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Herbach v. Bd. of Education

OPINION FILED MARCH 26, 1981.

FLORENCE HERBACH ET AL., PLAINTIFFS-APPELLEES,

v.

THE BOARD OF EDUCATION FOR SCHOOL DISTRICT NO. 73, COOK COUNTY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 16, 1981.

Plaintiffs, Florence Herbach and Bonnie Turell, were dismissed public school teachers. They brought an action in the circuit court of Cook County for a writ of mandamus directing defendant to reinstate one of them to a teaching position for the 1979-80 school year. The court issued the writ of mandamus directing defendant to reinstate plaintiff Turell. Judgment was entered and defendant appeals. We reverse.

Defendant presents the following issues for review: (1) whether section 24-12 of the Illinois School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-12) requires a school board to reassign teachers in order to create a position for a tenured teacher who was dismissed for economic reasons; and (2) if so, whether the tenured teachers employed by defendant can be reassigned so that tenured teachers are assigned to all classes.

Plaintiffs were teachers employed by defendant prior to and during the 1978-79 school year. Defendant is the Board of Education for District No. 73 (East Prairie School District), Cook County, Illinois (hereafter the Board), organized and operating pursuant to the Illinois School Code. Plaintiffs were "tenured" teachers, that is, they entered upon "contractual continued service" as defined in section 24-11 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-11). Plaintiff Turell was a first grade teacher and plaintiff Herbach taught language arts in the District No. 73 junior high program.

During the 1978-79 school term, plaintiffs were notified in writing that they would be dismissed from employment at the conclusion of the 1978-79 term. The dismissal was due to a decision of the Board to decrease the number of teachers employed because of declining enrollment, uncertainty of funding, and the discontinuance of teaching positions.

The East Prairie School District operates only one building and employs approximately 30 teachers. It is an elementary school district comprising kindergarten through grade 8. There is a "departmentalized" program of instruction for students in grades 4-8 which assigns teachers to particular subject areas, such as mathematics, science, English, and social studies, for more than half of the instructional periods assigned to that teacher.

After plaintiffs' dismissal at the conclusion of the 1978-79 school year, the Board retained three non-tenured teachers (Stephen Kier, Michelle Williams, and Debbie Rea), for the 1979-80 school term. In 1978-79, Stephen Kier was a departmentalized mathematics instructor for grades 7-8; Michelle Williams was the art instructor for grades K-8; and Debbie Rea was a speech correction instructor for grades K-8. Neither plaintiff — Florence Herbach or Bonnie Turell — is legally qualified to teach any of the positions held by the non-tenured teachers during the 1978-79 school term. Only one tenured teacher, Linda Anderson, and one non-tenured teacher, Stephen Kier, were qualified to teach mathematics. No tenured teachers were qualified to teach art or speech correction.

Legal qualifications for teaching departmentalized mathematics is established in the regulations of the State Board of Education as set forth in chapter VII of the Illinois Program for Education, Supervision and Recognition of Schools (hereafter Document No. 1). Section 7-2 of Document No. 1 requires that all teachers of junior high and departmentalized upper elementary grades must possess at least 18 semester hours of educational training in the area of major teaching assignment, that is, the subject area which comprises more than 50 percent of instruction periods assigned to a teacher.

Due to declining enrollment, the number of teachers employed by the Board had been reduced yearly since the 1976-77 school year. The reductions have necessitated the reassignment of teachers to different classes which they were qualified to teach.

Plaintiffs' complaint sought declaratory relief and an injunction directing the reinstatement of one of the two plaintiffs to a teaching position in School District No. 73. Defendant moved for a transfer of the cause to the law division of the circuit court of Cook County on the basis that plaintiffs' action was actually one for mandamus. The case was subsequently reassigned to the law division and proceeded as a mandamus action.

The parties made cross-motions for summary judgment on the basis that there was no genuine issue as to any material fact and that the issue presented, namely, the entitlement of one of the plaintiffs to a teaching position, was a matter of law. The essential facts were established by the pleadings, stipulation of the parties, and the affidavits of Mildred Haggerty, a teacher at School District No. 73, and Enno S. Lietz, the director of the Public School Approval Committee of the Department of Recognition and Supervision, Illinois Office of Education.

Plaintiffs did not allege that defendant's action was taken in bad faith. Under plaintiffs' interpretation of section 24-12 of the School Code, only one of the plaintiffs is entitled to reinstatement because tenured teachers are dismissed inversely according to the length of service within the District. On October 29, 1979, the writ of mandamus issued by the trial court directed defendant to offer employment to plaintiff Turell on the basis that she had greater continuous service in the District than plaintiff Herbach. On November 1, 1979, defendant filed notice of appeal.

Defendant contends that section 24-12 of the School Code of Illinois (commonly referred to as the teacher tenure law) does not require the reassignment of teachers in order to create a position for a tenured teacher dismissed for economic reasons. Furthermore, section 24-12 of the School Code plainly and unambiguously renders plaintiffs ineligible for a teaching position. The plain language of the ...


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