dissenting:
I cannot agree that any of the three matters which the majority determines are arbitrable may properly be the subject matter of a collective-bargaining agreement or submitted to arbitration.
Previous decisions of this court have made it unmistakably clear that the discretionary powers vested in school boards over teacher appointment, promotion, discharge, fiscal matters, including teacher compensation, and length of the school year are all nondelegable, nonarbitrable and subject only to the limits found in the School Code. (See Board, of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63; Bond v. Board of Education (1980), 81 Ill. 2d 242; Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 476; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 130; Richards v. Board of Education (1960), 21 Ill. 2d 104; Lindhlad v. Board of Education (1906), 221 Ill. 261.) In my judgment those decisions simply preclude the result here reached by the majority. The court accomplishes its result by holding the nondelegability issue has been waived by the school board. That holding might be tolerable if the board were a private party neglecting to assert a right which was its alone, rather than an agency of government failing to assert on behalf of the public it represents a firmly established rule of law incorporating the declared public policy of this State; but that holding is not, in my judgment, appropriate here.
The profound and abiding public interest in our educational system is manifest in the statement in our 1970 constitution that educational development is a fundamental goal of the citizens of this State and that the State is directed to “provide for an efficient system of high quality public educational institutions and services.” (Ill. Const. 1970, art X, sec. 1.) This court has recognized that the responsibility of effectuating that mandate lies with the school boards. (Bond v. Board of Education (1980), 81 Ill. 2d 242, 248.) We recently noted that the waiver doctrine serves as “ ‘an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.’ ” (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211, quoting Hux v. Raben (1967), 38 Ill. 2d 223, 224. See also People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1978), 78 Ill. 2d 381, 384.) Accordingly, and in keeping with this court’s general reluctance to allow inadvertence on the part of a public body to serve as the basis for impairing public interests as firmly established as the nondelegability of these powers, invocation of the waiver doctrine in this instance is, in my opinion, incompatible with our opinion in City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457. See, also, statement of general policy in Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447-48, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614; People v. Brawn (1873), 67 Ill. 435, 438.
Among the duties of a reviewing court is the responsibility to maintain a sound and uniform body of precedent. (See, e.g., Hux v. Raben (1967), 38 Ill. 2d 223, 225.) In my judgment, the majority’s conclusion that the board had irrevocably exercised its discretionary power over sick-leave requirements by entering into the collective-bargaining agreement is simply inconsistent with earlier decisions of this court which squarely held that such contracts could not affect the scope of the board’s discretionary powers. In Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, this court held that the board’s failure to comply with the terms of a collective-bargaining agreement which required certain evaluation procedures to be carried out before a teacher’s employment could be discontinued could not be the subject of arbitration because the board’s discretionary power to appoint teachers could not be delegated. Similarly, in a decision handed down shortly before Board of Trustees, it was held that a school board’s exercise of nondelegable discretionary powers in contravention of a collective-bargaining agreement was valid and that the agreement could not serve to restrict or expand the board’s powers. (Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127. See also Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 71.) Since the board could not agree to a collective-bargaining agreement embracing nondelegable matters, I do not understand how entering into the agreement could constitute an irrevocable exercise of the board’s discretion and subject to arbitration the propriety of any further exercise of its discretion.
Nor do I agree that the board’s decision to eliminate three days from the school calendar, which necessarily resulted in a change of the number of days for which the teachers would be paid, could be the subject of arbitration. The majority states, inaccurately I think, that the issue does not concern the board’s power to change the school calendar, but rather concerns whether the board can “dock” the teachers an “additional” three days’ pay without violating the collective-bargaining agreement, which provided that they would be unpaid for only three of the days during which they were on strike. The board is expressly empowered to set the school calendar (see Ill. Rev. Stat. 1979, ch. 122, par. 10—19), and this court has squarely held that power to be nondelegable. (Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63,72.) The board’s power to change the school calendar is thus not susceptible to any restrictions contained in a collective-bargaining agreement. Although the teachers have a remedy for the board’s apparent violation of the School Code’s requirement of a minimum school calendar of 176 days, that remedy does not lie in arbitration.
CHIEF JUSTICE RYAN joins in this dissent.