APPEAL from the Circuit Court of Wayne County; the Hon. ALVIN
LACY WILLIAMS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is an appeal by the respondent, Board of Education of Fairfield School District No. 112 (Board), from an order of the circuit court of Wayne County granting Kenneth L. Lenard's petition for a writ of mandamus and restoring him to his teaching position for the 1974-1975 school year.
Petitioner Lenard taught in Wayne County schools for eight years, commencing with the 1966-1967 school year, and had acquired tenure, referred to in the School Code as "contractual continued service" (Ill. Rev. Stat. 1973, ch. 122, par. 24-11). In March of the school year 1973-1974, he received a letter from the president of the respondent Board, stating that he would be honorably dismissed at the end of the school year because the number of teachers in the district was being reduced. In April 1974 petitioner filed a petition for a writ of mandamus seeking his reinstatement, alleging that a non-tenured teacher had been retained in preference to him contrary to the provisions of section 24-12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-12). The trial court entered an order dismissing his petition on the grounds that the question was reviewable only by a proceeding under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.).
On appeal of the dismissal, this court held that mandamus was an appropriate remedy and remanded the cause for further proceedings Lenard v. Board of Education (1975), 26 Ill. App.3d 188, 324 N.E.2d 657.
Prior to trial of this matter, the Board made a motion to dismiss, asserting the mootness of the relief sought. The motion was denied and the cause proceeded to trial, resulting in the instant order for reinstatement of petitioner. The Board's post-trial motion preserving the substantive issues developed at trial as well as the mootness allegation was denied, and the Board brought this appeal.
The issues presented for review revolve around the meaning of the phrase "legally qualified" in section 24-12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-12), and especially the effect, if any, of a regulation of the Office of the Superintendent of Public Instruction (now the State Board of Education) referred to as Circular Series A, Number 160, upon the above provision and teacher certification.
The basic issues are: (1) was Kenneth Lenard legally qualified within the meaning of section 24-12 of the Code to hold the teaching position of non-tenured teacher Richard Carter; (2) is legal qualification to hold a departmentalized teaching position controlled by minimum educational requirements set forth in the regulation, Circular Series A, Number 160; (3) is the regulation a valid regulation of the Office of the Superintendent of Public Instruction which is binding upon the public schools of the State; (4) is the regulation invalid either because it nullifies teacher certification or is arbitrary and discriminatory; and (5) is mandamus available when the school term for which reinstatement is sought has expired.
1 Section 24-12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-12), dealing with removal or dismissal of tenured teachers, provided at all relevant times as follows:
"* * * If the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before such board shall remove or dismiss any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service; * * *." (Emphasis added.)
The record reveals that petitioner Lenard asserts that under section 24-12 a tenured teacher is legally qualified to hold the position of a non-tenured instructor in a partially departmentalized upper elementary grade (6th, 7th or 8th) when he possesses a teaching certificate that covers the grade in which the non-tenured teacher is instructing; whereas, the Board maintains one must not only be duly certificated but also meet the semester hour requirements for each subject taught on a departmentalized basis as set out in the regulation, Circular Series A, Number 160, in order to be legally qualified to hold such position.
Throughout the time petitioner Lenard was employed by the Board he primarily taught geography to seventh-grade pupils. He held a certificate issued by the State Teacher Certification Board for teaching grades six through 12 inclusive. According to the testimony of Edward Wiser, Superintendent of Fairfield School District Number 112, Mr. Lenard's position was eliminated because of decreasing enrollment.
At the time the decision was made to dismiss Lenard, two non-tenured teachers were employed by the Board, namely, Charlene Schmerbauch and Richard Carter. Ms. Schmerbauch taught physical education to seventh and eighth grade girls. Lenard did not allege any right to her position; his pleadings were directed entirely towards the teaching position of Richard Carter, who did not enter upon contractual continued service until the close of the 1973-1974 school term.
Richard Carter taught a sixth-grade class during the 1973-1974 school year. His assignment remained the same in the following term. Superintendent Wiser testified that Mr. Carter taught in a partially departmentalized situation and that music, mathematics and physical education were taught to the sixth grade in a departmentalized fashion. He identified departmentalized teaching as being:
"* * * a situation where students would pass to another teacher for specialized instruction at that grade level by any teacher. * * * In other words, they would not be in a self-contained classroom all day. Any deviation from a self-contained classroom in grades 6 through 12 is departmentalized."
Board witness, Richard N. Small, Assistant Superintendent for the Department of Recognition and Supervision in the Illinois Office of Education, defined departmentalization by reading from respondent's exhibit 5, a form letter from the witness to local superintendents of schools. It states: "Departmentalization is considered as any variation from a `homeroom' or `self contained' type of instructional pattern. Variations could range from total departmentalization to a single class period per day outside of a self contained room." The letter went on to state that, "In all assignments outside of the self-contained room, the eighteen semester hour standard would apply." This reference is to the educational requirement of Circular Series A, Number 160, which the Board argues supports its finding that Lenard was not "legally qualified" to hold Carter's job.
Petitioner Lenard testified on direct examination that Mr. Carter taught a sixth grade class in a self-contained classroom instructional pattern. He was later called by the Board as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60) and restated his belief that Carter's class was self contained; however, he testified that he knew that the students went out for physical education and music while disavowing any knowledge that they passed classes for mathematics instruction.
Whether mathematics was departmentalized is important since Edward Wiser testified that the Board, applying the standards of regulation A-160, found Lenard unqualified since he had only eight quarter hours (approximately five semester hours) of math in college as opposed to the 18 semester hours required by the regulation if math is taught as a departmentalized subject. He further testified that the regulation was applied to all staff members.
From the testimony of Edward Wiser, offered in rebuttal for petitioner, it appears that there were four sixth-grade classes and four teachers. Richard Carter taught his sixth grade "homeroom" class language arts (reading, writing and spelling), science and social studies. All four teachers, including Carter, taught math; however, they did not teach this subject to precisely the same group of students that comprised their homeroom section. A portion of the students in each homeroom section went to one of the other teachers for specialized math instruction based on their individual needs or abilities.
We believe the following portions of the 1973 version of the Circular Series A, Number 160 regulation (The Illinois Program for Evaluation, Supervision and Recognition of Schools) of the Office of the ...