I joined in Mr. Justice Almon's dissent when the original opinion in this case was released. He wrote that the court has "improperly changed the scope of review in this type of case." I am now more than ever convinced that this is correct. I wish to expand on this view.
First, let us review the chronology of this case. By letter, dated May 30, 1974, Mrs. Greenberg, a tenured teacher, was notified by the Mountain Brook Board of Education that her contract was to be terminated, with reasons given for the termination. She requested a hearing.
On June 26, 1974, a hearing was held before the Mountain Brook Board of Education. At that hearing, evidence was presented that Mrs. Greenberg (a junior high-school teacher) had made racial slurs, e.g., that blacks would have to learn to take baths if they moved into Mountain Brook and that they would have to learn to act like white people. There were complaints from parents and evidence of unfair treatment of students and of refusal to help students. There was further evidence that she had made fun of a student because he or she was fat or walked differently. The Court of Civil Appeals' opinion discloses that the following evidence was also presented before the Board:
"There is considerable testimony to the effect that the teacher engaged in behavior which can best be described as mocking and holding up to ridicule many of her students. Students who had been made the object of this type of conduct so testified, and one witness testified that Greenberg on one occasion called her a `smart ass' before the class.
"The principal of Mountain Brook Junior High School testified that before the commencement of the school year he received requests from a minimum of thirty parents that their children not be placed in Greenberg's classes. He further testified that more parents and students had consulted him concerning Greenberg than was the case with any other teacher and that these visits had been without exception of a disapproving nature. His recommendation was that her employment contract be terminated.
"Former students of Greenberg testified that they did not learn comparably with students in other classes and that Greenberg's behavior tended to so intimidate her students as to discourage them from asking questions.
"There was further testimony that Greenberg unjustifiably refused to release a cheerleader from her class to attend a cheerleading function."
By letter dated July 3, 1974, Mrs. Greenberg was notified that the School Board had voted unanimously to cancel her contract.
Mrs. Greenberg appealed to the State Tenure Commission, which considered the case on August 29, 1974. It found that therecord of the proceedings before the School Board containedinsufficient evidence to support Mrs. Greenberg's termination and ordered her reinstatement.
On October 1, 1974, the School Board filed a petition for writ of mandamus in the circuit court. A hearing was held but no *Page 527 additional evidence was taken. On May 30, 1975, the circuit court entered final judgment vacating the Tenure Commission's order and reinstating the school board's order.
On appeal by the Tenure Commission of the circuit court's judgment, the Court of Civil Appeals, on March 3, 1976, affirmed. Rehearing was overruled on March 31, 1976.
On April 14, 1976, the Tenure Commission filed petition for writ of certiorari in this Court. The petition was sought on two grounds only: (1) "first impression" — whether the Court of Civil Appeals erred in holding there was no error even though the record did not contain the notice to the teacher showing the reasons for her contract termination; and (2) "conflict" — whether the Court of Civil Appeals' decision conflicts with State Tenure Commission v. Madison County Boardof Education, 282 Ala. 658, 213 So.2d 823 (1968). The conflict alleged is that the Court of Civil Appeals held that its inquiry was whether the Board's decision was "arbitrarily unjust" while Madison County held that the test is whether the conclusion of the Tenure Commission was "unjust," i.e., the Court of Civil Appeals used the wrong rule of review.
Ground (2) for issuance of the writ could not be a "good" ground for the simple reason that the Madison County decision is a plurality decision, i.e., a majority of the then Court did not join in the opinion, but joined only in the result. Therefore, it is not an opinion of this Court and could not be the basis for a "conflict."
When less than a majority of the Court concurs in an opinion, no disqualification existing, the statements of law and application of the law to the facts contained in the opinion are not the "law of the case." The opinion stands solely for the result of the case, either affirmed or reversed. PhoenixInsurance Company v. Stuart, 289 Ala. 657, 270 So.2d 792 (1972).
Therefore, the petition for writ of certiorari could not have been granted on the alleged "conflict" basis because there simply was no part of the Madison County opinion with which the Court of Civil Appeals' opinion could conflict.
Thus, the only ground for our review is the first — (1) that an alleged question of "first impression" has been raised because the record did not contain the notice. That issue is not addressed by the majority opinion. Should it be reached I would have to say I agree with the conclusion reached by the Court of Civil Appeals — that Mrs. Greenberg did have notice.
Mr. Justice Embry, for the majority, writes that the principal issue in this case is the "scope of inquiry of the courts when reviewing actions of the Alabama State Tenure Commission . . ." I agree. The following sets out this scope ofreview.
The scope of review by the Tenure Commission of the Board's action is whether the Board's action was arbitrarily unjust. Tit. 52, § 360, Code. Marshall County Board of Ed. v. StateTenure Com'n., 291 Ala. 281, 280 So.2d 130 (1973). "Review" means to re-examine judicially, not trial de novo. Greene v.Washington County Bd., 45 Ala. App. 216, 228 So.2d 829 (1969). This review is based on the record before the Board of Education.
The scope of review by the circuit court of the Tenure Commission's action is by mandamus and is limited to two considerations — whether such action by the Tenure Commissioncomplied with the provisions of Chapter 13, Tit. 52, "Tenure of Employment of Teachers"; and, whether such action was unjust. Tit. 52, § 361; Lamar County Bd. of Educ. v. Steedley,45 Ala. App. 672, 236 So.2d 337 (1970); Cullman City Bd. of Educ.v. Buchanon, 45 Ala. App. 357, 231 So.2d 134 (1970). This review by the court is based on the record made before the Board of Education. Steedley, supra.
The scope of review by the Court of Civil Appeals is to determine from a review of the evidence taken before the County Board whether there was compliance with Chapter 13 ("Teacher Tenure") and whether the record will support the Tenure Commission that the action of the Board was arbitrarily unjust.Marshall County Board of Ed. v. State Tenure Com'n, supra. *Page 528
The task of reviewing all the evidence to make these determinations, formerly placed by law on the Supreme Court, is now placed by law on the Court of Civil Appeals. MarshallCounty, supra.
The scope of review by the Supreme Court is limited to certiorari and the limited review provided by that vehicle.Marshall County, supra.
The Court of Civil Appeals reviewed the evidence in this case and found that "the record belies the conclusion that the board's action was based on, `no sound basis of reason,' or was, `without any reasonable cause.'"
So, the Court of Civil Appeals, upon reviewing the evidence, found that the record did not support the Tenure Commission's action but did support the Board's findings and that "[t]he Tenure Commission in effect substituted its view of the evidence for that of the board."
We do not re-examine these findings under our rules of review. Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970).
In summary, it is thus I conclude, first, that we are limited in our review to the "notice" question. On this question the Court of Civil Appeals is correct and should be affirmed.
Second, we cannot review the other question raised on certiorari as to the scope of review by the Court of Civil Appeals because, as I have demonstrated, there is no basis for a "conflict" upon which a writ could be granted.
Third, assuming arguendo that scope of review is an issue, the Court of Civil Appeals is correct and, having reviewed the evidence before the Board (its duty) and found it to be sufficient to support the Board's action in terminating Mrs. Greenberg's employment, should be affirmed. We do not re-examine these findings.
The Court of Civil Appeals' decision should be affirmed.
In conclusion, the effect of this decision is far reaching.Sub silentio the Court has overruled the following cases:
Phoenix Insurance Company v. Stuart, supra,
Marshall County Board of Ed. v. State Tenure Commission, supra.
This Court has now completely changed our scope of review of the Courts of Appeal as to "conflict" basis and as to review of the Courts of Appeals' findings on the facts.
ALMON, J., concurs.