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06/30/87 Jolyon W. Schafer, v. the Board of Education of

June 30, 1987





510 N.E.2d 1186, 157 Ill. App. 3d 884, 110 Ill. Dec. 155 1987.IL.937

Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.


PRESIDING JUSTICE McMORROW delivered the opinion of the court. LINN and JOHNSON, JJ., concur.


The board of education of Arlington Heights School District No. 25 (the board) appeals from the order of the circuit court of Cook County which directed the board to reinstate Jolyon Schafer (Schafer) to his tenured position as a teacher with the board. Under the terms of the board's contract with the Arlington Teachers' Association in effect when Schafer was a tenured teacher, the board could honorably discharge a tenured teacher during a reduction in force where the teacher was "discernibly different." The board honorably discharged Schafer, following a hearing, on the ground that Schafer's teaching skills evidenced such "discernible differences." Schafer filed an action challenging his discharge. The trial court reviewed the evidence presented at the board's hearing, determined that the board actually discharged Schafer for "incompetence," and ordered his reinstatement as a tenured teacher.

On appeal, the board argues that section 24-12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24-12) permits a board's contract with a teacher association to establish an alternative sequence of dismissal other than inverse seniority during a reduction in force. The board contends that its agreement with the Arlington Teachers' Association, which recognized "discernible differences" as an alternative sequence of dismissal, is in accord with this provision of the School Code, and that Schafer was therefore properly dismissed on this basis by the board. The board also claims that the evidence presented at its hearing supported the board's determination that Schafer was "discernibly different."

We affirm.


When Schafer was discharged in 1982, the board's actions were governed by article X -- D of the professional agreement between the board and the Arlington Teachers' Association. If a reduction in force is necessary, article X -- D permits the board to honorably discharge a tenured teacher with a greater number of years of continuous service after the board has undertaken a composite review of the teacher's experience, training, performance, and "potential for success." Where this composite review indicates that the teacher has "discernible differences" in his teaching abilities, such that the teacher is not "the best qualified candidate" for a position, honorable discharge is considered appropriate under article X -- D of the agreement.

Prior to his discharge, Schafer had been a tenured teacher with 16 years of continuous service. He was certified to teach social studies and language arts in grades 6 through 12, had 42 credits above a bachelor's degree, and had taught eighth grade social studies, language arts, reading and grammar. At the onset of the 1981-82 school year, the board changed Schafer's teaching assignment to seventh grade language arts and reading. During the course of the year, Schafer recognized that he was having some difficulties in instructing the class, and sought and was given certain aid in his instruction.

Schafer was initially chosen as a tenured teacher who "might" be discernibly different in the fall of that same school year. At that time, the board was considering a reduction in the number of teachers it employed, although it had not yet formally decided to do so. In early 1982, the board determined to institute a reduction in force. Schafer was designated as a tenured teacher who would be considered for honorable discharge for discernible differences pursuant to article X -- D of the Arlington Teachers' Association agreement. The school board's director of administration and personnel, Dr. Joseph Ward (Ward), and the board's director of instruction, Dr. James Montgomery (Montgomery), made several independent observations of Schafer's classroom performance at various times during the following month. Schafer was later advised of both individuals' recommendation that he be viewed as "discernibly different." He requested, and received, a hearing before the board, wherein he was represented by counsel.

At the hearing, the administrator presented evidence of the administrative staff's observations of Schafer's classroom performance during the 1981-82 school year. Ward and Montgomery testified to the procedure followed in order to reach their Conclusion that Schafer was "discernibly different." This testimony established that the administration had looked at the past performance evaluations of other tenured teachers who were also qualified for Schafer's position, had fewer years of continuous service than did Schafer, and had not been previously suggested by any principal as "discernibly different." Of these other teachers, only one had a negative evaluation on a "minor problem" that had occurred six or seven years earlier.

Ward testified at the hearing that of the four criteria specified in article X -- D, past performance and potential for success were deemed more significant than training and experience. He stated that the final basis for concluding that Schafer was "discernibly different" was that "[there] were no other teachers that had the same kind of problems in the classroom that Mr. Schafer had." Montgomery, who was in charge of the board's negotiating team which participated in the drafting of article X -- D, also testified at the hearing that performance was "the key factor." He stated the purpose of the "discernibly different" standard was "to deal with the issue ...

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