dissenting:
I must respectfully dissent from the opinion of my distinguished colleagues.
I agree with the majority view that, under the facts of this case, petitioner would be entitled to one of the two new positions if she were qualified. I do not agree, however, that the board must consider her legally qualified solely because she holds a high school teaching certificate, regardless of whether she meets the recommended State standards for the particular positions she seeks. I do not believe the legislature intended such a narrow view of the term “qualification.”
To illustrate, section 27 — 1 of the School Code provides:
“Every school established under this Act shall be for instruction in the branches of education prescribed in the qualifications for teachers and in such other branches, including vocal music and drawing, as the school board or the voters of the district at the annual election of the school board members may prescribe.”
Although section 27 — 1 refers to “the branches of education prescribed in the qualifications for teachers,” the sections setting out the statutory qualifications for teachers do not prescribe any branches of education other than “professional education.” (See Ill. Rev. Stat. 1975, ch. 122, par. 21 — 1 et seq.) However, the Superintendent of Public Instruction is authorized by statute to approve the academic and professional courses offered as a basis for a teaching certificate (see, e.g., Ill. Rev. Stat. 1975, ch. 122, par. 21 — 5), and has done so in “Rules and Regulations to Govern Certification of Teachers.” Rule 3.01 sets out in detail the general and professional education courses required to obtain a high school certificate and also the requisite number of hours for major and minor fields of study. Thus, the word “qualifications” as used in section 27 — 1 was of necessity intended to include requirements set by the State Superintendent, and I believe section 24 — 12 should be given a similar interpretation.
A regulation titled “Circular Series A, No. 160,” issued by the State Superintendent of Public Instruction, sets out educational requirements for teaching particular subjects at the secondary level and in departmentalized 6th, 7th and 8th grades. These standards specify substantial training in the subject matter being taught. According to deposition testimony of Susan Bentz, an official in the Illinois Office of Education, school districts are held accountable for these standards when they are evaluated for purposes of recognition.
Section 2 — 3.25 of The School Code imposes upon the Superintendent of Public Instruction the following duties:
“To determine for all types of school conducted under this Act efficient and adequate standards for physical plant, ° ° ° instruction and teaching, curriculum, library, 0 0 0 and to grant certificates of recognition to schools meeting such standards # # # ”
Under section 5 — 32 of the Code, a school district which fails to maintain a recognized public school for one year shall automatically be dissolved. The record in this case indicates that the standards for high school teacher qualifications are applied by the State in a somewhat flexible manner, subject to the professional judgment of those performing evaluations of each school. However, the importance of receiving State recognition is a concern of every school board, and to reject the qualifications stated in Circular Series A, No. 160, would ignore the importance of meeting State recognition standards.
Petitioner admitted in the trial court that, under the theory later adopted in the majority opinion, she could legally insist upon employment as a teacher of band, speech, or any other subject, regardless of her training. Then the Board would have no recourse except to initiate proceedings under section 24 — 12 to discharge her for incompetency after the new school year had begun. (See Ill. Rev. Stat. 1975, ch. 122, par. 10— 22.4.) Under this theory, the students of the school district would be the ultimate losers.
Of course, a school board should not be permitted to defeat the purpose of the tenure statute by a whimsical or capricious rearrangement of teaching assignments. Here, however, petitioner does not claim that the new positions were created arbitrarily or in bad faith. Consequently, on the basis of the record before us, I cannot say that the trial court erred in holding that petitioner failed to demonstrate a clear and undoubted right to the two positions denied her. I would affirm.