Massey v. Argenbright

NO. 84-16
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

TIM J. MASSEY,
Petitioner and Respondent,

ED ARGENBRIGHT, Superintendent
of Public Instruction, and
TRUSTEES OF CUSTER COUNTY
DISTRICT HIGH SCHOOL and MILES
CITY SCHOOL DISTRICT # I r
Respondents and Appellants.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
John W. Larson argued for Superintendent of Public
Instruction, Helena, Montana
Brown & Huss; Bruce M. Brown argued for School Dist.
#1, Miles City, Montana
Richard Bartos, Offica of Public Instruction, Helena,
Montana
For Respondent :
Hilley & Loring; Emilie Loring argued, Great Falls,
Montana
For Amicus Curiae:
Charles Erdmann argued for Montana School Boards Assoc.,
Helena, Montana

Submitted: June 19, 1984
Decided: July 23, 1984

Filed:

a .
&fi755, G $ld
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Tim Massey, a tenured teacher at Custer County High
School, sought judicial review in the First Judicial District
Court of a decision of the State Superintendent of Public
Instruction, affirming his dismissal by the school district.
The District Court reversed the State Superintendent and held
for the tenured teacher. The State Superintendent and school
district trustees appeal. We affirm the District Court.
The issue presented on appeal is whether a teacher
acquires tenure in all areas in which he is certified, even
though he has teaching experience within the district in only
one certification area.
The parties stipulated to the following facts. Massey
graduated from Dickinson State College in North Dakota in
1970 with a major in business education and a minor in
physical education. He taught physical education at the high
school and elementary level for one year in South Dakota
before coming to Montana.
The Montana Office of Public Instruction has certified
Massey with a secondary endorsement (for high school and
middle school) to teach business education (with typing),
physical education and health.
Massey was employed in 1 9 7 5 to teach in the business
education department at Custer County High School. He taught
in that department for seven years. He did not teach
physical education or health during that time.
All the teachers in the business education department at
Custer County High School had tenure. A drop in student
enrollment in that department resulted in a reduction in
staff. Massey was timely notified that his teaching contract
would not be renewed. Upon his request, reasons were
supplied.
 At the time the board of trustees terminated Massey's
employment, the following non-tenured teachers were employed
by the school district:
(1) Female teaching physical education in the
Custer County High School for one year.
(2) Male teaching physical education in grad.es 7
and 8 for one year.
(3) Female teaching elementary education in grades
K through 6. This teacher acquired tenure upon
signing a contract for the 1982-83 school year.
These three teachers all had majored in physical education in
college. It is the policy of the board of trustees to
attempt to hire teachers with a major in the field.
Massey contends that the school district's retention of
a non-tenured teacher in a position that a tenured teacher is
certified to teach is contrary to law.
The school district and State Superintendent of Public
Instruction contend that Massey has not taught physical
education since 1975; that all teachers presently employed
have graduated with majors in P.E.; that only one female
teacher is teaching physical education at the high school and
that a female teacher is necessary in that position in order
to maintain locker room discipline; that all P.E. teachers
presently employed by the district have taught P.E. for at
least one year and are familiar with the physical education
department; and that teaching in the business education
department and physical education department are not
comparable positions.
The county superintendent affirmed the school district
trustees' conclusion that the tenure rights of teachers are
delimited by the position held under the last executed
contract and the tea.cherrs
background and qualifications. The
State Superintendent of Public Instruction affirmed the
county superintendent, expressly holding that "for the
purposes of interpreting the comparable position requirement
of Section 20-4-203, MCA, teaching experience is necessary."
The absence of physical education teaching experience on the
part of Massey was felt to be controlling.
The Superintendent of the Office of Public Instruction
states that endorsement of areas of teacher certification is
based solely on the teacher's college transcript. The State
Superintendent points out that, under current certification
standards, no additional or continuing education is required
for a teacher to maintain certification in areas of secondary
endorsement. He argues that certification was never intended
by the Legislature to replace a local school district's
evaluation of a teacher's actual teaching experience in that
district.
The District Court decision pointed out that it is
highly inconsistent for the State Superintendent to encourage
certification to increase employability, then insist that
certification does not mean a person is qualified to teach in
the certified area. The District Court emphasized that a
school district may not dismiss a tenured teacher and retain
a non-tenured teacher in the same general area of competency.
The District Court further pointed out that petitioner is
qualified to teach physical education; there is nothing in
the record to indicate he was in fact incompetent; and he was
therefore dismissed without good cause while a non-tenured
teacher was retained to fill a position for which he was
qualified. Upon these grounds, the District Court reversed
the decision of the State Superintendent. No remedy was
ordered because neither the State nor County Superintendent
had considered Massey's request for reinstatement and back

Pay
 From the court's order remanding the cause for a
determination of appropriate remedies, the State
Superintendent and School District Trustees appeal.
The pertinent statute is section 20-4-203, MCA, which in
part provides:
"Whenever a teacher has been elected by the offer
and acceptance of a contract for the fourth
consecutive year of employment by a district in a
position requiring teacher certification the ...
teacher shall be deemed to be reelected from year
to year thereafter - -a tenure teacher - - -
as at the same
salar - - - -same or a comparable position of
Y and in the - -
em~lovment - that ~rovided 2 - - last executed
as bv the - -

contract ..
."(emGhasis added)
The essential question here is whether any of the positions
held by non-tenured teachers in the district at the time the
school board voted not to renew Massey's contract to teach in
the business education department was a comparable position
of employment which should have been offered to Massey.
This Court has held that " [a] teacher's tenure is a
substantial, va.luable and beneficial right, which cannot be
taken away except for good cause." State v. District Court,
Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214.
This tenure right must be balanced against the school board's
"requisite authority to manage the school district in a
financially-responsible manner. This includes eliminating
certain programs and activities, and thereby terminating or
reassigning personnel." Sorlie v. School Dist. No. 2 (Mont.

In Sorlie, a tenured elementary school teacher had
accepted an administrative position as Coordinator of
Intermediate Education. When a school mill levy failed the
following year, she was reassigned from her position as
administrator to teacher of a second grade class. This Court
held that tenure rights acquired as a teacher applied to the
subsequent administra.tive position; that for the purposes of
tenure the positions were comparable; and that the
reassignment did not violate Mrs. Sorlie's tenure rights so
long as she retained her administrator's salary after
reassignment to the classroom.
"While the two positions involved here [Coordinator
of Intermediate Education and elementary school
teacher] are comparable for purposes of acquiring
tenure, they are functionally dissimilar. However,
we conclude that reassignment, without reduction in
salary, for legitimate financial constraints, is
justifiable and not contrary to tenure laws."
Sorlie, 667 P.2d at 403, 40 St.Rep. at 1074.
The fact that Mr. Massey was a tenured teacher,
certified to teach in several areas of instruction, is not
disputed. In this instance, the teaching positions for which
Mr. Massey was certified by the Office of Public Instruction
are comparable positions of employment under section
20-4-203, MCA. We hold that for the purposes of tenure
teaching business education is comparable to teaching
physical education.
As the District Court in this case correctly pointed
out, the phrase "comparable position of employment" cannot be
given a broad meaning when a school district wishes to
reassign a tenured teacher to another position, as was done
in Sorlie, and at the same time be construed narrowly when a
district chooses to terminate a tenured teacher.
Because Mr. Massey was a tenured teacher, he was
entitled under the tenure laws to a certain degree of
employment and economic security, which non-tenured teachers
do not enjoy. The school board's policy of hiring only those
teachers who have majored in the subject does not supersede
the Teacher Tenure Act.
We hold that the school board was obligated to offer Mr.
Massey one of the comparable teaching positions held by

non-tenured teachers. At this point, we need not address the
question of the power of a school board to reassign a tenured
teacher, over his objection, to a different grade level
teaching position for which he is certified. To the extent
that Smith v. School Dist. No. 18 (1943), 115 Mont. 102, 139
P.2d 518, contradicts the holding in this case, it is
expressly overruled.
We affirm the District Court and remand the cause for a
determination of remedy and/or damages.

We concur:

=%7M-.k4,SyPd&
Chief Justice

Justices
Mr. Justice L . C. Gulbrandson dissenting.

I respectfully dissent.
The majority opinion states: "We hold that for the
purposes of tenure teaching business education is comparable
to teaching physical education."
If the Montana education system contained only one-room
school houses, staffed with renaissance personnel, I coul.d,
perhaps, accept that holding.
That situation fortunately has been replaced by a
system which requires departmentalization not only by age,
but by abilities and talents. Article X I Section 1 of the
Montana Constitution declares our educational goals and
duties by stating: "(1) It is the goal of the people to
establish a system of education which will develop the full
educational potential of each person. .. (3) The legislature

shall provide a basic system of free quality public
elementary and secondary schools. .. "
The board of trustees of each school district is
specifically charged with carrying out the Constitutionally
declared public policy.
It was clearly within the authority of the trustees of
the Custer County District High School to set the
qualification standards for employment as a teacher in the
district, and the parties stipulr~ted that it was the policy
of the board to attempt to hire teachers with a major in the
fie16 to be filled. It is clear that the respondent would
not have been hired as a physical education teacher by the
district.
In my view, the majority, by elevating "certification"
to the level of "tenure" has effectively removed a
substantial portion of t.he local trustees' authority to set
qualification standards, and has transferred tha.t authority
to the State Superintendent of Public Instruction and the
Board of Public Education.
In Smith v. School District 18 (1943), 115 Mont. 102,
112, 139 P.2d 518, the Kontana Supreme Court quoted, with
approval, the Supreme Court of the State of Minnesota, as
follows:
"A holding that a teacher tenure position
extended to and included the right to
teach any subject, major or minor, for
which he held a certificate, regardless
of whether he was employed or assigned to
teach such subject, and that such right
was equal to that of another teacher
specially qualified to teach a subject
and employed for that reason might be a
'consummation devoutly to be wished' by
the teaching profession, but certainly
not by a hoard desiring to improve the
educational standards of its schools. It
would complicate rather than simplify the
administration of schools, and this to
their definite disadvantage. The
(certification) statutes referred to
merely fix the qualifications for
teaching 'positions' and do not make a
teacher's 'qualifications' and his
'position' coextensive." State ex re1
Ging v. Board of Education of City of
Duluth (Minn. 19421, 7 N.W.2d 544, 561.
In State ex re1 Gin.g, cited in the Smith decision, the
Minnesota Supreme Court stated:
"Clearly, the statute should receive a
construction in harmony with its well
understood purposes, yet not one so
liberal as to result in subordinating the
paramount rights and welfare of the
public at large and of the school
children to those of the individual
teachers. The adoption of a liberal
construction to combat the evils to which
the law was directed does not permit a
construction so benevolent toward
teachers that, by eliminating one evil,
we create another: that of transferring
from the school boards, the duly elected
representatives of the parents, taxpayers
and other electors of the school
district, to the teachers and the courts
 the management, supervisj-on, and control
of our school systems vested in such
boards by other statutes."
The Smith decision has guided school boards for more
than forty years and is now overruled by the ma-jority without
discussion.
It is obvious that this opinion will cause a drastic
revision in the certification requirements or a definite
change in the teacher hiring process by local trustees.
Regarding the present certification process, a business
education teacher could retain his secondary endorsement in
physical education for an indefinite period of time without
ever taking additional physical education credits. The
ms.jority has stated that business education and physical
education are comparable positions, and the result could be
that a physical education teacher of thirty years experience,
with a secondary certificate in business education but with
no additional credits in business education and never having
taught business education, could replace a non-tenured
teacher with a major in business ed.ucation. Most trustees,
and many parents, would justifiably conclude that such a
preference could not result in quality education.
Regarding a possible change in hiring practices, the
Appellate Court of Illinois in Newma.n v. Bd. of Education of
Bluffs Community Unit School (1981), 424 N.E.2d 1331 at 1336,
made the following observation:
"When a local. school board initially
hires a teacher for a particular
position, it ha.s available his college
transcript and from it can determine
whether that person is academically
qualified to teach the courses that will
be assigned to him. It is a peculiar
anomaly of the system that the local
hoard may then be required., under the
Tenure Act, to allow that teacher to
teach other courses, for which the board
 would never have hired him--in the first
instance--because of his disastrous
performance in his college courses in
those subjects. As it stands, the system
works to the disadvantage both of schools
and of some prospective teachers, for it
encourages local boards to look at an
applicant's academic qua1.ifications in
areas for which he is not being hired.
Thus, 2 person who is especially well
qualified
---
. .-
a ~ a d e ~ c a l ~ ~ f i l l-
to
articular Dosition micrht not be hired
because - b e local hoard's - -
of -
.

fear that
y .

some day it may be required to put - -him in
a
- Dosition which he would not he
academically qualifTed - h o1d
to "
.
(Emphasis added.)
In my view the District Court failed to properly
consider the educationa.1 policies pronounced in the
Constitution and by the legislature along with the management
rights of local boards of trustees. T would reverse the
order of the District Court a.nd would reinstate the
determination of the State Superintendent of Public
Tnstruction and the Custer County Superintendent of Schools.