The learned judge who wrote for the Appellate Division in this proceeding makes the following concession: "Of course, if thecharge preferred against the relator, upon which she was removed, was not one on which the defendant was authorized to remove her, then the action of the defendant in removing her would be a nullity, and she might be reinstated by mandamus; but that is not this case."
Whether that is this case or not depends entirely upon what is meant by the charge. I think it means the general accusation against the teacher as qualified and interpreted by the specification. Here the charge is not merely neglect of duty, but it was neglect of duty consisting of absence for the purposeof bearing a child. This is the offense for which the relator has been deprived of her position on the teaching staff of the city's school system and of her share in the teachers' pension fund. In my opinion the board of education was without power or jurisdiction to remove her on this ground. Under the established rules of the board mere absence in and of itself does not necessarily import neglect of duty. The absence of a teacher is thereby expressly declared to be excusable, without any deprivation of pay, in case of serious personal illness, and leave of absence without pay may be granted for a period not exceeding one year for *Page 468 the purpose of study or restoration to health. In every case of absence without leave previously granted it is obviously necessary to ascertain the cause of absence before it can be deemed to constitute undutiful negligence warranting dismissal; and it is a question of law whether or not the cause assigned imports neglect of duty. If it does, the board of education may remove the teacher; if it does not, no power of removal exists.
Married women have been employed as teachers in our public schools for so many years that their employment in this capacity must be deemed to have the approval of the legislature. Certainly if it had been disapproved we should have found some evidence to that effect on the statute book. Maternity, requiring occasional absences at periods of childbirth, is a natural consequence of the employment of potential mothers as teachers. If the legislature had regarded this consequence as detrimental to the welfare of the schools, it would certainly have guarded against it by a prohibitory enactment. We find no such prohibition in the law or in any duly authorized rule or regulation of the board of education adopted pursuant to law. It is true that the board has virtually endeavored to establish such a rule by its action in the present case, but I think it had no authority so to do. The reasons for and against the employment of young mothers as public school teachers, set out in this record in the majority and minority reports of the committee on elementary schools of the board of education, are appropriate for the consideration of the law-making power, but do not concern the courts. The question which we are called upon to decide in this proceeding is whether the specific accusation upon which the relator has been dismissed from her position, to wit, "absence for the purpose of bearing a child," constitutes neglect of duty within the meaning of section 1093 of the Greater New York charter. I agree with the learned judge who heard the case at Special Term (Mr. Justice SEABURY) that it *Page 469 does not. I, therefore, dissent from the proposed affirmance of the order of the Appellate Division which reversed his decision.