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Maine's school boards are being urged to eliminate seniority clauses from teachers' contracts as the result of a state high-court decision, handed down this summer, that state law does not protect tenured teachers at the expense of nontenured teachers in layoff decisions.

In a monthly newsletter to its members, the Maine School Management Association (msma) said that "local school boards should insist on the removal of such clauses from existing contracts and refuse to negotiate such provisions in the future."

The association's advice was issued in response to the Maine Supreme Judicial Court's ruling that state law "does not require that probationary teachers be terminated before continuing contract teachers."

The lawsuit was filed in March 1979 by a language-arts teacher who claimed the school board violated her contract in 1976, when she was laid off while a probationary teacher's position was retained. The layoffs occurred because of local budget cuts.

In addition, the suit charged that the school board had not actually eliminated the teacher's position since nearly all of the courses she taught were maintained the following school year.

Under state law, the basis for the court's decision, school boards may terminate teachers' contracts "when changes in local conditions warrant the elimination of the teacher position for which the contract was made."

In reversing the earlier decision, the court found that state law does not "contain an implicit seniority principle." Furthermore, the court held that a school board's decision "to save money and conserve scarce educational resources by eliminating teaching positions does constitute a change warranting elimination of a teacher position under the statute."

The court also rejected the teacher's allegations that her position had not actually been eliminated and concluded that school districts are not obliged to cut courses pre-viously taught by a teacher whose contract is terminated. To force such action "would unwisely straitjacket school administrators," the court wrote.

The decision marks the first time that the state court has held that teachers with continuing contracts need not be accorded preferential treatment in reductions in force, according to H. Sawin Millett Jr., the associate executive director for the msma

Mr. Millet said that the association's attorney has prepared a legal interpretation of the supreme court's decision to distribute to principals in the state. In the fall, the association will sponsor a statewide conference on the decision and its implications.

Delaware teachers had little time to celebrate the July 7 signing of a new, expanded collective-bargaining law before being dealt a serious setback by the state's highest court. On July 21, the Delaware Supreme Court handed down a decision that severely limits the issues that teachers may negotiate under the state's existing law.

Although the ruling in Colonial School District v. Colonial Association does not change the provisions of the new law, it will affect teachers' collective-bargaining agreements until the law goes into effect, according to Dennis C. Carey, the state's secretary of labor. And that cannot occur until 60 days after the legislature funds a public employee-relations board--which is unlikely to happen before the 1983 legislative session.

As a result, state education officials anticipate that the supreme court's ruling will have a considerable impact and may lead to strikes in some of the six districts now negotiating. Depending on when the law takes effect, it may also affect those districts scheduled to negotiate next spring.

It is not yet clear how the 13 existing contracts across the state, which were not mentioned in the court ruling, will be affected by it, but Mr. Carey, said he believes they will be nullified, leaving open the possibility of more strikes.

Under the decision, teachers may negotiate only salaries, fringe benefits, and physical conditions. Contracts may not include most "nonmoney" items: teacher/student ratios, layoffs and rehirings, grievance and grade-reporting procedures, and policies governing student conduct and administrative vacancies. These subjects have been included in Delaware teachers' contracts since 1969, when the legislature legalized collective bargaining for teachers.

"It's ridiculous," said Helen D. Wise, executive director of the Delaware State Education Association. "Teachers have been told they have no rights--that they can't even bargain whether they're entitled to eat lunch."

The new law, in contrast, permits negotiations to cover a broader range of subjects and establishes the board to mediate grievances. The law also excludes, with a "grandfather clause," existing contracts. It does not, however, permit either binding arbitration or strikes.

On July 13, the New Mexico Court of Appeals ruled that the portion of teachers' salaries paid to the Educational" Retirement Fund is exempt from state income tax.

The ruling came in a case brought against the state Taxation and Revenue Department by the National Education Association (nea) of New Mexico and 317 pub-lic-school employees.

The teachers contended in their suit that state law exempts from taxation the 5.5 percent of their gross salary that was paid into the Educational Retirement Fund. (The percentage paid into the fund is now 6.8 percent, according to nea-New Mexico.)

The law referring to the retirement fund says that "contributions or benefits mentioned in the Educational Retirement Act shall not be assignable in either law or in equity, or be subject to execution, levy, attachment, garnishment or any other legal process, and shall also be exempt from any state income tax."

The tax department argued that the legislature intended to exempt from taxation only the money paid out of the fund, not money paid into it.

The Court of Appeals upheld a state district judge in Santa Fe who ruled last year that the statute is clear in saying that contributions to the fund are not taxable.

The Minnesota Supreme Court has ruled that when a principal is demoted, his or her seniority should be calculated from the date of hiring by the school district--not from the date of promotion to a principalship.

The issue arose last year when the St. Paul school board eliminated four principals' positions. The board demoted the four principals who had the least seniority as principals, but who had previously taught in the system.

John E. McManus Jr., who had been employed in the district since 1956 but did not become a principal until 1975, challenged the decision, claiming that he should be credited with all his years of service in the system.

A trial court sided with the school board, but the state Supreme Court found unanimously that the state's Teacher Tenure Act supported Mr. McManus's position.

Under the St. Paul board's policy, the court wrote, "a teacher would be discouraged from accepting a position as principal if it meant losing all seniority in the school system. A principal in such a situation, while experienced and tenured in the school district, could not avoid demotions and terminations associated with declining enrollments."

The New Jersey Supreme Court has broadened the scope of the state's teacher-tenure laws to include "supplemental" special- and remedial-education instructors.

In a unanimous decision handed down in July, the court ruled that these teachers, who often work part time or are hired with federal funds under one-year contracts, are entitled to tenure as long as they fulfill the certification and length-of-service requirements of the state's tenure law.

In its ruling on three related cases--Speiwak v. Board of Education of Rutherford, Hamilton Township Supplemental Teachers Association v. Hamilton Township Board of Education, and Anderson v. Summit Board of Education--the court rejected the school boards' claims that supplemental teachers can be denied tenure rights because of the temporary nature of their contracts.

"If tenure were a matter of contract," Justice Morris Pashman wrote,"its protection would be available only to those employees that the board chooses to favor with it. This practice is obviously inequitable."

Vol. 01, Issue 40

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