Thorne v. Monroe City School Bd.
| Decision Date | 01 May 1989 |
| Docket Number | No. 88-C-2668,88-C-2668 |
| Citation | 542 So.2d 490 |
| Parties | Delmas THORNE, et al. v. The MONROE CITY SCHOOL BOARD. 542 So.2d 490, 53 Ed. Law Rep. 752 |
| Court | Louisiana Supreme Court |
J. Michael Rhymes, Monroe, for applicants.
Benjamin Jones, Jones & Smith, Monroe, for respondent.
The issue in this case is whether a tenured school teacher who is also a part-time school bus driver is entitled to acquire tenure as a school bus driver under the provisions of La.R.S. 17:491 et seq. We hold that tenure as a school bus driver may be acquired only by employees who have served a probationary term as bus operators on a full-time basis.
For many years the Monroe City School Board allowed some teachers to act also as school bus drivers, picking up children from their homes on the driver's way to school and returning children to their homes in the afternoon after school. Plaintiffs are nineteen tenured school teachers who have also driven school buses for periods between eight and thirty years. 1
In July, 1987, as a method of consolidating routes and saving costs, the Board eliminated the routes of the teacher-drivers and dismissed plaintiffs from their positions as school bus drivers. This dismissal was effected without formal notice or hearing. Alleging that they had acquired permanent status under La.R.S. 17:492, plaintiffs filed a petition for a preliminary injunction to prevent the Board from dismissing them without following the procedure required by La.R.S. 17:493. 2
The district court granted the injunction, determining that plaintiffs fell within the definition of school bus operators under La.R.S. 17:491. 3 Since there are no statutory provisions excluding part-time school bus operators from tenure, the court reasoned that plaintiffs acquired permanent status within the meaning of La.R.S. 17:492 by serving as bus drivers in excess of three years.
The court of appeal reversed, holding that the teacher tenure law clearly embodied the concept that a teacher can acquire only one permanent tenured status so that an employee of the Board is not entitled to concurrent tenure as a teacher and as a bus operator. 4 531 So.2d 567. We granted plaintiffs' application for certiorari in order to review this decision. 535 So.2d 733.
The doctrine of employment-at-will has been espoused by the civil law since before the enactment of the first Civil Code of Louisiana. The present code provides that an employer may dismiss an employee not hired for a definite period "without assigning any reason for so doing". La.C.C. art. 2747. 5 This identical article was enacted in the Civil Code of 1808, which in turn was modeled after the French and Roman law. See R. Pothier, Treatise on the Contract of Letting and Hiring, Sec. 176 (G. Mulligan trans. 1953); Tucker, Sources of Louisiana's Law of Persons, 44 Tul.L.Rev. 264 (1970).
The Legislature created an exception to the employment-at-will doctrine when it adopted statutes providing permanent tenured positions to teachers and bus-drivers. 6
The historical purpose of tenure, which originated in higher education, was the protection of academic freedom by preventing arbitrary or repressive dismissal. Quinlan, State Teacher Tenure Statutes: An Appeal for Repeal, 9 J. Legislation 144 (1982); Kerwin, The Part-Time Teacher and Tenure in California, 10 Golden Gate U.L.Rev. 765 (1980). After the acceptance of tenure in higher education, many state legislatures passed statutes providing for tenure in primary and secondary schools. The need for tenure in lower education has been justified in order to prevent school boards from abusing superior bargaining power in contract negotiation , to provide stability within the teaching profession by assurance of continued service to experienced teachers, and to prevent dismissal for unfounded, political or partisan reasons. Evans v. Benjamin School District, 134 Ill.App.3d 875, 89 Ill.Dec. 637, 480 N.E.2d 1380 (1985); Spiewak v. Board of Education of Rutherford, 90 N.J. 63, 447 A.2d 140 (1982); Reed v. Orleans Parish School Board, 21 So.2d 895 (La.App.Orl.1945); Quinlan, supra.
Because tenure laws are an exception to the deeply rooted civil law doctrine of employment-at-will, such laws should be strictly construed in determining the class of persons who are entitled to their benefits. 7 Also, because of the special problems that tenure statutes impose upon school boards, tenure statutes should be interpreted so as not to unduly interfere with the Board's primary responsibility of operating the educational system efficiently. Hartog-Rap & Nicholas, The Effect of Teachers' Part-Time Employment on the Acquisition and Retention of Tenure, 1981 Ill.B.J. 564; Evans v. Benjamin School District, 134 Ill.App.3d 875, 89 Ill.Dec. 637, 480 N.E.2d 1380 (1985).
In the present case plaintiffs' employment as school bus drivers has always been in conjunction with their duties as full-time teachers, and plaintiffs have always been considered to be part-time bus drivers. 8 This court has never addressed the issue whether part-time drivers are entitled to acquire tenure.
La.R.S. 17:491 does not expressly provide a probationary term for part-time drivers. The statute simply defines a school bus operator as an employee whose duty it is to transport students in a city or parish bus or activity bus. The issue is whether the Legislature intended to include part-time school bus drivers within the class of persons contemplated to be protected by the statute, when strictly construed.
In California it is statutorily provided that part-time teachers in adult or community college classes (those who are employed for not more than sixty percent of the hours per week considered a full-time assignment for regular employees) are classified as temporary employees. Although part-time employees are rehired continuously from semester to semester, they do not accumulate seniority or tenure status. Cal.Educ.Code Sec. 87482.5 (West 1985); Kerwin, The Part-Time Teacher and Tenure in California, 10 Golden Gate U.L.Rev. 765; Peralta Federation of Teachers v. Peralta Community College District, 24 Cal.3d 369, 595 P.2d 113, 155 Cal.Rptr. 679 cert. denied, 444 U.S. 966, 100 S.Ct. 455, 62 L.Ed.2d 379 (1979).
Illinois' Teacher Tenure Law confers tenure only upon those public school teachers who have completed consecutive school terms of full-time employment. Ill.Rev.Stat. ch. 122, Sec. 24-11 (1983). The Illinois courts have refused to allow the school board to grant tenure to a part-time teacher who has not met the service requirements. In Evans v. Benjamin School District, 134 Ill.App.3d 875, 89 Ill.Dec. 637, 480 N.E.2d 1380 (1985), the court held that a teacher who was employed for only one-half day and was paid for one-half time could not acquire tenure as a full-time teacher. The court noted that the fact that the teacher "personally considered her teaching efforts to be a full-time activity or that she, like all teachers, was necessarily employed in planning and preparation in addition to the classroom teaching period" was not determinative of the question. Id., 89 Ill.Dec. at 641, 480 N.E.2d at 1384.
In New York, as in Louisiana, the pertinent tenure statutes are silent as to a probationary term for part-time employees. In Ceparano v. Ambach, 53 N.Y.2d 873, 423 N.E.2d 38, 440 N.Y.S.2d 615 (1981), the court discussed the long-standing principle that only full-time teaching service fulfills the statutory requirement of a three-year probationary term so as to entitle a teacher to a tenured appointment. The court concluded:
Id., 423 N.E.2d at 39, 440 N.Y.S.2d at 616.
A strict reading of La.R.S. 17:491 leads us to conclude that plaintiffs are not among the class of persons that the Legislature intended to include as beneficiaries of the tenure act for bus drivers. Moreover, the statutory procedure for removal of drivers in case of discontinuance or consolidation of routes indicates that tenure was not contemplated for part-time bus drivers. When routes are consolidated, as occurred in this case, principles of seniority apply, so that the junior bus driver must be the first driver removed. La.R.S. 17:493D. Thus, if a teacher-driver's route is to be consolidated with that of a regular driver, the teacher-driver (if he is senior) is entitled to the consolidated route, creating an obvious conflict with his primary duties as a teacher. The fact that teacher-drivers cannot effectively participate in the seniority procedure mandated for consolidation of routes is a strong indication that the school bus tenure laws were not intended to apply to part-time employees. 9
We conclude that plaintiffs, as part-time school bus drivers, have not completed or even entered into a probationary period which would lead to acquisition of tenure after three years. We the efore hold that the Board's dismissal of the teacher-drivers did not violate La.R.S. 17:491 et seq., and plaintiffs are not entitled to injunctive relief.
The judgment of the court of appeal is affirmed.
The majority opinion adopts a position diametrically opposed to this court's basic view that tenure laws should be construed liberally. Further, the majority opinion will have a discriminatory effect upon bus drivers because it ignores well established jurisprudence in which this court and the courts of appeal have liberally construed the Teacher Tenure Act in favor of teachers to construe the Bus Driver Tenure Act against the relator bus drivers.
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