concurring. The majority have apparently held that a probationary teacher has a right to appeal to circuit court from a decision of the school board where (1) a constitutional issue is involved, and (2) where a hearing has been held by the Board for termination of such a teacher.
The Teacher’s Fair Dismissal Act of 1979 (Act 766) Ark. Stat. Ann. § 80-1264 — 1264.10 (Repl. 1980), does not give a probationary teacher the right to appeal to circuit court under any circumstances. Section 80-1264.9 sets out the procedure to be followed after the Board has granted a hearing. Subsection (a) applies to probationary teachers and subsection (b) applies to nonprobationary teachers:
(a) Upon conclusion of its hearing with respect to the termination or nonrenewal of a teacher contract of a teacher who has been employed as a full-time teacher by the school district for less than three (3) continuous years, the board shall take action on the recommendations by the superintendent with respect to the termination or nonrenewal of such contract.
(b) Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher. . . The exclusive remedy for any person aggrieved by the decision of the school board shall be appealed [an appeal] therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board.
The provision for appeal to circuit court is found only in subsection (b) which by its introductory sentence applies specifically to nonprobationary teachers. If it had been intended that probationary teachers have an appeal to circuit court, the last sentence in subsection (b) would have been set apart as subsection (c) or be contained wholly in another section.
Springdale School District v. Jameson, 274 Ark 78, 621 S.W. 2d 860 (1981) involved an appeal to circuit court from a Board decision to not renew the contract of a probationary teacher, but was before this Court on a petition for writ of prohibition testing circuit court jurisdiction; we held that “The subject matter jurisdiction for breach of contract is cognizable in circuit court.” Springdale School Dist. is limited to the narrow issue.decided. We could have but did not state the obvious, that is, that the remedy for breach of contract is to file an original action in circuit court.
As stated in the majority opinion, Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W. 2d 148 (1981) and McElroy v. Jasper School Dist., 273 Ark. 143, 617 S.W. 2d 356 (1981) also involved appeals by probationary teachers to circuit court from a school board decision; however, the statutory right to appeal was not in issue.
The remedy of a probationary teacher for breach of contract is the same as for anyone else — to file a lawsuit. Act 766 of 1979 does not provide an appeal to circuit court by a probationary teacher for any reason or under any circumstances.