Schulz v. State Board of Education

• Court: New Jersey Supreme Court
• Writing for the Court: CASE, J.
• Citation: Schulz v. State Bd. Of Educ., 132 N.J.L. 345, 40 A.2d 663 (N.J. 1945)
• Decision Date: 04 January 1945
• Docket Number: 34
• Parties: MADELINE LANDIS SCHULZ, PROSECUTRIX-RESPONDENT, v. STATE BOARD OF EDUCATION, RESPONDENT, AND BOARD OF EDUCATION OF THE CITY OF NEWARK IN THE COUNTY OF ESSEX, RESPONDENT-APPELLANT

132 N.J.L. 345

40 A.2d 663

SCHULZ

v.STATE BOARD OF EDUCATION et al.

No. 34.

Court of Errors and Appeals of New Jersey.

Jan. 4, 1945.

COPYRIGHT MATERIAL OMITTED.

Appeal from Supreme Court.

Certiorari proceeding by Madeline Landis Schulz to review a decision of the State Board of Education, reversing a finding of the State Commissioner of Education that prosecutrix occupied the status of a teacher under tenure on appeal from the refusal of the Board of Education of the City of Newark to appoint prosecutrix as a regular teacher. From a judgment of the Supreme Court, 131 N.J.L. 350, 36 A.2d 907, reversing the state board's decision, the city board appeals.

Reversed.

1. Counsel for the respective parties may not control the court in the construction of a public statute by stipulating to the legal effect of the facts under the application of the statute.

2. The words ‘all teachers' as used in the teachers' tenure act, R.S. 18:13-16, as amended by ch. 43, P.L.1940, N.J.S.A., do not so clearly include ‘substitute teachers' in their purview as to take from the court the jurisdiction to determine whether or not the words are thus inclusive.

3. The words ‘all teachers' as used in R.S. 18:13-16, as amended by ch. 43, P.L.1940, N.J.S.A., do not include a substitute teacher employed and serving as such.

4. Teachers' tenure is essentially a protection to a teacher in the retention of her position, not a compulsory promotion, instanter, to a new position, with increased pay and other accretions, priorities and advancements.

5. There is substance in the distinction, in our public school system, between teachers and substitute teachers.

6. The test of the right to teachers' tenure is not what designation has been given, but whether in fact the applicant for tenure comes properly within the purview of the word ‘teacher’ as used in the statute.

7. Upon a review of the facts of the case, held, respondent was not a teacher; she was a substitute teacher, so employed and so serving, and was therefore not entitled to tenure under the statute.

8. The teachers' tenure statute, R.S. 18:13-16, originally and also as amended by ch. 43, P.L.1940, N.J.S.A., specifically excludes from its application those who are not the holders of proper teachers' certificates in full force and effect; and this exclusion applies against applicants for tenure who have not the teacher's license lawfully required in the district where the service counted upon has been rendered.

DONGES, Justice, dissenting.

Abraham I. Harkavy and Harkavy & Lieb, all of Newark, for prosecutrix-respondent.

Jacob Fox, of Newark, for respondent-appellant, Board of Education of City of Newark.

CASE, Justice.

Respondent, Madeline Landis Schulz, relying upon an alleged right of tenure, appealed to the State Commissioner of Education from the refusal of the Newark Board of Education to appoint her to regular employment. The Commissioner held that she occupied the status of a teacher under tenure. The State Board of Education, on appeal, reversed that finding. The Supreme Court, on certiorari proceedings, 131 N.J.L. 350, 36 A.2d 907, reversed the decision of the State Board; and the present appeal is from the Supreme Court judgment.

The substantial question is whether a ‘substitute teacher’ is a ‘teacher’ within the purview of the tenure statute, R.S. 18:13-16, as amended by ch. 43, P.L.1940, N.J.S.A.

A state certificate of eligibility (R.S. 18:13-1, N.J.S.A.) is a sufficient authority for the holder to teach except in districts where there is, in accordance with the law, an additional requirement. Such an excepted district is the City of Newark, where, under authority of R.S. 18:13-2, N.J.S.A., the rules and regulations provide that all licenses to teach in the public schools of that city shall be granted by the City Board of Examiners following oral, written and health examinations. The Board of Education maintains lists of those persons who have become eligible to appointment as teachers by reason of having passed the examinations fo the City Board of Examiners. The lists are separately compiled for the elementary schools, the secondary schools and the teaching of art. The names on those lists are in the order of the marks received in the examinations; and appointments of teachers are made in the same order. The original appointments are probationary and are subject to termination for a period of three years. At the end of that time, under the city regulations as well as under the tenure statute, the appointments become permanent. The city has a second classification known as ‘substitute teachers'. Substitute teachers are generally assigned to do the work of teachers temporarily absent, although occasionally they ‘fill in’ where there is a vacancy in a regular teacher's position and no regular teacher has yet been assigned. Ordinarily the selection of substitute teachers is made from the lists of candidates eligible for, but not yet appointed to, regular teaching positions, but the rules and regulations permit employment for that class of work of those who hold only the state certificate. Whether a substitute teacher has both the city license and the state certificate, or only the state certificate, the employment is merely as a substitute teacher.

There are fundamental differences between the status of persons employed as substitute teachers and that of persons employed in regular teaching positions. The engaging of teachers leading to permanent employment in the City of Newark is, in accordance with the local rules and under the direction of the statute, R.S. 18:6-20, N.J.S.A. (requiring action by a majority vote of the board), done by the Board of Education. The engaging of substitute teachers is otherwise; if such are to substitute on a monthly basis, their names are recommended to the Committee on Instruction by the Superintendent of Schools; if they are to be on a per diem basis, they are assigned from day to day by the superintendent, as occasion requires. Other differences have to do with seniority, with compensated absences, with the rate and unit of compensation, and with the schedules of increases.

Respondent held a state certificate of eligibility, but she did not have and was not entitled to have the city license. Therefore, under the rules, regulations and practices of the district board she was not authorized to teach, and her name was not on any of the lists of persons entitled to be appointed to teach in the City of Newark. During the academic year 1937-1938 she was engaged as a ‘substitute teacher’ at a salary of $120 per month to take the classes of a regularly employed permanent teacher who, constantly on the payroll, was away on leave. The absent teacher returned with the opening of the schools after the summer vacation, and respondent's employment was terminated. For the academic year 1938-1939 respondent was employed as a ‘substitute teacher’ at $160 per month for work made available by a vacancy; and for the year 1939-1940 she was again employed as a ‘substitute teacher’ for work made available by a vacancy. On September 30, 1940, respondent signed a written request for employment in ‘substitute work’, and during that academic year, namely, the school year 1940-1941, she was employed for a total of five different days ‘as a day to day casual and itinerant substitute teacher’, each day at a different school on a per diem basis ranging from $5.50 for the first day (the day on which respondent completed, as she contends, the period necessary to constitute her a tenure teacher) to $7 for the most highly compensated day; one of the days of employment was in November; two of them were in December and the remaining two were in January; and each employment was to substitute for an absent teacher. Since then she has not been employed. Concededly, up to and after September 30, 1940, and until the one day of employment as a substitute in November, 1940, respondent had acquired none of the rights which she now asserts. If her earning capacity be determined by multiplying her compensation on the day she claims to have attained the status of a tenure teacher by the maximum number of teaching days (191) in the Newark academic year, the total for any year, assuming that she worked every school day, would be $1,050. The judgment under review finds that she did then, namely, on November 8, 1940, attain tenure, fixes her salary at $1500 per annum, the salary paid permanently employed teachers in the grade where respondent attained tenure, and makes that salary retroactive, with interest, from that day.

It is respondent's contention that she is entitled to tenure by virtue of section ‘c’ of R.S. 18:13-16, as amended by ch. 43, P.L.1940, N.J.S.A. The statute reads: ‘The services of all teachers, principals and supervising principals of the public schools, excepting those who are not the holders of proper teachers' certificates in full force and effect, shall be during good behavior and efficiency, (a) after the expiration of a period of employment of three consecutive calendar years in that district unless a shorter period is fixed by the employing board, or (b) after employment for three consecutive academic years together with employment at the beginning of the next succeeding academic year, or (c) after employment, within a period of any four consecutive acadamic years, for the equivalent of more than three academic years, some part of which must be served in an academic year after July first, one thousand nine hundred and forty; provided, that the time any teacher, principal or supervising principal had taught in the district in which he was employed at the end of the academic year immediately preceding July first, one thousand nine hundred and forty, shall be counted in determining such period or periods of employment in that district.’

The statute is popularly known as the teacher's tenure act; and although section 16, supra, does not use the...