dissenting.
I am of the opinion that the Board of Education failed to accord the tenured teacher a hearing that complied with minimal standards of due process and, so, dissent. I would affirm the judgment of the circuit court.
A tenured teaching position is a valuable asset that can be divested only for cause, following notice and hearing. Sections 168.114-168.120, RSMo 1986. The protection of the teachers’ rights is committed, in the first instance, to the Board of Education, which hears the evidence and definitively resolves factual issues. Ross v. Robb, 662 S.W.2d 257 (Mo. banc 1983), rejecting the claim that the Board could not hear and dispose of charges initiated by it or its superintendent. The law provides for a limited review in circuit court, during *950which procedural questions relating to the hearing may be addressed along with points about the sufficiency of the evidence, which are not involved here. The courts afford great deference to the Board, both as to substantive and procedural requirements, but the ultimate resort on questions of law is to the courts.
Any experienced practitioner can empathize with the scenario presented by this record. The Board convened a hearing at 7 p.m., hoping to conclude it in a single sitting. At 2:15 a.m. the direct examination of an important witness, the school principal, was completed, and the witness was turned over for cross examination. At this time the Board had other witnesses, and the teacher had 20 sequestered witnesses he intended to call. Counsel for the teacher asked that the hearing be adjourned. The Board, after receiving incorrect and misleading advice from its counsel, said, “Carry on.” There was no suggestion that the hearing continue only through the cross-examination of the principal, or that it continue until the Board put on its case. Counsel for the Board, who was in the best position to know, gave no estimate as to when he might complete his case. There was no suggestion that the teacher’s counsel could excuse his witnesses, so that they could be heard at an adjourned session. Counsel for the Board said that he wanted to avoid “having to do this another night.”
The hearing continued, without cross examination of the Board’s witnesses, until 5:45 a.m. The teacher’s counsel had objected to requiring the teacher “to commence sometime near 3:00 or 4:00 o’clock in the morning to present his defense of these charges_” Had there been any cross-examination, the actual defense could not have started until much later. The Court now says that the right of cross-examination was waived by counsel’s withdrawing from the hearing, which would be so under normal conditions. But counsel properly anticipated what would happen if they remained. Any question on cross-examination would bring forth scowls, or yawns, or both, from the Board members. The continued hearing, under these circumstances, would be a charade.
The Board’s decision was actuated by the advice of its counsel, which, as the Court’s opinion points out, was patently incorrect. Counsel grossly exaggerated the time constraints and stated, incorrectly, that the Board that heard the evidence had to decide the case. A decision may be rendered by the Board in office, if the procedural requirements have been met. The successor Board would have full authority to act on the case. Coupled with the circumstance that the school authorities had set the schedule, and had not acted so promptly as they could have, counsel’s protestations of time constraints were quite misleading. A detached observer might conclude that the Board was anxious to have the case decided so that it could be used in the campaigning for the approaching election.
The Court’s opinion frankly states as follows:
We have little doubt that had the Board required Moore to complete the entire hearing at this session, that his right to a full and fair hearing as required by due process would have been violated.
But the Court goes on to excuse the Board by saying:
We find that the Board’s decision to proceed with the cross examination of the witness then on the stand was not unreasonable.
The suggestion that the Board’s decision was limited to the cross-examination of the principal does not accurately reflect the record. The Board’s counsel wanted to avoid, at all costs, the necessity for having to come back another night. How any recess could be directed, within this constraint, is difficult to fathom. Counsel for the teacher had absolutely no reason to believe that a later request for adjournment would be received any more favorably, when Board counsel’s impatience and misleading advice is factored. They could not safely release their witnesses. Had the teacher’s counsel sought to make a record in any detail, they would be accused of filibustering. The Court carries the princi-*951pie of deference too far, in reforming the Board’s manifest decision.
The Court says:
We interpret the thrust of the ruling as leaving in abeyance the question of whether the Board would consider a renewed motion for continuance at a later time. ...
This is inappropriate deference, without the least record support. We should not, in the interest of deference, condone manifest injustice.
The Court cites the case of Bills v. Arizona State Board of Education, 169 Ariz. 366, 819 P.2d 952 (App.1991), for the proposition that:
[T]he mere fact that an administrative hearing extends well into the night, without a showing that the claimant, his attorney, or his witnesses were exhausted or in any way unable to perform their duties, is insufficient to show a violation of due process. ...
The Bills case is so different factually that its citation is not only without value, but positively misleading. There a school board presented its case during the day, concluding at 6 p.m. The teacher asked for an adjournment; which was denied, and he then put on his case. Closing arguments were had, and the Board began deliberations at 1:30 p.m. Here, counsel was confronted, at 2:15 p.m., with prospects for a hearing that might well continue until the afternoon. Neither the Board nor its counsel gave any suggestion of any other possibility. It is not improbable that they actually courted a waiver and hoped that counsel would withdraw.
It simply was not possible to conclude a meaningful hearing under these circumstances. Counsel should not have to faint, or profess chest pains, in order to demonstrate that people do not fare well in tasks requiring serious intellectual application after 2 o’clock in the morning. It is good in most cases to require counsel to make a detailed record, but there are times when it is patent that the making of a record would do no good. In these situations the Court should not use the record as an excuse.
The damage is not repaired by the offer to the teacher, three days later, of the opportunity to present affidavits of his witnesses who were not heard. This was simply a belated effort to shore up the record. Counsel could appropriately sense that the affidavits would do no good. There are times when it is proper to receive affidavits in advance of testimony, so as to determine issues of materiality or to reduce the volume of cumulative evidence. Under the circumstances of this case, however, the offer to receive affidavits does not correct the unfairness.
It is significant that the circuit court found the hearing to be lacking in due process. That court, like this Court, is a reviewing court in cases of this kind. It does not retry the facts. But we often rely on the trial courts to scrutinize complicated records, which is a task not ordinarily allotted to us. The circuit court has less of an ivory tower appearance than do appellate courts and, I believe, viewed the record more realistically than does this Court.
I gain a distinct impression from the entire record, coupled with the Board’s briefs and its counsel’s argument here, that the Board had made up its mind well in advance of the hearing and sought to get through, as soon as possible, a procedure that it considered to be a burdensome formality. The Court properly rejects counsel’s argument that the Board’s case was so strong that no further hearing was necessary, but the very making of this argument supports my impression. It also casts doubt on counsel’s role as advisor to and principal spokesman for the Board on the procedural aspects of the hearing.
Boards of Education exercise great responsibility. Their members necessarily are not learned in the substantive and procedural requirements of the law, and it is the duty of the courts to instruct them in the requirements of a fair hearing, especially in cases in which their counsel may have given misleading advice. They are not attuned to procedural requirements. It is neither difficult nor unreasonably burdensome to conduct disciplinary or discharge hearings that comply with the inter*952nal and external standards of fairness. Here the Board has fallen short.
The judgment of the Circuit Court, setting aside the dismissal, should be affirmed.