Steele v. Board of Ed. of City of New York
| Decision Date | 06 July 1976 |
| Citation | 387 N.Y.S.2d 68,40 N.Y.2d 456 |
| Parties | , 354 N.E.2d 807 Bernice STEELE, Individually and on behalf of all others similarly situated, Respondent, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant. In the Matter of Phyllis GERSTEIN et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant. In the Matter of May FISHER et al., Respondents, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Appellant. In the Matter of Genevieve MARINO et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
W. Bernard Richland, Corp. Counsel (Diane R. Eisner, L. Kevin Sheridan and Joseph F. Bruno, New York City, of counsel), for appellants.
Spencer Steele, Kew Gardens, for respondent Bernice Steele.
Robert D. Stone and Lawrence W. Reich, Albany, for Edwald B. Nyquist, amicus curiae.
Eugene J. Fox and William N. Caroll, Yonkers, for Bd. of Ed. of Yonkers City School Dist., amicus curiae.
A. Michael Weber and James R. Sandner, New York City, for respondents, Phyllis Gerstein et al.
Jerome Tauber, I. Philip Sipser and Marianna O'Dwyer, New York City, for respondents May Fisher et al.
Morris Weissberg and Robert J. Krengel, New York City, for respondents Genevieve Marino et al.
In these four appeals, most of the 27 named petitioners are elementary school guidance counselors who were discharged from employment by the Board of Education of the City of New York prior to the commencement of the 1975--1976 school year. Each of them sought an order directing the board, Inter alia, to revise its seniority formula and to reinstate them with back pay. In each proceeding the Supreme Court, Kings County, ordered that the board establish a new tenure list and make appropriate adjustments with respect to each petitioner. The Appellate Division, Second Department, affirmed the order and judgment in each case and granted leave to appeal on certified questions. For the reasons which follow, we disagree with these determinations and would dismiss the petitions.
In early August, 1975, the city board of education was informed that due to New York City's precarious financial position the board's proposed budget for the 1975--1976 school year would be reduced approximately $230 million. The board estimated that this would result in a 17% Overall reduction in the educational staff. Thereafter the board allocated the existing funds to the Chancellor of the city school district and to the boards of education of the community school districts. In late August, 1975, the city board was advised by the community boards and the Chancellor that as part of massive staff, program and service reductions approximately 409 guidance counselors would have to be laid off. 1 Upon receipt of this information, the division of personnel of the city board established a city-wide excess list and began the process of placing the most senior guidance counselors in the remaining guidance counselor positions. To determine which guidance counselors would be retained, the division of personnel established a formula for computing an 'adjusted seniority date' for all guidance counselors. This formula took into consideration the time actually served by each person in the title of guidance counselor. To this was added veteran's credit, if any. Unpaid leave of absence, while in this title, if any, was subtracted. After an adjusted seniority date for each guidance counselor was calculated, it was determined that each elementary school guidance counselor whose adjusted seniority date fell on or after October 5, 1970, would be laid off. The corresponding date for junior high school counselors was October 1, 1969.
Petitioners attack this seniority formula because experience as a guidance counselor, with certain modifications, was made the primary seniority component. They contend that the formula instead should have used as its primary component total service within the school system. Since most of these petitioners had previous service within the system as elementary school teachers, they argue that this prior service should also have been considered in determining seniority.
A board of education may abolish teaching and staff positions, even where this requires discharging an employee tenured in that position. (Matter of Young v. Board of Educ., 35 N.Y.2d 31, 358 N.Y.S.2d 709, 315 N.E.2d 768.) When such positions are abolished, terminations, when necessary, must be made in accordance with subdivision 3 of section 2585 of the Education Law which provides as follows: 'Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system Within the tenure of the position abolished shall be discontinued.' (Emphasis added.) Petitioners contend that the relevant tenure area here is elementary school teaching, of which guidance counseling is but one facet. The board of education, on the other hand, asserts that the relevant tenure area is elementary school guidance counseling, and that time spent as an elementary teacher therefore is of no significance.
Conceptually, there is no legal impediment to establishing elementary school guidance counseling as a separate tenure area. In Matter of Becker v. Board of Educ., 9 N.Y.2d 111, 211 N.Y.S.2d 193, 172 N.E.2d 568, this court recognized the validity of the general concept of 'tenure areas'. In Matter of Baer v. Nyquist, 34 N.Y.2d 291, 295, 357 N.Y.S.2d 442, 444, 313 N.E.2d 751, 753, we suggested that this concept was an expandible one, and could encompass 'vertical' subject matter classifications. We cited music and physical education as examples of special subject tenure areas (p. 294, 357 N.Y.S.2d p. 444, 313 N.E.2d p. 752.) While stating that tenure limited to curricular classifications could be permitted under the tenure statutes, we held that 'they may not be imposed by local school boards subject only to retrospective approval by the Commissioner of Education' and that '(r)adical restructuring of tenure areas * * * should not be free of controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature' (p. 294, 357 N.Y.S.2d p. 444, 313 N.E.2d p. 752). In response to Baer, comprehensive regulations defining the various tenure areas have been promulgated. (8 NYCRR Part 30.) While these regulations have no direct applicability here, 2 it is significant that 'school counseling and guidance' is defined as a 'special subject tenure area'. (8 NYCRR 30.8(b)(2).) This is consistent with the Commissioner of Education's ruling that '(t)he area of guidance has been traditionally held to constitute a special area' and 'has long been accepted as a special tenure area'. (Matter of Glowacki, 14 Ed.Dept.Rep. 122, 124.) 3
The teaching of Matter of Baer v. Nyquist (supra) relevant here is that a board of education may not engage in 'radical restructuring' of the traditional tenure areas without reference to some controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature, and even then may do so only in a prospective manner. However, since elementary school guidance counseling has always been a traditional tenure area in the City School Districts of the City of New York, we conclude that the board in this regard has not undertaken any restructuring of tenure areas whatsoever and thus we would uphold its seniority formula.
While no single factor leads inexorably to this conclusion, we note a number of factors which, taken together, compel a determination that elementary school teachers were sufficiently alerted to the fact that in leaving their classrooms and taking on the duties of guidance counselors they were entering an entirely independent tenure area, one in which their previous elementary teaching experience would not be relevant in determining seniority. In the first place, as indicated in Matter of Glowacki (supra), and reaffirmed in the regulations referred to, the Commissioner of Education and the Board of Regents view guidance counseling as a separate tenure area. These views by our State's chief educational officers are certainly entitled to great weight. Secondly, by virtue of section 298 of the by-laws of the city board, guidance counseling has been made a separate license area. (See Education Law, § 2573, subd. 1, par. (a), which permits creation of special licensing areas in school districts having a population of 400,000 or more.)
Another significant factor is that these petitioners found it appropriate to join with other guidance counselors in the city school district to create the Guidance Counselors Chapter of the United Federation of Teachers, their collective bargaining agent. In the chapter's separate agreement with the board of education the following is one of the rules to be followed where 'excessing' becomes necessary: view that special importance should be attached to length of service within the separate license area of guidance counseling. The fourth factor we believe important is that in seeking licenses in this special area and in accepting positions as guidance counselors, petitioners voluntarily left their classrooms to assume radically different duties in their new positions. This again suggests that prior service as elementary school teachers should have no relevance in determining tenure area seniority.
Aside from these factors, the practical effect of a contrary holding must be noted. Few of the petitioners, even if successful in these...
To continue reading
Request your trial
-
Cole v. Board of Educ., South Huntington USFD
...system within the tenure of the position abolished" (Education Law, § 2510, subd. 2; § 2585, subd. 3 1; Steele v. Board of Educ., 40 N.Y.2d 456, 462, 387 N.Y.S.2d 68, 354 N.E.2d 807). After the appellant school district restructured its schools prospectively so that subjects formerly includ......
-
Orshan v. Anker
...1981) (effective July 1, 1976) (license area equals tenure area), this legislation cannot be applied retroactively. See Steele v. Board of Ed., 40 N.Y.2d 456, 464, 387 N.Y. S.2d 68, 71, 354 N.E.2d 807, 810 (1976). Hence, the parameters of tenure area in this case are governed by the Court o......
-
Adlerstein v. Board of Educ. of City of New York
...of teachers. Tenure may relate to a special area, a general area, or be vertical or horizontal in reach (Steele v. Board of Educ., 40 N.Y.2d 456, 387 N.Y.S.2d 68, 354 N.E.2d 807; Matter of Baer v. Nyquist, 34 N.Y.2d 291, 357 N.Y.S.2d 442, 313 N.E.2d 751, supra ). Without pausing to parse th......
-
Casey v. Tieman
...Commissioner of Education are entitled to great weight in view of his substantial expertise in the area (Steele v. Board of Educ., 40 N.Y.2d 456, 463, 387 N.Y.S.2d 68, 354 N.E.2d 807; Matter of Kelley v. Ambach, 83 A.D.2d 733, 442 N.Y.S.2d 616; Lombardi v. Nyquist, 63 A.D.2d 1058, 1059, 406......