I respectfully dissent.
The majority hold and I agree that a public school district, pursuant to the Education Law, may terminate a probationary teacher for any reason so long as it does not do so for illegal reasons. If the sole reason for the dismissal of those teachers were their union activities, I would agree with the majority, for it is clear that a teacher cannot be dismissed for the exercise of his rights under the Taylor Law (Civil Service Law, art 14).
The PERB hearing officer, however, found in addition to the finding of "animus” mentioned by the majority, "some credible evidence in the record to support * * * criticism of their teaching techniques and attitudes”. The majority thus have held that PERB can order reinstatement of nontenured teachers dismissed by the board when one of the reasons for dismissal is union activity, even though other valid reasons exist. I disagree.
*395PERB ordered that the teachers be reinstated with back pay, with leave to the Board of Education to "evaluate their performance uninfluenced by any of their union activities”. Presumably, the teachers will go back to work and the board will re-evaluate their performances. The board, having heretofore denied any antiunion bias, can do little more than subjectively state, in the directive language of PERB, that the next decision will be "uninfluenced by any of their (teachers) union activities”. If the board should thereafter dismiss the teachers, or either one of them, on "credible evidence * * * to support * * * criticism of their teaching techniques and attitudes”, it is quite reasonable to assume that the teachers will immediately return to PERB with the same complaint, on the same grounds, as in their first successful application; namely, that the board was influenced by their union activities. It would thereupon be more than likely that PERB, on the same set of facts, without any change, would reaffirm its first decision. The obvious conclusion is that these teachers cannot now be dismissed unless a new factual basis acceptable to PERB is introduced as evidence. I find no statute intending or providing for such broad appellate oversight by PERB.
I would adopt and apply to this case the observations made by the Court of Appeals, in New York Inst. of Technology v State Div. of Human Rights (40 NY2d 316, 322) decided in July, 1976:
"The management of the university is primarily the responsibility of those equipped with the special skills and sensitivities necessary for so delicate a task. One of the most sensitive functions of the university administration is the appointment, promotion and retention of the faculty. It is for this reason that the courts, and administrative agencies as well, should 'only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning’. (Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28, 38; see, also, Faro v New York Univ., 502 F2d 1229, 1231-1232.) As we said in Pace College, educational institutions 'are not "businesses” where employees are all fairly fungible unskilled or semiskilled workers’, but are places where 'subjective judgments necessarily have a proper and legitimate role’. (Matter of Pace Coll. v Commission on Human Rights of City of N. Y., supra, p 38).”
*396In my view there is a strong correlation between the needs of those entrusted with the "delicate * * * task” of the administration of a university and those similarly charged with responsibility for the management of a public school district, such as the petitioner herein (id.). Applying the standards contained in New York Inst. of Technology v State Div. of Human Rights (supra), to the facts of the instant case, I am led to the inevitable conclusion that the respondents and the majority of this court have failed to exercise "the greatest caution and restraint” by interfering with the petitioner in its attempt to exercise its duties with regard to the status of its faculty members (id).
The determination should be annulled.
Sweeney, J. P., Kane and Herlihy, JJ., concur with Mahoney, J.; Larkin, J., dissents and votes to annul in a separate opinion.
Determination confirmed, and petition dismissed, with costs.