On appeal from a judgment of the New Jersey Supreme Court, whose opinion is reported in 131 N.J.L. 350.
For the prosecutrix-respondent, Harkavy & Lieb (Abraham I. Harkavy).
For the respondent-appellant, Board of Education of the City of Newark, Jacob Fox.
The opinion of the court was delivered by
CASE, J. Respondent, Madeline Landis Schulz, relying upon an alleged right of tenure, appealed to the State Commissioner of Education from the refusal of the Newark Board of Education to appoint her to regular employment. The Commissioner held that she occupied the status of a teacher under tenure. The State Board of Education, on appeal, reversed that finding. The Supreme Court, on certiorari proceedings, reversed the decision of the State Board; and the present appeal is from the Supreme Court judgment.
The substantial question is whether a "substitute teacher" is a "teacher" within the purview of the tenure statute, R.S. 18:13-16 (as amended by chapter 43, Pamph. L. 1940).
A state certificate of eligibility (R.S. 18:13-1) is a sufficient authority for the holder to teach except in districts where there is, in accordance with the law, an additional requirement. Such an excepted district is the City of Newark, where, under authority of R.S. 18:13-2, the rules and regulations provide that all licenses to teach in the public schools of that city shall be granted by the City Board of Examiners following oral, written and health examinations. The Board of Education maintains lists of those persons who have become eligible to appointment as teachers by reason of having passed the examinations of the City Board of Examiners. The lists are separately compiled for the elementary schools, the secondary schools and the teaching of art. The names on those lists are in the order of the marks received in the examinations; and appointments of teachers are made in the same order. The original appointments are probationary and are subject to termination for a period of three years. At the end of that time, under the city regulations as well as under the tenure statute, the appointments become permanent. The city has a second classification known as "substitute teachers." Substitute teachers are generally assigned to do the work of teachers temporarily absent, although occasionally they "fill in" where there is a vacancy
in a regular teacher's position and no regular teacher has yet been assigned. Ordinarily the selection of substitute teachers is made from the lists of candidates eligible for, but not yet appointed to, regular teaching positions, but the rules and regulations permit employment for that class of work of those who hold only the state certificate. Whether a substitute teacher has both the city license and the state certificate, or only the state certificate, the employment is merely as a substitute teacher.
There are fundamental differences between the status of persons employed as substitute teachers and that of persons employed in regular teaching positions. The engaging of teachers leading to permanent employment in the City of Newark is, in accordance with the local rules and under the direction of the statute, R.S. 18:6-20 (requiring action by a majority vote of the board), done by the Board of Education. The engaging of substitute teachers is otherwise; if such are to substitute on a monthly basis, their names are recommended to the Committee on Instruction by the superintendent of schools; if they are to be on a per diem basis, they are assigned from day to day by the superintendent, as occasion requires. Other differences have to do with seniority, with compensated absences, with the rate and unit of compensation, and with the schedules of increases.
Respondent held a state certificate of eligibility, but she did not have and was not entitled to have the city license. Therefore, under the rules, regulations and practices of the district board she was not authorized to teach, and her name was not on any of the lists of persons entitled to be appointed to teach in the City of Newark. During the academic year 1937-1938 she was engaged as a "substitute teacher" at a salary of $120 per month to take the classes of a regularly employed permanent teacher who, constantly on the payroll, was away on leave. The absent teacher returned with the opening of the schools after the summer vacation, and respondent's employment was terminated. For the academic year 1938-1939 respondent was employed
as a "substitute teacher" at $160 per month for work made available by a vacancy; and for the year 1939-1940 she was again employed as a "substitute teacher" for work made available by a vacancy. On September 30th, 1940, respondent signed a written request for employment in "substitute work," and during that academic year, namely, the school year 1940-1941, she was employed for a total of five different days "as a day to day casual and itinerant substitute teacher," each day at a different school on a per diem basis ranging from $5.50 for the first day (the day on which respondent completed, as she contends, the period necessary to constitute her a tenure teacher) to $7 for the most highly compensated day; one of the days of employment was in November; two of them were in December and the remaining two were in January; and each employment was to substitute for an absent teacher. Since then she has not been employed. Concededly, up to and after September 30th, 1940, and until the one day of employment as a substitute in November, 1940, respondent had acquired none of the rights which she now asserts. If her earning capacity be determined by multiplying her compensation on the day she claims to have attained the status of a tenure teacher by the maximum number of teaching days (191) in the Newark academic year, the total for any year, assuming ...