Stewart v. Fort Wayne Community Schools

Decision Date16 October 1989
Docket NumberNo. 92A03-8901-CV-10,92A03-8901-CV-10
Citation545 N.E.2d 7
Parties56 Ed. Law Rep. 575 Kathleen Ann STEWART, Appellant (Plaintiff Below), v. FORT WAYNE COMMUNITY SCHOOLS, Appellee (Defendant Below).
CourtIndiana Appellate Court

John S. Bloom, Bloom, Bloom & Fleck, P.C., Columbia City, for appellant.

Charles W. McNagny, Thomas M. Kimbrough, Barrett & McNagny, Fort Wayne, for appellee.

STATON, Judge.

Kathleen Ann Stewart appeals the cancellation of her contract with Fort Wayne Community Schools (FWCS). The decision of the FWCS Board to cancel her contract was reviewed and upheld by the Whitley Circuit Court. Stewart also appeals denial by the trial court of her claim for reinstatement, damages, and attorney fees under 42 U.S.C. Sections 1983 and 1988.

Stewart presents us with several issues on appeal, consolidated and restated these are:

1. Whether the board was required to retain Stewart over other non-tenured employees?

2. Whether the board action was arbitrary, capricious, and contrary to law?

3. Whether Stewart was denied substantive due process?

4. Whether Stewart has a claim under 42. U.S.C. sections 1983 and 1988?

Reversed.

Stewart was first employed by FWCS as a psychometrist in January, 1978. Thereafter, she was employed on annual contracts for six consecutive years. Pursuant to a pretrial order of the Whitley Circuit Court, the parties stipulated that Stewart was a "tenured" teacher, 1 that she was terminated pursuant to the provisions of IC 20-6.1-4-10, 2 and that two non-tenured employees were retained at the time of the cancellation of Stewart's contract.

On appeal we will review the administrative proceedings to determine whether the board decision was supported by substantial evidence, was not arbitrary and capricious, and whether the board followed all relevant rules of law and procedure, including its own rules. Metropolitan School District of Martinsville v. Mason (1983), Ind.App., 451 N.E.2d 349, 353, trans. denied.

I. Cancellation

On February 18, 1983, Stewart was notified that cancellation of her contract would be considered at a school board meeting on March 28, 1983. The reasons given for cancellation of her contract were: declining student enrollment; uncertainty of funding; her lack of dual certification; and seniority. Stewart requested a hearing before the board which was held on March 14, 1983. On March 28, 1983, the board cancelled her contract effective after June 17, 1983.

It is apparent from the findings of the board that Stewart's contract was cancelled pursuant to an administrative reduction policy adopted by the board on November 23, 1981. The policy provided for the elimination of the guidance counselor and psychometrist positions and the creation of new, combined, positions for "dean/counselor" and "psychometrist/counselor". The procedural guidelines for implementation of this dual certification policy included the allowance of time for guidance counselors and psychometrists to meet the certification requirements of the new dual position. 3

Stewart contends that in January of 1983 a new policy for administrative reduction was adopted replacing the dual certification policy. The record supports this claim. According to the minutes of a board meeting held on January 24, 1983, the new administrative reduction guidelines were "to replace those adopted by the Board on November 23, 1981." R. 270 (emphasis added). The 1983 guidelines made no mention of a dual certification requirement. The 1983 guidelines state in pertinent part that:

Administrators will be selected for reduction in force in a manner that is fair and equitable after the qualifications of the individuals potentially involved have been reviewed.

R. 270. It is clear from our review of the record that both the board and the trial court based their findings on the rescinded administrative reduction policy of 1981.

One of the factors we consider in reviewing a school board decision is whether the board followed its own rules. Mason at 451 N.E.2d 353. In this case it did not. We must now determine if Stewart was prejudiced by this failure.

The guidelines in effect at the time Stewart's contract was cancelled stated that reduction would be in a fair and equitable manner "after the qualifications of the individuals potentially involved have been reviewed." R. 270. At the time Stewart's contract was cancelled her position was classified as "psychometrist". Board finding number 14 states in pertinent part that:

14. The procedure approved by the School Board on November 23, 1981, to accomplish the elimination of the psychometrist position included the following:

* * * * * * 2. Psychometrists ... will be assigned to the positions of psychometrist/counselor.

* * * * * *

5. The psychometrist/counselor position will require certification as a psychometrist and guidance counselor.

* * * * * *

8. In some situations it may be necessary to give a guidance counselor or psychometrist a period of time to fully meet the certification requirements of the position to which he/she is assigned.

R. 34 (emphasis added).

At the time Stewart's contract was cancelled two non-tenured employees were retained in the psychometrist/counselor position who were not certified counselors. The school board contends that they were more qualified than Stewart because they had classroom teacher's licenses. However, a classroom teacher's license is only one of several prerequisites for a counseling license. 530 IAC 2-1-11 (in effect at the time Stewart's contract was cancelled). 4 At the time of the school board action, title 510 article 12 of the Indiana Administrative Code governed licensing requirements for Pupil Personnel Services. 5 Rule 2 of that article stated that "[a]ll personnel providing pupil personnel services shall be properly certified in their service area." 510 IAC 12-2-1(A) (emphasis added); see also Switzerland County School Corporation v. Sartori (1982), Ind.App., 442 N.E.2d 702, 704, reh. denied, trans. denied, (discusses importance of teacher licensing). During the hearing conducted by the trial court this rule was explained by Denny C. Skeens, Director of Accreditation and Facility Planning for the State Department of Education. He testified that the function of the Accreditation division was to evaluate schools to determine whether they were complying with the "requirements of the State Board of Education and state statute." R. 345. Skeens testified that the FWCS policy of allowing personnel without a counselor's license to serve in the position of "psychometrist/counselor" (including the "acting" category) was "in violation of state rules". R. 349. We agree.

The language of rule 2 clearly stated that personnel "shall be properly certified ". Nevertheless, the school board retained non-tenured employees who, like Stewart, were licensed only in psychometry, in the psychometrist/counselor position. 6 The school board cannot presume to create new licensing requirements for teachers; this responsibility has been delegated by the legislature to the State Board of Education. Currently at IC 20-1-1-6 (Burns Code Ed., 1988 Supp.) and IC 20-6.1-3 (Burns Code Ed., 1988 Supp.). 7 FWCS has exceeded its authority and acted contrary to law.

II. Tenure Rights

Stewart also contends that the school board action was contrary to law because she had tenure while the other two employees who were retained did not. She cites Barnes v. Mendenhall (1932), 98 Ind.App. 229, 183 N.E. 556, and Watson v. Burnett (1939), 216 Ind. 216, 23 N.E.2d 420, in support of her position. In Barnes the school board cancelled a permanent teacher's contract pursuant to Chapter 97 of the Acts of 1927, page 259, commonly known as the "Teachers Tenure Act". Although there have been a few changes in the wording, and the section has since been recodified, the substance is the same as IC 20-6.1-4-9 and IC 20-6.1-4-10 under which Stewart's contract was cancelled. Chapter 97 provided that a teacher who had served under five successive contracts and who then entered into a contract for further service, thereby became a permanent teacher serving under an indefinite contract. Section two of the act provided that an indefinite contract could be cancelled for certain causes including a "justifiable decrease in the number of teaching positions ...". Grace Barnes, like Stewart, was a permanent teacher serving under an indefinite contract. The school board cancelled her contract because of a "justifiable decrease in the number of teaching positions." Barnes at 98 Ind.App. 232, 183 N.E. 556. Barnes appealed the decision of the school board because other non-permanent teachers who did not have indefinite contracts were filling positions which Barnes was licensed to fill. The court concluded that a permanent teacher's license could not be cancelled as long as there were non-permanent teachers holding positions which the permanent teacher was licensed to fill.

The trial court concluded as a matter of law that Barnes did not apply to Stewart's situation because Stewart "was less qualified for the Psychometrist/Counsel [sic] position than anyone else retained in the position." R. 23. However, since we have determined that the two non-permanent employees did not have the proper certification for the position, we cannot agree that Barnes does not apply.

FWCS contends that Barnes does not apply because Stewart is not a classroom school teacher. Appellee's Brief 33. As we have already noted, FWCS has stipulated that Stewart was a tenured teacher and that her contract was cancelled pursuant to the provisions of IC 20-6.1-4-10. That section applies to permanent teachers with indefinite contracts. Although the current law does not use the term "tenure", that term applies to permanent teachers serving under indefinite contracts. IC 20-6.1-1-8 (Burns Code Ed., 1985 Replc.), defines the term "teacher" as:

a professional person whose position in the school corporation...

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1 cases
  • Stewart v. Fort Wayne Community Schools
    • United States
    • Indiana Supreme Court
    • December 27, 1990
    ...trial court found for the school system. Stewart appealed, and the Court of Appeals reversed on both counts. Stewart v. Fort Wayne Community Schools (1989), Ind.App., 545 N.E.2d 7. Because this Court has not addressed directly the legal issues presented by the discharge of tenured teachers ......

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