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Birk v. Board of Education





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Clay County, the Hon. Jack M. Michaelree, Judge, presiding.


Plaintiff, Paul F. Birk, a tenured teacher, filed a petition for a writ of mandamus in the circuit court of Clay County, seeking an order upon the board of education of Flora Community Unit School District No. 35 (the board) to reinstate him as a guidance counselor under a 10-month contract. Plaintiff also sought actual damages in the amount of lost wages due to the reduction of his contract from 10 months to 9 months. The circuit court dismissed plaintiff's petition and he appealed. The appellate court reversed, finding that section 24-12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24-12) prohibited reduction of plaintiff's extended-term contract while a guidance counselor with less seniority than plaintiff was allowed to retain a 10-month position. The cause was then remanded with directions to determine the amount of damages and to issue a writ of mandamus. (120 Ill. App.3d 181.) We granted the board's petition for leave to appeal (87 Ill.2d R. 315).

The facts are not in dispute. Plaintiff was originally employed by the board as a guidance counselor in 1961. The contract under which he was hired provided for a 10-month term of employment as opposed to the standard contract length of 9 months. Plaintiff's contract was renewed on this basis for 20 years.

During the 1981-82 school year, plaintiff worked in a Flora high school with another guidance counselor, Nancy Clark. She had originally been hired in 1969 on a nine-month contract as a classroom teacher. Sometime, thereafter, she was transferred into guidance and given a 10-month contract. In the 1981-82 school year, both plaintiff and Clark worked full time in guidance. They spent the 10th month of service completing student registration, resolving scheduling conflicts, and counseling students.

On March 16, 1982, plaintiff was notified by the board that his "ten month contractual continued service [was] reduced to nine month[s] effective beginning the 1982-83 school year." The board's resolution authorizing this notice to him stated that his contract had been "honorably reduced" due to a reduction in staff resulting from declining enrollment.

In a letter to the board, dated September 12, 1982, plaintiff requested that the board reinstate him on a 10-month basis in place of Clark, who had less seniority. The board considered plaintiff's request but voted against it. Thereafter, he filed his petition for mandamus.

There is one issue: Must the board consider seniority status of tenured teachers when reducing a teacher's contract from 10 months to 9 months?

The outcome of this appeal turns on whether the seniority privileges contained in section 24-12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24-12) apply when a tenured teacher's extended-term contract is reduced to the standard contract length of nine months. Section 24-12 provides:

"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 * * * the board shall first remove or dismiss all teachers who have not entered upon contractual continued service * * *. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first * * *." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 24-12.

In the instant case, the appellate court, relying upon Caviness v. Board of Education (1978), 59 Ill. App.3d 28, found that the terms "removed" and "dismissed" in section 24-12 were broad enough to encompass "any reduction" in the extent of a teacher's employment. (120 Ill. App.3d 181, 184.) As such, these terms did not limit the applicability of section 24-12 to instances of complete termination. Rather, the appellate court held that the protection of this section applied to plaintiff, who was, therefore, entitled to the 10th month of employment based upon seniority.

The board asserts that the appellate court read Caviness too broadly. It claims that Caviness should be limited to its facts. In that case, a tenured teacher was reduced from full-time employment to a half-time teaching position, while two non-tenured teachers occupied full-time positions which the tenured teacher was qualified to fill. On appeal the board argued that Caviness was not entitled to seniority privilege, as she had not been removed or dismissed within the meaning of section 24-12. The court held that the seniority provisions of that section apply when a teaching contract is reduced, as well as when a teacher is dismissed, because to hold otherwise would allow school boards to undermine the protections afforded experienced teachers under the School Code. We find this reasoning to be persuasive.

While the board agrees that a reduction to less than a full-time schedule would constitute a removal or dismissal under section 24-12, it argues that the reduction of an extended-term contract to full time should not trigger these same protections. However, we agree with the appellate court, which found "nothing in section 24-12 which bases the degree of protection afforded a tenured teacher on the length of his contract." 120 Ill. App.3d 181, 184.

The primary purpose of the tenure provisions of the School Code is to give tenured teachers priority over non-tenured teachers (Bilek v. Board of Education (1978), 61 Ill. App.3d 323, 326), and, as between tenured teachers, to give priority to those with the longer length of continuing service (Ill. Rev. Stat. 1981, ch. 122, par. 24-12). These objectives are no less important when a teacher's contract is reduced from 10 months to 9 months than they are when a teacher's contract is reduced from full time to part time. The legislature's goal in creating teacher tenure was to assure continuous service on the part of teachers of ability and experience by providing those teachers with some degree of job security. (Johnson v. Board of Education (1981), 85 Ill.2d 338, 344; Lenard v. Board of Education (1979), 74 Ill.2d 260, 268.) Thus, a tenured teacher is entitled to a reading of section 24-12 which is consistent with its prime purpose of protecting those who have qualified for its ...

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