Lipka v. Brown City Community Schools

271 N.W.2d 771, 403 Mich. 554, 1978 Mich. LEXIS 216

• Court: Michigan Supreme Court
• Decided: November 20, 1978
• Docket: Docket Nos. 56795, 56796. (Calendar Nos. 10, 2)
• Status: Published

Opinions

Kavanagh, C.J.

When this case was first submitted, we were evenly divided over the question of whether a school board’s written statement that a probationary teacher’s work is unsatisfactory must include reasons for that conclusion.

I wrote to answer this question affirmatively, requiring school boards to provide reasons for their action. I was of the opinion that such a policy would prevent arbitrary and capricious school board action. Justices Williams and Fitzgerald joined in that opinion.

Justice Coleman, joined by Justices Levin and Ryan, wrote to answer the question negatively, finding that while definite written notice of satisfactory or unsatisfactory work was mandated by the teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., school boards were not required to include reasons for their conclusions.

Because of our even division we ordered the cause resubmitted and Justice Moody has written to adopt the view expressed in my first opinion. With apology for any embarrassment my change of mind may cause, I write to say that I am now convinced that reasons need not be stated.

My confession of error should not be taken as a retreat from the position expressed in my first opinion that the tenure commission was correct in accepting jurisdiction to decide the question here involved.

I

The act’s provision, MCL 38.83; MSA 15.1983, that the board give written notice to probationary teachers of unsatisfactory work does not include a mandate that a statement of reasons accompany that notice. I find it unnecessary to read a "reason” requirement into the provision in order to effect the act’s policy.

A probationary period is provided in the act and distinguished from tenure to afford a trial period during which a controlling board may make a subjective determination of whether a certain teacher satisfies that district’s particular needs and policy. We should not require that such a procedure meet an objective standard applicable to all school districts.

The absence of provision for hearing at the school board level and for review of a board’s decision that a probationary teacher’s work was unsatisfactory in this act, which provides such a procedure for hearing and a forum for review, the tenure commission, where the issue is the propriety of the discharge of a tenured teacher, indicates that it was not intended that a school board’s determination of whether a probationary teacher has completed the period of probation satisfactorily would be subject to review by the tenure commission.

The act identifies arbitrary and capricious policies (Munro v Elk Rapids Schools, 383 Mich 661, 688; 178 NW2d 450 [1970], On Rehearing, 385 Mich 618; 189 NW2d 224 [1971]) at which it is directed. A teacher no longer can be continued in a probationary status indefinitely; after two, and sometimes three, years of employment without timely notice of unsatisfactory work, the teacher obtains tenure and cannot thereafter be discharged except for cause. Notice of non-reappointment must be given within the time stated in the act so that the teacher has adequate time to seek other employment for the next school year.

Adoption of an impermissible policy contrary to the spirit of the act (see, eg, Wilson v Flint Board of Education, 361 Mich 691; 106 NW2d 136 [1960]) is not demonstrated by showing that an arguably "incorrect” determination was made in a particular case.

The tenure commission may not assay a board’s reason for concluding the work unsatisfactory. The act is followed when the notice of unsatisfactory work is timely given whether based on good, bad or unstated reasons. If timely notice of unsatisfactory work is given, no entitlement to tenure arises under the act, and therefore the Due Process Clause does not require a hearing. See Board of Regents v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972).

II

For the reasons set forth in my opinion on the earlier submission, the circuit court and Court of Appeals erred in deciding that the tenure commission does not have jurisdiction to decide the question here involved. If a teacher claims tenure as a result of satisfactory completion of probation, the determination of timeliness or legal effect of a notice of unsatisfactory work is always within the jurisdiction of the tenure commission.

The board’s notice in this case was effective. The teachers did not satisfactorily complete their probationary period so as to be entitled to tenure.

Accordingly, the Court of Appeals is reversed. The order of reinstatement is set aside and the matter remanded to the tenure commission with instructions to dismiss.

No costs. A public question.

Levin, Coleman, and Ryan, JJ., concurred with Kavanagh, C.J.