Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Defendant, William H. Hunt, was a tenured elementary physical education teacher in Argo-Summit School District No. 104, Cook County, when he was discharged by the board of education of that district (the board) pursuant to section 24-12 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24-12) for unprofessional and immoral conduct. Following an evidentiary hearing before an administrative hearing officer, Hunt was ordered to be reinstated with full back pay and other benefits. The board then sought administrative review before the circuit court of Cook County. The circuit court reversed the reinstatement order and affirmed the dismissal. Hunt appeals. For the following reasons, we affirm the judgment of the circuit court.
At the time of his dismissal, Hunt had been teaching physical education at Walsh School in School District No. 104 for approximately 17 years. On November 14, 1983, Mr. James Wrenn, district superintendent and Mrs. Azalee Elder, principal of Walsh School, met with Hunt to inform him that allegations of unprofessional and immoral conduct had been made against him by three second-grade female students. Specifically, the students alleged that defendant had pinched them on the buttocks during physical education class.
On November 22, 1983, at a regularly scheduled meeting, the board voted to immediately dismiss Hunt from his duties as a teacher in the school district. The board's resolution cited the following notice of charges:
"1. That on various occasions during the 1983-84 school year, namely from beginning of the 1983-84 school year up to and including Monday, November 14, 1983, you did either pinch, touch or fondle, certain female second grade students in your P.E. Class (J.P., M.L. and E.K.) in the anal area.
2. That on Monday, November 14, 1983, you did, as further unprofessional and immoral conduct, again ask a second grade student, M.L., to come `closer to me.' When the child refused to do so because of just having reported the earlier incidents of improper and immoral fondling and touching to her parents, and having been warned to stay away from you, you did grab the child on the shoulders and pull her to you forcefully at which time you again fondled, pinched and touched her in the anal area."
On a prehearing motion by Hunt, the board subsequently issued a more detailed bill of particulars. However, the substance of the charges remained as stated in the aforementioned original notice.
On May 21 and 22, 1984, the hearing on the board's charges was held before a hearing officer of the Illinois State Board of Education. At the hearing, the three students and their mothers testified as to the events leading up to the charges. Both M.L. and E.K. testified that Hunt would physically pull them to within a few inches of him whenever they had something to say to him during gym class on the premise that he could not hear what they were saying. While they were talking to him, he would pinch the girls on the buttocks. This had happened several times to each of the girls. J.P. testified that when she had forgotten her gym shoes one day, Hunt called her over to him and while talking to her, pinched her on the buttocks. At the hearing, Hunt admitted that he had pinched each of the girls on the buttocks, but denied that he had done so in an effort to obtain sexual gratification.
Following further testimony by two expert child psychiatrists, several teaching associates of Hunt, and Hunt himself, the hearing officer found that: (1) the testimony of the students was "competent and credible;" and (2) the undisputed acts of pinching the buttocks of the students were improper. However, the hearing officer found that there was insufficient evidence to show that Hunt's conduct was intended to be sexually provocative and, thus, ruled that Hunt's conduct was remediable and necessitated a warning prior to dismissal.
Subsequently, the board filed its complaint with the circuit court for administrative review, alleging that the hearing officer's decision to reinstate Hunt was contrary to and not in accordance with the law, and was unsupported by the evidence. The circuit court held that Hunt's conduct was irremediable, reversed the hearing officer's decision, and directed that an order of discharge be entered. In reaching its decision, the circuit court noted that the hearing officer had found the students' testimony to be competent and credible, and that it was undisputed that Hunt had pinched the buttocks of the three girls. The circuit court then concluded that such intolerable and impermissible conduct could not, under any circumstances, be considered remediable. Hunt's timely appeal followed.
The sole issue on appeal is whether the cause for defendant's discharge was remediable or irremediable. If the cause was remediable, defendant would have been entitled to a warning pursuant to section 24-12 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24-12). Because compliance with the procedures set forth in section 24-12 is jurisdictional, if a warning is not given with respect to a remediable cause, the board lacks jurisdiction to dismiss the teacher. Welch v. Board of Education (1977), 45 Ill. App.3d 35, 37-38, 358 N.E.2d 1364.
• 1 The two-prong test for remediability (the remediability test) as set forth by the Illinois Supreme Court in Gilliland v. Board of Education (1977), 67 Ill.2d 143, 153, 365 N.E.2d 322, is as follows:
"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 [him]."
The test has been applied to a variety of fact situations in which the complained-of conduct has concerned either deficiencies in teaching performance (see, e.g., Grissom v. Board of Education (1979), 75 Ill.2d 314, 388 N.E.2d 398; Aulwurm v. Board of Education (1977), 67 Ill.2d 434, 367 N.E.2d 1337; Morris v. Board of Education (1981), 96 Ill. App.3d 405, 421 N.E.2d 387; Board of Education v. State Board of Education (1980), 82 Ill. App.3d 820, 403 N.E.2d 277) or corporal punishment. (See, e.g., Board of Education v. State Board of Education (1983), 99 Ill.2d 111, 457 N.E.2d 435; Gilliland v. Board of Education (1977), 67 Ill.2d 143, 365 N.E.2d 322.) However, we have found no ...