Gary Teachers Union, Local No. 4, Am. Federation of Teachers v. School City of Gary, 3--973A126

CourtCourt of Appeals of Indiana
Citation165 Ind.App. 314,332 N.E.2d 256
Docket NumberNo. 3--973A126,3--973A126
PartiesGARY TEACHERS UNION, LOCAL NO. 4, AMERICAN FEDERATION OF TEACHMERS and William H. Tankersley, Individually and jointly, Appellants, v. SCHOOL CITY OF GARY, Indiana, et al., Appellees.
Decision Date12 August 1975

Page 256

332 N.E.2d 256
165 Ind.App. 314
TEACHMERS and William H. Tankersley, Individually
and jointly, Appellants,
SCHOOL CITY OF GARY, Indiana, et al., Appellees.
No. 3--973A126.
Court of Appeals of Indiana, Third District.
Aug. 12, 1975.
Rehearing Denied Sept. 15, 1975.

[165 Ind.App. 316]

Page 257

Hilbert L. Bradley, Gary, for appellants.

Page 258

Thomas C. Granack, Smith & Garnack, Hammond, William J. Regan, Merrillville, for appellees.


This action was commenced to contest the discharge of appellant Tankersley from his teaching position in the Gary school system and to secure construction of a provision in the collective bargaining agreement between the school and the appellant union.

The trial court determined that the contract provision was void as contrary to law and that the teacher had been properly discharged. We affirm.

We first consider the provision contained in the collective bargaining agreement. 1 It provides under Article X:

[165 Ind.App. 317] 'A. Any teacher who shall serve under contract as a teacher in the School City of Gary for three (3) or more successive years and who shall at any time thereafter enter into a teachers contract for further service with the School City of Gary shall acquire Gary Tenure and shall have his contract renewed automatically without further formal evaluation.

B. Cancellation of such School City of Gary indefinite contract may be made only for such cause as prescribed under existing state statutes concerning dismissal of teachers who have acquired tenure as defined in Indiana statutes.'

It is not disputed that at the time of his discharge, Tankersley had taught in the school system for three successive years and had entered into contract for the fourth year.

Tankersley and the union contend that Article X thus requires not only that his discharge must be predicated on one of the grounds enumerated in the Teacher Tenure Act (IC 1971, 20--6--12) but that the discharge can be effected only by strict adherence to the procedures prescribed for the discharge of tenure teachers.

The trial court did not reach the question of the proper interpretation of the second clause, but instead determined that the provision for 'Gary tenure' was contrary to law and unenforceable. 2

The Teacher Tenure Act provides that teachers who have served under contract as a teacher in a school city or school town corporation for five or more successive years and then enter into a contract for further service with such corporation shall thereupon become 'permanent' teachers with indefinite contracts to remain in force until the teacher reaches 66 years of age. IC 1971, 20--6--12--1. Teachers acquiring the status of permanent teacher may be terminated for only the causes and upon application of the procedures prescribed by the act. IC 1971, 20--6--12--2.

It has been previously held that a teacher meeting these requirements becomes a permanent teacher subject to the act [165 Ind.App. 318] even though he and the school corporation attempted to contract for a definite term. School City of Lafayette v. Highley (1938), 213 Ind. 369, 12 N.E.2d 927.

The question here presented is the obverse of the situation in Highley. Assuming the teacher and school cannot avoid tenure status for a teacher meeting the statutory qualifications, can they agree to provide tenure to one who has not met the statutory requirements?

While the language of Article X refers merely to the grounds for discharge established under the Tenure Act, its purpose

Page 259

and impact are much broader. 3 It purports to govern not only discharges during the period the teacher is teaching under his yearly contract, but also, 'renewals' of his contract for the succeeding year. In other words, by imposing the requirement of cause for termination, it eliminates the simple device of nonrenewal at the end of the term as a means of replacing a teacher. Once this requirement of cause is imposed upon the relationship, constitutional due process requires notice and hearing. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

Thus, to determine whether such action is within the authority granted by the legislature, it is necessary to review both the nature of the Tenure Act and subsequent enactments dealing with teacher employment.

In Highley the Supreme Court declared the purpose of the Tenure Act to be:

'. . . to protect the educational interest of the state by the establishment of a uniform system of permanent contracts. It is not its purpose to foster the interests of or to create special privileges to any teacher or class of teachers. The policy of the law is to establish a uniform tenure system for all the schools of the state, and must [165 Ind.App. 319] be construed liberally with that aim and end in view.' 213 Ind. 376, 377, 12 N.E.2d 930. (Our emphasis.)

Thus, the court concluded:

'A tenure teacher, serving under an indefinite contract, can become such teacher by one method only, and that is by teaching five years under contract, and by thereafter entering into another contract for further service with the same school corporation.' 213 Ind. 377, 12 N.E.2d 930. (Our emphasis.)

In the present context, it is well to recall the further statement of the legislative justification for the act and the manner in which it is to be construed, as voiced by the court in Miller v. Barton School Twp. (1939), 215 Ind. 510, 20 N.E.2d 967, that the Tenure Act is based upon the public policy of protecting the educational interests of the state and it is therefore the duty of the court to adopt that construction of the act best calculated to protect the public right as against the individual right.

At this juncture there can be little doubt of the service to the public interest in education which the security of the tenure system provides in attracting and keeping capable teachers in the field.

There, however, appears to be equally little doubt that the public interest in capable teachers providing quality education also demands some reasonable period of time within which a school system may seek to improve the quality of its teachers, even though those replaced may meet minimal standards of competence and behavior. In the Tenure Act the legislature established that period as the first five years of consecutive service. That another or shorter period of time might also be reasonable, or even more desirable, is a matter for the legislature rather than this court.

In addition, a policy of uniformity appears meritorious not merely to deter devisiveness but because it creates an assurance to those entering and engaging in the teaching profession that these assurances will not be altered by the whim of the [165 Ind.App. 320] community if they find it necessary or desirable to move from one community to another.

Page 260

Having thus established the purpose of the act, it only remains to determine whether that purpose has been altered by subsequent legislation.

The only relevant statute we find is the General School Powers Act of 1965, IC 1971, 20--5--2. However, while that act refers to the general powers of a school corporation to employ, contract for and discharge teachers, such power is specifically qualified.

'The compensation, terms of employment and discharge of teachers shall, however, be subject to and governed by the laws relating to employment, contracting, compensation and discharge of teachers; . . ..' IC 1971, 20--5--2--2(7).

It is apparent from this provision that in enacting the school powers act, the legislature did not intend to alter the laws relating to the employment and discharge of teachers. 4

We therefore hold that the Teacher Tenure Act controls and prohibits according tenure status to teachers before the statutory requirements are met.

We next consider whether the court correctly sustained the discharge of Tankersley under his individual contract.

That contract provides in part:

'It is agreed by the parties hereto that in case the said teacher should, after opportunity for hearing with benefit of legal counsel, be held by said employer to be guilty of incompetency, immorality, insubordination or other offense recognized as just cause according to law for cancellation of contract, such teacher, subject to proper appeal, shall be deemed to be dismissed . . . subject, however, to the provisions of law concerning the employment and dismissal of teachers which are in force and effect.'

[165 Ind.App. 321] Tankersley contends that his discharge was improper under this provision because he was not given adequate notice of the charges against him; he was not accorded his right to a prior hearing; he was improperly prejudiced by the introduction of inadmissible evidence before the school board, and, in any event, no proper cause for discharge was established.

The procedural facts disclose that Tankersley had been employed as a teacher for three successive years at the end of the 1971--1972 school year. In August 1971, a criminal affidavit charging Tankersley with theft, assault and battery and fleeing a police officer was filed in the City Court of West Lafayette, Indiana. In September, a representative of the school wrote Tankersley advising him that the school had been notified of his alleged involvement in the West Lafayette matter and unless he resigned, he would be suspended pending termination proceedings. Tankersley promptly replied asserting that he was not guilty of the charges and therefore could not resign.

He continued to teach and on February 14, 1972, the criminal charge of theft was dismissed and he entered pleas of guilty to the counts for assault and battery and fleeing a police officer.

On May 18, 1972, he was allegedly involved in a disturbance in the City of Hobart. He was arrested and charged with disorderly...

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