dissenting:
I respectfully dissent from the majority opinion. The majority phrases the question of law presented by this appeal as whether a teacher who has taught two consecutive school years as a full-time teacher attains tenured status when she is re-employed by the school board, but only in a part-time position for the following school year. I believe that the plaintiff acquired tenure in this case.
It is not disputed that the plaintiff taught for two consecutive school years as a full-time teacher. Section 24 — 11 of the School Code provides that “[a]ny teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal ° * (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11.) The tenure provisions of the School Code give the school board two years to observe and evaluate a teacher for the purpose of deciding whether the teacher is qualified and meets the needs of the district. (Elder v. Board of Education (1965), 60 Ill. App. 2d 56,208 N.E.2d 423.) At the end of the plaintiff’s two full consecutive probationary years of teaching in the district, the defendant board had only the three options provided in the statute. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11.) First, the defendant could timely dismiss the plaintiff and prevent her from then acquiring tenure. Second, the board of education could re-employ her for the upcoming school year, and by issuing her a contract, grant her tenured status. Third (contra to the third alternative suggested by the trial judge), the defendant could extend the plaintiff’s probationary period for an additional year (provided she had no prior teaching experience) if the requirements of section 24— 11 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11) and Graham v. Board of Education (1973), 15 Ill. App. 3d 1092, 305 N.E.2d 310, are satisfied. In the instant case the defendant opted to reemploy the plaintiff rather than dismiss her or extend her probationary period a third year. I believe the plaintiff thereby attained tenured status per the scheme, intent, and spirit of the act. “Any teacher who has been employed full time on a probationary status for two consecutive school terms attains tenure on being reemployed for the third year.” Huettemann v. Board of Education (1978), 56 Ill. App. 3d 933, 934, 372 N.E.2d 716, 717.
Under very similar facts, the Fifth District Appellate Court held that when a tenured teacher who had taught on a full-time basis was reassigned to a part-time teaching position for a year, she did not lose her tenured status. (Brown v. Board of Education (1976), 38 Ill. App. 3d 403, 347 N.E.2d 791.) I believe the Brown case is controlling. It should not matter whether the plaintiff was reemployed after serving two consecutive full-time school years for a third year on a full-time or part-time basis. The end result, following the persuasive reasoning of the Brown case, is that the plaintiff achieved tenure. Section 24 — 11 of the School Code does not specify how a probationary teacher who has been employed full time for two consecutive school years must be reemployed in order to become a tenured teacher. The statute merely requires reemployment in the subsequent year, consistent with Brown that reemployment may be either full or part time and tenure is the result.
It seems obvious the majority opinion wrongly relies upon the case of Strejcek v. Board of Education (1979), 78 Ill. App. 3d 400,397 N.E.2d 448, when contending the Strejcek case involved a substantially similar question. To the contrary, the facts of Strejcek are strikingly dissimilar. There the teacher claimed tenure based upon two years of part-time work as a teacher’s aide. Clearly, the teacher in Strejcek did not comply with section 24 — 11 of the School Code because she was not employed full time as a teacher for two consecutive probationary years. That question is not involved in the case at bar. The Strejcek case is distinguishable and lends no support for the majority’s position.
To hold as the majority does effectively allows the defendant to avoid the spirit and purpose of the tenure provisions of the School Code. In Craddock v. Board of Education (1979), 76 Ill. App. 3d 43,391 N.E.2d 1059, we held that the temporary suspension of a tenured teacher without pay required compliance with the formal dismissal procedure set forth in section 24 — 12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24— 12). “The purpose of the tenure act is to afford tenured teachers pn> cedural safeguards when their livelihood or tenured status is threatened and to avoid insecurity of employment based on political, partisan or capricious considerations.” Craddock v. Board of Education (1979), 76 Ill. App. 3d 43,45,391 N.E.2d 1059,1061.) The position taken by the majority opinion allows for the defendant in the case at bar to capriciously avoid the tenure act merely by arbitrarily reassigning probationary teachers to a part-time position. While the School Code allows for the board to legitimately extend the probationary period an additional year upon certain conditions, the procedure sanctioned by the majority in effect allows school boards to indefinitely extend the probationary period and avoid tenure by reemploying on any sort of part-time basis fashioned by the board. Here the plaintiff was even reemployed for another year on a full-time basis after her part-time year. Such action is evidence of the defendant’s motive of trying to avoid tenure. The statute does not sanction such action. It has been judicially created by the majority today inconsistent with the clear intent of the statute.
The plaintiff attained tenured status and should have been afforded all the statutory safeguards upon her dismissal. For the reasons stated the plaintiff should have been reinstated to a full-time teaching position, and the judgment of the trial court should be reversed.