Dauel v. Board of Trustees of Elgin Community College, s. 84-1176

• Decision Date: 03 July 1985
• Docket Number: Nos. 84-1176,84-2472,s. 84-1176
• Citation: 768 F.2d 128
• Parties: 26 Ed. Law Rep. 600 Jill DAUEL, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF ELGIN COMMUNITY COLLEGE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 128

768 F.2d 128

26 Ed. Law Rep. 600

Jill DAUEL, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF ELGIN COMMUNITY COLLEGE, et al Defendants-Appellees.

Nos. 84-1176, 84-2472.

United States Court of Appeals Seventh Circuit.

Argued April 4, 1985.

Decided July 3, 1985.

Mildred F. Haggerty, DeJong, Poltrock & Giampietro, Chicago, Ill., for plaintiff-appellant.

Terry P. Boose, Shearer, Blood, Agrella, Boose & Balog, St. Charles, Ill., for defendants-appellees.

Before BAUER and POSNER, Circuit Judges, and MORTON, Senior District Judge. ^*

POSNER, Circuit Judge.

Mrs. Dauel was employed by the Elgin Community College, which is owned by the State of Illinois and which fired her without a hearing after she had been an employee for more than three years. If she was a "faculty member" she had tenure, Ill.Rev.Stat.1983, ch. 122 p 103B-2, which is "property" as the due process clause of the Fourteenth Amendment has been interpreted, and she could not be fired without a hearing, for that would be a deprivation of her property by a state agency without due process of law. " 'Faculty Member' means a full time employee ... regularly engaged in teaching or academic support services, but excluding supervisors, administrators and clerical employees." p 103B-1. The district court held that Mrs. Dauel was not a faculty member, and she appeals.

As is usually the case in Illinois (indeed in most states) there is no published legislative history of this statute. There is also no case construing it in any particular relevant to this case. Indeed, nothing relevant to the present case seems to be known about the statute except what can be inferred from its words. Kuykendall v. Board of Educ., 111 Ill.App.3d 809, 812-13, 67 Ill.Dec. 530, 444 N.E.2d 766, 770 (1982), and cases cited there, hold that "the teacher tenure statute must be strictly construed in order not to interfere unduly with the responsibility of local boards to operate the educational systems efficiently." But the teacher-tenure statute, Ill.Rev.Stat.1983, ch. 122, p 24-11, gives tenure only to "full-time teacher[s]." The community-college statute is not so limited, and whether the Illinois courts would construe it strictly or liberally we cannot say (and do not think it would make a difference). The myriad of cases, in Illinois and elsewhere, that define the word "teacher" as it appears in teacher-tenure statutes, see, e.g., Smith v. Board of Educ., 708 F.2d 258, 261-62 (7th Cir.1983); State ex rel. Haak v. Board of Educ., 367 N.W.2d 461, 464-65 (Minn.1985), cast no light on the different statutory term that we must define.

We have not been able to find a similar statute in any other state. The closest parallel is found in cases dealing with whether to include librarians and other ancillary academic workers in the same collective bargaining unit with faculty members, an issue that has arisen frequently under provisions of state and federal law relating to union organizing. Sometimes the ancillary workers are included, as possessing the requisite community of interest, sometimes not. See, e.g., Renton Education Ass'n v. Public Employment Relations Comm'n, 101 Wash.2d 435, 440-44, 680 P.2d 40, 44-46 (1984); Northeastern University, 218 N.L.R.B. 247 (1985); Cresswell, Murphy & Kerchner, Teachers, Unions, and Collective Bargaining in Public Education 162-64, 297-98 (1980); Campus Employment Relations 74-76 (Tice ed. 1976). But the purpose of unit determination in labor-relations cases is so different from that of a tenure statute that we cannot get much help from the unit cases.

There is no doubt about what Mrs. Dauel actually did, as opposed to the legal characterization of what she did. An "Audiotutorial Nursing Laboratory Instructor," she ran two laboratories used for the college's program of instruction in nursing, and thus she had a managerial and technical job--but that was not all. One of the laboratories was a "learning lab" to which students having problems in mastering particular nursing skills would repair for informal instruction--from Mrs. Dauel. She was also responsible for instructing all of the students in certain nursing skills, such as catheterization. She made occasional written evaluations of students whom she instructed and she also did substitute teaching (200 hours in three years), attended faculty meetings, and, unlike an administrator, was employed on an academic schedule (i.e., not during the summer). The defendants do not argue that because she had summers off she was not "full time" within the meaning of the statute; if the argument were accepted no college teacher would have tenure. She was fired because she didn't have a master's degree in nursing--a requirement for faculty members of the nursing department.

Mrs. Dauel was engaged in teaching on a regular, though not full-time basis. The statute requires that the employee be full-time (which, as we have said, is conceded), but not that the teaching be...