Dr. W.A. Kritsonis, Selected Courts: Nonrenewal of Public School Professional Personnel Contracts for Reasons of Declining Enrollment or Economic Stress in Accordance with the Due Process of Law Dr. William Allan Kritsonis earned his PhD from The University of Iowa, Graduate School, College of Education, Iowa City, Iowa.

1. 19
Chapter IV
RESULTS AND DISCUSSION
This chapter contains the reports of the actual court cases involving the
nonrenewal of public school professional personnel due to declining school
enrollments or economic stress. Each report contains seven major items of
information: (1) statue(s) appropriate to the case, (2) overview of the case, (3) the
issue, (4) characteristics of the decision, (5) significant points, (6) revised statute,
and (7) implications for education. The sequence of the reports begins with the
earliest case and progresses to the more recent.
Wheatley v. Division Board of Education of Hancock County,
139 S.W. 969 Kentucky (1911)
Statute appropriate to case
Source – Kentucky Statutes 1909, page 2269.
4447. Visitation of school-pupil may be suspended or expelled. The
board of trustees shall meet at the schoolhouse on the day of the opening
of the school, and at the same place at least once a month thereafter during
the session of the school. At each meeting they shall carefully examine
the teacher's register, and shall consider: (1) The condition of the
schoolhouse, furniture, apparatus and surroundings; (2) the work of the
school (3) the attendance, and how to increase it; (4) the needs of the
school, such as fuel, brooms, buckets, crayons, desks, blackboards, etc.
They shall provide for any deficiency that may exist in any of these
respects, and see that the teacher performs his duty; they shall see that a
sufficient supply of good water is furnished within easy access of the
schoolhouse for the benefit of the school during the term of school. Upon
complaint of the teacher, in writing, the trustees shall have power, after
investigation, to suspend a pupil or expel him from school. When the
trustees shall ascertain, by examining a teacher's register or monthly

2. 20
report, that the average daily attendance for twenty consecutive days
taught has been less than twenty-five per centum of the total number of
pupil children of the district, as shown by the last census, they shall, with
the consent of the county superintendent, dismiss the teacher, and employ
another teacher to complete the session of the school, unless they shall be
satisfied that the decreased attendance was due to such natural causes as
high water, extremely inclement weather, epidemics, or unusual sickness
in the district.
Overview
The teacher charged that the members of the board unlawfully and
corruptly conspired together to effect her dismissal, and did unlawfully and
wrongfully discharge her. It developed at the trial that the district had a total
enrollment of 94 pupils. The average daily attendance for the four weeks
preceding the teacher's dismissal was about 12. Prior to this time the attendance
was much less. The teacher was dismissed on Saturday, October 30th. On the
evening before, the teacher was notified that the Board would meet for the
purpose of considering the question of her dismissal. When they met on October
30th, the teacher was present with her attorney, and there was also an attorney
present to represent the Board. After the teacher's attorney presented their
contentions, the teacher and attorney and all others were asked to leave the room.
The Board then entered an order dismissing the teacher and it was approved by
the county superintendent.
Issue
Can school trustees remove a teacher where the average daily attendance
has declined for a specified period of time?
Decision
Court decided for the Board.
Characteristics of the decision
Under 447, all that was necessary is to give a reasonable notice. The
teacher was apprised the evening before the action was taken that the Board
would meet and consider her case. All that was necessary to be considered was
the attendance as disclosed by the register, and the further question whether or not
the decreased attendance was due to high water, extremely inclement weather,
epidemics, or unusual sickness in the district. The Court concluded that the notice
of the meeting at which action was to be taken was reasonable.
Significant points
1. The teacher was appraised the evening before the action was taken
that the Board would meet and consider her case. The Court

3. 21
concluded that the notice of the meeting at which action was to be
taken was reasonable.
2. The statute made it perfectly clear that all that was necessary to be
considered for the dismissal of the teacher was the school
attendance as disclosed by the register.
Revised statue
Source - Kentucky Revised Statutes, Volume 7, Chapters 146-173, page 313.
160.290. General powers and duties of board. –
(1) Each board of education shall have general control and management of
the public schools in its district and may establish such schools and
provide for such courses and other services as it deems necessary for the
promotion of education and the general health and welfare of pupils,
consistent with the rules and regulations of the state board of education.
Each board shall have control and management of all school funds and all
public school property of its district and may use such funds and property
to promote public education in such ways as it deems necessary and
proper. Each board shall exercise generally all powers in the
administration of its public school system, appoint such officers, agents
and employees as it deems necessary and proper, prescribe their duties,
and fix their compensation and terms of office.
(2) Each board shall make and adopt, and may amend or repeal, rules,
regulations and bylaws for its meetings and proceedings for the
government, regulation and management of the public schools and school
property of the district, for the transaction of its business, and for the
qualification and employment of teachers and the conduct of pupils. The
rules, regulations and bylaws heretofore made by any governing body of a
school district, or hereafter made by a board of education, shall be
consistent with the general school laws of the state and shall be binding on
the board of education and parties dealing with it until amended or
repealed by an affirmative vote of three (3) members of the board. The
rules, regulations and bylaws shall be spread on the minutes of the board
and be open to the public.
Implications for education
The Board's exercise of authority, if based on a specific statute, generally
will be upheld.
The earlier statute was written to cover conditions appropriate to the
period. It has been revised and is now stated in more general terms. However,
the description of board authority with respect to employment issues is still very
inclusive.
The statute made it perfectly clear that all that need to be considered for
the dismissal of the teacher was the school attendance as disclosed by the register,

4. 22
and other regulations. The revised statute provides the board of education shall
have general control and management of the public schools in its district and may
establish such schools and provide for such courses and other services as it deems
necessary for the promotion of education and the general health and welfare of
pupils, consistent with the rules and regulations of the state board of education.
The statute further provides that each board shall exercise generally all powers in
the administration of its public school system and to appoint employees as it
deems necessary and proper, prescribe their duties and fix their compensation.
The board may adopt rules, regulations and bylaws for regulation and
management of the public schools and for the employment of teachers.
The point was argued that some of the members of the Board stated to
local patrons that they intended to dismiss the teacher and that there was no
necessity for sending their children to the school. The teacher argued this was
sufficient to justify the submission of the case to jury on the question of malice
and conspiracy. The court, however, dismissed this evidence emphasizing there
was no evidence to show that the members of the Board conspired together for the
purpose of preventing the patrons from sending their children to the school. The
court pointed out that the statute the case was decided on made it the duty of the
members of the board to act when a state of facts such as appeared in the record
was presented to them.
De Hart v. School District No. 39 St. Louis County,
263 S.W. 242 Missouri (1924)
Statutes appropriate to case
Source – Revised Statutes, Missouri 1919, Volume III.
Sec. 11138. Contract construed. The contract required in the preceding
section shall be construed under the general law of contracts, each party
thereto being equally bound thereby. Neither party shall suspend or
dismiss a teacher under said contract without the consent of the other
party. The board shall have no power to dismiss a teacher; but should the
teacher's certificate be revoked, said contract is thereby annulled. The
faithful execution of the rules and regulations furnished by the board shall
be considered as part of said contract: Provided, said rules and regulations
are furnished to the teacher by the board when the contract is made.
Should the teacher fail or refuse to comply with the terms of the contract
or to execute the rules and regulations of the board, the board may refuse
to pay said teacher – after due notice, in writing, is given by order of the
board – until compliance therewith is rendered. Should the schoolhouse
be destroyed, the contract becomes void (page 3490).
Sec. 11145. Schools for colored children, establishment of. When
there are within any school district in this state fifteen or more colored

5. 23
children of school age, as shown by the last enumeration, the board of
directors of such school district shall be and they are hereby authorized
and required to establish and maintain within such school district a
separate free school for said colored children; and the length of the school
term for said colored children, and the advantages and privileges thereof,
shall be the same as are provided for other schools of corresponding grade
within such school district, and the board of directors shall in all cases
conduct, manage and control said school as other schools of the district are
conducted, managed and controlled; and all indebtedness incurred by said
board of directors in providing suitable buildings, employing teachers and
maintaining said school shall be paid for out of the appropriate funds of
the district, upon warrants ordered and issued in conformity with the
provisions of sections 11222 and 11223: Provided, there be no school
building in such school district for said colored children, the board of
directors shall be and they are hereby authorized and required to rent
suitable buildings and furnish the same, and all expenses necessarily
incurred shall be paid out of any funds to the credit of the building or
incidental funds of such school district. Should any board of directors
neglect or refuse to comply with the provisions of this section, such school
district shall be deprived of any part of the public funds for the next
ensuing school year: Provided, that in case the average daily attendance
of colored children for any one school month shall be less than eight, then
said board of directors may discontinue such school for a period not to
exceed six months at any one time: Provided, that in cases where two
school districts join, and in either or both of said districts the enumeration
of colored children of legal school age is less than twenty-five, the boards
of directors of such districts may establish a joint colored school in either
of said districts, the expense of maintaining said school to be borne by the
districts establishing same, in proportion to the number of colored children
enumerated in each. The control of said school shall be vested in the
board of directors of the district in which the schoolhouse wherein said
colored school is maintained is located (page 3493).
Overview
On July 17, 1930, the teacher was employed by the school board to teach
at the school for colored children within the district. The contract was agreed to
by both the teacher and the school board and it read as follows:
That the said teacher agrees to teach in the public school of said
district for the term of eight months, commencing on the 13th day of
September, 1920, for the sum of $48 per month, to be paid monthly, and
that for services properly rendered and reports correctly made, according
to law, said board agrees to issue warrants upon the St. Louis county

6. 24
treasurer in favor of the said teacher for the amount of wages due under
this agreement.
Under this contract the teacher taught in the school for colored children in
the district for two school months. During the first month the average daily
attendance was less than one student per day, and during the second month the
school board ordered the school discontinued for the remaining six months of the
term and the teacher sought legal action to recover the salary for the remaining six
months.
Issue
Where a school board discontinued a colored school for lack of attendance
and discharged a teacher hired under contract for eight months, is the teacher
entitled to recover wages provided for in contract?
Decision
Court decided for the board.
Characteristics of the decision
The main issue in the case is the right of the teacher to recover the wages
provided for in the contract for the time during which the school was discontinued
by order of the school board. The issue was determined by the revised statues of
Missouri 1919, Section 11145, as follows:
When there are within any school district in this state fifteen or more
colored children of school age, as shown by the last enumeration, the
board of directors of such school district shall be and they are hereby
authorized and required to establish and maintain within such school
district a separate free school for said colored children; … provided that in
case the average daily attendance of colored children for any one school
month shall be less than eight, then said board of directors may
discontinue such school for a period not to exceed six months at any one
time.
The discontinuance of the school by the school board was expressly
authorized by this section, and since its provisions must be read into the contract,
such discontinuance of the school was, in legal effect, authorized by the contract.
The teacher argued that the authority of the school board in relation to the
teacher's contract was prescribed by the statue, and was expressly defined and
limited by section 11138, which is as follows:
The contract required in the preceding section shall be construed under the
general law of contracts, each party thereto being equally bound thereby.
Neither party shall suspend or dismiss a school under said contract without

7. 25
the consent of the other party. The board shall have no power to dismiss a
teacher; but should the teacher's certificate be revoked, said contract is
thereby annulled.… Should the schoolhouse be destroyed, the contract
becomes void.
The Court expressed that the provisions of section 11138 were of a general
and comprehensive character, and were applicable to all public schools, whereas
section 11145 was a special and restricted application, dealing exclusively with
schools for colored children. In this case, special provisions must prevail over the
provisions which are of general application.
The teacher argued that the school board was authorized to discontinue the
school, they were not authorized to dismiss the teacher and relieve the district
from the payment of wages as agreed to under the contract. Section 11138
expressly provided that "the board shall have no power to dismiss the teacher."
The Court felt the argument was ingenious, but not convincing. The Court
expressed there can be no school without a teacher. The teacher is an essential
element to a functioning school. The discontinuance of the school necessarily
contemplated the dismissal of the teacher and the discontinuance of
compensation. In other words, the discontinuance of the school necessarily
contemplated the discontinuance of performance of the contract.
Significant points
1. The discontinuance of the school by the school board was
expressly authorized by the section in the School Code, and since
its provisions must be read into the contract, such discontinuance
of the school was, in legal effect, authorized by the contract.
2. Special provisions prevailed over the provisions which were of
general application.
3. The Court expressed there can be no school without a teacher. The
teacher is an essential element to a functioning school. The
discontinuance of the school necessarily contemplated the
dismissal of the teacher and the discontinuance of compensation.
In other words, the discontinuance of performance of the contract.
Revised statute
Source – Vernon's Annotated Missouri Statues, Volume 11, 1975 Pocket Part,
pages 127-129.
168.221. Probationary period for teachers and principals – removal of
probationary and permanent personnel – hearing – demotions – reduction
of personnel (metropolitan districts).

8. 26
1. The first three years of employment of all teachers and principals
entering the employment of the metropolitan school district shall be
deemed a period of probation during which period all appointments of
teachers and principals shall expire at the end of each school year. During
the probationary period any probationary teacher or principal whose work
is unsatisfactory shall be furnished by the superintendent of schools with a
written statement setting forth the nature of his incompetency. If
improvement satisfactory to the superintendent is not made within one
semester after the receipt of the statement, the probationary teacher or
principal shall be dismissed. The semester granted the probationary
teacher or principal in which to improve shall not in any case be a means
of prolonging the probationary period beyond three years and six months
from the date on which the teacher or principal entered the employ of the
board of education. The superintendent of schools on or before the
fifteenth day of April in each year shall notify probationary teachers or
principals who will not be retained by the school district of the termination
of their services. Any probationary teacher or principal who is not so
notified shall be deemed to have been appointed for the next school year.
2. After completion of satisfactory probationary services,
appointments of teachers and principals shall become permanent, subject
to removal for any one or more causes described herein and to the right of
the board to terminate the services of all who attain the age of compulsory
retirement fixed by the retirement system. In determining the duration of
the probationary period of employment in this section specified, the time
of service rendered as a substitute teacher or substitute principal shall not
be included.
3. No teacher or principal whose appointment has become permanent
may be removed except for one or more of the following causes:
Immorality, inefficiency in line of duty, violation of the published
regulations of the school district, violation of the laws of Missouri
governing the public schools of the state, or physical or mental conditions
which incapacitate him for instructing or associating with children, and
then only by a vote of not less than a majority of all the members of the
board, upon written charges presented by the superintendent of schools, to
be heard by the board after thirty days' notice, with copy of the charges
served upon the person against whom they are preferred, who shall have
the privilege of being present, together with counsel, offering evidence
and making defense thereto. Notifications received by an employee
during a vacation period shall be considered as received on the first day of
the school term following. At the request of any person so charged the
hearing shall be public. The action and decision of the board upon the
charges shall be final. Pending the hearing of the charges, the person

9. 27
charged may be suspended if the rules of the board so prescribe, but in the
event the board does not by a majority vote of all the members remove the
teacher or principal upon charges presented by the superintendent, the
person shall not suffer any loss of salary by reason of the suspension.
Inefficiency in line of duty is cause for dismissal only after the teacher or
principal has been notified in writing at least one semester prior to the
presentment of charges against him by the superintendent. The
notification shall specify the nature of the inefficiency with such
particularity as to enable the teacher or principal to be informed of the
nature of his inefficiency.
4. No teacher or principal whose appointment has become permanent
shall be demoted nor shall his salary be reduced unless the same procedure
is followed as herein stated for the removal of the teacher or principal
because of inefficiency in line of duty, and any teacher or principal whose
salary is reduced or who is demoted may waive the presentment of charges
against him by the superintendent and a hearing thereon by the board. The
foregoing provision shall apply only to permanent teachers and principals
prior to the compulsory retirement age under the retirement system.
Nothing herein contained shall in any way restrict or limit the power of the
board of education to make reductions in the number of teachers or
principals, or both, because of insufficient funds, decrease in pupil
enrollment, or abolition of particular subjects or courses of instruction,
except that the abolition of particular subjects or courses of instruction
shall not cause those teachers who have been teaching the subjects or
giving the courses of instruction to be placed on leave of absence as herein
provided who are qualified to teach other subjects or courses of
instruction, if positions are available for the teachers in the other subject or
courses of instruction.
5. Whenever it is necessary to decrease the number of teachers or
principals, or both, because of insufficient funds or a substantial decrease
of pupil population within the school district, the board of education upon
recommendation of the superintendent of schools, may cause the
necessary number of teachers or principals, or both, beginning with those
serving probationary periods, to be placed on leave of absence without
pay, but only in the inverse order of their appointment. Nothing herein
stated shall prevent a readjustment by the board of education of existing
salary schedules. No teacher or principal placed on leave of absence shall
be precluded from securing other employment during the period of the
leave of absence. Each teacher or principal placed on leave of absence
shall be reinstated in inverse order of his placement on leave of absence.
Such reemployment shall not result in a loss of status or credit for
previous years of service. No new appointments shall be made while there

10. 28
are available teachers or principals on leave of absence who are seventy
years of age or less and who are adequately qualified to fill the vacancy
unless the teachers or principals fail to advise the superintendent of
schools within thirty days from the date of notification by the
superintendent of schools that positions are available to them that they will
return to employment and will assume the duties of the position to which
appointed not later than the beginning of the school year next following
the date of the notice by the superintendent of schools.
6. If any regulation which deals with the promotion of either teachers
or principals, or both, is amended by increasing the qualifications
necessary to be met before a teacher or principal is eligible for promotion,
the amendment shall fix an effective date which shall allow a reasonable
length of time within which teachers or principals may become qualified
for promotion under the regulations.
Implications for education
Under the revised statute, the board upon recommendation of the
superintendent, may cause the necessary number of teachers or principals, or both,
to be placed on leave of absence without pay, beginning with those serving
probationary periods. The revised statute places major emphasis on seniority.
The revised statute dealing with special provisions of decreasing the
number of teachers or principals, or both, because of insufficient funds or a
substantial decrease of pupil population within the school district would be
special provisions which would probably prevail over the provisions which were
of general application.
It is interesting to note the court expressed there can be no school without
a teacher and that the teacher is an essential element of a functioning school.
Mulhall v. Pfankuck,
206 Iowa Reports 1139 Iowa (1928)
Statute appropriate to case
Source – Code of Iowa 1927, page 565.
4231. Nonemployment of teacher – when. No contract shall be entered
into with any teacher to teach in any school in the school corporation
when the average attendance in said school the last preceding term therein
was less than five pupils, unless a showing is made to the county
superintendent that the number of children of school age in said school
district has increased so that seven or more will be enrolled in such school
and will attend therein. In such cases, or when natural obstacles to
transportation of pupils to another district, or other conditions make it
clearly inadvisable that such schools be closed, the county superintendent

11. 29
may consent to maintaining or reopening a school in said district for the
ensuing term. It shall be the duty of the members of the school board
residing in said district to make said showing, or any resident of said
district may do so upon his own motion.
Overview
In a meeting held by a board of education, one sub-director left prior to
adjournment or before the members officially voted to close one of the
schoolhouses. The teacher was contracted by the sub-director to teach school in
the building which had been previously voted closed. At a later date the Board
sought advice from the County Superintendent and also from the State
Superintendent. Both parties recommended to keep the school open. The teacher
taught for one month and the Board again voted to close the school because of the
lack of students. The teacher brought suit against the sub-director for the balance
of his contract sum.
Issue
Was the contract valid when the school was closed for lack of students?
Characteristics of the decision
The court rendered the decision in favor of the sub-director because the
contract was not approved officially by the Board. The court expressed that the
official action of the Board in authorizing each sub-director to employ in his sub-
district the teacher of his choice did not give them the authority to hire a teacher
in a district where the school directors had voted the school closed for lack of
students.
Significant points
1. The contract was not approved officially by the Board.
2. The court expressed that the official action of the Board in
authorizing each sub-director to employ in his sub-district the
teacher of his choice did not give them the authority to hire a
teacher in a district where the school directors had voted the school
closed for lack of students.
Revised statute
Source – Iowa Code Annotated 12, Sections 257 to 279, pages 565-567.
279.13 – Contracts with teachers – automatic continuation – exchange of
teachers. Contracts with teachers must be in writing, and shall state the
length of time the school is to be taught, the compensation per week of
five days, or month of four weeks, and that the same shall be invalid if the
teacher is under contract with another board of directors in the state of

12. 30
Iowa to teach covering the same period of time, until such contract shall
have been released, and such other matters as may be agreed upon, which
may include employment for a term not exceeding the ensuing school
year, except as otherwise authorized, and payment by the calendar or
school month, signed by the president and teacher, and shall be filed with
the secretary before the teacher enters upon performance of the contract
but no such contract shall be entered into with any teacher for the ensuing
year or any part thereof until after the organization of the board.
Boards of school directors shall have power to arrange for an exchange of
teachers in the public schools under their jurisdiction with other public
school corporations either within or without the state or the United States
on such terms and conditions as are approved by the state superintendent
of public instruction and when so arranged and approved the board may
continue to pay the salary of the teacher exchanged as provided in the
contract between said teacher and the board for a period of one year, and
such teacher shall not lose any privileges of tenure, old age, and survivors'
insurance, or certification as a result of such exchange. Said contract may
be renewed each year as determined by the employing school board
provided that the visiting exchange teacher is paid in full for the service
rendered by the school authorities with whom his contract is made. Such
exchange teachers must have qualifications equivalent to the regular
teacher employed by the board and who is serving as the exchange teacher
and must secure a special certificate covering the subjects designated for
him to teach in the public schools in which the instruction is hereby
authorized to formulate, establish, and enforce any reasonable regulation
necessary to govern the exchange of teachers as provided in this
paragraph, including the waiver of Iowa certification requirements for
teachers who are regularly certificated or licensed in the jurisdiction from
which they come.
Said contract shall remain in force and effect for the period stated in the
contract and thereafter shall be automatically continued in force and effect
for equivalent periods, except as modified or terminated by mutual
agreement of the board of directors and the teacher, until terminated as
hereinafter provided, however, no contract shall be tendered by the
employing board to a teacher under its jurisdiction prior to March 1, nor
be required to be signed by the teacher and returned to the board in less
than twenty-one days after being tendered. On or before April 15, of each
year the teacher may file his written resignation with the secretary of the
board of directors, or the board may by a majority vote of the elected
membership of the board, cause said contract to be terminated by written
notification of termination, by a certified letter mailed to the teacher not
later than the tenth day of April; provided, however, that at least ten days

13. 31
prior to mailing any notice of termination the board or its agent shall
inform the teacher in writing that (1) the board is considering termination
of said contract and that (2) the teacher shall have the right to a private
conference with the board if the teacher files a request therefore with the
president or secretary of the board within five days, and if within five days
after receipt by the teacher of such written information the teacher files
with the president or secretary of the board a written request for a
conference and a written statement of specific reasons for considering
termination, the board shall, before any notice of termination is mailed,
give the teacher written notice of the time and place of such conference
and at the request of the teacher, a written statement of specific reasons for
considering termination, and shall hold a private conference between the
board and teacher and his representative if the teacher appears at such time
and place. No school board member shall be liable for any damages to
any teacher if any such statement is determined to be erroneous as long as
such statement was made in good faith. In event of such termination, it
shall take effect at the close of the school year in which the contract is
terminated by either of said methods. The teacher shall have the right to
protest the action of the board, and to a hearing thereon, by notifying the
president or secretary of the board in writing of such protest within twenty
days of the receipt by him of the notice to terminate, in which event the
board shall hold a public hearing on such protest at the next regular
meeting of the board for that purpose, and shall give notice in writing to
the teacher of the time of the hearing on the protest. Upon the conclusion
of the hearing the board shall determine the question of continuance or
discontinuance of the contract by roll call vote entered in the minutes of
the board, and the action of the board shall be final. The foregoing
provisions for termination shall not affect the power of the board of
directors to discharge a teacher for cause under the provisions of section
279.24. The term "teacher" as used in this section shall include all
certificated school employees, including superintendents.
Implications for education
The revised statute would affirm that teaching contracts must be approved
officially by the board and not individually by one of its members.
Funston v. District School Board for School District No. 1,
278 P.1075 Oregon (1929)
Statute appropriate to case
Source – Oregon Laws Supplement 1921-1927, Part I, pages 551-552.
5246. Dismissal or Transfer of Teacher-hearing.

14. 32
Before being dismissed or transferred to a lower branch of the service or
to a position in a different branch of the service carrying a lower salary or
compensation, the board of directors shall cause a written notice of such
action to be delivered to such teacher. A teacher who is not willing to
abide by such order shall within five days after service of such notice
serve written notice with the superintendent of his or her unwillingness to
abide by such order, and the board shall thereupon within five days of the
receipt of such notice to the superintendent, cause to be served upon such
teacher a copy of the charges or complaints, if any, which may have been
filed against such teacher, together with statement of the grounds upon
which such dismissal or transfer is proposed to be made. Such statement
shall also recite the recommendation of the superintendent as to the
retention, dismissal or transfer of such teacher and it shall be the duty of
such superintendent in all such cases to file with said board his
recommendation as to the retention, dismissal, or transfer of such teacher.
Before the hearing the board shall cause to be given to the teacher at least
ten days' written notice of the time and place of such hearing and at such
time and place shall her evidence that may be adduced in support of the
charges or of the order of transfer, or of the teacher's defense or resistance
thereto. Witnesses in support of the charges or transfer, not exceeding ten
in number, shall be, upon request of the teacher, subpoenaed by the board
and compelled to testify, and subjected to the same penalties for perjury or
contempt as specified in section 5249 of Oregon Laws. Subpoenas on
behalf of the teacher shall, upon request of the teacher, be issued in blank
by and over the hand of the chairman of the board of directors.
Proceedings before the board shall be summary and the board shall pass
upon the admissibility of evidence, the length and character of arguments
and other proceedings; subject, however, to its duty to give a fair and
reasonable hearing to the teacher and to fully apprise the teacher of the
grounds for the proposed dismissal or transfer. A teacher, as well as the
board, shall have the right in all cases to be represented by counsel. If
requested by, or on behalf, of the teacher, the decision of the board shall
be rendered in writing with the grounds upon which it is based. If the
action or dismissal or transfer is concurred in by five members of the
board it shall be final and not subject to review by any other commission;
if such action is concurred in by less than five members of the board, then
such action shall be final, unless within twenty days after receiving written
notice of such decision of the board such teacher shall file a written
request with the clerk of the school board, asking for a hearing before the
commission. Such teacher shall state in the written request whether the
hearing shall be private or public and whether such teacher shall be
represented by counsel. Such teacher shall be entitled to and given a
hearing before the commission as hereinafter provided within ten days
after filing such written request with the clerk of the school board, and

15. 33
shall have full benefit of witnesses and subpoenas issued in blank by and
over the hand of the chairman of the commission. Said trial shall be
public or private, as requested by the teacher, as above provided. If said
teacher is represented by counsel, then the board of directors may also be
represented by counsel at the hearing, but if the teacher does not notify the
commission in the written request for hearing that she will be represented
by counsel, then neither side shall be represented by counsel at said
hearing. Of any such hearing such teacher and the board shall have due
notice not less than three days before the date set for the hearing, and such
hearing may be continued from time to time on account of sickness or
absence of material witnesses, or for such other good cause as shall be
determined by the commission.
Overview
In December 1912, the teacher was employed as a teacher of millinery in
the schools of the district. Some time later she was granted a life certificate
limited to the teaching of millinery only and there was only one school in Portland
in which millinery was taught. Due to a change in the style of women's hats, the
enrollment in her subject declined significantly. In the fall of 1926 it was 220, in
the spring of 1927 it was only 122, and the estimated enrollment for the fall term
of 1927 was 75 pupils. In the spring of 1927, due to the small enrollment, only
two teachers were engaged in instruction in millinery and the teacher was
assigned to other work. The board of directors on April 1, 1927, upon the
recommendation of the superintendent, adopted a resolution that the teacher's
services should be discontinued at the end of that school year. On April 12th
notice of the board's action was served upon the teacher. This notice contained
the following: "Reason for the discontinuance is on account of there not being
sufficient classes in millinery to warrant continuance of three teachers in this
work." On April 15th the superintendent received a notice from the teacher stating
that she would not abide by the board's order. Three days later the board passed a
resolution that the teacher be given a hearing. May 9th the board secretary
informed her that her matter would come before the board May 16th, and on the
latter day, when teacher failed to appear, the hearing was postponed until June 6th.
On May 14th the board served notice upon the teacher of the time and place of the
hearing. On June 6th, when the teacher again failed to appear, the board took
testimony and subsequently made and filed a resolution dismissing her from the
service of the school district. The resolution stated that the number of pupils in
millinery classes had declined to the point where the teacher's services as an
instructor were no longer necessary. The teacher contended that, under the laws
of the state regulating the hiring and discharge of teachers in her district, a lack of
need for the services of a teacher who holds a life certificate is not a ground for
dismissal, and second, that even if such ground was available, the board failed to
comply with the procedure prescribed by the law regulating dismissals.

16. 34
Issue
Can the school directors lawfully dismiss a teacher holding a life
certificate, where services were no longer needed because enrollment declined in
a specific course?
Decision
Court decided for the board.
Characteristics of the decision
When a teacher's professional services must be discontinued because of
the demands of economy, or by reasons of declining enrollment, the cause does
not have its inception in the teacher, but arises from source foreign to them and
over which they possess no control. The board had the power to organize the
teaching force and to reduce it as proper management requires. Therefore, if
anticipated revenues are insufficient to meet the requirements of an efficient
service, the board could reduce the teaching force so that the expenditures would
not exceed the appropriations. The Court concluded that when the cause of a
teacher's dismissal is not personal to the teacher, the act does not require an
adherence to the procedures prescribed by section 5246.
Significant points
1. The board had the power to organize the teaching force and to
increase or reduce it as proper management requires.
2. If anticipated revenues are insufficient to meet the requirements of
an efficient service, the board could reduce the teaching force so
that the expenditures would not exceed the appropriations.
3. When the cause of a teacher's dismissal is not personal to the
teacher, the act does not require an adherence to the procedures
prescribed by section 5246.
Revised statute
Source – Oregon Revised Statutes #3, Public Services – General Welfare,
Chapters 326-495, pages 178, 180.
342.865 Grounds for dismissal of permanent teacher.
(1) No permanent teacher shall be dismissed except for: (a) Inefficiency;
(b) Immorality; (c) Insubordination; (d) Neglect of duty; (e) Physical or
mental incapacity; (f) Conviction of a felony or of a crime involving moral
turpitude; (g) Inadequate performance; (h) Failure to comply with such
reasonable requirements as the board may prescribe to show normal
improvement and evidence of professional training and growth; (i) Any
cause which constitutes grounds for the revocation of such permanent
teacher's teaching certificate; or (j) Reduction in permanent teacher staff
resulting from the district's inability to levy a tax sufficient to provide

17. 35
funds to continue its educational program at its anticipated level or
resulting from the district's elimination of classes due to decreased student
enrollment or reduction of courses due to administrative decision. School
districts shall make every effort to transfer teachers of courses scheduled
for discontinuation to other positions for which they are qualified. Merit
and seniority shall be considered in determination of a teacher for such
transfer. (2) In determining whether the professional performance of a
permanent teacher is adequate, consideration shall be given to regular and
special evaluation reports prepared in accordance with the policy of the
employing school district and to any written standards of performance
which shall have been adopted by the board. (3) Suspension or dismissal
on the grounds contained in paragraph (e) of subsection (1) of this section
shall not disqualify the teacher involved for any of the benefits provided in
ORS 237.195, 239.233 to 239.239 or 342.595.
342.895 Procedure for dismissal of permanent teacher.
(1) Authority to dismiss a permanent teacher is vested in the district school
board subject to the provisions of the fair dismissal procedures of ORS
342.00 and 342.805 to 342.955 and only after recommendations of the
dismissal is given to the district school board by the superintendent. (2)
At least 20 days before recommendation to a board the dismissal of the
permanent teacher, the district superintendent shall give written notice to
the permanent teacher by certified mail of his intention to make a
recommendation to dismiss the teacher. The notice shall set forth the
statutory grounds upon which the superintendent believes such dismissal
is justified, and shall contain a plain and concise statement of the facts
relied on to support the statutory grounds for dismissal. If the statutory
grounds specified are those specified in paragraph (a), (c), (d), (g) or (h) of
subsection (1) of ORS 342.865, then evidence shall be limited to those
allegations supported by statements in the personnel file of the teacher on
the date of the notice to recommend dismissal, maintained as required in
ORS 342.850. Notice shall also be sent to the district school board and to
the Fair Dismissal Appeals Board. A copy of ORS 342.200 and 342.805
to 342.955 shall also be sent to the permanent teacher. (3) The action of
the district superintendent takes effect on the 20th day after notice is given
the permanent teacher as required in subsection (2) of this section, if
approved by the district school board. Notice of the board's action shall be
given to the permanent teacher by certified mail.
342.915 Hearing procedure. The following provisions shall be applicable
to any hearing conducted pursuant to ORS 342.905: (1) The hearing shall
be private unless the permanent teacher requests a public hearing. (2) The
hearing shall be conducted in accordance with rules and regulations
adopted by the Fair Dismissal Appeals Board pursuant to ORS chapter

18. 36
183. (3) At he hearing the permanent teacher shall have the right to be
present and to be heard, to be represented by counsel and to present
through witnesses any competent testimony relevant to the issue of
whether facts as found by the Fair Dismissal Appeals Board and as relied
on to support the recommendation of the district superintendent are true
and substantiated and whether those facts justify the statutory grounds
cited as reason for the dismissal and whether the procedures required by
law have been followed.
Implications for education
In this case, the cause of the teacher's dismissal was not personal to the
teacher and therefore did not require a strict adherence to the procedures
prescribed by the earlier statute 5246. When a teacher's dismissal is not personal,
it means there are no formal charges filed against them. This is opposed to
general procedures for dismissal where formal charges are filed against the
teacher such as inefficiency, immorality, insubordination, neglect of duty,
physical or mental incapacity, conviction of a felony or crime, inadequate
performance, or incompetency.
The revised statute gives the board authority to dismiss a permanent
teacher as a result of the district's inability to levy taxes sufficient enough to
provide funds to continue its educational program at its anticipated level, or as a
result of the district's elimination of classes due to decreased student enrollment
or reduction of courses due to administrative decision. Other causes are listed.
There are detailed procedures for dismissal of permanent teachers within the
revised statute.
James v. School Township of Troy,
210 Iowa Reports 1059 Iowa (1930)
Statue appropriate to case
Source – Code of Iowa 1927, pages 564-565.
4229. Contracts with teachers. Contracts with teachers must be in
writing, and shall state the length of time the school is to be taught, the
compensation per week of five days, or month of four weeks, and that the
same shall be invalid if the teacher is under contract with another board of
directors in the state of Iowa to teach covering the same period of time,
until such contract shall have been released, and such other matters as may
be agreed upon, which may include employment for a term not exceeding
the ensuing school year, except as otherwise authorized, and payment by
the calendar or school month, signed by the president and teacher, and
shall be filed with the secretary before the teacher enters upon
performance of the contract.

19. 37
Overview
The teacher entered into a contract with the school district for thirty-two
weeks. A small number of students attended the school. Shortly after the school
term began one family decided to enroll their children in a parochial school. A
meeting was scheduled on November 2 to discuss the matter, with the teacher in
attendance. The Board decided to continue even though there might be even
fewer students in attendance as the year progressed. At a later date the school was
closed for lack of students and the teacher was asked not to return, even though
her professional services were available. The teacher filed charges for the balance
due on her contract, which was $640. The Board claimed that she had taught for
only a portion of the year and did not fulfill the terms of said contract. She was
also charged with failure to seek other employment.
Issue
Is a teacher's contract valid when a school is closed for lack of students?
Decision
Court decided for the teacher.
Characteristics of the decision
The Court ruled in 1930 for the teacher, claiming that the contract was
properly contracted and filed. No effort to obtain other employment was
necessary and the teacher made herself available to teach. The court pointed out
that a teacher who, in compliance with the direction of the board, holds herself in
readiness to teach, but is furnished no pupils, does not need to show any effort to
secure employment elsewhere as a teacher.
Significant points
1. The contract had been properly filed.
2. No effort to obtain other employment was necessary and the
teacher made herself available to teach.
3. The court pointed out that a teacher who, in compliance with the
direction of the board, holds herself in readiness to teach, but is
furnished no pupils, does not need to show any effort to secure
employment elsewhere as a teacher.
Revised statute
Source – Iowa Code Annotated 12, Sections 257 to 279, pages 565-567.
279.13 Contracts with teachers – automatic continuation – exchange of
teachers. Contracts with teachers must be in writing, and shall state the
length of time the school is to be taught, the compensation per week of
five days, or month of four weeks, and that the same shall be invalid if the
teacher is under contract with another board of directors in the state of

20. 38
Iowa to teach covering the same period of time, until such contract shall
have been released, and such other matters as may be agreed upon, which
may include employment for a term not exceeding the ensuing school
year, except as otherwise authorized, and payment by the calendar or
school month, signed by the president and teacher, and shall be filed with
the secretary before the teacher enters upon performance of the contract
but no such contract shall be entered into with any teacher for the ensuing
year or any part thereof until after the organization of the board.
Boards of school directors shall have power to arrange for an exchange of
teachers in the public schools under their jurisdiction with other public
school corporations either within or without the state or the United States
on such terms and conditions as are approved by the state superintendent
of public instruction and when so arranged and approved the board may
continue to pay the salary of the teacher exchanged as provided in the
contract between said teacher and the board for a period of one year, and
such teacher shall not lose any privileges of tenure, old-age, and survivors'
insurance, or certification as a result of such exchange. Said contract may
be renewed each year as determined by the employing school board
provided that the visiting exchange teacher is paid in full for the service
rendered by the school authorities with whom his contract is made. Such
exchange teachers must have qualifications equivalent to the regular
teacher employed by the board and who is serving as the exchange teacher
and must secure a special certificate covering the subjects designated for
him to teach in the public schools in which the instruction is hereby
authorized to formulate, establish, and enforce any reasonable regulation
necessary to govern the exchange of teachers as provided in this
paragraph, including the waiver of Iowa certification requirements for
teachers who are regularly certified or licensed in the jurisdiction from
which they come.
Said contract shall remain in force and effect for the period stated in the
contract and thereafter shall be automatically continued in force and effect
for equivalent periods, except as modified or terminated by mutual
agreement of the board of directors and the teacher, until terminated as
hereinafter provided, however, no contract shall be tendered by the
employing board to a teacher under its jurisdiction prior to March 1, nor
be required to be signed by the teacher and returned to the board in less
than twenty-one days after being tendered. On or before April 15, of each
year the teacher may file his written resignation with the secretary of the
board of directors, or the board may by a majority vote of the elected
membership of the board, cause said contract to be terminate by written
notification of termination, by a certified letter mailed to the teacher not
later than the tenth day of April; provided, however, that at least ten days

21. 39
prior to mailing any notice of termination the board or its agent shall
inform the teacher in writing that (1) the board is considering termination
of said contract and that (2) the teacher shall have the right to a private
conference with the board if the teacher files a request therefore with the
president or secretary of the board within five days, and if within five days
after receipt by the teacher of such written information the teacher files
with the president or secretary of the board a written request for a
conference and a written statement of specific reasons for considering
termination, the board shall, before any notice of termination is mailed,
give the teacher written notice of the time and place of such conference
and at the request of the teacher, a written statement of specific reasons for
considering termination, and shall hold a private conference between the
board and teacher and his representative if the teacher appears at such time
and place. No school board member shall be liable for any damages to
any teacher if any such statement is determined to be erroneous as long as
such statement was made in good faith. In event of such termination, it
shall take effect at the close of the school year in which the contract is
terminated by either of said methods. The teacher shall have the right to
protest the action of the board, and to a hearing thereon, by notifying the
president or secretary of the board in writing of such protest within twenty
days of the receipt by him of the notice to terminate, in which event the
board shall hold a public hearing on such protest at the next regular
meeting of the board for that purpose, and shall give notice in writing to
the teacher of the time of the hearing on the protest. Upon the conclusion
of the hearing the board shall determine the question of continuance or
discontinuance of the contract by roll call vote entered in the minutes of
the board, and the action of the board shall be final. The foregoing
provisions for termination shall not affect the power of the board of
directors to discharge a teacher for cause under the provisions of section
279.24. The term "teacher" as used in this section shall include all
certificated school employees, including superintendents.
Implications for education
The important implication in this case is that where specific stipulations
are set forth in statutes, any deviation tends to be interpreted as a violation of
procedure. Courts will support procedure as stated.
Seidel v. Board of Education of Ventnor City,
164 A.297, New Jersey (1933)
Statutes appropriate to case
Source – Compiled Statutes of new Jersey, Volume 4, pages 4762-4764.

22. 40
106. Rules and regulations as to employment, etc.; contracts of
employment; school month. A board of education may make rules and
regulations governing the engagement and employment of teachers and
principals, the terms and tenure of such employment, and the promotion
and dismissal of such teachers, and principals, the salaries, and the time
and mode of payment thereof, and may from time to time change, amend
or repeal such rules and regulations. The employment of any teacher by
such board, and the rights and duties of such teacher with respect to such
employment, shall be dependent upon and shall be governed by the rules
and regulations in force with reference thereto. If a board of education
shall not have made rules and regulations as aforesaid, then no contract
between such board of education and a teacher shall be valid unless the
same be in writing, or partly written and partly printed, in triplicate, signed
by the president and district clerk or secretary of the board of education
and by the teacher. One copy thereof shall be filed with the board of
education, one copy with the teacher and one copy with the county or city
superintendent. Such contract shall specify the date when such teacher
shall begin teaching, the kind and grade of certificate held by said teacher
and the date when said certificate will expire, the salary, and such other
matters as may be necessary to a full and complete understanding of the
same. In every such contract, unless otherwise specified, a month shall be
construed and taken to be twenty school days or four weeks of five school
days each. The salary specified in every such contract shall be paid in
equal monthly installments, not later than five days after the close of each
month while the school shall be in session. Any contract or engagement
between a board of education and a teacher shall cease and determine and
be of no effect against said board whenever said board shall ascertain by
notice in writing received from the county or city superintendent or
otherwise, that said teacher is not in possession of a proper teacher's
certificate in full force and effect, notwithstanding the term or engagement
for which such contract shall have been made may not then have expired.
The state superintendent of public instruction shall prepare and distribute
blanks for contracts between the board of education and teachers.
106a. Tenure after three years' employment; dismissal or reduction of
salary' procedure-Sec. 1. The service of all teachers, principals,
supervising principals of the public schools in any school district of this
state shall be during good behavior and efficiency, after the expiration of a
period of employment of three consecutive years in that district, unless a
shorter period is fixed by the employing board; provided, that the time any
teacher, principal, supervising principal has taught in the district in which
he or she is employed at the time this act shall go into effect, shall be
counted in determining such period of employment. No principal or
teacher shall be dismissed or subjected to reduction of salary in said

23. 41
school district except for inefficiency, incapacity, conduct unbecoming a
teacher or other just cause, and after a written charge of the cause or
causes shall have been preferred against him or her, signed by the person
or persons making the same, and filed with the secretary or clerk of the
board of education having charge of the school in which the service is
being rendered, and after the charge shall have been examined into and
found true in fact by said board of education, upon reasonable notice to the
person charged, who may be represented by counsel at the hearing.
Charges may be filed by any person, whether a member of said school
board or not.
106c. Reduction of number of teachers; when; dismissal of teachers
without certificates-Sec. 3. 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 in said school district; and,
provided further, that the service of any principal or teacher may be
terminated without charge or trial who is not a holder of a proper teacher's
certificate in full force and effect.
Overview
A teacher protected under tenure had been informed that she would be
assigned to teach a special class of backward and troublesome pupils and signed a
general contract restricting her teaching to the special class. Having brought the
class to the point where the pupils could be transferred into regular classes, the
board decided that in the interest of good economy to abolish the position and
discharge the teacher. The teacher argued that the abolition of her position was
no more than the reduction of one teacher of the teaching force in the public
school system, and that she was entitled to remain as a teacher in preference to
others who had not come under the protection of the tenure statute.
Issue
In the interest of economy, can the school board abolish a special
teaching position no longer necessary and discharge a tenured teacher assigned to
the position?
Decision
Court decided for the teacher.
Characteristics of the decision
The board argued that the special employment of the teacher had been
restricted to the special class now abolished, and that special provisions had been
written into the contract. The Court expressed the teacher was employed to teach
and if the board at any time had elected to transfer her to a regular class, she could

24. 42
not legally have claimed exemption from such a service. On the other hand, the
board, having assigned her under the written contract to the special class, could
not deprive her of tenure as a teacher, by abolishing the class. She had the same
standing as other teachers under similar general contracts, with the added
advantage of indefinite tenure arising from three years service, as against those
who had not served that length of time.
The school board may in the interest of economy reduce the number of
teachers. If such a reduction is to be made at all, and a place remains which a
tenured teacher is qualified to fill, the teacher is entitled to that position as against
the retention of a teacher not protected by tenure.
Significant points
1. The board, having assigned the teacher under the written contract
to the special class, could not deprive her of tenure as a teacher, by
abolishing the class. The teacher had the same standing as other
teachers under the similar general contracts with the added
advantage of indefinite tenure.
2. The school board may in the interest of economy reduce the
number of teachers. If such a reduction is to be made at all, and a
place remains which a tenured teacher is qualified to fill, the
teacher is entitled to that position as against the retention of a
teacher not protected by tenure.
3. The Court pointed out that in cases of (a) two or more tenured
teachers and only one position available, and (b) one tenured
teacher and several non-tenured teachers to be discharged, the
simple answers are: (a) the board must use its discretion in
selecting the tenured teacher; and (b) the board must use similar
discretion in selecting the non-tenured teacher to discharge. In this
case, there was one position filled by a non-tenured teacher who
could be discharged on expiration of the annual contract to make
way for the dismissed tenured teacher.
Revised statute
Source – New Jersey Statutes Annotated, Title 18A Education, 18A:25 to 18A:65.
18A:27-4. Power of boards of education to make rules governing
employment of teacher, etc.; employment thereunder, page 34. Each
board of education may make rules, not inconsistent with the provisions of
this title, governing the employment, terms and tenure of employment,
promotion and dismissal, and salaries and time and mode of payment
thereof of teaching staff members for the district, and may from time to
time change, amend or repeal the same, and the employment of any person
in any such capacity and his rights and duties with respect to such

25. 43
employment shall be dependent upon and governed by the rules in force
with reference thereto.
18A:28-5. Tenure of teaching staff members, pages 58-59. The services
of all teaching staff members including all teachers, principals, assistant
principals, vice principals, superintendents, assistant superintendents, and
all school nurses including school nurse supervisors, head school nurses,
chief school nurses, school nurse coordinators, and any other nurse
performing school nursing services and such other employees as are in
positions which require them to hold appropriate certificates issued by the
board of examiners, serving in any school district or under any board of
education, excepting those who are not the holders of proper certificates in
full force and effect, shall be under tenure during good behavior and
efficiency and they shall not be dismissed or reduced in compensation
except for inefficiency, incapacity, or conduct unbecoming such a
teaching staff member or other just cause and then only in the manner
prescribed by subarticle B of article 2 of chapter 6 of this title, after
employment in such district or by such board for (a) three consecutive
calendar years, or any shorter period which may be fixed by the
employing board for such purpose; or (b) three consecutive academic
years, together with employment at the beginning of the next succeeding
academic year; or (c) the equivalent of more than three academic years
within a period of any four consecutive academic years; provided that the
time in which such teacher staff member has been employed as such in the
district in which he was employed at the end of the academic year
immediately preceding July 1, 1962, shall be counted in determining such
period or periods of employment in that district or under that board but no
such teaching staff member shall obtain tenure prior to July 1, 1964 in any
position in any district or under any board of education other than as a
teacher, principal, assistant superintendent or superintendent, or as a
school nurse, school nurse supervisor, head school nurse, chief school
nurse, school nurse coordinator, or as the holder of any position under
which nursing services are performed in the public school.
18A:28-14. Teaching staff members not certified; not protected;
exception, page 100. The services of any teaching staff member who is
not the holder of an appropriate certificate, in full force and effect, issued
by the state board of examiners under rules and regulations prescribed by
the state board of education may be terminated without charge or trial,
except that any school nurse appointed prior to May 9, 1947 shall be
protected in her position as is provided in section 18A:28-4 of this title.

26. 44
Implications for education
According to the revised statute, the court probably would still decide in favor of
the teacher. The board is allowed to assign a teacher under the written contract to
teach a special class, but it cannot deprive him of tenure as a teacher by simply
abolishing the class. Other stipulations relating to powers of boards and tenure of
teach staff are given with the revised statute.
Walsh v. Board of Trustees of Redlands High School
District, 37 P.2d 700 California (1934)
Statutes appropriate to case
Source – General laws, Volume Three, Acts 1931.
5.500, page 4179. Every employee of a school district of any type or
class, who after having been employed by the district for three complete
consecutive school years in a position, or positions, requiring certification
qualifications, is re-elected for the next succeeding school year to a
position requiring certification qualifications shall, except as hereinafter
otherwise provided, at the commencement of said succeeding school year,
be classified as and shall become a permanent employee of the district.
5.710, page 4190. It is hereby provided that whenever it becomes
necessary to decrease the number of permanent employees in a school
district on account of a decrease in the number of pupils attending the
schools of such district, or on account of the discontinuance of a particular
kind of service in such district, the governing board may dismiss such
employee at the close of the school year.
5.711, page 4191. If the dismissal of such employee shall become
necessary on account of the decrease in the number of pupils attending the
schools of the district, such employee so dismissed shall be the last person
engaged in the type of work so discontinued.
Overview
Prior to the school year of 1932-1933, the teacher had been employed for
more than three years by the district, during which time she had taught vocal
music for four periods a day in the senior high school and the same subject for
two periods a day in the junior high school. Early in May, 1932, the teaching of
vocal music in the senior high school was entirely discontinued and abolished by
action of the board, and notice was given to the teacher on May 3, 1932. The
teaching of vocal music in the junior high school was not abolished at that time,
but was continued during the school year 1932-1933. During the preceding two
years another teacher had also taught vocal music in the junior high school,
teaching six periods a day. She was still a probationary teacher, not having

27. 45
reached a permanent status, and her services were continued during the school
year 1932-1933 for the full six periods a day. The teacher bringing legal action
had been offered a contract to teach this subject in the junior high school for two
periods a day, as before, and she continued to teach those periods during the
school year 1932-1933. During this year she brought legal action asking that the
board be compelled to reinstate and pay her as a full-time teacher in the district
for that year.
Issue
Teaching of vocal music in senior high school constitutes a "particular
kind of service" and it may be discontinued when finances or other reasons
demand. When such a particular service is discontinued, the "position" is
abolished. Is a teacher under tenure entitled to oust a probationary teacher
teaching the same subject at the junior high level?
Decision
Court decided for the board.
Characteristics of the decision
The court pointed out distinct differences between the high school and
junior high. High schools are designed for older and more advanced students,
apply different methods, allow more freedom both in choice of subjects and from
the routine followed in elementary and junior high schools, and being, in many
respects, comparable to some colleges. The junior high schools, usually cover the
work formerly done in the first year of the senior high school, together with the
work formerly given in the last two years of the elementary grades. The Court
expressed that there was a very marked change in children when they leave a
junior high school and enter a senior high school and both the subject matter
taught and the method of teaching and handling pupils is quite different in the two
classes of schools. The difference between these two kinds of schools is so
marked that, in the court's opinion, it could not be held that a person teaching
classes in both schools at the same time was holding one position only. In other
words, senior high schools differ materially from junior high schools. While
some of the subjects taught in a senior high school may be regarded as a
necessary continuation of similar work in the junior high school, other subjects
which may be taught in the one may be less essential in the other, and may or may
not be taught there, depending upon available funds and many other conditions.
When such a particular service is discontinued, the "position" of teaching
it is abolished. And a teacher who happens to also hold another "position"
teaching that same subject in a different kind of school is not entitled to oust
another teacher in a lower class of school on the solid ground that the general
subject is still taught in that school and that her permanent standing entitles her to
teach that general subject anywhere and under any circumstances where and
under which it may be taught.

28. 46
The Court felt a standing as a permanent teacher is related, not only to the
subject taught, but to the "position or positions" occupied, and to the kind of
school or schools where the probationary period was passed.
By reason of two positions held, the teacher had acquired permanent
standing in each. She could not be capriciously removed from either without
being given one of equivalent rank and grade if one existed, but, when all such
service of the rank and grade of one of the positions held was discontinued in the
district, the statute permits her dismissal from that position. It was fully apparent
to the court that the teacher was not demanding work in the subject of rank and
grade equivalent to that which she lost, for none of that rank and grade remained
in the district, but she was asking that she be given a new and further position of a
lower rank and grade on the ground that the teaching of this subject, alone and of
itself, entitled her to teach the same in any kind of school and without regard to
the rank and grade of the position previously occupied and which had been
abolished.
The teacher claimed the right on the ground that she had acquired
permanent standing as a full-time teacher through teaching vocal music in both
schools. In other words, she maintained that her rights as a permanent teacher
have accrued from the subject taught, without regard to where it was taught. If
she would have been correct in her contention, she would be entitled to teach full-
time in the junior high school if she had done no work at all in that school,
because the subject taught by her was continued in that school which is run by the
school district. In the court's opinion, the statue was never intended to treat
teachers as interchangeable between junior high school and senior high school
without regard to qualifications or anything except the fact that one general
subject may have been taught in both.
The court concluded that teaching vocal music in the senior high school
was a particular kind of service in the district within the meaning of the statute,
and that a discontinuance of it ended tenure rights of the teacher which had been
acquired, regardless of whether or not a similar subject was continued in the
junior high school maintained in the same district.
Significant points
1. When a particular service is discontinued the "position" of
teaching it is abolished. A teacher who happens to also hold
another "position" teaching that same subject in a different kind of
school is not entitled to oust another teacher in a lower class of
school on the sole ground that the general subject is still taught in
that school and that her permanent standing entitles her to teach
that general subject anywhere and under any circumstances where
and under which it may be taught.
2. The standing as a permanent teacher is related, not only to the
subject taught, but to the "position or positions' occupied, and to

29. 47
the kind of school or schools where the probationary period
passed.
3. The statute was never intended to treat teachers as interchangeable
between junior high school and senior high school without regard
to qualifications or anything except the fact that one general
subject may have been taught in both.
4. The teaching of vocal music in the senior high school was a
particular kind of service in the district within the meaning of the
statute, and that a discontinuance of it ended tenure rights of the
teacher which had been acquired, regardless of whether or not a
similar subject was continued in the junior high school maintained
in the same district.
Revised statute
Source – Annotated California Codes, Education, Sections 13361 to 15000, pages
104-105.
13447. Reduction in number of permanent employees. No permanent
employee shall be deprived of his position for causes other than those
specified in Sections 13313, 13327 and 13338, and Sections 13403 to
13441, inclusive, and no probationary employee shall be deprived of his
position for cause other than as specified in Sections 13442 and 13443,
except in accordance with the provisions of Section 13319 and Sections
13447 to 13452, inclusive.
Whenever in any school year the average daily attendance in all of the
schools of a district for the first six months in which school is in session
shall have declined below the corresponding period of either of the
previous two school years, or whenever a particular kind of service is to be
reduced or discontinued not later than the beginning of the following
school year, and when in the opinion of the governing board of said
district it shall have become necessary by reason of either of such
conditions to decrease the number of permanent employees in said district,
the said governing board may terminate the services of not more than a
corresponding percentage of the certificated employees of said district,
permanent as well as probationary, at the close of the school year;
provided, that the services of no permanent employee may be terminated
under the provisions of this section while any probationary employee, or
any other employee with less seniority, is retained to render a service
which said permanent employee is certificated and competent to render.
Notice of such termination of services either for a reduction in attendance
or reduction or discontinuance of a particular kind of service to take effect
not later than the beginning of the following school year, shall be given

30. 48
before the 15th of May in the manner prescribed in Section 13443, and
services of such employees shall be terminated in the inverse of the order
in which they were employed, as determined by the board in accordance
with the provisions of Sections 13262 and 13263 of this code. In the event
that a permanent or probationary employee is not given the notices and a
right to a hearing as provided for in Section 13443, he shall be deemed
reemployed for the ensuing school year.
The board shall make assignments and reassignments in such a manner
that employees shall be retained to render any service which their seniority
and qualifications entitle them to render.
Implications for education
The court expressed that there is a very marked change in children when
they leave a junior high school and enter a senior high school, and both the
subject matter and the method of teaching and handling pupils is quite different in
the two classes of schools.
Under the revised statute, seniority provisions are provided and no
permanent employee may be terminated while a probationary employee or any
other employee with less seniority is retained to render a service which a
permanent employee is certificate and competent to render. The statue provides
the board shall make assignments and reassignments in such a manner that
employees shall be retained to render any service which their seniority and
qualifications entitled them to render. In the revised statue, employees are
entitled to cross grade level lines because of seniority rights within the district,
providing their professional certification permits them to render a particular
service.
Downs v. Board of Education of Hoboken District,
171 A.528 New Jersey (1934)
Statutes appropriate to case
Source – Compiled Statutes of New Jersey, Volume 4
68. Boards of education; majority; action in general, page 4744. No
principal or teacher shall be appointed, transferred or dismissed, not the
amount of his or her salary fixed; no school term shall be determined, nor
shall any course of study be adopted or altered, nor text-books selected,
except by a majority vote of the whole number of members of the board of
education.
106a. Tenure after three years' employment; dismissal or reduction of
salary; procedures.-Sec. 1, page 4763. The service of all teachers,
principals, supervising principals of the public schools in any school

31. 49
district of this state shall be during good behavior and efficiency, after the
expiration of a period of employment of three consecutive years in that
district, unless a shorter period is fixed by the employing board; provided,
that the time any teacher, principal, supervising principal has taught in the
district in which he or she is employed at the time this act shall go into
effect, shall be counted in determining such period of employment. No
principal or teacher shall be dismissed or subjected to reduction of salary
in said school district except for inefficiency, incapacity, conduct
unbecoming a teacher or other just cause, and after a written charge of the
cause or causes shall have been preferred against him or her, signed by the
person or persons making the same, and filed with the secretary or clerk of
the board of education having charge of the school in which the service is
being rendered, and after the charge shall have been examined into and
found true in fact by said board of education, upon reasonable notice to the
person charged, who may be represented by counsel at the hearing.
Charges may be filed by any person, whether a member of said school
board or not.
106c. Reduction of number of teachers; when; dismissal of teachers
without certificates.-Sec. 3, page 4764. 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 in said school
district; and, provided further, that the service of any principal or teacher
may be terminated without charge or trial who is not the holder of a proper
teacher's certificate in full force and effect.
Overview
There were nine elementary schools in the school district of Hoboken with
6,704 pupils in attendance in 1928. From that time forward until 1932 there was a
marked decrease in attendance from year to year, so that in 1931 there were only
5,431 pupils. During the latter part of this period five more classrooms became
vacant. This diminution in the number of pupils was a natural one, due to the loss
of population. During this period the decrease in the number of teachers was only
nine. In 1931, due to a bank failure, inability to collect taxes, and other causes,
the city of Hoboken, which comprised the school district of Hoboken, found it
difficult to finance its schools, difficult at first and almost if not impossible
thereafter to borrow money by the use of all available credit of the city. From
time to time the president of the board of education made public reference to
economic problems facing the board. He referred to the fact that many of the
teachers were married women, some of whom did not live in the city, and that
condition he vigorously criticized. On Jun 27, 1932, a second conference was
held between the bankers and the city officials in an effort to raise money, but that
effort was futile in view of the position taken by the bankers that the cost of

32. 50
operating the schools must be reduced. As a result of this conference, the city
commissioners met with the board of education and laid before them the situation.
The result was that it was decided to close two schools. To carry out this decision
the board met on June 29, 1932. At that meeting a report was made by the
superintendent of schools that he had made certain transfers of teachers and other
employees from and to various schools, subject to the approval of the board. The
approval was unanimously given. By that transfer 26 teachers represented by the
dismissed teacher were transferred to schools numbers 4 and 7. Later at the same
meeting the board by resolution reciting in effect the decreased attendance, the
excessive per capita cost of pupils, the necessity of economizing, and that the
services of so large a number of teachers were no longer required, unanimously
resolved that schools No. 4 and 7 be closed on June 30th at the close of the school
year, and that the pupils attending those schools be transferred to other schools
and that 34 named teachers (including the 26 and 8 others) be dismissed as of
June 30, 1932, and abolished the positions of certain other employees.
All of the dismissed teachers were involved (namely, the 26 transferred to
schools numbered 4 and 7), and the eight who had long served in Numbers 4 and
7), have served for more than three years, and were therefore under the protection
of the tenure act.
Issue
Can the board transfer teachers from various schools to a particular school
which the board determined to close for reasons of economy and declining
number of pupils, thus rendering the teachers' professional services unnecessary?
Decision
Court decided for the board.
Characteristics of the decision
An appeal was taken to the state board of education, and that board held
that the termination of the services of 34 teachers was legal, subject to the board
assigning seven of the teachers to positions held by teachers not protected by
tenure. The court felt that the decision of the state board of education should not
be disturbed.
The court expressed that the powers of boards of education in the
management and control of the school districts are broad. They are invested with
the supervision, control, and management of the public schools. They may make,
amend, and repeal rules, regulations, and by-laws not inconsistent with the school
law or with the rules and regulations of the state board of education, and, among
other things, may employ and discharge teachers. The Board's powers are limited
as to the employment and discharge of teachers only to the extent provided by
School Codes 68, 106a, and 106c. These laws declare, among other things, 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

33. 51
such reduction shall be due to a natural diminution of the number of pupils in said
school district."
In general, the right to transfer a teacher seems to rest in the sound
discretion of the board of education, and it seemed to the court that the mere fact
that the 26 teachers were transferred from their various schools to schools
Numbers 4 and 7, which at the same meeting the board of education determined
to close, did not render the transfers illegal. In general, the board had a right to
dispense with the services of such number of teachers selected from the entire
school district as it in good faith deemed necessary to effect the economy which
its financial condition demanded, and whose services were no longer necessary
because of the diminution of the number of pupils.
From time to time the president of the board of education made public
reference to economic problems facing the board. He referred to the fact that
many of the teachers were married women, some of whom did not live in the city,
and that condition he vigorously criticized. It was true that the board president
expressed himself forcibly. It was true that he wrote letters to the teachers in
which he expressed his views. It was also true that he conducted a survey and
reported the findings to the board. But the court indicated that the board did not
authorize such a survey and took no action on the report with regard to
nonresident and married women teachers, and that it did not authorize the
president to communicate with the teachers nor to do anything in that regard. The
court indicated that the board may or may not have been influenced by the board
president's views. The court would not speculate on this matter. The question
was, "Does this action of the president affect the legality of the transfers?" The
court felt it did not. The court was satisfied from the record that the purpose of
the board was to effect economy and to terminate the services of a number of
teachers no longer necessary because of the diminution of pupils. The fact they
dismissed married or nonresident women teachers, giving preference to residents
of the school district, was not an abuse of power. The court held the board acted
within the authority conferred upon it by law, and its action involved the exercise
of discretion, and, in the absence of clear abuse, its action ought not to be
disturbed.
Significant points
1. The powers of state boards of education in the management and
control of the school districts are broad. They are invested with
the supervision, control, and management of the public schools.
2. Boards of education may make, amend, and repeal rules,
regulations, and by-laws not inconsistent with the school law or
with the rules and regulations of the state board of education, and,
among other things, may employ and discharge teachers. They are
authorized by majority vote to transfer and dismiss teachers.
These powers are limited as to the employment and discharge of
teachers only to the extent provided by the Teachers Tenure Law.

34. 52
3. In general the right to transfer a teacher rests in the sound
discretion of the board of education. The board had the right to
dispense with the services of such a number of teachers selected
from the entire school district as it in good faith deemed necessary
to effect the economy which its financial condition demanded, and
whose services were no longer necessary because of the
diminution of the number of pupils.
4. The fact the board dismissed married or nonresident women
teachers, giving preference to residents of the school district, was
not an abuse of power. The Court held the board acted within the
authority conferred upon it by law, and its action involved the
exercise of discretion, and in the absence of clear abuse, its action
ought not to be disturbed.
Revised statute
Source – New Jersey Statutes Annotated, Title 18A, Education, 18A:25 to
18A:65.
18A:28-5. Tenure of teaching staff members, pages 58-59. The services
of all teaching staff members including all teachers, principals, assistant
principals, vice principals, superintendents, assistant superintendents, and
all school nurses including school nurse supervisors, head school nurses,
chief school nurses, school nurse coordinators, and any other nurse
performing school nursing services and such other employees as are in
positions which require them to hold appropriate certificates issued by the
board of examiners, serving in any school district or under any board of
education, excepting those who are not the holders of proper certificates in
full force and effect, shall be under tenure during good behavior and
efficiency and they shall not be dismissed or reduced in compensation
except for inefficiency, incapacity, or conduct unbecoming such a
teaching staff member or other just cause and then only in the manner
prescribed by subarticle B of article 2 of chapter 6 of this title, after
employment in such district or by such board for: (a) three consecutive
calendar years, or any shorter period which may be fixed by the
employing board for such purpose; or (b) three consecutive academic
years, together with employment at the beginning of the next succeeding
academic year; or (c) the equivalent of more than three academic years
within a period of any four consecutive academic years; provided that the
time in which such teacher staff member has been employed as such in the
district in which he was employed at the end of the academic year
immediately preceding July 1, 1962, shall be counted in determining such
period or periods of employment in that district or under any board of
education other than as a teacher, principal, assistant superintendent or
superintendent, or as a school nurse, school nurse supervisor, head school