dissenting:
I respectfully dissent from the opinion of the majority and would reverse the trial court’s decision affirming the Board. I believe the Board wrongfully discharged plaintiff for several reasons. First, I believe that the charges were remediable and that the warning given plaintiff was insufficient under the statute. I recognize that uncorrected causes for dismissal which originally were remediable in nature can become irremediable if continued over a long period of time and if the teacher refuses or fails to remedy them. (Glover v. Board of Education (1974), 21 Ill. App. 3d 1053, 316 N.E.2d 534.) I do not believe the instant record supports the conclusion that the alleged deficiencies in discipline, instruction, and teaching environment existed for such a long period of time that they became irremediable. It is true that Robert Jordan, acting assistant principal at the Gregory School, testified that he had occasion to observe plaintiff’s class during the school year of 1976-77 and that on many occasions the students were noisy, the classroom was in disarray, and there was a lack of discipline. However, the only other witnesses who testified against the plaintiff and who provided specific dates testified as to incidents which occurred in February or March of 1977. This is unlike the situation in Glover, where the record showed that the plaintiff was on probation and had that probation extended in February of 1971; was informed by the school in April and again in September of 1971 that the school was concerned with plaintiff’s discipline problems; and was warned in November of 1971 by the principal that if there was no improvement he would not recommend that plaintiff be reemployed. In Glover, the plaintiff received numerous warnings and failed to heed these warnings over a long period of time.
I also believe the charges pertaining to corporal punishment were remediable. Within the broad delegation of parental authority to a teacher under section 34 — 84a of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 84a) is the authority to inflict corporal punishment on a student if such punishment is warranted under the circumstances. (People v. DeCaro (1974), 17 Ill. App. 3d 553, 308 N.E.2d 196.) The majority correctly points out that in certain cases, corporal punishment has been held to be an irremediable deficiency. However, I believe each of the cases cited by the majority to be distinguishable from the instant situation. In Welch v. Board of Education (1977), 45 Ill. App. 3d 35, 358 N.E.2d 1364, a teacher paddled a student twice during a 20-minute period. The second paddling, administered for no reason other than the fact that the first paddling did not hurt enough, left red marks and bruises on the student’s buttocks. In Rolando v. School Directors (1976), 44 Ill. App. 3d 658, 358 N.E.2d 945, a teacher was shocking his sixth grade students into submission on a regular basis with an electric cattle prod. In Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, 347 N.E.2d 270, the plaintiff struck students in the face with his hand on four occasions. One witness testified that the plaintiff slapped her head against the table, held her by the hair, then slapped her in the face 10 to 13 times causing cuts inside the witness’ mouth. I believe the corporal punishment in the above cases to be of much greater severity than that in the instant case. In each of the above cases the corporal punishment was unwarranted under the circumstances and a clear physical abuse of the students. In addition, the corporal punishment in the above cases is clearly documented by the testimony of the witnesses. The instant testimony concerning corporal punishment is vague and sketchy. None of the witnesses who testified as to the instant corporal punishment indicated the force of the blows, whether the person hit cried out, suffered any physical injuries or bruises, or even felt any pain. None of the witnesses described the curtain rod that was purportedly used to strike students. The ruler which plaintiff is said to have used is part of the record on appeal and of a very light weight. It is not an instrument which can inflict great pain.
In essence, I believe that if the Board of Education is to terminate a tenured teacher who has not received the prescribed statutory notice, it must produce a record which clearly substantiates that the charges are irremediable. I find the instant record lacking. My conclusion is greatly influenced by the fact that two of the three members of the trial committee who heard that evidence and sat on the Board did not vote in favor of their own report which recommended dismissal. If the majority of the trial committee cannot accept the decision of the Board, I cannot accept the decision either. For the above reasons, I would reverse the decision of the trial court.