dissenting. I am fully in accord with the commentary of Justice Wright in his dissent herein and join such dissent, but wish to make additional points which I believe will show the inaccuracies of the majority opinion. School board members who have attained their positions with the thought that they would be able to maintain a reasonable degree of local control of the management of school affairs in their district have been dealt yet another blow by this court in denial of such control over their school systems.
The majority arrives at its conclusion here by premising its standards of review on the assertion that this court has stated that “[t]he [Teachers’ Tenure] Act, now codified at R.C. 3319.08 through 3319.18, is to be construed in favor of teachers,” quoting State, ex rel. Rodgers, v. Hubbard Local School Dist. Bd. of Edn. (1984), 10 Ohio St. 3d 136, 138, 10 OBR 458, 459,461 N.E. 2d 1308,1310, and State, ex rel. Bishop, v. Bd. of Edn. (1942), 139 Ohio St. 427, 439, 22 O.O. 494, 499, 40 N.E. 2d 913, 919. Although those cases did not specifically set forth any such syllabus law as a standard to be followed, it is agreed that all reasonable deference should be given to granting teachers their claimed tenured rights under the Act.
Both of such cases accordingly were considering claims of the teachers respectively involved therein pursuant to the Teachers’ Tenure Act. This court reasonably concluded that under the circumstances in those cases the teachers had qualified for their continuing contracts. Under such circumstances, where the teachers were seeking recognition of their tenure, this court held that the Teachers’ Tenure Act should be “ ‘liberally construed in favor of teachers, who constitute the class designated to be its primary beneficiaries.’ ”4 (Emphasis deleted.) Id.
However, we have an entirely different situation here. The school board is not attempting to deny Catherine Phillips her tenured status, nor is the school board attempting to deny Phillips her continuing contract rights. The board is merely proceeding under the law to suspend Phillips from her *73teaching employment for a period of time because the need for her services has been eliminated due to an evidenced decrease in enrollment.
The broad question here is not whether the teacher involved was denied her tenured status, but whether the school board, under the circumstances, acted reasonably in reducing the size of its professional staff to meet the exigencies of the time, which involved a decline in enrollment over a period of years. The fact pattern and the issues are familiar in that they were presented and answered by this court in Dorian v. Euclid Bd. of Edn. (1980), 62 Ohio St. 2d 182,185,16 O.O. 3d 208, 211, 404 N.E. 2d 155, 158, where this court found:
“The trial court found that enrollment had dropped 22 percent, from 11,363 students in 1965 (appellee’s first year as school psychologist) to 8,850 in 1975-76, and that the acts of the Euclid Board of Education concerning appellee had been done in good faith. These findings showed that it was reasonable for the board to suspend appellee due to decreased enrollment under R.C. 3319.17.”
Here, as stated, the fact pattern regarding the decline in attendance or average daily membership as found by the trial court, and the court of appeals, is similar to that as found in Dorian. The evidence here relative to the district’s pupil enrollment, as found by the lower courts in reliance upon the testimony received, was:
1976 1977 1978 1979 1980
1592 1555 1530 1458 1374
1981 1982 1983 1984 1985
1343 1331 1257 1237 1235
This constitutes a twenty-two percent decline in a period of ten years in the pupil enrollment for the entire district. In that same period, the high school enrollment decreased from 547 to 436, a decrease of twenty percent. In the department in which the appellant was employed, the decrease in enrollment in the nine-year period immediately preceding the suspension of her contract was from 172 to between 112 and 96, a decrease of between thirty-five and forty-four percent. And in the appellant’s shorthand classes the decrease in the nine-year period immediately preceding the suspension was from 32 to 9, a decrease of about seventy-two percent.
Appellant argues, and the majority here adopts the premise, that the elimination of the course which she had been teaching does not present a statutory condition under R.C. 3319.17 for the suspension of her continuing contract, citing State, ex rel. Cutler, v. Pike Cty. Joint Area Vocational School Dist. (1983), 6 Ohio St. 3d 138, 6 OBR 195, 451 N.E. 2d 800. As to Cutler, appellant and the majority are basically correct, because in that case there was no evidence of decreased enrollment, but only that of the elimination of a course for which the teacher had not been certified. Here, however, the appellant was not suspended because the shorthand courses were simply discontinued. Rather, the courses had been discontinued because in the year immediately prior to the suspension there were only nine shorthand students, a substantial decrease in the prior enrollments.
Faced with steadily declining enrollment figures over a nine-year period, the appellee board acted as it is authorized to do under R.C. 3319.17. As this court expressly stated in Dorian, supra, at 184, 16 O.O. 3d at 210, 404 N.E. 2d at 158:
“In order to give boards of education the necessary flexibility, the *74General Assembly enacted a section wholly distinct from R.C. 3319.16, the section normally used for the termination of continuing contracts. R.C. 3319.17 terms the removal a suspension and grants teachers the right of restoration to continuing service status when teaching positions become available in positions for which they are or become qualified. It balances the needs of the school system with the rights of the teacher who holds the continuing contract. No stigma is attached and a hearing is not necessary.”
The views expressed in Dorian were echoed three years later in Bohmann v. Bd. of Edn. (1983), 2 Ohio St. 3d 136, 139, 2 OBR 683, 686, 443 N.E. 2d 176, 178-179, as follows:
“The General Assembly, in enacting R.C. 3319.17, recognized the need to give a board of education flexibility in decreasing the number of teachers in its employ due to circumstances beyond the board’s and teachers’ control. The decision of this court today reflects this spirit, for it properly preserves the flexibility a board of education needs in dealing with changing staffing requirements.”
The need for flexibility in the handling of school affairs would appear to be greater today than ever before. The materials submitted by the amicus Ohio School Boards Association inform us that the ten-year decline in enrollment which was experienced by the South Range Local Schools was not an isolated situation. Amicus states that statewide enrollment figures for the period from 1976 to 1986 show a total decline in enrollment from 2,287,275 to 1,793,965, an approximate twenty-two percent drop which was the same as experienced by South Range.
The amicus draws our attention to the fact that the need for flexibility is especially important in light of the serious financial condition of many school districts, with many seeking assistance from the emergency school advancement fund established by R.C. 3317.63. These financial pressures are often exacerbated by declining enrollments, in that the school foundation program distributes state funds to public schools according to their average daily membership (ADM).
The need for flexibility existed here, and both lower courts here cited and relied upon Dorian as the basis for their holdings. The same factual situation existed, and the same legal issue was presented.
The lower courts properly followed this court’s statement of law in Dorian, and recognized the fact of life that like declining populations in communities, school districts are rarely faced with an abrupt, substantial fall in enrollment. In virtually all cases, the decline takes place over a period of several years. Hence, the legislature did not specify a time in which the decrease must occur, but left boards of education with what this court has termed “flexibility” in that regard.
The law of Ohio as previously pronounced by this court is clearly contrary to the conclusions reached here by the majority relying, in the main, upon the law as cited from other states. The lower courts correctly applied the law of Ohio to the facts presented, and this court should uphold their judgments. The majority, having plowed new and erroneous law, requires that I dissent therefrom.
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.The majority opinion also intimates that it is Ohio law that R.C. 3319.17 must be “construed narrowly against boards of education,” citing to State, ex rel. Kohr, v. Hooker (1958), 106 Ohio App. 1,4, 6 O.O.2d 269, 270, 152 N.E. 2d 788, 791. It must be pointed out that this is not a pronouncement from this court, but a court of appeals. More importantly, such case was specifically not dealing with the construction of R.C. 3319.17, but dealt, inter alia, with R.C. 3307.37, which relates to the termination of employment of a teacher for superannuation.