dissenting:
The majority opinion of their holding reverses the circuit court of Macon County and affirms the action of the Board of Education. In so doing, the majority necessarily approves of a procedure that is devoid of even rudimentary due process.
In this case, a teacher was fired from his position by the school board. The teacher sought and obtained administrative review and the trial court held that there had not been adequate notice; that the teacher had acquired tenure status; and that the charges against the teacher were remedial and that the school board’s finding that the deficiencies were irremedial were against the manifest weight of the evidence. The trial court not only reinstated the teacher but he ordered costs and attorney fees. The majority of this court disagrees and reverses based upon a record that was produced by a hearing and based upon a procedure that in my opinion is devoid of the required due process procedure.
It is fundamental that a teacher, tenured or untenured, cannot be discharged without a predischarge hearing that complies with due process. (See Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701; Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694.) A hearing required under Roth or Sindermann must of course be a fair hearing “and, of course an impartial decision maker is essential.” Goldberg v. Kelly, 397 U.S. 254, 271, 25 L.E.2d 287, 301, 90 S.Ct. 1011.
In this case, the Board of Education extended the plaintiff”s probationary period for certain reasons, ultimately determined to fire him, he learned of the charges through the principal, subsequently received a bHl of particulars, and then a hearing was conducted before the Board of Education sitting in judgment upon its own charges. This procedure, outlined by statute, compels the teacher to submit his controversy to a tribunal of which his antagonists are members and the antagonists pass ultimate judgment upon his conduct. Such does not afford due process of law nor any semblance of due process. In Eidenmiller v. Board of Education, 28 Ill.App.2d 90, 170 N.E.2d 792, an abstract opinion, Mr. Justice Smith, in a concurring opinion stated:
“The Teacher Tenure Law was designed to cure then existing evils in our school system by providing a speedy, simple procedure for the dismissal of teachers based on charges, notice, a fair hearing and a speedy judicial review under the provisions of the Administrative Review Act. These benign pmposes become obscure in this record. In Lusk v. Community Consolidated School District, 20 Ill.App.2d 252, we had occasion to say that a teacher is not entitled to a hearing, she is entitled to a fair hearing, that administrative agency does not represent one party against the other, I Illinois Law and Practice, page 461, and our study of the record raises a grave doubt that the hearing afforded in this case was the type of hearing which the legislature had in mind when it enacted the Teacher Tenure Law’. What we then said of that record we now say of this. # * Other States have been confronted with the unique problem here confronting us. ‘The anomaly in procedure which permits the board of education to serve in the triple capacity of complainant, prosecutor and judge makes it vitally necessary that in reviewing administrative decisions courts zealously examine the record with a view to protecting the fundamental rights of the parties.’ State ex rel. Steele v. Board of Education, 252 Ala. 254. In discussing dual functions similar to those here, Judge William J. Brennen, Jr. (now Justice of the United States Supreme Court) had this to say: ‘The substantiality of evidence must take into consideration whatever in the record fairly detracts from its weight’, In re Larsen, 17 N.J. Super. 564, and held that the implications arising from the merger of functions could be so considered. In the case before us now, we deal not with a dual role, not with a triple role, but with the quadruple roles of complainant, prosecutor, judge and witness in a single tribunal. Our Supreme Court once said of a similar statute that, ‘a statute which compels a (sic) litigant to submit his controversy to a tribunal of which his antagonist (sic) is a member makes his antagonist his judge and does not afford due process of law’. Commissioners of Drainage Dist. No. 1 v. Smith, [233] Ill. 417.”
In Miller v. Board of Education, 51 Ill.App.2d 20, 41-42, 200 N.E.2d 838, the court specifically noted the concurring opinion in Eidenmiller and stated:
‘We are in accord with what is said in that opinion and conclude that the plaintiff in the instant case was prevented from having a fair trial by the multiple capacities in which the School Board and its attorney were functioning. We also conclude that the charges which were proved against the plaintiff were remediable and would therefore have required a warning notice. The judgment of the Circuit Court is affirmed.”
In Pickering v. Board of Education, 36 Ill.2d 568, 225 N.E.2d 1, Mr. Justice Schaefer in a dissenting opinion, concurred in by the then Chief Justice, criticized the fact that charges were formulated by the very members of the Board who then would determine the validity of the charges. In his dissent, Justice Schaefer said: “The unseemliness, if not the unconstitutionality, of this procedure reinforces my doubt that the General Assembly intended that it should apply to the exercise of first-amendment rights.” (36 Ill.2d at 580.) The Illinois Supreme Court affirmed the dismissal of the plaintiff in Pickering; the United States Supreme Court reversed that discharge upon first-amendment grounds and did not comment upon the due process issue. (See Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731.) In 2 Davis, Administrative Law Treatise, at 182 (1958 ed.), there is some some discussion as to the necessary flexibility of due process requirements in the light of what is referred to as a rule of necessity. The so-called rule of necessity cannot be used to effect a total denial of due process rights. Indeed, in his dissenting opinion in Pickering, Justice Schaefer negated the existence of a rule of necessity in our statutory scheme, saying:
“A legislative system which, as in this case, casts them in the role of aggrieved victims who formulate, prosecute and punish charges based on their grievances is not, in my opinion, compatible with' present standards of due process. Nor is such a procedure necessary, for charges of this sort could readily be heard and determined by the County Board of School Trustees, the County Superintendent of Schools, or the Superintendent of Public Instruction. The problem is particularly acute when the sanction of discharge is involved, for then the board must determine whether the condition that gives rise to the discharge is remediable. In a discharge case the board has already determined that the condition cannot be remedied, and it is hard to see how members of the board can be expected to review that determination impartially when the conduct upon which the discharge is based involved their personal grievances.” (36 Ill.2d at 585.)
Present standards of due process prohibit the combination of functions found in this record. Upon judicial review limited by statute to that record, without a de novo proceeding, this court reverses the trial court, finds a valid basis for discharge and that the grievances against the teacher were not remedial. In so doing, they stamp the statutory procedure as judicially approved. I would stamp it as offensive to due process.