NO. 84-16 IN THE SUPREME COURTOF THE STATEOF MONTANA 1984

TIM J. MASSEY, Petitioner and Respondent,

ED ARGENBRIGHT, Superintendent of Public Instruction,and TRUSTEESOF CUSTER COUNTY DISTRICT HIGH SCHOOLand MILES CITY SCHOOLDISTRICT #Ir Respondents and Appellants.

APPEAL FROM: District Court of the First Judicial District, Inand for the County of Lewis & Clark, The Honorable Gordon Bennett,Judgepresiding.

COUNSELOF RECORD: ForAppellants: JohnW. Larson argued for Superintendent of Public Instruction, Helena,Montana Brown & Huss;BruceM. Brown argued for SchoolDist. #1,Miles City,Montana Richard Bartos,Officaof Public Instruction, Helena, Montana For Respondent: Hilley & Loring;Emilie Loring argued,Great Falls, Montana For Amicus Curiae: Charles Erdmann argued for Montana SchoolBoardsAssoc., Helena,Montana

Filed: Submitted: June 19,1984 Decided: July 23,1984



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# &fi 755,

# G$ld

ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court. Tim Massey, a tenured teacher at Custer County High School, sought judicial review in the FirstJudicial District Court of a decision of the State Superintendent of Public Instruction,affirming his dismissal by the school district. TheDistrictCourt reversed the State Superintendentand held for the tenured teacher. The State Superintendentand 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 certificationarea. 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 taughtphysical educationat thehigh school and elementary level for one year in South Dakota before coming toMontana. 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 departmentatCuster County High School. He taught in that department for seven years. He did not teach physical educationorhealth 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 thathis 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 CusterCounty High School foroneyear.

(2) Male teaching physical education in grad.es 7 and 8 foroneyear.

(3) Female teachingelementary education in grades K through 6. This teacher acquired tenure upon signing a contract for the 1982-83 school year. These three teachersallhad majored inphysical education in college. It is the policy of the board of trustees to attempt to hire teachers with amajor in the field. Massey contends that the school district's retention of

anon-tenured teacher 

### in aposition 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 thehigh schooland 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 comparablepositions. 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 contractand the tea.cherrs background and qualifications. The State Superintendent of Public Instruction affirmed the county superintendent, expressly holding that "for thepurposes 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 ofMasseywas felt tobe 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 tomaintain certification in areas of secondary endorsement. He argues that certificationwas 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 Superintendentto encourage certification to increase employability, then insist that certification does not mean aperson is qualified to teach in the certified area. The District Court emphasized that a school districtmay not dismiss a tenured teacher and retain

a non-tenured teacher in the samegeneral 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 hewas in fact incompetent;and hewas 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 PayFrom the court's order remanding the cause for a determination of appropriate remedies, the State Superintendent and School District Trustees appeal. Thepertinent 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 

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

### Y------ em~lovmentas that ~rovidedbv the last executed 

### - 2-- - - 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 schoolboard voted not to renewMassey's contract to teach in the business education department was a comparable position of employmentwhich shouldhave been offered toMassey. This Court has held that "[a] teacher's tenure is a substantial,va.luableand beneficial right,which cannot be taken away except for good cause." Statev. District Court, Fergus County (1954), 128Mont. 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. SchoolDist. 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 teacherof a secondgrade class. This Court held that tenure rights acquired as a teacher applied to the subsequent administra.tiveposition; that for the purposes oftenure 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 reassignmentto the classroom. "Whilethe twopositions involvedhere [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, 667P.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, thephrase "comparableposition of employment" cannotbe 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 terminatea 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 schoolboard's policy of hiring only those teachers who have majored in the subject does not supersede the Teacher TenureAct. We hold that the schoolboard was obligated to offerMr. Massey one of the comparable teaching positions held by non-tenured teachers. At thispoint,we need not address thequestion of the power of a schoolboard to reassigna tenured teacher, over his objection, to a different grade level teaching position for which he is certified. To the extent that Smithv. 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

JusticesMr. JusticeL. C. Gulbrandson dissenting.

I respectfullydissent. The majority opinion states: "We hold that for the purposes of tenure teaching business education is comparable to teachingphysical education." If theMontana education systemcontained only one-room school houses, staffed with renaissance personnel, I coul.d, perhaps, accept thatholding. 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 educationalpotential of eachperson. 

# . . (3)The legislature shall provide a basic system of free quality public elementary and secondary schools.

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# . " The board of trustees of each school district is specifically charged with carrying out the Constitutionally declaredpublic policy. Itwas clearlywithin 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~tedthat it was the

### policy of the board to attempt to hire teacherswith amajor 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. Inmy view, the majority,by elevating "certification" 

### to the level of "tenure" 

### has effectively removed asubstantial portion of t.helocal trustees' authority to set qualification standards, and has transferred tha.tauthority 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: "Aholding that a teacher tenureposition extended to and included the right to teach any subject, major or minor, for which he held a certificate, regardless of whether hewas 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 towhich 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 representativesof the parents, taxpayers and other electors of the school district, to the teachers and the courtsthe 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 fortyyears and isnow overruledby thema-joritywithout discussion. It is obvious that this opinion will cause a drastic revision in the certification requirements or a definite change in the teacher hiringprocess by local trustees. Regarding the present certification process, a business education teacher could retain his secondary endorsement in physical education for an indefiniteperiod 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 aphysical 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 inNewma.nv. Bd. of Education of Bluffs Community Unit School (1981),424N.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 boardwould 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 disadvantageboth 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 itmaybe required to

### put 

### -- him in a Dosition which he would not he - academically qualifTed - to ho 1

d." (Emphasisadded.) In my view the District Court failed to properly consider the educationa.1 policies pronounced in the Constitution and by the legislaturealongwith themanagement 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.