dissenting:
The majority reasons that Ms. Johnson, the teacher, had not achieved tenure and consequently was properly terminated. I disagree on the question of tenure. Although the school board here gave the teacher a notice that she would be dismissed at the end of the 1975-76 school year, it changed its mind before the dismissal took effect. It offered to continue her employment in the following school year, but only part time. The board thereby waived or withdrew its dismissal notice, particularly inasmuch as retaining her was not conditioned in any way upon the notice remaining valid. The continued employment of a teacher in a teaching capacity after the successful completion of 2 years of probationary service should be enough to grant the teacher tenure, even though the teacher is given a reduced teaching load.
The teacher-tenure statute (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11) is specific in requiring that probationary service be full time. There is no corresponding requirement that tenure, or “contractual continued service” as it is called, be full time. Tenured service is to be under the same “terms and provisions” as the last term of the probationary period, but nothing in the statute indicates that the teaching load is to be identical. The statute provides specifically for transfers and salary reductions, but places no limitation on the power of the school board and teacher to agree to reduce a teaching load to part time. I believe that this was not an oversight, but is consistent with the object of the tenure system.
The purpose of tenure is to assure teachers of ability and experience a continuous service, with rehiring based upon merit instead of partisan, political, or capricious reasons. (Donahoo v. Board of Education (1952), 413 Ill. 422, 425.) When teachers pass from probation to tenure they must do so on the basis of their performance. The statute is so drafted that continued hiring by the school board is presumed to be a favorable comment on the teacher’s performance.
Continued hiring of a teacher, even only under a reduced teaching load, is also a favorable comment on the teacher’s performance, especially when, as was the case here, the reason for the part-time hiring was shortage of funds and had nothing to do with the teacher’s professional performance. The board concedes that here the teacher was initially notified that she would be dismissed at the end of the school year because of the need to decrease the number of teachers employed. Her abilities and experience had nothing to do with the reduction. It was not unreasonable to conclude that, if the board could have found the necessary funding to continue an educational program calling for the teacher’s talents, she would have been retained. When, therefore, she was not dismissed at the end of the year, but instead was offered continued part-time service, the proper conclusion would be that she had demonstrated to the board’s satisfaction the teaching ability and 2 years’ experience necessary to achieve tenure.
At the end of the 1975-76 school term, the school board had three options. It could dismiss Ms. Johnson. It could rehire her, thus granting her tenure. Or it could extend her probationary term for another year (see Glover v. Board of Education (1975), 62 Ill. 2d 122). The board chose to rehire her without extending her probationary status. I believe that the circumstances surrounding the rehiring of Ms. Johnson after 2 years of successful probationary teaching demonstrated the board’s intention to grant her tenure.
The tenure requirements of school systems in other States are instructive. Massachusetts makes no distinction between full- and part-time teaching for tenure purposes, so long as the employment has been substantial. (Frye v. School Committee (1938), 300 Mass. 537, 540, 16 N.E.2d 41, 42.) Indiana also makes no distinction because, like our statute, its “law does not require that teachers shall teach every day, or every hour of every day. Such subjects as art or music may require fewer hours of teaching.” (Sherrod v. Lawrenceburg School City (1938), 213 Ind. 392, 394, 12 N.E.2d 944, 944-45.) Ms. Johnson is an art teacher.
Oklahoma treats full- and part-time teachers the same because its statute does not make separate classifications for full- and part-time teaching. (Independent School District No. 10 v. Lollar (Okla. Ct. App. 1976), 547 P.2d 1324.) And in Alaska, tenure is given to those whose statutory time in service has “afforded the Board of Education an adequate opportunity to observe the quality of [their] performance. *** When such a teacher’s duties are regular and substantial enough to afford intelligent evaluation, we perceive little in the way of persuasive policy considerations for excluding such service from the ambit of our tenure laws.” (State v. Redman (Alaska 1971), 491 P.2d 157, 159.) Alaska treats full- and part-time teaching the same.
Even in those States where part-time service does not count towards obtaining tenure (see, e.g., In re Nyboe (1958), 7 App. Div. 2d 822, 181 N.Y.S.2d 132), that rule does not apply to part-time service following the completion of a full-time probationary period. (In re Matthews (1979), 67 App. Div. 2d 790, 792, 412 N.Y.S.2d 501, 503.) “All petitioner need show is that she continued in [the board’s] employ beyond the probationary term and that she continued to receive her salary with the knowledge and consent of the [board].” (In re Dwyer (1978), 61 App. Div. 2d 859, 402 N.Y.S.2d 67, 68.) So long as our statute does not make a distinction between full- and part-time teaching for purposes of tenure after 2 years of full-time teaching during the probationary period has been satisfied, I believe that no such distinction should be created.
Practically speaking, our schools currently face unprecedented difficulties as bloated teaching staffs must be trimmed to meet declining enrollments. The necessary consequence in many cases may be that full-time teachers will have to take salary cuts or reduce their teaching loads. Doing either should not reflect on their status as tenured teachers. Accepting higher pay or increased teaching loads did not affect tenure status when staffs were low and enrollments high; accepting lower salaries or decreased teaching loads should not affect tenure status when the situation is reversed. The majority points out some of the difficulties school boards will face when they have more tenured teachers than can be employed full time. Where teachers are willing to reduce their teaching to a part-time schedule in the face of decreased demand for their services, I do not believe they should also suffer denial of tenure. I respectfully dissent.