APPEAL from the Circuit Court of Henry County; the Hon.
FREDERICK F. PATTON, Judge, presiding.
MR. PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE BARRY delivered the opinion of the court:
The action underlying this appeal sought to invalidate the three-day suspension of a tenured teacher without pay for cursing a student. The plaintiff schoolteacher, Daniel J. Craddock, was granted a summary judgment by the trial court, from which the defendant, Board of Education of Annawan Community Unit School District No. 226 of Henry County, Illinois, has appealed.
It is an uncontested fact that the plaintiff, employed by the defendant as a teacher and football coach, called a student a "son of a bitch." Slightly more than one week later, the defendant suspended the plaintiff for three days without pay but delayed the effective date of that action until notice of the suspension was given to the plaintiff, which notice additionally informed him of his right to request and perfect a review of the suspension before the school board. The plaintiff requested such a review and, at the hearing, challenged the jurisdiction of the defendant to suspend teachers for disciplinary reasons. After making this objection, the plaintiff refused to participate in the hearing and the defendant, hearing the matter ex parte, declared the plaintiff suspended for three days without pay.
1 Although the Illinois School Code (Ill. Rev. Stat. 1977, ch. 122) does not expressly authorize a school board to suspend a tenured teacher, a school board does have the authority to dismiss or remove such a teacher as long as the procedure set out in section 24-12 (Ill. Rev. Stat. 1977, ch. 122, par. 24-12) is followed. These procedural requirements, including notice and hearing before an independent hearing officer, must also be complied with for a school board to reduce a teacher's salary in the absence of a uniform reduction of salaries (Ill. Rev. Stat. 1977, ch. 122, par. 24-11). There is in fact an absence of any source of legislative authority in other sections of the Code to suspend.
2, 3 While statutes granting powers to school boards must be strictly construed, a school board has those powers expressly conferred and such powers as may be necessary to carry into effect those expressly granted. (Wesclin Education Association v. Board of Education (5th Dist. 1975), 30 Ill. App.3d 67, 331 N.E.2d 335.) "Dismissal," as used in section 24-12, must be, therefore, reasonably and justly construed to mean not only the power to permanently dismiss but also to temporarily dismiss or suspend. The purpose of the statute is to provide a school board with the authority to effectively administer and manage its schools and the only sensible construction of the statute, to be harmonious with the purpose of effective administration, is that some actions by teachers, though unprofessional, socially unacceptable and arguably within the causes for dismissal listed in section 10-22.4 (Ill. Rev. Stat. 1977, ch. 122, par. 10-22.4), require punishment of a lesser degree than permanent dismissal. See Goldsmith v. Board of Education (3d Dist. 1924), 66 Cal.App. 157, 225 P. 783.
4 To conclude that suspension or temporary dismissal, though derived from the power of dismissal in section 24-12, can be exercised as power without compliance with section 24-12 procedure is illogical. The results of even a temporary dismissal are a permanent loss of some salary and a black mark on the tenured teacher's record and teaching abilities. This creates a stigma which certainly affects the teacher's future employment opportunities. In this case, the section 24-12 procedure was not followed. The purpose of the tenure act is to afford tenured teachers procedural safeguards when their livelihood or tenured status is threatened and to avoid insecurity of employment based on political, partisan or capricious considerations. (McNely v. Board of Education (1956), 9 Ill.2d 143, 137 N.E.2d 63.) It would be irresponsible and violative of the underlying purpose of the tenure act to allow a school board or administrator, for political, partisan or capricious reasons, to harass a teacher into quitting through imposition of repeated payless suspensions that could be for weeks or months, and cannot be classified as temporary. Furthermore, the purpose of the amendment to the tenure act requiring an independent hearing officer is to avoid inequities which may result from a school board hearing and deciding a case in which they had already made an initial decision to discipline the teacher, having passed a motion containing specific charges against the teacher. (Hagerstrom v. Clay City Community Unit School District No. 10 (5th Dist. 1976), 36 Ill. App.3d 1, 343 N.E.2d 249.) A school board can not be both antagonist and judge and still provide due process to the teacher. Miller v. Board of Education (1st Dist. 1964), 51 Ill. App.2d 20, 200 N.E.2d 838.
The defendant contends that they were sufficiently impartial to provide due process even though the hearing did not comply with the procedure required by section 24-12. They cite to us two cases which are inapplicable. Goss v. Lopez (1975), 419 U.S. 565, 42 L.Ed.2d 725, 95 S.Ct. 729, is a student disciplining case, rather than a teacher disciplining case, which is not regulated by statute, and Hortonville Joint School District No. 1 v. Hortonville Education Association (1976), 426 U.S. 482, 49 L.Ed.2d 1, 96 S.Ct. 2308, is a decision based upon Wisconsin law as determined by the highest court of that state. In addition the defendant refers to Gilliland v. Board of Education (1977), 67 Ill.2d 143, 365 N.E.2d 322, to support the contention that the board was sufficiently impartial to make a judgment. Although in Gilliland the new independent hearing officer provisions were not strictly complied with, a hearing officer was appointed, and the Illinois Supreme Court decided not to find an improper tribunal absent a clear showing of actual prejudice.
5 In the case at bar, no hearing officer was appointed. This is clearly in violation of the procedures established by section 24-12. An independent hearing officer ought to have been appointed to determine whether the facts as presented at the hearing require permanent dismissal, temporary dismissal or no disciplinary action whatsoever.
Accordingly, the judgment of the Circuit Court of Henry County is affirmed.
Mr. JUSTICE ALLOY, dissenting:
I must respectfully dissent from the majority opinion in this cause. I do not believe that the procedure sanctioned in section 24-12 of the School Code is required to be employed in this case involving a 3-day suspension. No consistent construction of the Act requires that such procedure be employed. It is important, at the outset, to emphasize that the only issue before this court is whether the Annawan School Board was required to employ the full panoply of procedural elements set out in section 24-12 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24-12) ...