*1 MASSEY, TIM J. v. ED Respondent, Petitioner ARGENBRIGHT, Instruction, of Public High and Trustees of Custer School City Respondents #1, and Miles School district Appellants. No. 84-16.

Submitted June 1984. July Decided 1984.

683 P.2d 1332. *2 Helena, Superintendent for argued, Larson John W. Instruction. Public City, for Miles Huss, Brown argued, & Bruce M.

Brown No. 1. School District appellants. Bartos, Helena, respondents and

Richard Falls, for argued, Great Loring Emilie Hilley Loring, respondent. petitioner and Mon- Helena, for amicus curiae argued, Erdmann

Charles Boards Association. tana School of the Opinion WEBER delivered JUSTICE

MR. Court. County High at Massey,

Tim tenured teacher First Judicial in the School, review sought judicial of Public Superintendent a decision of State Court of Instruction, his affirming dismissal the school district. The District Court reversed the held for the tenured teacher. The State school appeal. district trustees affirm the We District Court. presented appeal issue on is whether a teacher ac- quires in certified, tenure all in areas which he is even though experience he in within the district only one certification area.

The parties stipulated to following Massey grad- facts. uated from College Dickinson State North Dakota 1970 with business minor education and a taught education. He physical education at high school and elementary year level for one in South Da- kota before coming to Montana.

The Montana Office of Instruction has Public certified Massey (for with a secondary endorsement high school and school) (with middle to teach business education typing), physical education and health. employed in 1975 to teach in the business ed- *3 department

ucation at High School. He taught in department that years. seven He did not teach physical education during or health that time.

All the teachers in the business department education at Custer County High A School had tenure. in drop student enrollment in department that in resulted a reduction in staff. Massey timely was notified that his teaching contract would not Upon be renewed. his request, were reasons supplied.

At the time the board of trustees em- Massey’s terminated ployment, following non-tenured em- teachers were ployed by the school district:

(1) teaching Female education in the Custer physical County High year. School for one

(2) teaching physical grades Male in 8 for education year. one

(3) teaching Female K elementary grades education in through upon 6. This con- acquired tenure signing year. tract for the 1982-83 school physical in education majored

These three teachers all had at- in of the board of trustees college. policy is the It in the field. tempt to hire teachers with retention of a Massey the school district’s contends that in a that a tenured teacher is position non-tenured teacher to law. contrary certified to teach is In- The of Public Superintendent school district and State physical edu- taught struction contend that 1975; presently employed all have cation since that teachers P.E.; only one female teacher graduated majors with that teaching physical high is school and education at necessary position order female teacher is pres- P.E. discipline; that all teachers maintain locker room for at least ently taught the district have P.E. employed de- year physical with the education one and are familiar de- business education partment; and that com- department are not partment physical education positions. parable county superintendent

The affirmed the school district of teachers are rights trustees’ conclusion that the tenure last con- position held under the executed delimited background qualifications. The tract and the teacher’s of Public Instruction affirmed pur- “for the county superintendent, expressly holding that requirement poses interpreting 20-4-203, MCA, neces- teaching experience of Section sary.” teaching experince The absence of controlling. felt part Massey on the to be Instruction of Public the Office of teacher certification states that endorsement of areas The State solely college transcript. teacher’s based on the *4 that, under current certification Superintendent points out standards, required is continuing no additional or secondary of certification areas teacher to maintain in- was never argues He that certification endorsement. replace district’s by Legislature local school tended teaching experience evaluation of a teacher’s actual in that district. pointed highly

The District Court decision it out that is encourage inconsistent for the State cer- employability, tification to increase then insist that certifi- person qualified cation does not mean a teach emphasized certified area. The District Court that a school may district not dismiss a tenured teacher and retain general compe- non-tenured teacher in the same of area tency. pointed peti- The District Court further out that qualified tioner is education; to teach there nothing incompe- in the record to indicate he was in fact good tent; and he was therefore dismissed without cause while a non-tenured teacher was retained to fill a qualified. Upon grounds, for which he was these Superintendent. Court reversed the decision of the State remedy No was ordered because neither the State nor County Superintendent Massey’s request had considered pay. for reinstatement and back remanding From the court’s order the cause for a determi- appropriate remedies, nation the State appeal. and School District Trustees pertinent 20-4-203, MCA, statute is Section which in part provides:

“Whenever a teacher has been elected the offer and ac- ceptance year of a contract for the fourth consecutive employment by position requiring a district in a certification. . .the teacher shall be deemed to be reelected year year as thereafter a tenure teacher at salary comparable position same and in the same or a employment provided by as that the last executed contract added.) (Emphasis . . .” question any positions

The essential here is whether held non-tenured teachers in the at the time the district Massey’s school board voted not to contract to teach renew po- department in the business education was a employment sition of which should have been offered to *5 336

Massey. tenure is a sub

This Court held that teacher’s “[a] stantial, which cannot be right, and beneficial valuable Court, v. away good cause.” except taken for 361, 209, (1954), 353, P.2d Fergus County 128 Mont. 275 school against be balanced right 214. This tenure must authority manage the school district “requisite to board’s eliminating manner. This includes financially-responsible a activities, thereby terminating or programs certain (1983), 2 School Dist. No. personnel.” Sortie v. reassigning 1070, 400, 403, 1074. 22,] St.Rep. 40 Mont. 667 P.2d [205 elementary ac- Sortie, In school teacher had a tenured of Inter- cepted position an administrative as Coordinator fol- failed the levy mill mediate Education. When school as lowing year, she her reassigned was This class. Court grade teacher of a second administrator to applied as a to rights acquired held that tenure teacher of position; purposes for the subsequent administrative the reas- comparable; were and that positions tenure long rights so signment not violate Mrs. Sorlie’s tenure did reassign- salary after as her administrator’s she retained ment to the classroom. In- of here positions

“While the two involved [Coordinator elementary are school termediate Education teacher] tenure, they are func- acquiring comparable purposes for of However, reassign- tionally we dissimilar. conclude ment, salary, legitimate financial without reduction contrary tenure laws.” constraints, justifiable and not St.Rep. at 1074. Sortie, at 667 P.2d teacher, certi Massey The fact that Mr. was tenured instruction, disputed. is not fied teach several areas of instance, Mr. Mas teaching positions for which this are Instruction sey Office of Public was certified 20-4- Section comparable positions employment of under tenure, teach purposes We hold that for the MCA. ing business education

education. correctly pointed out,

District Court in this case phrase “comparable position employment” cannot be given meaning a broad when a school district to re wishes assign position, a tenured another as was done narrowly Sorlie, and at the same time be construed when district chooses to terminate a tenured teacher. teacher,

Because Mr. en tenured he was employ degree titled under the tenure laws a certain security, ment and economic which non-tenured teachers do enjoy. policy hiring only The school board’s those *6 subject super majored teachers who have in the does not sede the Teacher Tenure Act. obligated

We hold that the school board was to offer comparable teaching positions Mr. by one of the held point, non-tenured teachers. At this we need not address question power reassign the of the of a school board to a objection, grade teacher, tenured over his to a different teaching position level for which he is certified. To ex the (1943), tent that Smith v. School Dist. No. 18 115 Mont. holding 102, P.2d case, contradicts the in this is it expressly overruled.

We affirm the District Court and the for remand cause remedy damages. determination of and/or MR. CHIEF JUSTICE HASWELL and MR. JUSTICES SHEA, HARRISON, MORRISON and SHEEHY concur. dissenting: GULBRANDSON,

MR. JUSTICE respectfully I dissent. majority pur- opinion

The states: “we hold that for the poses tenure, business education is teaching physical education.” system only

If the Montana education contained one-room personnel, houses, could, school perhaps, accept with I staffed renaissance holding. replaced by system fortunately That situation has been requires departmentalization only by age, by which but X, abilities and talents. Section 1 of the Montana Article goals and duties Constitution declares our educational “(1) people sys- stating: goal of the to establish It the educational develop tem of will the education which full (3) pro- potential legislature shall person ... each quality public elementary and system of free vide basic . .” . secondary schools specifically each school district

The board trustees of Constitutionally carrying the declared charged with out public policy. authority of the trustees of the clearly

It was the within qualification to set the High School district, as a teacher in the employment standards policy it the board parties stipulated that was in the field to be fil- attempt with a to hire teachers respondent would not have been led. It is clear that the district. hired as a view, “certification” my majority, by elevating removed a substantial effectively level of “tenure” authority qualification set portion of the local trustees’ standards, authority and has transferred that Board of of Public Instruction and the Public Education. (1943), 115 Mont. v. District No. 18

In Smith School *7 quoted, 518, Supreme Court P. 2d the Montana of Minne- Supreme of the State the Court approval, with sota, as follows: extended to and holding

“A teacher tenure that a minor, for any subject, major or right included the to teach certificate, he of whether was regardless which he held a that such subject, teach such employed assigned or quali- specially another right equal to that of might employed for that reason subject fied teach teaching devoutly by be wished’ the be a ‘consummation improve certainly desiring profession, by board but compli- It of its schools. would standards the educational schools, and simplify the administration cate rather than (certification) The stat- disadvantage. definite this their utes fix merely qualifications referred to the ‘positions’ ‘qualifications’ and do not make a teacher’s Ging v. Board coextensive.” State ex rel ‘position’ his City Education Duluth (Minn. 1942), 550,] Minn. [213 7 N.W.2d 561. Ging, ex rel in the Smith decision, cited the Min- Supreme

nesota Court stated: “Clearly, in the statute should receive construction har- mony with yet its well lib- purposes, understood not one so eral as to result in subordinating paramount rights and public welfare of the at large and of the children to school those of the adoption individual The teachers. of a liberal construction to combat the evils to which the law was di- rected permit does not a construction so benevolent toward that, by teachers evil, one eliminating we create another: that of boards, transferring the school duly elected representatives of parents, taxpayers and other electors district, of the school to the teachers and the courts the management, supervision, systems and control of our school vested in such boards other statutes.”

The Smith guided decision has school boards for more forty years than and is now majority overruled with- out discussion.

It obvious opinion this will cause a drastic revision in the requirements certification or a definite change teacher hiring process by local trustees.

Regarding present process, certification a business ed- ucation secondary teacher could retain his endorsement physical education for period an indefinite of time without taking physical ever additional credits. ma- jority has stated that business education and edu- cation are positions, and the result could be a physical years experience, education teacher of thirty secondary with a certificate in business education but with no additional credits business education and never hav- ing taught education, replace business could a non-tenured trustees, teacher with business education. Most *8 a many conclude that such parents, justifiably would preference could not education. quality result practices, Appel- the possible change hiring Regarding v. Bd. Education late Court of Illinois in Newman of of (1981), 424 N.E.2d 1331 at Community Unit School Bluffs following the observation: made initially teacher for a “When local school board hires a transcript particular college his position, it has available person thait academi- it can determine whether qualified assigned will to cally to teach the courses that be anomaly system him. the local peculiar It is a of the Act, to board be the Tenure allow may required, then under courses, the to teach other for which board him —in first instance —because would never have hired the performance college his in his courses those of disastrous stands, system disadvantage subjects. works the As it teachers, for it en- prospective both of and of some schools courages applicant’s look academic local boards to at an Thus, qualifications being hired. areas for which he is especially academically person qualified who is well might particular position not be hired because fill of put day may required local board’s that some it be fear academically he him in a which would not be added.) qualified hold.” (Emphasis my properly failed consider view District Court policies in the Constitution and pronounced the educational management rights local legislature along with the I the order of boards trustees. would reverse of the State Court reinstate the determination and would Public Instruction Schools.