-289.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxes. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress by vote of two-thirds of each House, may remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or

31

obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The congress shall have power to enforce by appropriate legislation, the provisions of this article.

Implications for education In determining which teachers in the school system would be terminated,

both Negro teachers were entitled to have their qualifications compared with all other non-tenure teachers with the school system. This case indicates comparison within categories, non-tenured compared to non-tenured which reinforces the rights of tenured over non-tenured. In Seidel v. Board of Education of Ventnor City, the court expressed that in cases of (a) two or more tenure teachers and only one position available, (b) one tenure teacher and several non-tenure teachers to be discharged, the simple answers are: (a) The board must use its discretion in selecting the tenure teacher; and (b) the board must use similar discretion in selecting the non-tenure teacher to discharge. In the Seidel case, there was one position filled by a non-tenure teacher who could be discharged on expiration of the annual contract to make way for the dismissed tenure teacher.

In the earlier Chambers v. Hendersonville city Board of Education and Wall v. Stanly county Board of Education decision, it was found that when cases involve racial discrimination, Negro teachers were entitled to an order requiring the Board to set up definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the due process and Equal Protection Clauses of the Constitution. In reference to chambers, it was established that any procedures utilized by the board involving the ratings of teachers, such as the National Teachers Examination, must be universally applied if it is to constitute justification.

Fort Sumner Municipal School Board v. Parsons,485 P.2d 366 New Mexico (1971)

Statutes appropriate to caseSource - New Mexico Statute 1953, Volume 1, Chapters 1-3.

Sec. 6. (State department of public education-State board of education) page 62.

A. There is hereby created a “state department of public education” and a “state board of education.” The state board of education shall determine public school policy and vocational educational policy and shall have control, management and direction of all public schools, pursuant to authority and powers provided by law. The board shall appoint a

32

qualified, experienced educational administrator to be known as the superintendent of public instruction, who shall, subject to the policies established by the board, direct the operation of the state department of public education.

77-8-17. Appeals-State board-Court of appeals, pages 137-138.

C. The state board shall conduct a review proceeding pursuant to this section with sixty (60) days from the date of notice of appeal is filed. At least thirty (30) days prior to the date of a review proceeding, the state board shall give written notice of the time and place of the review proceeding to the person making the appeal and to the local school board from which the person is appealing.

E. The state board shall render a written decision affirming or reversing the decision of the local school board. Within ten (10) days from the date of a review proceeding, the state board shall serve a written copy of its decision on all parties to the appeal. Service of the written copy of the decision shall be in accordance with the law for service of process in civil actions or by certified mail to a party’s address of record.

Overview The Local Board was faced with a decreased enrollment of students and

concomitant decrease in funds. It determined that the school curriculum could be preserved but that a number of classes offered in certain subjects should be reduced. The reduction in classes was principally in areas in which a teacher was certified to teach English, Language Arts, and Social Studies. With the reduction in classes, it was necessary to reduce the faculty. The Local School Board determined the faculty above sixth grade level would be reduced by two. This reduction was reached by the resignation of one teacher and the decision not to re-employ the other.

Although the teacher was not to be re-employed, the Local School Board retained two non-tenured teachers who were the only certified teachers available to teach certain other subjects which were required by law or for the accreditation of the school. As part of their duties, both non-tenured teachers were to teach subjects that the dismissed teacher was qualified to teach. The evidence before the Local School Board showed the subjects assigned to the non-tenured teachers which the dismissed teacher was qualified to teach, amounted to approximately one half a full-time teaching load.

Between the time the Local School Board hearing and the State Board hearing the dismissed teacher became certified to teach additional subjects. The teacher contended the State Board could weigh this new evidence of her recent certification as against the evidence presented at the local School Board hearing.

33

Issue When a Local School Board is required for economic reasons and

decreased enrollment to reduce teachers, how is new evidence before the State Board of Education to be considered?

DecisionCourt decided for the school board.

Characteristics of the decisionThe State Board of Education had reversed the Local School Board’s

decision not to re-employ the tenured teacher. The State Board of Education and the teacher urged to the court that the State Board’s decision be affirmed because of substantial evidence supporting the State Board’s decision. This contention was a mistake in the nature of the State Board’s proceedings. In this case the State Board’s nature is to review all procedures and regulations followed by the local school board. There was no issue in this case concerning procedures and regulations. Also, the State Board of Education is to determine whether or not there is evidence in the transcript to substantiate the findings of the local school board that cause exists for refusing to re-employ the person. In this case, the State Board of Education reviewed the evidence and unreasonably determined there was no substantial evidence to support the Local Board’s decision. The issue is not whether there is substantial evidence to support the State Board’s decision. Since the State Board reviewed the Local Board’s decision, as provided by law, the issue to the court was whether the State Board’s decision, after such a review, was arbitrary, unreasonable, unlawful or capricious. In this case, the State Board’s action was unreasonable. It decides the appeal because the State Board, by law, is not authorized to reach an independent result. The State Board’s authority is to review the Local Board’s decision as provided in the School code, and on the basis of that review, affirm or reverse the Local Board’s decision. Again, the State Board of Education, by law, was not authorized to reach an independent decision.

Significant points1. The State Board’s authority is to review the Local Board’s decision

as provided in the School code, and on the basis of that review, affirm or reverse the Local Board’s decision. The State Board of Education, by law, was not authorized to reach an independent decision.

Revised statutesSource - New Mexico Statutes 1953 Annotated, 1 Replacement, Chapters 1-3.

Sec. 6 (State department of public education - State board of education), page 446.

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A. There is hereby created a “state department of public education” and a “state board of education.” The state board of education shall determine public school policy and vocational educational policy and shall have control, management and direction of all public schools, pursuant to authority and powers provided by law. The board shall appoint a qualified, experienced educational administrator to be known as the superintendent of public instruction, who shall, subject to the policies established by the board, direct the operation of the state department of public instruction.

Source - New Mexico Statutes Annotated, Replacement Volume II, Part I, 1975 Pocket Supplement, pages 161-162.

D. The de novo hearing shall be held within sixty (60) days from the receipt by the state board of the notice of appeal. At least thirty (30) days prior to the date of the hearing the state board shall give written notice of the date, time and place of the hearing, the name and address of the hearing officer if a hearing officer is to conduct the hearing, and such notice shall be sent to the person making the appeal and to the local school board or the governing authority of the state agency from the decision of which the person is appealing.

I. The state board shall render a written decision affirming or reversing the action of the local school board or the governing authority of the state agency. Such decision shall contain findings of fact and conclusions of law. A written copy of the decision shall be served on all parties to the proceeding within sixty (60) days from the date of the de novo hearing. Service of the written copy of the decision shall be in accordance with the law for service of process in civil actions or by certified mail to the party’s address of record. For the purposes of this section, mailing of the written copy of the decision by certified mail, return receipt requested, shall constitute service after ten (10) days from the date of mailing.

Implications for education This is a peculiar case in which many factors are involved. The court

decision is primarily focused on the State Board’s authority. In this case, the time at which the teacher became qualified to teach other subjects could be a fact, since between the time of the local school board hearing and the State Board hearing, the dismissed teacher became certified to teach additional subjects. The court pointed out that the State Board’s authority is to review the local board’s decision, and on the basis of that to review, affirm or reverse the local board’s decision. In this case, the State Board of Education, by law, was not authorized to reach an independent decision.

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In referring to the earlier Flannery v. Jenkins Township School Directors, the court expressed it was the duty of the board to reinstate the dismissed teacher to teach any subject she was certificated to teach. The teacher continued her professional preparation and subsequently became certified to serve in the area of the guidance and was reinstated to serve in that position. In the Fort Sumner decision, the court addressed itself mainly to the State Board’s authority in reviewing the local board’s decision. Based on the Fort Sumner decision, the teacher’s tenure rights would still be in question.

Thayer v. Anacortes School District, 504 P.2d 1130Washington (1972)

Statute appropriate to caseSource - revised code of Washington, Titles 28 - chapters 28.58. To End, page 150.

28.67.070 Conditions and contracts of employment–Nonrenewal of contracts. No teacher shall be employed except by written order of a majority of the directors of the district at a regular or special meeting thereof, nor unless he is the holder of an effective teacher’s certificate.

The board shall make with each teacher employed by it a written contract, which shall be in conformity with the laws of this state. Every such contract shall be made in duplicate, one copy of which shall be retained by the school district clerk or secretary, and the other shall be delivered to the teacher, after having been approved and registered by the county superintendent.

Every teacher, principal, supervisor, or superintendent holding a a position as such with a school district, hereinafter referred to as “employee,” whose employment contract is not to be renewed by the district for the next ensuing term shall be notified in writing on or before April 15th preceding the commencement of such term of the decision of the board of directors not to renew his employment which notification shall specify sufficient cause or causes for nonrenewal of contract. Such notice shall be serviced upon the employee by certified or registered mail, or to the teacher personally, or by leaving a copy of the notice at the house of his usual abode with some person of suitable age and discretion then resident therein. Every such employee so notified shall, at his or her request made in writing and filed with the clerk or secretary of the board of directors of the district within ten days after receiving such notice, be granted opportunity for hearing before the board of directors of the district, to determine whether or not the facts constitute sufficient cause for nonrenewal of contract. Such board upon receipt of such request shall call

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the hearing to be held within ten days following the receipt of such request, and shall at least three days prior to the date fixed for the hearing notify the employee in writing of the date, time and place of hearing. The employee may engage such counsel and produce such witnesses as he or she may desire. The board of directors shall, within five days following the conclusion of such hearing, notify the employee in writing of its final decision either to renew or not to renew the employment of the employee for the next ensuing tern. Any decision not to renew such employment contract shall be based solely upon the cause or causes for nonrenewal specified in the notice to the employee and proved and established at the hearing. If such notification and opportunity for hearing is not timely given by the district, the employee entitled thereto shall be conclusively presumed to have been reemployed by the district for the next ensuing term upon contractual terms identical with those which would have prevailed if his employment had actually been renewed by the board of directors for such ensuing term: provided, That in union high school districts the written notification and opportunity for hearing shall be given on or before April 30th preceding the commencement of the next ensuing term.

Overview The teacher had served as a teacher and librarian for 31 years in the school

district. She received a letter April 14, from the district superintendent suggesting that, because of reduced finances, the district had to reduce its force of teachers, and that her teaching contract would not be renewed. She did not demand a hearing with the 10-day period as prescribed by the teacher-tenure statute. Instead, months later, September 16, 1970, she brought legal action against the district seeking a decree renewing her contract and directing payment of her salary, retirement contributions, and other emoluments.

Claiming that the letter of nonrenewal was inadequate and ambiguous on its face and also legally insufficient when considered in connection with her seniority in the district, the teacher said it placed no duty upon her to demand a hearing. The trail court, finding the notice of nonrenewal to be legally sufficient, concluded that the teacher’s failure to demand a statutory hearing within 10 days of the letter’s receipt barred the remedy sought by the teacher. The teacher appealed the decision of the trial court.

Issue When a teacher with seniority and tenure is nonrenewed because of

reduced finances, if she does not request a hearing before the board within the specified time limit as prescribed by law, does she waive whatever rights she might have under the statute to challenge the nonrenewal of her contract?

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Decision Court decided for the teacher.

Characteristics of the decisionWithout comment as to seniority, and without any reference to that subject

in its finds of fact, the court ruled that the notice if nonrenewal was sufficient, placing the teacher under a statutory duty protesting it within 10 days of its delivery. In essence, the Court ruled that, having failed to demand in writing a hearing before the board within that period as prescribed by law, the teacher waived whatever rights she might have under the statute to challenge the nonreneewal of her teaching contract.

There were criteria used as determining factors in reducing staff, one of which stated “Seniority will be the determining factor when program consideration appear equal.” With seniority as a factor to be considered in the nonrenewal of her teaching contract, the teacher could rightly assume, therefore, from the notice of nonrenewal, that teachers and librarians junior in tenure to her would be laid off first; she had a correlative right to further assume from the notice of nonrenewal that no librarian junior in tenure to her would be retained. Since the notice did not inform her that she was being dropped while junior librarians were being retained, she was not, under RCW 28.67.070, given reasonably adequate notice of the reasons for her nonrenewal, and thus was under no duty to protest. To alert her to the necessity of protesting or requesting a hearing under this statute, the notice of nonrenewal should have stated one way or the other that seniority would be ignored in reducing the teacher staff or library staff because of inadequate funds.

The teacher’s seniority was an integral part of the circumstances upon which the sufficiency should have been tested by the trail court. The court, therefore, in failing to take into consideration what effect the teacher’s seniority would have in deciding the sufficiency of the notice of renewal, omitted a vital element upon which her duty to protest the notice depended.

As a matter of fact, there were other librarians who were still retained, and, of course, other teachers whom she would be senior to, and they had obviously been retained for reasons other than financing.

Significant points1. With seniority as a factor to be considered in the nonrenewal of her

teaching contract, the teacher could rightly assume, therefore, from the notice of nonrenewal, that teachers and librarians junior in tenure to her would be laid off first; she had a correlative right to further assume from the notice of nonrenewal that no librarian junior in tenure to her would be relatined. Since the notice did not inform her that she was being dropped while junior librarians were being retained, she was not, under RCW 28.67.070, given

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reasonably adequate notice of the reasons for her nonrenewal, and therefore was under no duty to protest.

2. To alert the teacher to the necessity of protesting or requesting a hearing under these statutes, the notice of nonrenewal should have stated one way or the other that seniority would be ignored in reducing the teaching staff or library staff because of inadequate funds.

Revised statute Source - Revised Code Washington Annotated, Titles 28A to 28B, 1974 Pocket Part, pages 17-18

28A.67.070 Conditions and contracts of employment - Nonrenewal of contracts. No teacher, principal, supervisor, superintendent, or other certificated employee holding a position as such with a school district, hereinafter referred to as “employee,” shall be employed except by written order of a majority of the directors of the district at a regular or special meeting thereof, nor unless he is the holder of an effective teacher’s certificate or other certificate required by law or the state board of education for the position for which the employee is employed.

The board shall make with each employee employed by it a written contract, which shall be in conformity with the laws of this state, and limited to a term of not more than one year Every such contract shall be made in triplicate, one copy to be retained by the school district superintendent or secretary, one copy to be retained, after having been approved and registered, by the intermediate school district superintendent, and one copy to be delivered to the employee thereafter. No contract shall be offered by any board or approved and registered by the intermediate school district superintendent for the employment of any teacher who has previously signed a contract to teach for that same term in another school district of the state of Washington unless such teacher shall have been released from his obligations under such previous contract by the board of directors of any school district to which he was obligated. Any contract signed in violation of this provision shall be void.

Every board of directors determining that there is probable cause or causes that the employment contract of an employee should not be renewed by the district for the next ensuing term shall notify that employee in writing on or before April 15th preceding the commencement of such term of that determination of the board of directors, which notification shall specify the cause or causes for nonrenewal of contract. Such notice shall be serviced upon the employee personally, or by certified or registered mail, or by leaving a copy of the notice at the house or his or her usual abode

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with some person of suitable age or discretion then resident therein. Every such employee so notified at his or her request made in writing and filed with the chairman or secretary of the board of directors of the district within ten days after receiving such notice, shall be granted opportunity for hearing to determine whether or not the facts constitute sufficient cause of causes for nonrenewal of contract. In the request for hearing, the employee may request either an open or closed hearing. Such board upon receipt of such request, and at least three days prior to the date fixed for the hearing, shall notify the employee in writing of the date, time and place of the hearing. The hearing shall be open or closed as requested by the employee, but if the employee fails to make such a request, the board or its hearing officer may determine whether the hearing shall be open or closed.

The board may employ as a hearing officer any person not currently employed by the district to conduct on its behalf any hearing required by this section, who shall transmit to the board a record of the proceeding together with his recommended findings of fact and conclusions of law, and an advisory recommended decision for the board’s final disposition. The board of its hearing officer may reasonably regulate the conduct of the hearing. The employee may engage such counsel and produce such witnesses as he or she may desire. The board of directors, within ten days following the conclusion of such hearing, shall notify the employee in writing of its final decision either to renew or not to renew the employment of the employee for the next ensuing term. Any decision not to renew such employment contract shall be based solely upon the cause or causes for nonrenewal specified in the notice of probable cause to the employee and established by a preponderance of the evidence at the hating to be sufficient cause or causes for nonrenewal. If any such notification or opportunity for hearing is not timely given by the district, the employee entitled thereto shall be conclusively presumed to have been reemployed by the district for the next ensuing term upon contractual terms identical with those which would have prevailed if his employment had actually been renewed bay the board of directors for such ensuing term.

Implications for education This case involved a very important procedural matter. Notification must

cover more than just fact; it must fully inform so that if grounds for appeal exist, the teacher will be alerted.

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Smith v. Board of School Directors of the Harmony Area School District,328 A.2d 883 Pennsylvania (1974)

Statutes appropriate to caseSource - Purdon’s Penna. Statutes Annotated, Titles 24, Education

11-1124. Causes for suspension, page 528. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alternation of the education program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff or professional employees.

11-1125 (b). Suspensions and reinstatements; how made, page 532. In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards. Where there is a merger, jointure or union district formed, all professional employes shall retain the seniority rights they had at the time of such merger, jointure or union.

Overview Two teachers had been suspended due to declining enrollment. At the

time of their suspension, two physical education teachers were employed by the district. The teachers claimed they should have been retained because of their seniority and that the two new teachers should not have been added. Furthermore, the school district had failed to keep rating reports on the teachers, and therefore no reasons were given for unsatisfactory teaching.

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Issue If a school district decided to suspend two teachers because of declining

enrollment but does not keep rating reports on teachers, does this invalidate the suspensions?

Decision Court decided for the board.

Characteristics of the decision The teachers claimed that because the school district hired two new

additional teachers immediately subsequent to their suspensions, the suspensions were improper. This argument overlooked the fact that the two new additional teachers were hired to teach physical education teachers and were not certified to teach in the suspended teacher’s area of expertise, nor were the suspended teachers certified to teach physical education. The law did not require a school district to retain unneeded teachers in one area of education at the expense of not hiring needed teachers in another area.

As a further opinion, the court expressed the board must first try to realign the teaching staff so that the remaining teachers, after the reduction has been effected, can teach the subjects of those who, because of lesser seniority rights, have been suspended. Applying that rule to this case, the board would be required to try to realign the staff so that the hiring of the two physical education teachers would have been avoided, i.e., have other faculty members teach physical education and let the suspended teachers fill the vacancies created by that change. The teachers that were suspended had not shown that the board did not make such an attempt or that such a realignment could have been accomplished practically had an attempt been made.

The record showed that the school district had not rated each teacher periodically and kept the rating reports on file as required by Section 11-1125(b) which provides in part:

In cases in which suspension are to be made, professional employees shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating, In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards.

The teachers claimed that the failure to follow the formal procedure of rating each teacher on the rating cards and keeping these rating reports on file makes their suspension unlawful. The superintendent of schools testified that it was the school district’s practice to keep rating reports only when there had been an unsatisfactory rating, and that none of the teachers had even been rated unsatisfactory. The teachers argued, therefore, that since no differences in rating were filed, the suspensions were based entirely on seniority as required in such

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situations by Section 1125(b). The court expressed that although it did not approve of the school district’s failure to make and keep these rating reports as required by law, it did not find that such failure invalidated the suspension in this case. Had the suspended teachers not been the least senior faculty members under consideration for suspension, then the rating reports may have been necessary to justify the suspension. The suspended teachers next argued, in the context of this case, that they were not the least senior faculty members due to the hiring of the two new physical education teachers. The court was quick to point out that at any time when the keeping of rating reports may have helped them, the two new teachers had not yet been employed.

Significant points 1. The law does not require a school district to retain unneeded

teachers in one area of education at the expense of not hiring needed teachers in another area.

2. In staff reduction, the board must first try to realign the teaching staff so that the remaining teachers after the reduction has been effected, can teach the subjects of those who, because of lesser seniority rights, have been suspended.

3. Seniority rights should prevail where there is no substantial difference in rating among teachers.

4. Where there are substantial differences in rating of teachers under consideration for suspension, seniority is to be given consideration in accordance with principles and standards of weighting incorporated in rating reports.

5. A school district’s administrators may keep rating reports on only those teachers who have been unsatisfactory, without keeping rating reports on teachers who have been satisfactory.

6. If senior faculty members are under consideration for termination, rating reports are necessary to justify their termination.

Revised statute Source - Purdon’s Penna. Statutes Annotated, Titles 24, Education.

11-1124. Causes for suspension, page 528. Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction: (3) Consolidation of schools, whether within a single district, through a

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merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes.

Source - Purdon’s Penna. Statutes Annotated, Titles 24, Education, Pocket Part.

11-1125(b). Suspension and reinstatement; how made, page 123. In cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating. In cases where there are substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards. Where there is a merger, jointure or union district formed or when new school districts are established as the result of reorganization of school districts pursuant to Article II, subdivision (I) of this act, all professional employes shall retain the seniority rights they had at the time of such merger, jointure, union or reorganization of school districts.

Implications for education The law does not require a school district to retain unneeded teachers in

one area of education at the expense of not hiring needed teachers in another area. This case emphasizes the importance of certification as it related to the grouping of teachers for seniority purposes.

Jordahl v. Independent School District No. 129,225 N.W.2d 224, Minnesota (1974)

Statue appropriate to case Source - Minnesota Statutes Annotated 10A 124-143, pages 157-158.

Subd. 3. Termination of contract. Contracts governing the first and second years of a beginning teacher’s first teaching experience in Minnesota are not subject to this subdivision. Thereafter, the teacher’s contract shall remain in full force and effect, except as modified by mutual consent of the board and the teacher, until terminated by a majority roll call vote of the full membership of the board, or by the written resignation of the teacher, before April 1. Provided: before a teacher’s contract is terminated by the board, the board shall notify the teacher in writing and state its reason for the proposed termination. Within ten days after receipt of this notification the teacher may make a written request for a hearing before the board and it shall be granted before final action is taken. Such termination shall take effect at the close of the school year in which the

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contract is terminated in the manner aforesaid. Such contract may be terminated at any time by mutual consent of the board and the teacher and this section shall not affect the powers of a board to discharge or demote a teacher under and pursuant to other provisions of law.

Overview At the time of the dismissal of the teacher, he had served for 11 years in

the school district. During the 1972-1973 school year he taught a combination of English and social studies in the senior high school. The school board, apparently faced with declining enrollments, passed a resolution directing the superintendent of schools to consider the discontinuance of programs for the purpose of reducing expenditures and better utilizing funds and teaching personnel. The superintendent of schools made recommendations which included the discontinuance of a combination English and social studies position which recommendations were adopted by resolution of the school board. At a board meeting on February 12, 1973, a resolution proposing terminating of the teacher’s contract was adopted and notice of the proposed termination was sent to the teacher. The teacher requested a hearing, which was held before the board on March 13, 1973. On March 23, ten days after the hearing, the board adopted a resolution terminating the contract of the teacher at the end of the school year.

Issue Can a school board terminate a teacher in order to reduce expenditures for

better utilization of funds and teaching personnel?

Decision Court decided for the board.

Characteristics of the decisionThe teacher had the least seniority of the senior high school social studies

teachers, all of whom were rated of equal competence, and less seniority than other English teachers with the exception of another English teacher. Testimony was elicited with regard to the relative competence of the dismissed teacher and the other English teacher, and it was the opinion of the senior high school principal that the dismissed teacher was the less competent of the two. The court expressed that the action of the school board was not arbitrary or capricious. The board held the matter under advisement for a period of ten days after the hearing before making a final determination. The action of the board was not one to make room for someone else; it was to discontinue one position of part-time Social Studies and English. The court expressed that the school board directed the superintendent of schools to consider the discontinuance of programs for the purpose of reducing expenditures and better utilizing funds and teaching personnel. The part-time assignments in Social Studies and English were assigned to others in the school system for the purpose of reducing expenditures

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and better utilization of funds and teaching personnel. The court expressed the choice of which of the tenured teachers should be retained is an administrative decision for the school board, and school boards should have broad discretionary powers free from judicial interference in the absence of a finding that their actions were arbitrary and capricious.

Significant points1. The teacher had the least seniority of the senior high school social

studies teachers, all of whom were rated of equal competence, and less seniority than other English teacher with the exception of another English teacher.

2. Testimony was elicited with regard to the relative competence of the dismissed teacher and the other English teacher, and it was the opinion of the principal that the dismissed teacher was the less competent of the two.

3. The board held the matter under advisement for a period of ten days after the hearing before making a final decision.

4. The action of the board was not to make room for someone else; it was to discontinue one position of part-time Social Studies and English.

5. The part-time assignments in Social Studies and English were assigned to others in the school system for the purpose of reducing expenditures and better utilizing of funds and teaching personnel.

6. The court expressed the choice of which of the tenured teachers should be retained is an administrative decision for the school board.

7. The court expressed that school boards should have broad discretionary powers free from judicial interference in the absence of a finding that their actions were arbitrary and capricious.

Revised statute Source - Minnesota Statutes Annotated, Volume 10A, Sections 123-143, pocket part, 1975-1976, page 62.

Subd. 4. Termination of contract after probationary period. A teacher who has completed his probationary period in any school district, and who has not been discharged or advised of a refusal to renew his contract pursuant to subdivision 3, shall have a continuing contract in such district. Thereafter, the teacher’s contract shall remain in full force and effect, except as modified by mutual consent of the board and the teacher, until terminated by a majority roll call vote of the full membership of the board, upon one of the grounds specified in subdivision 6 or subdivision 6a or 6b, or until the teacher is discharged pursuant to subdivision 8, or by the written resignation of the teacher submitted prior to April 1; provided,

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however, that if an agreement as to the terms and conditions of employment for the succeeding school year has not been adopted pursuant to the provisions of sections 179.61 to 179.77 prior to March 1, the teacher’s right of resignation shall be extended to the 30 th calendar day following the adoption of said contract in compliance with section 179.70, subdivision 2. Such written resignation by the teacher shall be effective as of June 30 if submitted prior to that date or, if submitted thereafter, shall be effective August 15, and the teacher’s right of resignation for the school year then beginning shall cease on August 15. Before a teacher’s contract is terminated by the board, the board shall notify the teacher in writing and state its ground for the proposed termination in reasonable detail together with a statement that the teacher may make a written request for a hearing before the board within 14 days after receipt of such notification. Within 14 days after receipt of this notification the teacher may make a written request for a hearing before the board and it shall be granted before final action is taken. If no hearing is requested within such period, it shall be deemed acquiescence by the teacher to the board’s action. Such termination shall take effect at the close of the school year in which the contract is terminated in the manner aforesaid. Such contract may be terminated at any time by mutual consent of the board and the teacher, and this section shall not affect the powers of a board to suspend, discharge, or demote a teacher under the pursuant to other provisions of law.

Implications for educationThis case reaffirms the relative importance of certification as it related to

the grouping of professionals for seniority purposes.

Keller v. Independent School District No. 742, 224 N.W.2d 749,Minnesota (1974)

Statute appropriate to caseSource - Minnesota Statutes Annotated 10A, 124-143, pages 183-184.

Subd. 4. Grounds for discharge or demotion. Causes for the discharge or demotion of a teacher either during or after the probationary period shall be: (1) Immoral character, conduct unbecoming a teacher, or insubordination; (2) Failure without justifiable cause to teach without first securing the written release of the school board having the care, management, or control of the school in which the teacher is employed; (3) Inefficiency in teaching or in the management of a school; (4) Affliction with active tuberculosis or other communicable disease shall be considered as cause for removal or suspension while the teacher is

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suffering from such disability; or (5) Discontinuance of position or lack of pupils.

Overview During the 1972-1973 school year, the district received several indications

that the use of Title I funds would be severely restricted to specific programs in the future. The 1972-1973 guidelines of the Minnesota Department of Education prohibited the use of Title I funds for state mandated programs that require the expenditure of local funds, which funds then generate special reimbursement funds from the state. On March 22, 1972, the Federal programs administrator of the Minnesota Department of Education sent a memorandum to all local Title I directors and superintendents. The thrust of this memorandum was to reiterate the prohibition of the state guidelines. The superintendent of schools received a further communication from the Title I office indicating that the district must alter its funding pattern of the speech handicap program. On February 15, 1973, the board of education adopted a resolution discontinuing three full-time speech clinician positions. On the same date, the board adopted a resolution to terminate the contract of the teacher. On February 16, 1973, the board notified the teacher of the proposed termination calling her attention to a hearing and the reason for the discontinuance of position was because the Title I funds used to support the speech clinician program were no longer available.

Issue Can a local school board discontinue a position because Title I funds used

to support the program are no longer available?

Decision Court decided for the board.

Characteristics of the decisionMinnesota Statutes Annotated 125.12 Subdivision 4 provides that a

tenured teacher’s contract may be terminated for discontinuance of position. The School District did discontinue the teacher’s position, and did provide notice and hearing as required by law. The court expressed the reasons for such termination, in the absence of bad faith, are not material. The School Board in this case did not act in an arbitrary, oppressive, or unreasonable manner, and the court did not attempt to substitute its judgment for that of the School Board. In reviewing the board’s decision to terminate the teacher’s contract, the court expressed that Minnesota Statute 125.12 was enacted to protect teachers from arbitrary discharge. However, it was not intended to place an unreasonable restriction on the powers which a school board must possess to effectively administer the operation of the public schools.

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Significant points1. The School District did discontinue the teacher’s position, and did

provide notice and hearing as required by law. 2. The court expressed the reasons for such termination, in the

absence of bad faith, are not material.3. In reviewing the board’s decision to terminate the teacher’s

contract, the court expressed that Minnesota Statute 125.12 was enacted to protect teachers from arbitrary discharge. However, it was not intended to place an unreasonable restriction on the powers which a school board must posses to effectively administer the operation of the public schools.

Revised statute Source - Minnesota Statutes Annotated, Vol. 10A, 124-143, pages 63-64.

Subd. 6. Grounds for termination. A continuing contract may be terminated, effective at the close of the school year, upon any of the following grounds: (a) Inefficiency; (b) Neglect of duty, or persistent violation of school laws, rules, regulations, or directives; (c) Conduct unbecoming a teacher which materially impairs his educational effectiveness; (d) Other good and sufficient grounds rendering the teacher unfit to perform his duties.

Subd. 6b. Unrequested leave of absence. The school board may place on unrequested leave of absence, without pay or fringe benefits, as many teachers as may be necessary because of discontinuance of position, lack of pupils, financial limitations, or merger of classes caused by consolidation of districts. The unrequested leave shall be effective at the close of the school year.

Implications for education This case reaffirms the importance of adherence to specific procedural

components as prescribed by statute.