Appeal from the Circuit Court of Kane County; the Hon. John A.
Krause, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Slavin, was a tenured elementary teacher in School District No. 131, Kane County, Illinois, and was discharged by the Board of Education (board) pursuant to section 24-12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-12). After an evidentiary hearing before an administrative hearing officer, Slavin was ordered to be reinstated to his full-time teaching position. The board then sought administrative review before the trial court of Kane County. The trial court reversed the reinstatement order of the hearing officer. Slavin appeals.
Robert Slavin began teaching in 1961 and taught at Dieterich School since 1966. He was tenured and at the time in question was teaching fourth grade. Prior to receiving his letter of dismissal Slavin had received no notice of any employment deficiencies.
On March 18, 1980, the board issued a resolution dismissing Slavin. The board issued a bill of particulars that alleged seven points. Slavin was charged with: (1) being cruel to students entrusted to him; (2) causing deliberate and irreparable physical and emotional injury to students, in that he did on numerous occasions inflict unlawful corporal punishment upon four named students and, in doing so, violated School Board Policy No. 5.06 and 5.07; (3) having summarily expelled students from school in violation of school board policy and the Illinois School Code; (4) having been negligent; (5) having been insubordinate in not following instructions of supervisors, school board policies or laws of the State of Illinois regarding discipline of students; (6) that he was not qualified to teach, and; (7) that it would be in the best interests of the school that he be dismissed.
Policy 5.06 provides that after oral instructions and techniques have failed a teacher may "direct the pupil toward a desired location but should refrain from the use of sufficient force to severely hurt the pupil." Under the heading of corporal punishment, board policy provides that the principal or other person designated may strike the pupil with an open hand in an area below the neck only after other types of influence have failed to gain the desired goal. A student may be spanked only with an open hand or a paddle on an area below the neck after arranging for a reliable witness to be an observer.
Dieterich School Policy 5.07 provides that a child should never be sent home without prior approval from the office. Slavin was charged with having improperly punished four students, Gary Lay, Tammy Parker, Maurice Payne and Rex Rose. Further, he was charged with having encouraged and permitted two of those students to leave the school premises during the school day without notifying his supervisors or the students' parents.
The testimony adduced at the hearing will not be reiterated at length here, but will be discussed together with the issues on appeal.
Slavin's contention on appeal is that the trial court's finding was contrary to the manifest weight of the evidence. (Werner v. Community Unit School Dist. No. 4 (1963), 40 Ill. App.2d 491, 495, 190 N.E.2d 184, 186.) He contends that the teacher's tenure law acts as a shield from his being dismissed for trivial, political, capricious or arbitrary causes. (Kallas v. Board of Education (1973), 15 Ill. App.3d 450, 304 N.E.2d 527.) In the case at bar the board made a determination that Slavin's conduct was irremediable and he should be dismissed without written warning. Subsequently a hearing officer was appointed as required by statute. (Ill. Rev. Stat. 1979, ch. 122, par. 24-12.) The hearing officer determined that Slavin's cause for discharge was remediable and he was improperly dismissed because he had not been served with a prior written warning stating specifically that if his conduct was not changed it would result in charges being brought. It also found that he should be restored to a position similar to the one he had prior to his dismissal and that he be made whole for all employment benefits and losses suffered as a result of the dismissal.
The board appealed from the findings made by the hearing officer and the trial court reversed the hearing officer and found that Slavin was guilty of improper and illegal irremediable conduct, and no formal notice in writing need be given. The trial court made no other written findings.
• 1 The first question on appeal is whether or not cause for Slavin's dismissal was remediable. If it was remediable, then Slavin would have been entitled to a warning under the School Code. Ill. Rev. Stat. 1979, ch. 122, par. 24-12.
• 2 The test for determining whether a cause for dismissal is remediable was set forth in Gilliland v. Board of Education (1977), 67 Ill.2d 143, 153, 365 N.E.2d 322, where the court stated:
"The board's findings are not, of course, immune from judicial review. The court function, however, is limited, and does not permit substitution of the court's judgment for that of the board. Rather, the board's findings must be sustained unless those findings are contrary to the manifest weight of the evidence. [Citations.] The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher's superiors warned her. [Citation.]" (Emphasis added.) (Accord, Grissom v. Board of Education (1979), 75 Ill.2d 314, 322, 388 N.E.2d 398; Aulwurm v. Board of Education (1977), 67 Ill.2d 434, 442, 367 N.E.2d 1337.)
Gilliland contended, as does Slavin, that the charges against her were remediable, and she had not been given the requisite written warning. The court in Gilliland noted that the complained-of-conduct extended over a four-year period and that this, together with a combination of a number of causes, was a sufficient basis for a finding of irremediability.
It should be noted that in the case at bar the complained-of-conduct was based on excessive use of force in administering punishment and instances where a child was either allowed or told to leave the classroom without Slavin having obtained parental or school supervisor's approval. However, it is important to note that unlike the situation in Gilliland v. Board of Education (1977), 67 Ill.2d 143, 365 N.E.2d 322, the complained-of-conduct in ...