APPEAL from the Circuit Court of Bureau County; the Hon. FRANK
X. YACKLEY, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
James I. Higgins received notice at the end of the 1975-1976 school term that he was being honorably dismissed from his teaching position with the Board of Education of Community Unit School District No. 303, Bureau County, Illinois, due to a reduction in the size of the teaching staff. Mr. Higgins, believing that his dismissal violated certain statutory rights of tenured teachers, petitioned for a writ of mandamus in the Circuit Court of Bureau County seeking reinstatement of his employment. The circuit court, after hearing evidence on the petition, concluded that Mr. Higgins was not entitled to the relief he requested. He prosecuted this appeal to obtain our review of the lower court order.
The tenure rights which provide the foundation for the appellant's petition are created by the legislature and set forth in the School Code:
"If a teacher in contractual continued service is removed or dismissed as a result of a 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 removing or dismissing 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. If the board within 1 calendar year thereafter increases the number of teachers or reinstates the position so discontinued, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions." (Ill. Rev. Stat. 1975, ch. 122, par. 24-12.)
Neither party disputes that Mr. Higgins was a teacher in contractual continued service. What is disputed is whether Mr. Higgins "is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service." (Emphasis added.)
In Illinois the legal qualifications for classroom teachers are determined by regulations promulgated by the Illinois State Board of Education. Specifically, the qualifications are set out in The Illinois Program for Evaluation, Supervision and Recognition of Schools, Circular Series A, No. 160. Therein, the minimum education and/or experience requirements are detailed for teachers of every subject matter at every grade level. Although the inadequacy of the requirements set forth in Circular Series A, No. 160, has been noted in other decisions (Newman v. Board of Education (1981), 98 Ill. App.3d 976, 424 N.E.2d 1331), they nevertheless offer far more guidance to the definition of "legally qualified" than exists for determining the appropriate definition of "a position."
"The statutory term `position' becomes complicated because of the practice of self-contained classrooms for some grades, and departmentalization to some extent in the middle grades, and subject matter segregation for majors and minors in high school. School districts may exercise wide latitude and autonomy in determining which grades will be clustered and which subjects will be grouped under one teacher and which departmentalized. The courts> cannot allow school boards, whether in good or bad faith, to rearrange teaching assignments (positions) in ways which defeat the rights of tenured teachers and circumvent the purpose and spirit of the tenure laws." (Hagopian v. Board of Education (1978), 56 Ill. App.3d 940, 944, 372 N.E.2d 990, 994.)
In reviewing the decision of the circuit court, we must determine whether "a position" existed which the appellant, Mr. Higgins, was "legally qualified" to fill. The factual setting in which this dispute arises follows.
The appellant began employment with the appellee Board of Education during the 1970-1971 school term. For six terms, 1970-1971 through 1975-1976, he taught certain history courses, and for four terms, 1972-1973 through 1975-1976, he also taught psychology and consumer education. At the close of the 1975-1976 term, the appellant received the statutory 60-day notice of honorable dismissal due to a decrease in the number of teachers employed by the appellee.
Subsequent to the dismissal of the appellant, Carol Radtke, the appellee's French teacher, requested and was granted a maternity leave of absence for the following school term. Radtke had taught four classes of French and one class of mathematics during the prior school term. The appellee was compelled to fill Radtke's vacancy with someone legally qualified to teach a foreign language, as foreign language was a required offering in the high school curriculum. (Circular Series A, No. 160.) After interviewing several applicants for the vacancy, only one, Steven Sacco, was willing to accept a teaching job with the appellee, and then, for economic reasons, only if the job was to be full-time. Sacco was assigned to teach four French classes, an independent French study program, and world history. Later, the fourth year French class was dropped because of low enrollment, and Sacco was reassigned a consumer education class. Sacco had not entered upon contractual continued service.
Kathy Malone was employed by the appellee district for the 1975-1976 term as well as the 1976-1977 term. In both years, she taught six classes in the area of English communications. In addition, during the second semester of the 1976-1977 school year, Malone taught a course in psychology. Like Sacco, Malone had not yet entered upon contractual continued service.
• 1 In his petition, the appellant urges that he was "legally qualified" to teach the history and consumer education courses taught by Sacco as well as the psychology class taught by Malone. He seeks reinstatement to "a position" teaching those three classes and supervising study halls. No argument is made that the appellant was qualified to teach either French or English communications.
The appellee Board of Education defends its actions by asserting first that Mr. Higgins is not "legally qualified" to teach any of the three subjects enumerated in his petition. Second, it argues that "a position" within the definition of the tenure statute cannot be created by assembling a collage of classes taught by various non-tenured teachers. The circuit court found it unnecessary to rule on the merits of the Board of Education's first defense, because it resolved that even if Mr. Higgins were "legally qualified" to teach history, consumer education and psychology, no such "position" within the statutory definition existed during the 1976-1977 school term. We agree.
No regulations or case law has been cited before this court which offers any comprehensive definition of a teaching "position" as contemplated by the Illinois statute. (Ill. Rev. Stat. 1975, ch. 122, par. 24-12.) This is not to say that the courts> have been silent. Indeed, as previously referenced, the court in Hagopian determined that school districts must be allowed "wide latitude and autonomy" in creating teaching positions, while admonishing that such discretion must not be exercised, in good or bad faith, to ...