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Fender v. School Dist. No. 25





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


This appeal is from a judgment of the circuit court of Cook County reversing the administrative decision of the defendant Board of Education of District No. 25, Arlington Heights, dismissing plaintiff John Fender as a teacher.

At the time of his termination, plaintiff was employed by the Board as a teacher with tenured status. He taught seventh grades at a junior high school. He also was president of the Arlington Teachers Association. During ten years of teaching in the district, plaintiff had received no disciplinary sanctions from the Board and his evaluations as a teacher were good.

On March 29, 1972, the Board voted to terminate plaintiff's employment as of November 2, 1972, and to suspend him until that date. The charges were that plaintiff had demonstrated continuing inability to exercise mature judgment and restraint in dealing with classroom problems; that he had demonstrated a continuing pattern of cruelty and violence in his relationship with students; that on four occasions in the current school year, plaintiff had struck students notwithstanding administrative admonitions that he refrain from doing so; that plaintiff was no longer qualified to teach in the district; and that the best interest of the school required his dismissal. The resolution further provided that the causes set forth for the dismissal were not remediable.

Upon receiving formal notice of dismissal plaintiff requested a bill of particulars and a public hearing. Both requests were granted. The public hearings, conducted on five days, began on August 22, 1972.

On September 6, 1972, the Board affirmed its decision to terminate plaintiff's employment, specifically finding that the evidence supported the charges, and that plaintiff's conduct was irremediable. Thereafter, plaintiff filed a complaint under the Administrative Review Act. (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) The circuit court reversed the Board's decision, and it appeals.

When reviewing proceedings under the Administrative Review Act, this court must determine whether the procedures required by law were taken by the administrative agency and, if so, whether the decision of the agency was against the manifest weight of the evidence. Yesinowski v. Board of Education, (1975), 28 Ill. App.3d 119, 328 N.E.2d 23; Waller v. Board of Education (1973), 13 Ill. App.3d 1056, 302 N.E.2d 190.

Under the Illinois School Code (Ill. Rev. Stat. 1971, ch. 122, par. 10-22.4), a board may dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause. A school board also has the right to dismiss a teacher whenever, in its opinion, such teacher is not qualified to teach or whenever the interests of the school require it. Before the power of dismissal may be exercised against a teacher with tenure, however, the Board must comply with the statutory procedures specified in the Teacher Tenure Act. (Ill. Rev. Stat. 1971, ch. 122, par. 24-12.) That section provides that if the charges assigned for dismissal are "account of causes that are considered remediable," the Board, before serving notice of dismissal, must give the teacher a written warning stating the causes which, if not removed, may result in discharge.

• 1 In this case plaintiff was given no written warning of the causes prior to the notice of discharge. Plaintiff urges that the causes for dismissal were remediable, that the Board was required to give him warning and opportunity to take corrective action. The Board having failed to give such written warning, plaintiff maintains that it could not dismiss him. The Board counters that its findings as to cause and irremediality were clearly justified by the evidence and that the trial court incorrectly reversed its decision.

In the present case, the bill of particulars recited four instances during the school year in which plaintiff struck children in the face and/or head. At the public hearings, the testimony related primarily to these matters. Plaintiff admitted striking the four children but claimed that corporal punishment was allowed and widely used in the district. The Arlington Teachers Manual recited that corporal punishment was not forbidden by law, but directed that such punishment be exercised only as a last resort. Teachers at the instant school were required to inform the principal whenever such punishment was administered.

The facts of the first incident are largely undisputed. Jon Mendrella disturbed another class and then refused to apologize to the teacher. Mendrella, an eighth grader, was 5'10" or 5'11," the same height as plaintiff. When plaintiff intervened Mendrella swore at him, and plaintiff struck him in the face. Assistant Principal Robert Basofin testified that he met Mendrella in the hall and noted that his ear was red from the blow. Basofin later advised plaintiff that under such circumstances the principal or he should be called.

The next incident concerned David Grier, a pupil described by Basofin as "extremely dependable, honest and polite" and a member of the student council. Basofin testified that on February 25, 1972, he was in the school cafeteria when he heard plaintiff yelling at Grier and saw him strike the pupil in the face. Plaintiff had overheard Grier teasing the lady employees in the serving line and struck him as punishment for his disrespect. Later, the ladies told Basofin that they engaged in daily banter with Grier and that his remark was not disrespectful. Basofin reported these facts to plaintiff and indicated that the situation had not warranted corporal punishment. Plaintiff's account of the incident differed only in that he denied Grier was crying after the incident and he denied Basofin discouraged his use of corporal punishment.

The next incident involving seventh grader Jay Truelson, occurred on May 3, 1972. On that day a disturbance occurred in plaintiff's classroom during his absence. Another pupil pointed to Truelson as the offender. Without further investigation, plaintiff admitted that he slapped the boy twice in the face with his open hand. Plaintiff's account was disputed by Truelson who testified that plaintiff grasped his hair, banged his head twice against the desk and then slapped him twice in the face. Plaintiff later discovered that he had punished the wrong child and apologized to the class.

After this incident Truelson's father came to the school and angrily complained of plaintiff's conduct. Basofin testified that several days later he had a conference with plaintiff and admonished him to stop striking the students. According to Basofin, plaintiff stated that he had learned his lesson and that it would not happen again. Plaintiff ...

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