dissenting. I agree with the majority that this appeal involves the termination, rather than the non-renewal, of a probationary teacher. But the majority opinion goes on to hold that a probationary teacher has no right to appeal a termination to circuit court under The Teacher Fair Dismissal Act, Act 766 of 1979, and there I disagree.
In Nordin v. Hartman Public Schools, 274 Ark. 402, 605 S.W.2d 483 (1981) we said that any teacher who is terminated is entitled to appeal to circuit court:
[The Teacher Fair Dismissal Act] provides that any teacher, probationary or otherwise, is entitled to a hearing before the school board and a subsequent appeal to the circuit court when the contract is ‘terminated’ as opposed to ‘non-renewed’. §§ 80-1264.4, 1264.5 and 1264.9. (my italics)
The majority dismisses our language in Nordin as merely dictum, intended to apply only where constitutional issues are present. But our statement of the law in Nordin was unconditional and the statutes we cited support what we said there.
Our difficulty stems from the fact that The Teacher Fair Dismissal Act lacks clarity and the legislative intent is obscure as to the rights of a probationary teacher to appeal a termination. But the better side of the argument favors upholding the right of appeal, because remedial legislation is to be broadly construed, Skelton v. B. C. Land Company, Inc., 260 Ark. 122, 539 S.W.2d 411 (1976) and because we are required to construe statutes in accordance with the common meaning of the words used. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973).
The final sentence of Section 80-1264.9 (b) reads:
The exclusive remedy for any person aggrieved by the decision of the school board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board, (my italics.)
The majority correctly points out that this sentence is part of sub-paragraph (b), which deals entirely with non-probationary teachers, and on that reasoning concludes that only non-probationary teachers are given an appeal. To reach that interpretation one must alter the plain language of the Act by substituting the words “a non-probationary teacher” for “any person ...” simply because of the placement of the sentence. But the drafters were generally careful to distinguish between probationary and non-probationary teachers except where they meant both, and I am unwilling to interpret “any person” as meaning only a non-probationary teacher. The plain meaning of the words “any person” in the context of this legislation means both probationary and non-probationary teachers.
Moreover, Section 80-1264.4 provides that no teacher can be terminated on grounds that are arbitrary, capricious or discriminatory. But if the holding in this case is correct, and a probationary teacher is entitled to nothing more than a hearing before the board which has already acted to terminate that teacher, then The Teacher Fair Dismissal Act leaves the board itself as the only body to decide whether its own act of termination was arbitrary, capricious or discriminatory. Thus, the only review is before the same body that may have acted in the matter in the first instance. That construction is not compatible with traditional concepts of “fairness” which the Act purports to give all teachers, nor with our law that remedial statutes are to be broadly construed with appropriate regard to the spirit which prompted the enactment.
Purtle and Dudley, JJ., join in this dissenting opinion.