APPEAL from the Circuit Court of Hardin County; the Hon. DON
A. FOSTER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiffs-appellants Sandra Littrell and Robert Spivey, tenured teachers employed by defendant-appellee, the Board of Education of Cave-in-Rock Community Unit School District No. 2 (hereinafter Board), sued for a declaratory judgment in the Circuit Court of Hardin County that they were entitled to be paid for the school year 1974-75 on the basis of the salary schedule adopted by the Board on July 8, 1974. After hearing evidence including extensive stipulations of facts by the parties, the court entered judgment for defendant. Plaintiffs then perfected this appeal.
The facts, which are in relevant part undisputed, may be briefly stated. On July 8, 1974, the Board adopted a salary schedule for the coming school year. On August 19, the first day of the 1974-75 term, a teachers' workshop was held. At that time the superintendent of schools distributed contracts to the teachers for their signatures. Unlike contracts prepared in previous years, which had indicated the teacher's salary by the phrase "as per salary schedule," these contracts for 1974-75 contained a dollar amount, based on years' experience and educational level achieved, according to the schedule that had been adopted by the Board. For Ms. Littrell, the scheduled amount was $9,000; for Mr. Spivey, $9,400. Plaintiffs did not sign the contracts. Ms. Littrell testified that they elected not to sign because they did not want to be met with the argument that they had already signed a written contract when they later attempted to negotiate a raise. The superintendent informed the tenured teachers, both orally on August 19 and by letter dated September 10, that they were not required by law to sign the contracts, but if they did not sign, they would be paid according to the terms of the previous year's contracts. Plaintiffs performed all duties required of them by the Board during the school year 1974-75, but were paid according to the 1973-74 salary schedule. Each received $415 less than other teachers with identical experience and education who did sign the contracts.
The issue for our determination is whether the plaintiffs' refusal to sign the contracts presented to them on the first day of the school term justified the Board of Education in withholding from them the pay raise given to the other tenured teachers. Put another way, could the plaintiffs be required on August 19 to sign contracts as a prerequisite to their obtaining the salaries called for by the schedule already approved by the Board on July 8?
• 1 Plaintiffs contend that the action of the Board in paying them less than their colleagues who signed contracts was arbitrary and based upon an unreasonable classification. They call our attention to the case of Richards v. Board of Education, 21 Ill.2d 104, 171 N.E.2d 37 (1960). There, in reaching the conclusion that professional growth is a proper element to be considered in fixing a teacher's compensation, our supreme court examined the School Code and said:
"From the language the legislature has employed, it is clear that a school board has discretionary control over the salaries of its teachers, subject only to any limits expressly fixed by the School Code and to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable, or based upon an improper classification." (21 Ill.2d 104, 109, 171 N.E.2d 37, 41.)
The legislative language to which the court referred included the following from what is now section 24-11 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 14-11):
"* * * Contractual continued service status [i.e., tenure] shall not restrict the power of the board * * * to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing * * *."
Uniformity is not violated, added the court, by a classification "which is reasonable, natural and based on substantial differences germane to the subject." (21 Ill.2d 104, 110, 171 N.E.2d 37, 42.) In effect, plaintiffs here are arguing that the Board made reductions in their salaries within the meaning of the School Code after they declined to sign contracts, and that classifying tenured teachers for salary purposes on the basis of whether or not they sign contracts presented to them after the school year has begun is arbitrary and unreasonable. *fn1
Defendant responds that there is nothing arbitrary, capricious, nor unreasonable about basing salary distinctions upon teachers' signing or refusing to sign new contracts. In support of its position, the Board cites Davis v. Board of Education, 19 Ill. App.3d 644, 312 N.E.2d 335 (2d Dist. 1974), a case which it sees as "factually almost identical" to the instant one. Davis was also an appeal by tenured teachers who had not signed new contracts from a denial of their request for a declaratory judgment that they were entitled to salaries equal to those teachers who had signed. The contracts there involved, in addition to providing for increases in salaries and other benefits, contained the provision that the teachers executing it "would not participate in a work stoppage, withholding of services, or strike." *fn2 In affirming the denial of declaratory relief, *fn3 the Appellate Court for the Second District said:
"While the law does not require tenured teachers to sign a new contract, it has also established that in Illinois a Board may enter into new contracts of employment with tenured teachers. (Donahoo v. Board of Education, 413 Ill. 422, 427 [109 N.E.2d 787, 789-90] (1952).) The effect of each of these alternatives is distinct: Under the first, the `unsigned' tenured teacher continues, automatically, under the terms and conditions contained in the previous year's contract (Allen v. Maurer, 6 Ill. App.3d 633, 642 [286 N.E.2d 135, 141] ([4th Dist.] 1972)), whereas in the second instance, the `signed' tenured teacher may rely upon the terms and conditions of the new contract.
Here, the central issue is whether the salary distinction, based upon the teachers' signing or refusing to sign a new contract, is arbitrary, capricious or unreasonable. The Board treated all teachers equally, giving each the option of receiving the increased benefits by signing the new contract. Tenured teachers could neither be required to sign nor could they be removed for their failure to do so. The option of signing was that of the teachers. Plaintiffs opted not to sign and now receive less pay than those tenured teachers who executed the new contract. We do not find this to be arbitrary, capricious or unreasonable.
Parenthetically, we note that it would be basically unfair to apply the benefits of the new contract to those who refused to sign when they, by refusing, declined to obligate themselves to the terms and conditions imposed upon those who did sign.
Plaintiffs maintain that the Board may not refuse to pay a teacher an amount prescribed in the salary schedule adopted for the school year despite the fact that the schedule was attached to the contract which plaintiffs refused to sign because of other matters therein. We find two salary schedules in effect for the 1971-72 school year; the schedule under the new contract and the schedule under the previous contract. The current schedule applied only to those teachers who signed the new contract; the previous schedule was applicable to those tenured teachers who refused to sign the new contract but returned to work. Such intent is clearly manifested within the Board's letter of July 29, 1971, and having by their actions accepted the Board's option `B' therein, plaintiffs cannot now claim a right to a salary provided for within a contract they ...