APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Plaintiff, Jennifer Johnson, a certificated teacher in the State of Illinois, filed an amended petition for writ of mandamus and an amended complaint for declaratory judgment against defendant, board of education of Decatur School District No. 61, alleging that she had attained tenured status and that her dismissal without a proper notice and hearing was in violation of section 24-12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-12). The Board filed its answer, and after a hearing, the circuit court of Macon County denied her petition for mandamus and ruled that plaintiff had not attained tenured status. Plaintiff appeals.
The determinative issue here is identical to that stated by the trial court: Does a teacher who has taught two consecutive school years as a full-time teacher attain tenure when she is re-employed in a part-time position for the following year?
The facts of this case are not disputed. Plaintiff was employed by the Decatur Board as a part-time art teacher in November 1973. She was hired to teach art full-time for the entire 1974-75 school term and again for the 1975-76 term. In March of 1976, she received a notice from the Board that she was being dismissed at the end of the 1975-76 term because of a decrease in the number of teachers required, but in May of 1976 she was reemployed for the coming year as a part-time teacher. After teaching 4/10 time during the 1976-77 term she was once again, in March of 1977, given a notice of dismissal due to declining enrollment. And once again she was rehired for the coming year, this time to teach full-time. However, the cycle came to an end in March of 1978 when the Board gave her notice stating that "it is in the best interest of the School District to not re-employ you as a teacher" for the coming year, and she was not thereafter rehired.
In her petition for writ of mandamus, plaintiff alleged that she had acquired tenured status as a result of having taught two consecutive years full-time and then being reemployed for the following year, and that she was entitled to reinstatement because the Board had not dismissed her in accordance with the notice and hearing requirements in effect for tenured teachers.
The acquisition of tenured status is governed by section 24-11 of the School Code, which provides in part:
"Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor * * *." Ill. Rev. Stat. 1977, ch. 122, par. 24-11.
Plaintiff does not challenge the adequacy of the notice of dismissal she received in March of 1976, at the end of two consecutive school terms, but rather asserts that the notice of dismissal in 1978 did not meet the requirements of section 24-12 of the School Code governing discharge of a teacher in contractual continued service. She relies upon Brown v. Board of Education (1976), 38 Ill. App.3d 403, 347 N.E.2d 791, where the court held that a tenured teacher did not lose her tenured status when, after 13 years on tenure, she taught part time for one year. The court considered the various statutory provisions dealing with contractual continued service, and concluded that the School Code does not require a teacher to teach full time in order to maintain a previously acquired tenured status. "Nowhere in the statute does it provide that a teacher loses tenure merely by accepting a reduced teaching load for one year." (38 Ill. App.3d 403, 408, 347 N.E.2d 791, 795.) Plaintiff contends that the opinion should be construed to mean that, once two consecutive years of full-time service are completed and a teacher is reemployed for a third year, tenured status attaches without regard to whether the third year is full time or part time.
Such a broad reading of Brown ignores the general rule stated by the Illinois Supreme Court as follows:
"The Teacher Tenure Law (section 24-11 et seq.) created a liability where none would otherwise exist and must, therefore, be strictly construed." Illinois Education Association v. Board of Education (1975), 62 Ill.2d 127, 130, 340 N.E.2d 7, 9.
The object of the teacher tenure statute is to assure continuous service on the part of teachers of ability and experience (Lenard v. Board of Education (1979), 74 Ill.2d 260, 384 N.E.2d 1321), and to accomplish that object, the legislature designed a statutory scheme which protects the tenured teacher, sometimes at the expense of the probationer. (Huettemann v. Board of Education (1978), 56 Ill. App.3d 933, 372 N.E.2d 716.) The decision of the trial court in the case before us draws a clear distinction between the effect of part-time employment upon a probationary teacher (no tenure required) and upon a tenured teacher (tenure retained), and we believe this distinction does not violate either the intent or the letter of the School Code. Accordingly, we think the holding in Brown should be limited to those situations where the teacher had already acquired tenure prior to a part-time assignment.
In a memorandum opinion, the trial court here made the following pertinent statements, with which we agree:
"The tap root of the tenure doctrine is fulltime teaching. Plaintiff cites Elder v. Board of Education (1965), 60 Ill. App.2d 56, 208 N.E.2d 423, as giving a board only two options: (1) to terminate, or (2) to grant tenure. Elder is not so restrictive. The third alternative of employment in something less than full-time teaching is available, as was the case in Brown.
Plaintiff complains that this will give power to a school board to deny tenure forever. That is the undoubted right of such a board under the statute as ...