concurring specially.
I concur in the opinion written by the Chief Justice. However, I write to add my own thoughts to the Chief Justice’s statement that “If a need exists to change the requirements for nonrenewal of teachers’ contracts, such change must be made by the legislature and not this Court.”
A review of the opinions written by this court, many of which are cited in- the opinion written for the court by the Chief Justice, immediately reveals the controversy which has resulted from the enactment of the statutes governing this matter. Although those statutes provide no appeal from a decision of a school board to not renew a teacher’s contract, this has not prevented a teacher wishing to challenge the decision of the school board from obtaining a review of that decision in the courts. Where the challenge is based on a procedural irregularity the only issue has been the construction of the applicable statutes. Here, the challenge is based on that portion of Section 15-47-38(2), N.D.C.C., which requires that the reasons given by the school board for the nonrenewal of a teacher’s contract must “be sufficient to justify the contemplated action of the board and shall not be frivolous or arbitrary.” That allegation necessarily raises more than a procedural matter. It involves to a considerable degree the discretionary powers of the school board. The board’s discretion is, however, not unlimited. The school board’s determination that the reasons given by it for the nonrenewal of a teacher’s contract are sufficient to justify its action and are not frivolous or arbitrary does not foreclose a further review of that matter. On the other hand, that review should not permit another body to substitute its judgment and discretion for that of the school board. The question of whether or not a school board complied with our statutes in determining the reasons assigned by it for the nonre-newal of a teacher’s contract is a question of law rather than a question of fact.
In Baker this court recognized that the determination of the school board to not renew a teacher’s contract was not conclusive but was subject to review by the courts. Because the trial court sat without a jury in that case the issue of whether the reasons given by the school board for nonre-newal complied with our statutes was a question of law for the court or a question of fact for the jury was not a direct issue and was not answered by this court. However, in Dobervicb a jury trial had been demanded by the teacher. Because we realized the review of the decision of the school board in assigning reasons for nonre-newal of the teacher’s contract involved a question of law rather than a question of fact, and because a jury might very well substitute its judgment for that of the school board, we held in Dobervich there was no right to a jury trial on this issue. We further indicated that a court, on review, must exercise restraint and should not substitute its judgment for that of the *426school board.1 In this respect Dobervich establishes a basis for review which is akin to that provided by statute in South Dakota. See Busker v. Board of Ed. of Elk Point, 295 N.W.2d 1 (S.D.1980).
The issue in this appeal is whether damages is an available remedy to Samuels or whether he is limited to a remedy requiring the school board to reinstate him if the board is found to have improperly refused to renew Samuels’s contract. Inherent in this issue, as delineated by counsel for the school board at oral argument, is the question of the effect on the school district if an action to review the decision of the school board is not filed until after the school board has hired a new teacher and the ensuing school term has already begun. It is not inconceivable that a school board, in good faith, may have thought its reasons justified its refusal to renew a teacher’s contract only to have a court find, as a matter of law, the reasons inadequate to meet the requirements set forth in Section 15-47-38(2), N.D.C.C. Baker may well represent such a situation. If, however, a teacher waits to institute his action to review the decision of the school board until it is too late for the board to reverse its action in the face of a court decision finding it acted improperly, damages appears to be the only available remedy. In fact, such a procedure leaves the choice of remedy to the teacher. Perhaps this seems justified because the court has, although after the fact, ruled that the school board has improperly refused to renew the teacher’s contract. For a school board which believes it acted in good faith and within the purview of the statute this may have serious financial repercussions.
In Baker it was the school district which argued that Baker’s only available remedy was damages and the teacher who argued that reinstatement was the proper remedy. In Baker the teacher instituted action prior to the beginning of the ensuing school year and the trial court’s decision was issued prior to the beginning of the school year. This court held that although damages was the traditional remedy for breach of personal service contracts, it was proper for the district court to require the school board to offer a teaching position to the wrongfully dismissed teacher under the circumstances outlined therein.
Here, Samuels did not institute action until after the school district had hired- another teacher and the school term had begun. Here, it is the school district which is arguing that reinstatement should be the proper remedy and it is the teacher who is arguing that damages is the appropriate remedy. At least a portion of Samuels’s 'argument is that reinstatement would not be a satisfactory remedy because the school district is small, he could not be absorbed into the system without creating a disruptive situation, and there is existing friction between himself and the administrators. These are all factors which were not present in Baker and the absence of these factors was persuasive in this court’s determination to sustain the trial court’s decision to order reinstatement in Baker.
Our procedure governing this matter has been established by court decision, on a case-by case basis, and it appears to me that under the procedure specified in those previous cases both Samuels and the school district have considerable merit to their arguments. As reflected by the decision of the South Dakota Court in Busker, supra, the South Dakota procedure, in those instances in which a school board determines to not renew a teacher’s contract, is similar to that of our State.2 There is one area in which the South Dakota statutes contain significant provisions which ours do not. In South Dakota the procedure for an appeal from a decision of the school board to not renew the teacher’s contract is statutory. Sec. 13-46 -6, S.D.C.L. The procedure in*427corporates not only the time within which an appeal may be taken (ninety days) but also establishes the standard of review upon appeal. Sec. 1-26-36, S.D.C.L.3 That review is similar to that provided in North Dakota for review of administrative agency decisions. See Sec. 28-32-19, N.D.C.C. Because in South Dakota the appeal is from a decision to not renew a teacher’s contract, I presume a reversal of the school board’s decision on appeal would result in reinstatement of the teacher’s contract.
Whether or not our Legislature enacts similar legislation or legislation providing for different remedies is, for the moment, immaterial. What is material is that the Legislature, having decided to provide North Dakota teachers with certain protections by enacting statutes regulating the manner in which a school board may refuse to renew a teacher’s contract, should also specify by legislation the procedures available to a teacher who believes a school board has not adhered to those provisions. Such legislation, if enacted, would serve as notice to teachers and school boards alike of their rights, obligations, and remedies in these matters. Legislation which prescribes the procedure prior to legal action would better serve teachers and school boards than will opinions of this court which, by necessity, are issued after the fact on a case-by-case basis.
The procedure and remedies available in these matters have heretofore been made less than clear, either in the statutes or our opinions. It would be unfair to deny Samu-els relief should the reasons given by the school board for its decision to refuse to renew his contract not comply with the statutes. For this reason I agree that the summary judgment should be reversed and the case remanded to the trial court for a review on the merits. Should that review result in a determination that the school board’s decision was not in compliance with the statutes, I believe the district court may then consider all the factors presented by Samuels and the school board in determining the relief to which Samuels would be entitled, including but not limited to the time Samuels commenced his action.
. Counsel for Samuels stated in oral argument that it was not his intent that the court should become a “super” school board and that it is a question of law whether or not the facts before the school board justify the board in refusing to renew a teacher’s contract.
. Compare Section 15-47-38, N.D.C.C., Sections 13-43-9.1 through 13-43-10.1, S.D.C.L.
. Although South Dakota’s procedure governing an appeal by a teacher from the decision of the school board refusing to renew the contract appears to be clear, the application of the standard of review on appeal apparently still causes difficulty as applied to the facts. See Schnabel v. Alcester School Dist. No. 61-1, 295 N.W.2d 340 (S.D.1980).