11 N.J. Misc. 751 | N.J. | 1933
The board of education of the town of Kearny challenges the legality of an order of the commissioner of education, made March 13th, 1933, directing the prosecutor to reinstate as many of the defendant teachers as there were positions in its school system on the reorganization of August 3d, 1932, which had been filled by teachers who were not on that date protected by the Tenure of Office act, if the defendant teachers were at that time or had previously been employed in such type of work, and assigning the defendant teachers as nearly as might be to positions of similar rank to those which they held during the school year 1931-1932, and directing the payment of their salaries in the amount to which they would he entitled under the salary schedule for
In the town of Kearny, on June 30th, 1932, there were ten elementary schools with an enrollment of five thousand four hundred and twenty-eight. pupils. There were seven vacant rooms and one thousand and fifty-nine additional vacant seats distributed in the various buildings. At that time there were in the employ of the prosecutor ten principals and one hundred and eighty-two elementary teachers. Because of economic conditions the prosecutor deemed it advisable to reorganize the school system and provide a standard class size of thirty-five pupils. In order to accomplish this, pupils from a number of smaller classes were distributed among other classes so as to equalize the pupil load. The result of the transfers showed that the pupils could be as efficiently taught with approximately thirty-six less teachers. The precéding portion of this paragraph is stated in the prosecutor’s brief as a correct summary of the proofs, and we accept it as such. In the reorganization thirty-six teachers were eliminated. Of that number fourteen were non-tenure teachers and twenty-two were tenure teachers. After the abolition of the positions of thirty-six teachers there remained in the school one hundred and forty-six teachers, of whom sixteen had served less than three years and one hundred and thirty of whom had served more than three years. Stated otherwise, fourteen non-tenure teachers were retained at the same time that twenty-two tenure teachers were discharged, and the question is whether-that status was lawfully created.
It is conceded that the decrease in the number of pupils in the Kearny school district was not sufficient to justify the abolition of the positions of thirty-six teachers; but it is claimed that section 3 of the Tenure of Office act (Pamph. L. 1909, ch. 243; 4 Comp. Stat., p. 4764), in providing that “nothing herein contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when such reduction shall be due to a natural diminution of the number of pupils
It is also argued that the compensation paid the non-tenure teachers who were retained is less than the compensation paid, up to the time of dismissal, the tenure teachers who were dismissed. This suggestion carries little weight because the right of the prosecutor to reduce the salaries of the tenure teachers to a level commensurate with the grade taught is not at issue. As was said in the Seidel case:
“Granting that apart from the statute, a school board may in the interest of economy reduce the number of teachers, the protection afforded by the statute would be little more than a gesture if such board were held entitled to make that reduction by selecting for discharge teachers exempt by law there