Birk v. Board of Education of Flora Community Unit School District No. 35

JUSTICE MORAN, dissenting:

The majority correctly notes that the outcome of this appeal hinges on the applicability of section 24 — 12 of the School Code to the facts of the case at bar. Because I do not believe that the seniority privileges contained in that section apply when a tenured teacher’s extended term contract is reduced to the standard contract length of nine months, I respectfully dissent.

The protections of section 24 — 12 are triggered upon the removal or dismissal of a tenured teacher. Where tenured teachers are removed or dismissed, as a result of a decision of the board to decrease the number of teachers employed, the code provides that the board shall dismiss such teachers according to inverse seniority. (Ill. Rev. Stat. 1981, ch. 122, par. 24—12.) While I would not limit the applicability of this section to instances of complete termination, I am hesitant to extend the protections of section 24 — 12 to this plaintiff, who has been retained in a full-time teaching position despite the reduction of his contract.

The majority is persuaded by the reasoning of Caviness v. Board of Education (1978), 59 Ill. App. 3d 28 . In that case, however, a tenured teacher was reduced from full-time employment to a half-time teaching position. Although the court there stated that any reduction in the extent of a teacher’s employment would trigger the protections of section 24 — 12 ( 59 Ill. App. 3d 28, 31 ), this statement must be interpreted within the factual context of that case. As this court has stated in the past, the words of a judicial opinion do not have vitality independent of the facts to which the opinion is addressed. (People v. Arndt (1971), 49 Ill. 2d 530, 533 ; People v. Morales (1971), 48 Ill. 2d 396, 400 .) Therefore, I would interpret Caviness to require the board to comply with the provisions of section 24 — 12 whenever it reduces a tenured teacher to less than a full-time schedule.

Accordingly, I believe the majority erred in extending the reasoning of Caviness to the instant case. For although sound policy considerations favor including a reduction of employment to less than full time under the provisions of section 24 — 12, those same considerations are not present when an extended-term contract is reduced by the board to full time. As long as a teacher’s full-time contract is protected by the provisions of section 24 — 12, a school board cannot circumvent the purpose of the tenure laws by reducing a teacher’s contract to the point where economic necessity would force the tenured teacher to resign. Thus, by holding that a tenured teacher’s right to full-time employment is all that is protected by section 24 — 12, the court could have protected the rights of tenured teachers without unduly limiting the board’s discretion.

Instead, the majority’s holding stretches the plain meaning of the statutory terms “removed” or “dismissed” beyond recognition. Quite simply, a teacher who is employed full time by the board cannot be said to have been “dismissed” within the meaning of section 24 — 12.

Moreover, such an interpretation also conflicts with past decisions which have held that the statutes governing teacher tenure create liabilities where none would otherwise exist, and must, therefore, be strictly constraed in favor of the board. Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344 ; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 130 ; Lester v. Board of Education (1967), 87 Ill. App. 2d 269, 280 .

For the foregoing reasons I would reverse the judgment of the appellate court.

RYAN, C.J., and UNDERWOOD, J., join in this dissent.