On appeal from the Decision of the State Board of Higher Education.
Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.
By their appeal to the Chancellor of Higher Education, initiated in this matter on January 3, 1978, seven nonteaching professional employees of New Jersey state colleges attacked the prevailing interpretation of N.J.S.A. 18A:60-14 as unreasonable, contrary to statutory intent and constitutionally impermissible sex discrimination. Specifically, a memorandum issued by the Assistant Chancellor of Higher Education instructed the state colleges that an approved leave of absence taken during the five-year probationary period for multi-year contract eligibility constituted a break in the "consecutive years" requirement of the statute. Thus, the five-year probationary period was required to start again upon termination of any such leave. It was appellant's contention that an approved leave of absence does not constitute a break in the five consecutive years requirement. Furthermore, most of the petitioners were women who had taken maternity leaves and who sought relief based upon alleged sex discrimination.
The statute in question, as amended in 1979, provides as follows:
Members of the professional staff not holding faculty rank may be appointed by a board of trustees for 1-year terms; provided, however, that after employment in a college for 5 consecutive academic years or for the equivalent of 5 academic years within a period of any 6 consecutive academic years, such employees may be offered contracts of no more than 5 years in length. During the period of such contracts, such employees shall be subject to dismissal only in the manner prescribed by subarticle B of article 2 of chapter 6 of Title 18A of
the New Jersey Statutes, and must be notified by the president not later than 1 year prior to the expiration of such contracts of the renewal or nonrenewal of the contract. [Emphasis supplied].
The underlined phrase, "or for the equivalent of 5 academic years within a period of any 6 consecutive academic years," was added by the amendment enacted subsequent to the filing of this action with the Chancellor. Although it effectively applies to any nonteaching professional regardless of sex, it accommodates leaves of up to one year for maternity absence for female professionals. We note that, of the seven original individual petitioners, five have left their previous positions as nonteaching professionals or have achieved multi-year contract status and thus their claims are conceded to be nonjusticiable at this time. Nevertheless, the two remaining appellants continue to pursue their attack on the statute on their own behalf.*fn*
Appellants do not accept the 1979 amendment as having rendered their attack moot. Rather, they insist that although the Legislature thereby "sought to ameliorate the problem, it has actually aggravated the discriminatory impact, because, with only one special exception, every leave of absence of more than one year among nonteaching professionals has been for pregnancy and/or maternity reasons. Deprivation of the multi-year contract thus falls exclusively on female employees."
With regard to the two individual appellants whose claims remain justiciable, both have been employed since October 1970. Nancy E. Jaeger has had continuous employment at Ramapo College except for one maternity leave from March 1977 until April 1978. Bonnie Yezo has been continuously employed at Kean College except for one maternity leave from April 1975 until June 1976. Since both appellants took maternity leaves exceeding one year, the Chancellor found that they were not eligible for multi-year contracts commencing with the 1978-79
academic year. In this regard, his decision was adopted by the Board of Higher Education. Although appellants have not set forth their specific demands with regard to application of the statute to their individual situations, they request that the ruling of the Chancellor and Board of Higher Education be reversed. Appellants urge that we "set aside the interpretation of the statute applied by the board" and that "the statute should be interpreted in a reasonable and equitable manner" to avoid sex discrimination. Finally, they request only that "petitioners should be granted immediate consideration for multi-year contracts."
Although appellants' demands are not clearly and specifically articulated, we will nevertheless deal with the controversy in particular terms as we perceive appellants intended. The Chancellor and the Board of Higher Education have interpreted the present statute as requiring five years of employment within six consecutive years for eligibility for a multi-year contract. They conclude that limiting leaves of absence during the six consecutive years to not more than 12 months is reasonable irrespective ...