Stewart v. Fort Wayne Community Schools

HOFFMAN, Justice,

dissenting.

I respectfully dissent from those portions of the majority opinion describing the school board's action as arbitrary and capricious. The majority perceives that Stewart's contract was cancelled pursuant to the rescinded administrative reduction policy, but a thorough examination of the findings of the board of school trustees discloses reliance upon the revised guide*13lines approved and authorized on January 24, 1988.

The revised guidelines for administrative reductions provided in pertinent part:

"1, Administrators are not subject to lay off/recall in the same manner as are teachers, and therefore, if there are more administrative personnel under contract than there are available positions, the excess administrators will either be reassigned or be subject to termination.
Administrators will be selected for reduction in force in a manner that is fair and equitable after the qualifications of the individuals potentially involved have been reviewed.
2. Re-assignments of some administrators to different units and/or different positions as a result of the reduction in number of administrative positions may be necessary.
Displaced administrators may be placed in teaching positions according to their seniority in the appropriate certification group.
8. If there are displaced administrators who are not qualified for any available position, the Board will be asked to cancel the contract of those administrators. The Superintendent's recommendation for cancellation of contracts will be made to the Board of School Trustees at the second meeting in March.
If there are administrators whose contracts are to be cancelled, the procedures followed will be those outlined in the applicable state statutes. (IC 20-6.1-4 et seq.)"

The school board's findings indicate that administrative employees who worked as psychometrists were re-assigned to different positions as a result of the elimination of the position of psychometrist.

"19. ... All other administrative employees who formerly worked as psy-chometrists are employed as psychome-trist/counselors if they had a counseling license, or as acting psychometrist/coun-selors if they had only a teacher's license while they work toward a counseling certificate in accordance with the program approved by the School Board on November 28, 1981 (Board Exhibit 7).
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22. There is a justifiable need to decrease the number of administrative positions and to eliminate the position of psychometrist.
28. Neither North Central nor the Department of Public Instruction require [sic] any particular staffing levels for psychometrists. Although Rule 5-1 (Exhibit G) issued by the Commission on General Education of the Indiana State Board of Education requires testing of special education students, no permanent employment of full-time psychometrists is mandated. Therefore, the job of psy-chometrist may be eliminated without violating any rule or regulation of this State or any accreditation requirements of North Central."

Stewart, a displaced administrator under the revised guidelines, was not qualified for the position of psychometrist/counselor or acting psychometrist/counselor.

"20. Although Kathy Stewart has, since her layoff in March of 1982, been working toward a teacher's license, one of the prerequisites to a counseling license (see Exhibit A), she still has over 80 hours of studies to complete to obtain a teacher's certificate. She is the least senior in terms of service with the Fort Wayne Community Schools under regular contract of all psychometrists holding only a single certification (Board Exhibits 10 and 11)."

Because Stewart could not be re-assigned, her contract was subject to termination.

"25. There are currently no job openings for psychometrist/counselors. Kathy Stewart has the least service under regular contract of all certified psychom-etrists who have no other certification. There is no other administrative position which she is qualified or certified to perform."

The findings of the school board with respect to the cancellation of Stewart's contract reflected due consideration of and *14compliance with the revised guidelines for administrative reductions.1

I cannot agree that the school board failed to follow its own guidelines, thereby rendering its action arbitrary and capricious. Accordingly, I must dissent from the majority's conclusion that Stewart is entitled to damages and equitable relief under 42 U.S.C. § 1983.

I further dissent from the majority's conclusion that Stewart, as a tenured teacher, could not be discharged while non-tenured employees were retained as acting psy-chometrist/counselors. The majority bases its decision upon Barnes v. Mendenhall (1932), 98 Ind.App. 229, 188 N.E. 556. In Barnes, this Court rejected the proposition that a school board, justifiably seeking to reduce the number of teaching positions, has the discretion to choose between tenured and non-tenured teachers, both of whom are licensed to fill the position which remains. Id. at 241-242, 188 N.E. at 560.

The reasoning from Barnes is inapplicable to the facts of the case at bar. The school board in the instant case found that Stewart was not qualified for a re-assignment to the position of acting psychome-trist/counselor. The position was available to psychometrists who had teacher's licenses, and Stewart had yet to obtain such a license. Because the board did not imper-missibly choose between equally qualified tenured and non-tenured teachers, Barnes is inapposite.

For the foregoing reasons, I dissent.

. The school board's discussion of the rescinded policy merely supplied the context for the board's initial decision to lay off Stewart.