I respectfully dissent. The majority’s decision rests on a strained reading of two footnotes in Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. 21 Cal.3d 650 [147 Cal.Rptr. 359, 580 P.2d 1155], and a misplaced reliance on decisions which were legislatively jettisoned by the 1969 amendment to former Education Code section 13506 (now § 45028).
The pre-1969 version of section 13506 was interpreted in Fry v. Board of Education (1941) 17 Cal. 2d 753 [112 P.2d 229], as requiring school boards to observe “within reasonable limits” the principle of uniformity of salaries for teachers performing like services with like experience but not to preclude boards from making “reasonable classifications.” (Id., at pp. 757-758.) Shortly after Fry, the Supreme Court in Kacsur v. Board of Trustees (1941) 18 Cal.2d 586 [116 P.2d 593], explained that the phrase “within reasonable limits” was used in Fry “so that a school board would still retain some discretion as to the fixing of salaries even as to teachers performing like services with like experience.” (Id., at pp. 594-595.) The Fry-Kacsur progeny upheld a number of “reasonable” variations from the uniformity principle.
In 1969 the Legislature revised section 13506. (Stats. 1969, ch. 1314, § 1, p. 2651.) The effect to be given those revisions was the issue in Palos Verdes. The high court reviewed the pre-1969 decisional background of the section, analyzed the language changes made by the 1969 amendment and concluded “that one of the lawmakers’ aims in enacting the new section was to break away from past reliance on judicial assessments of ‘reasonableness’ in the classification of teachers and establish a more certain standard of its own.” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist., supra, 21 Cal.3d 650, 661.) *499Then in precise language, the court declared that the “new statute,. . . had the twofold purpose of (1) requiring that teachers be classified for salary purposes, and (2) establishing that such classification proceed wholly on a uniform basis of years of training and years of experience.” (Original italics; id.) Later in its opinion, the court reemphasized its conclusion that under the section as amended teachers “are to be classified for salary purposes strictly according to years of training and experience.. . —and that the principle of ‘reasonable classification’ may no longer be employed in justification of variations from such uniform treatment on the basis of considerations such as ‘stabilizing] continuity of service,’ ‘attracting new teachers’ [citation], or ‘policy changes necessitated by employment needs’ [citation].” (Italics supplied; id., at p. 662.) The Palos Verdes majority specifically rejected the dissenters’ view that the new statute “‘had no effect on prior judicial authority permitting “reasonable” variations from strict “uniformity” in training-experience classifications.’” (Id., at pp. 663-664.)
Thus, there can be no doubt that amended section 13506 as interpreted by the Supreme Court requires teacher classification for salary purposes to be wholly and strictly on a uniform basis of training and experience. An interpretation placed upon a statute by a court of last resort becomes a part of the statute. (People v. Curtis (1969) 70 Cal.2d 347, 352, fn. 2 [74 Cal.Rptr. 713, 450 P.2d 33]; People v. Hallner (1954) 43 Cal.2d 715, 721 [277 P.2d 393].) Thus, under the current statute, classification of teachers for salary purposes on the basis of performance evaluation is impermissible.
The majority relies upon Heinlein v. Anaheim Union H. S. Dist. (1950) 96 Cal.App.2d 19 [214 P.2d 536],1 and Kacsur v. Board of Trustees, supra, 18 Cal.2d 586. Kacsur, by dicta, and Heinlein, by a square holding, upheld school board policy granting salary increments only to teachers whose performance had been rated satisfactory. Those cases, however, were grounded on the Fry principle that the pre-1969 version of section 13506 reserved to school boards the discretion to adopt salary policies involving “reasonable” departures from the uniformity principle. As we have seen, Palos Verdes holds that revised section 13506 no longer tolerates such “reasonable” deviations. The majority’s reliance on Heinlein and Kacsur is thus misplaced. Neither the briefs by the school district nor the amicus brief by the school employ*500er’s association in support of the school district even mention, much less rely upon, Heinlein or Kacsur to support their position. The studied avoidance of those cases by able counsel for the district and amicus is not without significance.
The majority argues that the principle enunciated in Kacsur and Heinlein must still be viable because otherwise Palos Verdes would have overruled or disapproved those cases as it had done with respect to Lompoc Federation of Teachers v. Lompoc Unified Sch. Dist. (1976) 58 Cal.App.3d 701 [130 Cal.Rptr. 70], and California Sch. Employees Assn. v. Coachella Valley Unified Sch. Dist. (1977) 65 Cal.App.3d 913 [135 Cal.Rptr. 630]. The simple answer is that it would have been inappropriate to “overrule” or “disapprove” Kacsur and Heinlein because those cases had been correctly decided under the former version of section 13506. Lompoc and Coachella Valley were disapproved to the extent they were inconsistent with Palos Verdes because they involved the interpretation of section 13506 in its current form.
Despite the conclusive language of Palos Verdes on the effect to be given amended section 13506, the majority purports to derive support for its position from two footnotes in that case. First the majority relies upon language in footnote 6 at page 661 of the Palos Verdes opinion. The footnote appears under a discussion in the text concerning credit for outside experience and reads in part: “By the same token, we do not read the new statute to preclude a district from making reasonable determinations as to the level and quality of ‘training’ or ‘experience’ which is to qualify for a particular level of credit within its boundaries. Once a district has made such determinations, however, the new statute requires that the resultant standards be applied uniformly to all teachers in the district.” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist., supra, 21 Cal.3d 650, 661.)
The majority seizes upon the word “quality” in footnote 6 and reasons that the Supreme Court meant that a school board retains the discretion to set the “quality of performance” which will be required as a condition of credit for a year of teaching experience. This is a strained, unwarranted interpretation of the phrase “the level and quality of ‘training’ or ‘experience.’” In the context of the statute, the text of the opinion to which the footnote relates, and the footnote, the term “years of experience” means length of teaching service. Thus “quality of experience” can only logically mean the type of teaching experience which will be credited; e.g., teacher corps service, night school teaching, *501private school teaching, etc. The phrase had no reference to the “quality” of an individual teacher’s performance during a year of service. The majority is attempting to use footnote 6 to resurrect the “reasonable” variation principle which the Palos Verdes court laid to rest in the body of its opinion.
The majority also relies upon references in the Palos Verdes opinion to the legislative declaration in section 3 of the 1969 Statutes amending section 13506. The declaration reads: “‘It is the intent of the Legislature in amending Section 13506 of the Education Code as provided in Section 1 of this act to establish a uniform base salary schedule in each school district. It is not the intent of the Legislature in this act to limit a school district governing board in developing pay incentive programs'” (Original italics; id., at p. 658.) The Palos Verdes opinion mentions the legislative declaration in two places: At page 658, it is simply quoted without comment. In footnote 5, at page 660, the court refers to the statement in the legislative declaration that it was not the intent of the Legislature “to limit a school district governing board in developing pay incentive programs,” and adds: “The meaning of this language is clear in light of the San Diego Federation of Teachers [216 Cal.App.2d 758 (31 Cal.Rptr. 146)] case, discussed in footnote 3, ante. The fact that a district, in order to improve the level of academic attainment of its staff, chooses to do so by setting up special salary categories for those undertaking advanced training can in no way be said to conflict with the principle of uniform classification according to ‘years of training and years of experience.’ By the same token no conflict would occur should a district decide to subclassify its top ‘experience’ classification in order to encourage the retention or recruitment of extremely experienced teachers.” I find nothing in the quoted language suggesting that the court was of the view that “pay incentive programs” encompassed salary classification plans based upon teachers’ performance ratings.
For the foregoing reasons, I would hold that the provision in the collective bargaining agreement making entitlement to salary increments subject to “satisfactory performance evaluation” violates former section 13506 (now § 45028). As an abstract proposition, the notion that school boards ought to have the power to require “satisfactory” performance as a condition of entitlement to salary increments is appealing. Realistically, however, since performance evaluations involve so many subjective *502elements, there is an inherent risk that prejudice, favoritism, or other improper considerations may enter into such ratings.2 Whether school boards should have the power and discretion to fix salaries in accordance with quality of performance is a matter for the Legislature. The Legislature has made that policy decision by providing that salary classification shall be based entirely and strictly on training and experience. It should be added that this does not leave school districts powerless to deal with teachers who may be incompetent or inefficient, who persistently refuse to obey reasonable school district regulations or who are otherwise unfit for service. Such conduct constitutes grounds for dismissal. (§§ 44932, 44938, 44939.3)
The question remains whether plaintiffs (teachers) are precluded from attacking the contract provision in question because it is part of a collective bargaining agreement. The district urges that plaintiffs’ rights under section 45028 have been waived by their bargaining representative. I disagree.
The uniformity requirement of section 45028 assures individual teachers a right which is as important and fundamental as tenure. A right so basic to an individual teacher should not depend on the relative bargaining strength of the school district and the teacher’s bargaining representatives unless the Legislature expressly so provides. The Legis*503lature has done precisely the opposite. In my opinion, section 449244 renders invalid an employee’s attempted waiver of the benefits of the uniformity requirement of section 45028 either through an individual agreement or by collective bargaining. Government Code section 3540.1, subdivision (h),5 cited by the school district, does not validate a contractual provision which is violative of an express provision of law.
For the foregoing reasons, I would affirm the judgment.
Respondents’ petition for a hearing by the Supreme Court was denied September 24, 1980. Bird, C. J., was of the opinion that the petition should be granted.
Ironically, the author of this dissent has more than a nodding acquaintance with Heinlein v. Anaheim Union H. S. Dist., supra, 96 Cal.App.2d 19.
In Kacsur v. Board of Trustees, supra, 18 Cal.2d 586, the school superintendent attempted to support a salary reduction on the basis of some vague statements concerning inefficiency and differences in teaching philosophy. The Supreme Court held such evidence was insufficient to support the trial court’s finding that the school board did not act arbitrarily or unreasonably in fixing the salary.
Where the charge is unprofessional conduct or incompetency, action may not be taken unless the teacher has been given notice and opportunity to correct his or her faults and overcome the ground for the charge. Section 44938 provides: “The governing board of any school district shall not act upon any charges of unprofessional conduct or incompetency unless during the preceding term or half school year prior to the date of the filing of the charge, and at least 90 days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct or incompetency, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his faults and overcome the grounds for such charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3 of this part, if applicable to the employee. ‘Unprofessional conduct’ and ‘incompetency’ as used in this section means, and refers only to, the unprofessional conduct and incompetency particularly specified as a cause for dismissal in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.”
Education Code section 44924 provides in pertinent part: “Except as provided in Sections 4'4937 and 44956, any contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void.”
Subdivision (h) of Government Code section 3540.1 provides: “(h) ‘Meeting and negotiating’ means meeting, conferring, negotiating, and discussing by the exclusive representative and the public school employer in a good faith effort to reach agreement on matters within the scope of representation and the execution, if requested by either party, of a written document incorporating any agreements reached, which document shall, when accepted by the exclusive representative and the public school employer, become binding upon both parties and, notwithstanding Section 3543.7, shall not be subject to subdivision 2 of Section 1667 of the Civil Code. The agreement may be for a period of not to exceed three years.”
Subdivision 2 of Civil Code section 1667 provides: “That is not lawful which is:
“2. Contrary to the policy of express law, though not expressly prohibited;...”