Phillips v. South Range Local School District Board of Education

Alice Robie Resnick, J. The Ohio Teachers’ Tenure Act of 1941 (H.B. No. 121,119 Ohio Laws 121) was enacted to provide teachers with employment stability. “ ‘The very laudable purpose of this act was to insure to the teachers some measure of security in their important work and to free them, at least to a measurable extent from the “vicissitudes of politics” or the likes or dislikes of those charged with the administration of school affairs.’ ” State, ex rel. Bishop, v. Bd. of Edn. (1942), 139 Ohio St. 427, 439, 22 O.O. 494, 499, 40 N.E. 2d 913, 919, quoting Bd of Edn. of Mar shall County v. Baugh (1941), 240 Ala. 391, 395,199 So. 822, 825. The Act, now codified at R.C. 3319.08 through 3319.18, is to be construed in favor of teachers. State, ex rel. Rodgers, v. Hubbard Local School Dist. Bd. of Edn. (1984), 10 Ohio St. 3d 136, 138, 10 OBR 458, 459, 461 N.E. 2d 1308, 1310. Where a board of education decides to terminate the continuing contract of a teacher, it must follow R.C. 3319.16, which provides that a contract may be terminated only “* * * for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. * * *” If a teacher’s contract is terminated under the provisions of R.C. 3319.16, then due-process protection, such as notice and opportunity for a hearing, is required. R.C. 3319.17 is a special statute which enables a board of education to suspend teachers’ contracts for a decline in enrollment, which is totally unrelated to the teachers’ perform-ance. R.C. 3319.17 provides in part: “When by reason of decreased enrollment of pupils, return to duty of regular teachers after leaves of absence, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to [68] reduce the number of teachers, it may make a reasonable reduction. * * *” In Dorian v. Euclid Bd. of Edn. (1980), 62 Ohio St. 2d 182,184,16 O.O. 3d 208, 210, 404 N.E. 2d 155, 158, we held that “[a] board of education is not required to use the procedures enumerated in R.C. 3319.16 for terminating a teacher under a continuing contract if it follows*the procedures for suspension of the contract under R.C. 3319.17, and if the suspension is due to one of the reasons enumerated therein.” The General Assembly enacted R.C. 3319.17 in order to give boards of education flexibility by balancing “* * * the needs of a school system with the rights of the teacher who holds a continuing contract.” Id. Because the purpose of the Teachers’ Tenure Act is to provide teachers with some degree of job security, R.C. 3319.17 is construed narrowly against boards of education. See State, ex rel. Kohr, v. Hooker (1958), 106 Ohio App. 1, 4, 6 O.O. 2d 269, 270, 152 N.E. 2d 788, 791. R.C. 3319.17 dispenses with the due-process requirements of R.C. 3319.16, and will apply only if one of the conditions therein is shown to exist. It is an emergency measure. A board of education may suspend a teacher’s continuing contract pursuant to R.C. 3319.17 only if three requirements are met: first, the existence of one of the reasons enumerated in R.C. 3319.17; second, the reduction must be made “by reason of” one of those enumerated reasons; and third, the reduction must be reasonable. Appellant asserts that the board did not suspend her contract because of a decline in enrollment. Instead she contends that the suspension was due to changes in the Business Education Department. Appellee, on the other hand, states that it suspended her contract as a result of a decline in enrollment. We must therefore look at appellant’s contract suspension in light of R.C. 3319.17 and determine whether the trial court properly sustained ap-pellee’s motion. At the evidentiary hearing held on September 12, 1985, both parties presented evidence regarding enrollment at the district and high school levels, including the Business Education Department. Although the record discloses some discrepancies in these figures, the trial-court in its decision on the cross-motions for summary judgment determined that the facts were “substantially undisputed.” The court found that although there was no short-term decline in enrollment, there had been a decline in enrollment in the school district during the ten-year period beginning in 1976. The court determined that average daily membership (“ADM”) in the district in both 1984-1985 and 1985-1986 was 1,239.2 During the prior ten years, however, it found that there had been a decrease in the school district of three hundred fifty-seven students. The court also stated that, with the consolidation of the office courses and the elimination of shorthand in the Business Education Department, a further decrease in enrollment was demonstrated in that particular department. Appellant argued that because there was no district or high school enrollment decline during the year of [69] the suspension of her contract, the board acted improperly and in violation of R.C. 3319.17. Appellee countered that in Dorian, supra, we found that a nine-year overall decline in enrollment immediately preceding a suspension could be the basis of a reduction in force pursuant to R.C. 3319.17. The trial court, relying on Dorian, supra, held that a long-term decline could be used for determining whether there had been a decline in enrollment pursuant to R.C. 3319.17. It found that R.C. 3319.17 set forth no time frame during which a decline must occur and that appellee could use the overall ten-year decline in enrollment as a basis for suspension of appellant’s continuing teaching contract. We agree that a decline in pupil enrollment does not necessarily occur in a short period of time. It may occur gradually. However, in the case before us, the record shows that there was no decline in high school enrollment in the year of the suspension of appellant’s contract. High school enrollment had been increasing each year since 1983, and district-wide enrollment was approximately the same in the 1984-1985 school year as in the 1985-1986 school year. The lower court’s reliance on Dorian, supra, was misplaced in that it is factually distinguishable from the instant case. In Dorian, the record shows that an eleven-year decline in enrollment continued during and beyond the year of the suspension. Here, the record shows that the decline had stopped prior to the suspension. There is a difference between suspending a teacher’s contract in the midst of declining enrollment and suspending a teacher’s contract as done here, after the district-wide decline had ceased and where there was evidence that, at least at the high school level, enrollment was increasing. A board of education cannot base its reduction in the number of teachers on R.C. 3319.17 unless it can show that its action was “by reason of” one of the statutory exceptions contained therein. In the case before us one of the enumerated reasons for invoking R.C. 3319.17, declining enrollment, had ceased to exist at the time of the suspension of appellant’s contract. To allow a board of education to loosely use “declining enrollment” as a reason for suspension, when, as here, enrollment no longer was declining, would be to emasculate the teacher tenure law. R.C. 3319.17 should be used only where an actual and current decline in enrollment is shown to exist at the time of a reduction in the number of teachers. In Hixson v. Greater Latrobe School Dist. (1980), 52 Pa. Commw. 92, 421 A. 2d 474, the court construed a statute which, like R.C. 3319.17, allowed a school board to suspend a teacher’s contract because of substantial decline in pupil enrollment.3 There, the board of education tried to use a prior year’s enrollment decline as the basis for suspension in the following year. The court held that a school board could not suspend a teacher’s contract because of declining enrollment when all suspensions based on such decline were completed in the previous year. The court ruled that “[t]he enumerated reasons are the ex70 elusive basis on which a suspension of a professional employee may be made. Sporie v. Eastern Westmoreland Area Vocational Technical School, 47 Pa. Cmwlth. 390, 408 A. 2d 888 (1979). A suspension on any other basis is invalid.” Hixson, supra, at.__, 421 A. 2d at 476. We further note that here the trial court stated in its judgment entry on the preliminary injunction on December 17, 1985 that the Business Education Department enrollment “over the past year or so * * * was cut, probably by the consolidation of the Office courses and the elimination of Shorthand.” In its June 22, 1987 judgment entry on the parties’ motions for summary judgment, the court again stated that the “office courses were consolidated and the Shorthand course was eliminated which resulted in fewer students in the Business Education Department * * Sandra Mink, appellant’s colleague in the Business Education Department, and Ralph Robinette, Superintendent of South Range Local School District, both testified that consolidation of courses and elimination of one teacher in the Business Education Department would result in a declining enrollment in that department. If a board of education reorganizes a department, with the result being a decreased student enrollment, it cannot use such decreased enrollment to support a suspension pursuant to R.C. 3319.17. The statute does not apply to the situation where the board’s own action results in a declining enrollment. Nor does it apply when a board of education eliminates a subject which a teacher is certified to teach. See State, ex rel. Cutler, v. Pike Cty. Joint Area Vocational School Dist. (1983), 6 Ohio St. 3d 138, 6 OBR 195, 451 N.E. 2d 800. Rather, R.C. 3319.17 was enacted to allow boards of education, in emergency situations such as a current decline in enrollment, to reduce the number of teachers “due to circumstances beyond the boards’ and the teachers’ control.” (Emphasis added.) Dorian, supra, at 184, 16 O.O. 3d at 210, 404 N.E. 2d at 158. It cannot operate where the board’s own manipulations, no matter how benign, form the basis of suspension of a tenured teacher’s contract. To rule otherwise would allow a board of education to circumvent the teacher tenure law. Cf. Frieberg v. Bd. of Edn. of Big Bay de Noc School Dist. (1979), 91 Mich. App. 462, 283 N.W. 2d 775. Appellee correctly states that its decision to suspend appellant’s contract occurred prior to any decrease in enrollment allegedly caused by consolidation and elimination of certain Business Education Department courses. However, both lower courts considered enrollment figures and ADM before and after the suspension in order to determine whether there had been long-term or short-term declines in enrollment. We find that if a board of education decides to suspend a teacher’s contract only a few weeks before the start of a new school year, purportedly because of a decline in enrollment, a court properly can look at enrollment before and after such suspension in order to determine whether a decline in enrollment indeed existed during and immediately following the year of suspension. We acknowledge that a board of education has a particular expertise in making decisions regarding course offerings. It must have flexibility to meet current educational needs. The board of education, however, does not have unbridled discretion in designing the makeup of the curriculum and professional staff. “* * *A professional employee may not be suspended upon a mere finding that he is unnecessary, or [71] else the tenure provisions of the Code would be meaningless. See Lang an v. Pittston School District, 335 Pa. 395, 6 A. 2d 772, (1939). * * *As stated in Ehret [v. Kulpmont Borough School District (1939), 333 Pa. 518, 5 A. 2d 188], ‘a department may not be abolished merely to circumvent the [tenure provisions] and to accomplish the dismissal of a teacher for political or arbitrary reasons by unlawful subterfuge.’ 333 Pa. at 528, 5 A. 2d at 193.” Sporie v. Eastern Westmoreland Area Vocational-Technical School (1979), 47 Pa. Commw. 390,_., 408 A. 2d 888, 892. A suspension of a teacher’s continuing contract must be based squarely on one of the enumerated reasons in R.C. 3319.17. A suspension because of restructuring of a department or economy measures, therefore, would not be proper under R.C. 3319.17. See Alberts v. Garofalo (1958), 393 Pa. 212, 142 A. 2d 280. Likewise, if a board of education, in an effort to reduce a projected budget deficit, abolished certain teaching positions, thereby resulting in one excess teacher in the Business Education Department, suspension of that teacher’s contract would not be proper. See Theros v. Warwick Bd. of School Directors (1979), 42 Pa. Commw. 296, 401 A. 2d 575. Upon review of the record, we find that appellant’s suspension was not based on the reasons provided in R.C. 3319.17. District-wide and high school enrollment had ceased to decline in the year of suspension and therefore could not properly form the basis for her suspension. “It is clear, of course, that a school board has the right to abolish a position when, in the discretion of the board, that position is no longer necessary. * * * It is also clear that a tenured professional employee whose position has been abolished is protected by the tenure provisions of the Code and therefore cannot be suspended except for one of the reasons enumerated therein. * * *” Brinser v. Cumberland-Perry Area Vocational-Technical School Joint-Operating Committee (1979), 44 Pa. Commw. 554, _, 405 A. 2d 964, 967. If we were to allow a suspension pursuant to R.C. 3319.17 when there was no decline in enrollment during the year of suspension, we would be permitting a board of education to suspend a contract without the protection afforded by the Teachers’ Tenure Act, including the due-process provisions set forth in R.C. 3319.16. R.C. 3319.17 is a special statute which can be invoked on the basis of declining enrollment only when there is an actual continuing decline in enrollment. It applies in those situations where a decline in enrollment exists and will likely continue in the near future. We reiterate that R.C. 3319.16 is the appropriate statute to use when terminating a teacher’s contract. A “suspension” of a contract can be used only when one of the limited number of conditions provided for in R.C. 3319.17 is found to exist. A board of education cannot invoke R.C. 3319.17 when it decides to restructure a department and reduces the number of teachers pursuant to the reorganization. Summary judgment is appropriate where no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come only to one conclusion, that being a conclusion adverse to the party against whom the motion for summary judgment is made. Furthermore, the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66, 8 O.O. 3d 73, 74, 375 N.E. 2d 46, 47. [72] There is little dispute that the decline in district-wide enrollment had ceased during the year of appellant’s suspension. Accordingly, we hold that summary judgment was improperly granted to appellee. A long-term decrease in enrollment cannot be the basis for a reduction in the number of teachers where the record shows that in the year of a teacher’s suspension there was no decline in enrollment. Summary judgment is hereby entered for appellant and the judgment of the court of appeals is reversed. Judgment reversed. Sweeney, Douglas and H. Brown, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent. Footnotes [2] ADM is “based on membership in regular day classes during the first full school week in October.” Baker & Carey, 1988-89 Handbook of Ohio School Law (1988) 164, Section 5.44. See, also, R.C. 3317.02(A). It is used for determining funding for school districts. [3] The Ohio Teachers’ Tenure Act was modeled after similar laws of other states, in particular those of Indiana and Pennsylvania. State, ex rel. Kohr, v. Hooker (1958), 106 Ohio App. 1, 3, 6 O.O. 2d 269, 270, 152 N.E. 2d 788, 790. See, also, 82 Ohio Jurisprudence 3d (1988) 476, Schools, Universities and Colleges, Section 247.