dissenting. Not only do I find no substantial evidence to support the majority opinion but I find the opinion clearly erroneous and decidedly against the preponderance of the evidence. In fact, I am 100% in disagreement with this opinion. Act 766 of 1979 codified in Ark Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980) very clearly intended to vest all rights of appeal pursuant to the act in the circuit court. The act covers members of the teaching profession employed in public schools. One of the chief goals of the act is to insure that teachers are not terminated or nonrenewed for reasons which are arbitrary, capricious or unsubstantiated. In fact, the title of the act is referred to as “The Teacher Fair Dismissal Act of 1979. ” It is not titled the “Nonprobationary Teacher Fair Dismissal Act” as the majority seem to interpret it.
The term “teacher” as used in the act includes all employees, except superintendents and assistant superintendents, who are required to hold a certificate as a condition of employment. Obviously, this includes probationary teachers. The only distinction between the two classes of teachers is the length of employment. During the first three years the teacher is not entitled, as a matter of right, to a hearing or to be given a cause for nonrenewal. However, this does not mean the same teacher may be terminated and/or nonrenewed for invalid reasons. In such case the teacher certainly would have the right of appeal to circuit court.
Section 5 of the act provides that a teacher may be terminated during the term of any contract period for any cause which is not arbitrary, capricious or discriminatory. Section 6 provides for the immediate suspension of a teacher when in the opinion of the superintendent it is necessary and in the best interest of the district. The only section in the whole act dealing with appeals is Section 10 and the appeal is extended to any person aggrieved by a decision of the school board.
I consider Section 10 (Ark. Stat. Ann. § 80-1264.9) of the act to be controlling as to the matter of jurisdiction. Section 10 (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.
Subsection (b) deals with teachers who have been employed for three or more years and whose contract is terminated or not renewed. In both Sections (a) and (b) the school board is required to take action. The concluding sentence of Subsection (b) states:
The exclusive remedy for any person aggrieved by the decision of the school board shall be 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.
Surely the General Assembly intended “any person” to mean any teacher under the act.
As a practical matter, allowing the probationary teacher to appeal the nonrenewal of a contract to circuit court would greatly simplify the entire process. It would keep all appeals under the act in the same court; and, in my opinion, it would reduce the judicial case load and litigation costs in the long run. If, for example, a teacher’s contract was not renewed for a second year and the teacher filed a notice of appeal to the circuit court, the school board could simply respond by saying “It is true, we did not renew the teacher’s contract.” The issues would be joined and the whole record would be before the circuit court and the matter could be disposed of in a very short sentence by simply stating: “The court finds that the Board did not act within its discretion and remands the case for a hearing.” There is no question that a second year teacher whose contract was not renewed because of race or religion would have a cause of action in the circuit court. Therefore, why should the person who did not receive a renewal of his contract for other reasons not be also allowed to follow the same course of action? I submit that it was clearly the intent of the legislature, as well as the common sense approach, to allow the circuit court to maintain jurisdiction of all cases arising under Act 766 of 1979.