NO. 84-16 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

TIM J. MASSEY, 

Petitioner and Respondent, 

ED ARGENBRIGHT, Superintendent 

of Public Instruction, and 

TRUSTEES OF CUSTER COUNTY 

DISTRICT HIGH SCHOOL and MILES 

CITY SCHOOL DISTRICT #Ir 

Respondents and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John W. Larson argued for Superintendent of Public 

Instruction, Helena, Montana 

Brown & Huss; Bruce M. Brown argued for School Dist. 

#1, Miles City, Montana 

Richard Bartos, Offica of Public Instruction, Helena, 

Montana 

For Respondent : 

Hilley & Loring; Emilie Loring argued, Great Falls, 

Montana 

For Amicus Curiae: 

Charles Erdmann argued for Montana School Boards Assoc., 

Helena, Montana 

Filed: 

Submitted: June 19, 1984 

Decided: July 23, 1984 

a. 

&fi 755, G$ld 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Tim Massey, a tenured teacher at Custer County High 

School, sought judicial review in the First Judicial District 

Court of a decision of the State Superintendent of Public 

Instruction, affirming his dismissal by the school district. 

The District Court reversed the State Superintendent and held 

for the tenured teacher. The State Superintendent and school 

district trustees appeal. We affirm the District Court. 

The issue presented on appeal is whether a teacher 

acquires tenure in all areas in which he is certified, even 

though he has teaching experience within the district in only 

one certification area. 

The parties stipulated to the following facts. Massey 

graduated from Dickinson State College in North Dakota in 

1970 with a major in business education and a minor in 

physical education. He taught physical education at the high 

school and elementary level for one year in South Dakota 

before coming to Montana. 

The Montana Office of Public Instruction has certified 

Massey with a secondary endorsement (for high school and 

middle school) to teach business education (with typing), 

physical education and health. 

Massey was employed in 1975 to teach in the business 

education department at Custer County High School. He taught 

in that department for seven years. He did not teach 

physical education or health during that time. 

All the teachers in the business education department at 

Custer County High School had tenure. A drop in student 

enrollment in that department resulted in a reduction in 

staff. Massey was timely notified that his teaching contract 

would not be renewed. Upon his request, reasons were 

supplied. 
At the time the board of trustees terminated Massey's 

employment, the following non-tenured teachers were employed 

by the school district: 

(1) Female teaching physical education in the 

Custer County High School for one year. 

(2) Male teaching physical education in grad.es 7 

and 8 for one year. 

(3) Female teaching elementary education in grades 

K through 6. This teacher acquired tenure upon 

signing a contract for the 1982-83 school year. 

These three teachers all had majored in physical education in 

college. It is the policy of the board of trustees to 

attempt to hire teachers with a major in the field. 

Massey contends that the school district's retention of 

a non-tenured teacher in a position that a tenured teacher is 

certified to teach is contrary to law. 

The school district and State Superintendent of Public 

Instruction contend that Massey has not taught physical 

education since 1975; that all teachers presently employed 

have graduated with majors in P.E.; that only one female 

teacher is teaching physical education at the high school and 

that a female teacher is necessary in that position in order 

to maintain locker room discipline; that all P.E. teachers 

presently employed by the district have taught P.E. for at 

least one year and are familiar with the physical education 

department; and that teaching in the business education 

department and physical education department are not 

comparable positions. 

The county superintendent affirmed the school district 

trustees' conclusion that the tenure rights of teachers are 

delimited by the position held under the last executed 

contract and the tea.cherrs background and qualifications. The 

State Superintendent of Public Instruction affirmed the 

county superintendent, expressly holding that "for the 
purposes of interpreting the comparable position requirement 

of Section 20-4-203, MCA, teaching experience is necessary." 

The absence of physical education teaching experience on the 

part of Massey was felt to be controlling. 

The Superintendent of the Office of Public Instruction 

states that endorsement of areas of teacher certification is 

based solely on the teacher's college transcript. The State 

Superintendent points out that, under current certification 

standards, no additional or continuing education is required 

for a teacher to maintain certification in areas of secondary 

endorsement. He argues that certification was never intended 

by the Legislature to replace a local school district's 

evaluation of a teacher's actual teaching experience in that 

district. 

The District Court decision pointed out that it is 

highly inconsistent for the State Superintendent to encourage 

certification to increase employability, then insist that 

certification does not mean a person is qualified to teach in 

the certified area. The District Court emphasized that a 

school district may not dismiss a tenured teacher and retain 

a non-tenured teacher in the same general area of competency. 

The District Court further pointed out that petitioner is 

qualified to teach physical education; there is nothing in 

the record to indicate he was in fact incompetent; and he was 

therefore dismissed without good cause while a non-tenured 

teacher was retained to fill a position for which he was 

qualified. Upon these grounds, the District Court reversed 

the decision of the State Superintendent. No remedy was 

ordered because neither the State nor County Superintendent 

had considered Massey's request for reinstatement and back 

Pay 
From the court's order remanding the cause for a 

determination of appropriate remedies, the State 

Superintendent and School District Trustees appeal. 

The pertinent statute is section 20-4-203, MCA, which in 

part provides: 

"Whenever a teacher has been elected by the offer 

and acceptance of a contract for the fourth 

consecutive year of employment by a district in a 

position requiring teacher certification . . . the 

teacher shall be deemed to be reelected from year 

to year thereafter -- as a tenure teacher at --- the same 

Y------ salar and in the same or a comparable position of 

em~lovment - as that ~rovided 2-- bv the last executed - - 

contract . . ."(emGhasis added) 

The essential question here is whether any of the positions 

held by non-tenured teachers in the district at the time the 

school board voted not to renew Massey's contract to teach in 

the business education department was a comparable position 

of employment which should have been offered to Massey. 

This Court has held that " [a] teacher's tenure is a 

substantial, va.luable and beneficial right, which cannot be 

taken away except for good cause." State v. District Court, 

Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214. 

This tenure right must be balanced against the school board's 

"requisite authority to manage the school district in a 

financially-responsible manner. This includes eliminating 

certain programs and activities, and thereby terminating or 

reassigning personnel." Sorlie v. School Dist. No. 2 (Mont. 

In Sorlie, a tenured elementary school teacher had 

accepted an administrative position as Coordinator of 

Intermediate Education. When a school mill levy failed the 

following year, she was reassigned from her position as 

administrator to teacher of a second grade class. This Court 

held that tenure rights acquired as a teacher applied to the 

subsequent administra.tive position; that for the purposes of 
tenure the positions were comparable; and that the 

reassignment did not violate Mrs. Sorlie's tenure rights so 

long as she retained her administrator's salary after 

reassignment to the classroom. 

"While the two positions involved here [Coordinator 

of Intermediate Education and elementary school 

teacher] are comparable for purposes of acquiring 

tenure, they are functionally dissimilar. However, 

we conclude that reassignment, without reduction in 

salary, for legitimate financial constraints, is 

justifiable and not contrary to tenure laws." 

Sorlie, 667 P.2d at 403, 40 St.Rep. at 1074. 

The fact that Mr. Massey was a tenured teacher, 

certified to teach in several areas of instruction, is not 

disputed. In this instance, the teaching positions for which 

Mr. Massey was certified by the Office of Public Instruction 

are comparable positions of employment under section 

20-4-203, MCA. We hold that for the purposes of tenure 

teaching business education is comparable to teaching 

physical education. 

As the District Court in this case correctly pointed 

out, the phrase "comparable position of employment" cannot be 

given a broad meaning when a school district wishes to 

reassign a tenured teacher to another position, as was done 

in Sorlie, and at the same time be construed narrowly when a 

district chooses to terminate a tenured teacher. 

Because Mr. Massey was a tenured teacher, he was 

entitled under the tenure laws to a certain degree of 

employment and economic security, which non-tenured teachers 

do not enjoy. The school board's policy of hiring only those 

teachers who have majored in the subject does not supersede 

the Teacher Tenure Act. 

We hold that the school board was obligated to offer Mr. 

Massey one of the comparable teaching positions held by 

non-tenured teachers. At this point, we need not address the 
question of the power of a school board to reassign a tenured 

teacher, over his objection, to a different grade level 

teaching position for which he is certified. To the extent 

that Smith v. School Dist. No. 18 (1943), 115 Mont. 102, 139 

P.2d 518, contradicts the holding in this case, it is 

expressly overruled. 

We affirm the District Court and remand the cause for a 

determination of remedy and/or damages. 

We concur: 

=%7M-.k4,SyPd& 

Chief Justice 

Justices 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent. 

The majority opinion states: "We hold that for the 

purposes of tenure teaching business education is comparable 

to teaching physical education." 

If the Montana education system contained only one-room 

school houses, staffed with renaissance personnel, I coul.d, 

perhaps, accept that holding. 

That situation fortunately has been replaced by a 

system which requires departmentalization not only by age, 

but by abilities and talents. Article XI Section 1 of the 

Montana Constitution declares our educational goals and 

duties by stating: "(1) It is the goal of the people to 

establish a system of education which will develop the full 

educational potential of each person. . . (3) The legislature 

shall provide a basic system of free quality public 

elementary and secondary schools. . . " 

The board of trustees of each school district is 

specifically charged with carrying out the Constitutionally 

declared public policy. 

It was clearly within the authority of the trustees of 

the Custer County District High School to set the 

qualification standards for employment as a teacher in the 

district, and the parties stipulr~ted that it was the policy 

of the board to attempt to hire teachers with a major in the 

fie16 to be filled. It is clear that the respondent would 

not have been hired as a physical education teacher by the 

district. 

In my view, the majority, by elevating "certification" 

to the level of "tenure" has effectively removed a 
substantial portion of t.he local trustees' authority to set 

qualification standards, and has transferred tha.t authority 

to the State Superintendent of Public Instruction and the 

Board of Public Education. 

In Smith v. School District 18 (1943), 115 Mont. 102, 

112, 139 P.2d 518, the Kontana Supreme Court quoted, with 

approval, the Supreme Court of the State of Minnesota, as 

follows: 

"A holding that a teacher tenure position 

extended to and included the right to 

teach any subject, major or minor, for 

which he held a certificate, regardless 

of whether he was employed or assigned to 

teach such subject, and that such right 

was equal to that of another teacher 

specially qualified to teach a subject 

and employed for that reason might be a 

'consummation devoutly to be wished' by 

the teaching profession, but certainly 

not by a hoard desiring to improve the 

educational standards of its schools. It 

would complicate rather than simplify the 

administration of schools, and this to 

their definite disadvantage. The 

(certification) statutes referred to 

merely fix the qualifications for 

teaching 'positions' and do not make a 

teacher's 'qualifications' and his 

'position' coextensive." State ex re1 

Ging v. Board of Education of City of 

Duluth (Minn. 19421, 7 N.W.2d 544, 561. 

In State ex re1 Gin.g, cited in the Smith decision, the 

Minnesota Supreme Court stated: 

"Clearly, the statute should receive a 

construction in harmony with its well 

understood purposes, yet not one so 

liberal as to result in subordinating the 

paramount rights and welfare of the 

public at large and of the school 

children to those of the individual 

teachers. The adoption of a liberal 

construction to combat the evils to which 

the law was directed does not permit a 

construction so benevolent toward 

teachers that, by eliminating one evil, 

we create another: that of transferring 

from the school boards, the duly elected 

representatives of the parents, taxpayers 

and other electors of the school 

district, to the teachers and the courts 
the management, supervisj-on, and control 

of our school systems vested in such 

boards by other statutes." 

The Smith decision has guided school boards for more 

than forty years and is now overruled by the ma-jority without 

discussion. 

It is obvious that this opinion will cause a drastic 

revision in the certification requirements or a definite 

change in the teacher hiring process by local trustees. 

Regarding the present certification process, a business 

education teacher could retain his secondary endorsement in 

physical education for an indefinite period of time without 

ever taking additional physical education credits. The 

ms.jority has stated that business education and physical 

education are comparable positions, and the result could be 

that a physical education teacher of thirty years experience, 

with a secondary certificate in business education but with 

no additional credits in business education and never having 

taught business education, could replace a non-tenured 

teacher with a major in business ed.ucation. Most trustees, 

and many parents, would justifiably conclude that such a 

preference could not result in quality education. 

Regarding a possible change in hiring practices, the 

Appellate Court of Illinois in Newma.n v. Bd. of Education of 

Bluffs Community Unit School (1981), 424 N.E.2d 1331 at 1336, 

made the following observation: 

"When a local. school board initially 

hires a teacher for a particular 

position, it ha.s available his college 

transcript and from it can determine 

whether that person is academically 

qualified to teach the courses that will 

be assigned to him. It is a peculiar 

anomaly of the system that the local 

hoard may then be required., under the 

Tenure Act, to allow that teacher to 

teach other courses, for which the board 
would never have hired him--in the first 

instance--because of his disastrous 

performance in his college courses in 

those subjects. As it stands, the system 

works to the disadvantage both of schools 

and of some prospective teachers, for it 

encourages local boards to look at an 

applicant's academic qua1.ifications in 

areas for which he is not being hired. 

Thus, 2 person who is especially well 

qualified a~ade~cal~~ . . - to filly . . - 

 articular Dosition --- micrht not be hired 

because - of be - local hoard's -- fear that 

some day it may be required to put -- him in 

- a Dosition which he would not he 

academically qualifTed - to ho 1 d." 

(Emphasis added.) 

In my view the District Court failed to properly 

consider the educationa.1 policies pronounced in the 

Constitution and by the legislature along with the management 

rights of local boards of trustees. T would reverse the 

order of the District Court a.nd would reinstate the 

determination of the State Superintendent of Public 

Tnstruction and the Custer County Superintendent of Schools.