Opinion
For Opinion on Rehearing, see 129 Cal.Rptr. 443, 549 P.2d 1115.
Opinion on pages 540- 556 omitted.
REHEARING GRANTED
COUNSEL
[535 P.2d 1172] [121 Cal.Rptr. 716] William E. Brown, Burlingame, for plaintiff and appellant.
James H. Harmon, County Counsel, El Centro, for defendant and respondent.
OPINION
CLARK, Justice.
Plaintiff Douglas Turner appeals from judgment denying writ of mandate to compel the Board of Trustees, Calexico Unified School District (board), to reemploy him as a third-year probationary teacher.
Turner, employed as a high school algebra teacher for the school year 1970-1971, was rehired on a probationary basis for the next year but in March 1972, was notified he would not be rehired for the succeeding year. At his request and pursuant to Education Code section 13443, subdivision (b), Turner was served with accusation and notice of hearing.
At the hearing, Miss Allen, head of the mathematics department, testified she had talked with Turner in late May or June 1971, telling him she understood he was not teaching algebra. He responded he was ‘ no longer teaching algebra, that he was teaching things that he thought would be of more use to the students at this point in their lives, ’ such as health. He felt he had sufficiently covered the course content.
The following year Miss Allen, who had a number of Turner's former students in her geometry classes, concluded they were inadequately prepared in algebra. Several told her they had not learned factoring and had never heard of ratios and proportions. Some of the advanced students had trouble solving equations with one or two variables, and a number indicated they listened to music in Turner's classes.
On cross-examination, Miss Allen acknowledged she was not qualified to judge the competency of classroom teachers, and further, she was confused as to whether those not learning factoring were students of Turner or another teacher. Her conclusions on inadequate student preparation were based mainly on student statements.
Two of Turner's former students testified that during part of the winter of the 1970-1971 school year, they merely sat in class, talked, and listened to music for entire class sessions without receiving instruction in algebra. During other periods Turner assigned problems for the first 15 or 20 minutes of class but played music for the remaining time. Few homework assignments were given.
During the latter part of Turner's first year, his teaching was evaluated by the school's principal. The principal's report of 3 March 1971 rated petitioner's teaching [121 Cal.Rptr. 717] [535 P.2d 1173] performance ‘ commendable’ or ‘ acceptable’ in every category.
The hearing officer found Turner failed ‘ to give satisfactory instruction in algebra, when compared with the standards generally expected of other faculty, during the latter portion of the preceding (1970-1971) school year, ’ and this failure related to the welfare of the school and its pupils.
While there were five other charges of misconduct, they were resolved in Turner's favor, and the evidence relating to them has been omitted.
The majority do not question whether a probationary teacher's position is a ‘ fundamental’ right within the meaning given that term in Bixby v. Pierno (1971) 4 Cal.3d 130, 144-145, 93 Cal.Rptr. 234, 244, 481 P.2d 242, 252. Neither do I. In Bixby we said: ‘ In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation. This approach finds its application in such an instance as the opportunity to continue the practice of one's trade or profession . . ..’
The officer also found that Turner's performance in his first year was hampered by a malfunctioning aircooler, and exceedingly hot classroom, late availability of textbooks, and personal problems, including difficulties in finding a residence. Further findings indicated his performance improved the next year.
Adopting the determinations of the hearing officer, the board elected not to reemploy Turner for the 1972-1973 school year. The board's decision was subsequently upheld by the trial court, which found the board's action was supported by substantial evidence and related solely to the welfare of the school and its pupils.
At the outset we must determine the proper standard to be utilized by the trial court in reviewing the board's decision.
Subdivision (c) of section 13443 of the Education Code provides that the school board shall make the final determination as to rehiring probationary teachers. Subdivision (d) of that section also reflects legislative intent to limit judicial review: ‘ The governing board's determination not to reemploy a probationary employee for the ensuing school year shall be for cause only. The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof.’
In Griggs v. Board of Trustees (1964) 61 Cal.2d 93, 96-97, 37 Cal.Rptr. 194, 197, 389 P.2d 722, 725, this court stated that where ‘ there is evidence to support the board's findings of fact’ and the cause for dismissal relates to the welfare of the school and its pupils, the reviewing court may not redetermine the facts or whether they are sufficiently serious to justify dismissal.
This court again recognized the applicability of the substantial evidence test to the board's findings in Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 589, 100 Cal.Rptr. 16, 24, 493 P.2d 480, 488, stating ‘ the reviewing court must accept evidentiary facts shown by substantial evidence and the sufficiency of those facts to constitute a stated cause.’ These rules were quoted in Lindros v. Governing Bd. of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 533-534, 108 Cal.Rptr. 185, 510 P.2d 361 although the court pointed out that neither party had challenged the applicability of the substantial evidence rule.
Prior to the decision in Strumsky v. San Diego County Employees Retirement Assn. (1971) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, the substantial evidence rule was applied to review of local administrative adjudications. ( Id. at pp. 31-32, 112 Cal.Rptr. 805, 520 P.2d 29.) In Strumsky , a dual system of review was established. A trial court would thereafter continue applying the substantial evidence rule in reviewing local administrative adjudications not affecting vested and fundamental rights. However, in reviewing adjudications affecting vested fundamental rights, a trial court would be required by the constitutional doctrine of separation of powers to exercise independent judgment upon the evidence disclosed in a limited trial de novo.
Under either method of review a hearing occurs which constitutes a ‘ trial’ within the broad meaning of that term. Obviously, under either method, the judge exercises his independent judgment in applying the law to the evidence; if he did not, it would constitute corruption. The principal difference is that in cases coming within the substantial evidence rule the judge exercises his independent judgment to determine whether agency findings are supported by substantial evidence in light of the entire record; whereas in cases involving vested fundamental rights the judge exercises his independent judgment to determine whether agency findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn., supra , 11 Cal.3d 28, 44-45, 112 Cal.Rptr. 805, 520 P.2d 29.)
As the Court of Appeal noted in Young, ‘ [n]ormally describing a person's employment as ‘ probationary, ’ ‘ non-tenured, ’ ‘ temporary, ’ et al., indicates a trial period during which the employee must demonstrate he is qualified for permanent status that often carries with it the vested interest or fundamental right that we are seeking here. Such a concept, however, is not controlling on our determination if the rights afforded the employee by law dictate another interpretation.' (40 Cal.App.3d 769, 780, 115 Cal.Rptr. 456, 463.)
[121 Cal.Rptr. 718] [535 P.2d 1174] The question therefore presented by the instant case is whether the right of probationary teachers to be rehired for the next school year is vested within the meaning of Strumsky so that trial de novo review— rather than substantial evidence review— is applicable. We conclude that the right is not vested, that the standard of review for determinations not to rehire remains the substantial evidence rule, and that the holdings of Griggs, Bekiaris , and Lindros continue viable.
Although this court has broadly outlined the distinction between vested and nonvested rights, it has not drawn a sharp line of demarcation. In Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, the court stated: ‘ As we have noted, in determining whether the right is sufficiently basic and fundamental to justify independent judgment review, the courts have considered the degree to which that right is ‘ vested, ’ that is, already possessed by the individual. (McDonough v. Goodcell, supra , 13 Cal.2d 741, 753, 91 P.2d 1053.) In cases involving applications for a license, the courts have largely deferred to the administrative expertise of the agency. (See Southern Cal. Jockey Club v. Cal., etc., Racing Bd. (1950) 36 Cal.2d 167, 174-178, 223 P.2d 1.) Courts are relatively ill-equipped to determine whether an individual would be qualified, for example, to practice a particular profession or trade. (See Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d 124, 129, 131-132, 40 Cal.Rptr. 171.) In a case involving the agency's initial determination whether an individual qualifies to enter a profession or trade the courts uphold the agency decision unless it lacks substantial evidentiary support or infringes upon the applicant's statutory or constitutional rights. Once the agency has initially exercised its expertise and determined that an individual fulfills the requirements to practice his profession, the agency's subsequent revocation of the license calls for an independent judgment review of the facts underlying any such administrative decision.' (Fns. omitted.)
By analogy to the Bixby language, an applicant for a teaching position does not possess a vested right to be hired, but a tenured teacher possesses a vested right to be retained. Between these two falls the instant case: one's right to be rehired following a trial period to determine competency and effectiveness prior to being granted tenure.
Weighing the needs of teachers for job security, the needs of the students for education, and the needs of school boards for flexibility in evaluating and hiring employees who may remain 40 years, the Legislature may determine whether a teacher's vested right shall be granted, postponed or denied. ([121 Cal.Rptr. 719] [535 P.2d 1175] Board of Regents v. Roth (1971) 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548.) The repeated statutory amendments relating to probationary teachers' rights (see Comment, Probationary Teacher Dismissal (1974) 21 U.C.L.A.L.Rev. 1257, 1260-1264), reveal that the Legislature has been well aware of the delicate balancing necessary to accommodate these sometimes competing interests.
Examination of existing statutes convinces us the Legislature has not seen fit to grant probationary teachers a vested right to be rehired so as to make trial de novo review applicable. Probation means the teacher is on trial— his competence and suitability remaining to be determined. (See Webster's New Internat. Dict. (3d ed. 1961) p. 1806.) Probationary is the opposite of vested. By labelling the position probationary, the Legislature had advised the employee that the position is neither vested nor permanent. Although the label may not be determinative, it is strong indication of legislative intent not to grant a vested right.
To hold that a probationary teacher has a vested right to be rehired for the next school year— requiring trial de novo review— would contravene portions of section 13443, subdivisions (c) and (d). By providing that the school board's determination of the sufficiency of the cause is conclusive, the Legislature has foreclosed judicial evaluation of the gravity of misconduct of probationary teachers. Under subdivisions (c) and (d), once misconduct relating to the schools and its pupils is established, it is within the school board's discretion to determine whether the cause is sufficiently serious to warrant a refusal to rehire and whether the teacher's other qualities justify reemployment. (Lindros v. Governing Bd. of the Torrance Unified School Dist., supra , 9 Cal.3d 524, 534, 108 Cal.Rptr. 185, 510 P.2d 361; Grigg v. Board of Trustees, supra , 61 Cal.2d 93, 96; Bekiaris v. Board of Education, supra , 6 Cal.3d 575, 100 Cal.Rptr. 16, 493 P.2d 480; McGlone v. Mt. Diablo Unified Sch. Dist. (1969) 3 Cal.App.3d 17, 22, 82 Cal.Rptr. 225; American Federation of Teachers v. San Lorenzo, etc., Sch. Dist. (1969) 276 Cal.App.2d 132, 136, 80 Cal.Rptr. 758; Raney v. Board of Trustees (1966) 239 Cal.App.2d 256, 259, 48 Cal.Rptr. 555.)
In contrast, this court, establishing the scope of trial de novo review, upheld a trial court's determination based on conflicting evidence and inferences that an administrative board's finding of moral turpitude was not sustained by the weight of the evidence. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 71 et seq., 64 Cal.Rptr. 785, 435 P.2d 553.) Similarly, in Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 87-88, 17 Cal.Rptr. 488, 366 P.2d 816, this court, recognizing the doctor was guilty of unprofessional conduct in violation of statute, held matters found by was of excuse by the trial court precluded license revocation, permitting only a lesser penalty. Trial de novo review as reflected by the above cases is thus broader than that permitted by subdivisions (c) and (d).
The intention of the Legislature to limit review being manifest, cardinal rules of statutory construction require rejection of the argument that the Legislature has granted probationary teachers a vested right, thereby invalidating the express provision making conclusive the board's determination of sufficiency. Courts should construe all provisions of a statute together, significance being given— if possible— to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. (E. g., Moyer v. Workmen's Comp.App. Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) And [121 Cal.Rptr. 720] [535 P.2d 1176] courts should construe statutes where possible in favor of validity. (E. g., Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.)
When it is contended that one of the provisions of subdivision (d) reflects a legislative intent to grant a vested right to a probationary teacher, it is incumbent upon this court in determining legislative intent to consider the entire subdivision and the effects upon other subdivision provisions which might follow from acceptance of the vested right contention. To refuse or to postpone consideration of the potential invalidity of part of the subdivision, resulting from this court's interpretation of another part of the subdivision, is to hide from reality and to ignore the practical effects of our own decision. Moreover, a determination of partial invalidity of the subdivision may require the conclusion that the statute is not severable, invalidating the entire subdivision— including the portion interpreted today. Accordingly, the dissenting opinion's invitation to ‘ duck’ consideration of the relationship between the ‘ cause’ provision in subdivision (d) and its immediately following provision limiting judicial review (see dissenting opinion, fn. 9) must be rejected.
See the successive revisions of the relevant statute in Statutes, 1931, chapter 657, page 1394; 1935, chapter 697, page 1895; 1961, chapter 2063, section 1, page 4290, chapter 2114, section 1, pages 4374-4375; 1965, chapter 1110, sections 1-3, pages 2755-2756.
In Young v. Governing Board (1974) 40 Cal.App.3d769, 155 Cal.Rptr.456, the Court of Appeal held the Legislature has given probationary teachers a vested right to be rehired, having provided that employment in effect shall continue until ‘ divested for cause .’ (At p. 780, 115 Cal.Rptr. 456; italics in orig.) However, a provision that administrative action must be for cause means no more than that arbitrary and oppressive action is forbidden, and such a standard will be implied in its absence when the policy leading to the adoption of the legislative enactment is apparent. (Louis Stores, Inc. v. Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 760, 22 Cal.Rptr. 14, 371 P.2d 758; In re Petersen (1958) 51 Cal.2d 177, 184 et sep., 331 P.2d 24; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 471, 171 P.2d 8; see Kugler v. Yokum (1968) 69 Cal.2d 371, 380 et seq., 71 Cal.Rptr. 687, 445 P.2d 303.) Moreover, the conclusion in Young that the provision requiring cause reflected legislative intent to grant a vested right would— as we have seen— invalidate the provision making the board's determination conclusive. It would be anomalous to reach the result that one provision of a statute has the effect of invalidating the one immediately following it. The court in Young also relied upon language in Board of Regents v. Roth, supra , 408 U.S. 564, 573-574, 92 S.Ct. 2701, 33 L.Ed.2d 548, but the language is directed to whether a teacher hired for a term has a sufficient interest in his position requiring a hearing for a determination not to rehire. The language does not deal with the question of judicial review of the hearing when, as here, a hearing has been conducted. Insofar as it is contrary to the views expressed herein, Young is disapproved.
The standard of performance in teaching algebra clearly relates to the welfare of the school and its pupils. Turner's termination was based, not on activity outside the classroom, but solely on his failure to perform the principal activity for which he was hired— teaching algebra.
The finding of below-standard performance is supported by substantial evidence, namely, testimony by the department head and two students showing Turner was not teaching algebra. Although evidence also exists not supportive of the findings, the weight to be given the conflicting evidence is for the board to determine.
It is also for the board to determine whether the factors affecting Turner's performance explained or excused his below-standard teaching. Just as the courts may not reweigh the gravity of the facts found justifying dismissal, they may not redetermine the weight to be given the offered excuse.
Turner contends his rehiring for the 1971-1972 school year establishes that his conduct was satisfactory in the 1970-1971 school year. However, a recommendation not to rehire for the next school year must be given prior to 15 March or the teacher is automatically hired for the next year (Ed.Code, § 13443). The rehiring occurrence in the midst of the school year may not be viewed as a determination of satisfactory conduct for the entire year. It is noted Turner's low performance occurred partially after 15 March 1971, the administrator gaining knowledge of all his questionable conduct after that date.
Although Turner's performance during his second year was satisfactory, he cannot [121 Cal.Rptr. 721] [535 P.2d 1177] demand— and courts may not require— the school board and students face the risk of repetition of earlier unsatisfactory performance.
Viewing the record as a whole, we conclude the board did not abuse its discretion in refusing to rehire Turner.
The judgment is affirmed.
McCOMB and BURKE, JJ., concur.
Retied Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
MOSK, J., concurs in the judgment.
TOBRINER, Justice (dissenting).
I dissent.
The majority opinion upholds the decision by the Board of Trustees, Calexico Unified School District (Board), not to reemploy plaintiff as a third-year probationary teacher on the ground that there was substantial evidence in the record to support the finding that Turner failed to give satisfactory instruction in algebra, which he had been hired to teach. The opinion notes correctly that subdivision (d) of section 13443 of the Education Code controls the scope of judicial review of decisions by the governing board of a school district not to rehire a probationary teacher. The majority then conclude, first, that our decision in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, does not apply here to permit an independent judicial review of the Board's action since a probationary teacher does not have a ‘ vested’ right to be rehired, and, second, that the evidence to support the Board's decision was ‘ substantial.’ Because I cannot agree with first of these conclusions, I would reverse the trial court's determination and remand for an independent judicial review of the evidence. I cannot hold that the evidence in the record before us, if examined by Strumsky criteria, would compel a finding that plaintiff was unfit to teach.
The majority opinion concludes that a probationary teacher does not have a ‘ vested’ right to be reemployed for subsequent school years. In Strumsky (supra , 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 807, 520 P.2d 29, 31) we held that if an order or decision of an administrative agency substantially affects a fundamental1 vested right, ‘ the trial court, in determining under section 1094.5 [of the Code of Civil Procedure] whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion of the findings are not supported by the weight of the evidence.’ The majority's conclusion that plaintiff enjoyed no vested right to be dismissed only for cause upheld the trial court's decision not to reweigh the evidence but to determine only whether the decision was supported by substantial evidence. In reaching this conclusion, however, the majority ignore the intent of the Legislature in amending Education Code section 13443, subdivision (d), the realities of the teaching profession, and the guidelines established in Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, for determining whether a fundamental right is also ‘ vested.’
We noted in Bixby that a determination as to whether a right ‘ is sufficiently basic and fundamental to justify independent judgment review’ involves a consideration [121 Cal.Rptr. 722] [535 P.2d 1178] of ‘ the degree to which that right is ‘ vested, ’ that is, already possessed by the individual .' (4 Cal.3d at p. 146, 93 Cal.Rptr. at p. 245, 481 P.2d at p. 253 (emphasis added).) We then acknowledged with approval the distinction often drawn by the courts between applicants for a license (nonvested right) and those already in possession of a license (vested right). The present case involves neither the denial of a license to an applicant nor the revocation of license. It clearly involves, however, a right which is ‘ already possessed by the individual.’
Ruling on precisely this point, the Court of Appeal recently held that a probationary teacher does have a fundamental vested right to be dismissed only for cause, necessitating an independent judicial review of an administrative board's decision not to reemploy. ( Young v. Governing Board (1974) 40 Cal.App.3d 769, 115 Cal.Rptr. 456, hg. den., Sept. 11, 1974.) The court reasoned that since section 13443 of the Education Code provides, in substance, that a probationary teacher shall be reemployed unless sufficient cause is shown for not reemploying him, it has conferred upon all probationary teachers a ‘ vested right’ within the meaning given that term by this court in Bixby . A probationary teacher, therefore, has more than an abstract hope of being rehired; section 13443 ‘ create[s] a right . . . to employment that shall continue until it is divested for cause .’ ( Young v. Governing Board , supra , 40Cal.App. 3datp. 780, 115Cal.Rptr. at p. 463, emphasis in original.)
The critical factor in this case in the existence of section 13443, subdivision (d) of the Education Code, which specifically secured plaintiff's interest in reemployment. That portion of the statute reads, in relevant part: ‘ The governing board's determination not to reemploy a probationary employee for the ensuing school year shall be for cause only . The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof . . ..’ (Emphasis added.)
Initially, the majority misconstrue both the ruling in Young and the statute it explicates. No one contends that a probationary teacher has a vested right to be rehired . Obviously this assertion would be a misconstruction of the statute; rather the teacher is protected from dismissal from the probationary position except for cause relating to the welfare of the school and its pupils.
The majority further argue that since plaintiff held ‘ probationary’ status, it follows as a matter of simple definition that he had no vested right to be rehired; this contention ignores the legislative history of section 13443. Had we no more indication than the mere adjective ‘ probationary’ to guide us in this case, the usual connotations of the word would be entitled to some weight; in the present situation, however, the word is a term of art2 whose definition is the result of protracted and repeated legislative consideration. 3 The majority's attempt to define ‘ probationary’ merely by referring to the dictionary finds complete refutation in the Legislature's careful consideration of this statute and in the modification of ‘ probationary’ by the [121 Cal.Rptr. 723] [535 P.2d 1179] provision that the teacher shall be dismissed only for cause.
Although the majority contend that the word ‘ cause’ in the statute is a mere redundancy (ante, p. 719, of 121 Cal.Rptr., p. 1175 of 535 P.2d), the Legislature's analysis of the language of the statute and amendment of its terms belie this contention. The present form of section 13443 originated in a bill sponsored by the California Teachers Federation; among other things it deleted two provisions of former legislation which had insulated the question of sufficiency of cause from judicial review and given school boards broad discretion in their definition of ‘ cause.' The Legislature thus intended to provide a measure of statutory job security to the probationary teacher greater than that which had theretofore prevailed.
Review of Selected 1965 Code Legislation (Cont.Ed.Bar) page 110.
Id. See Statutes 1961, chapter 2063, section 1, page 4290, chapter 2114, section 1, pages 4373-4375.
Because section 13443, subdivision (d) assures the probationary teacher continued employment absent the implementation of a statutorily prescribed procedure for termination of employment, he has a vested property right. In its effect on the plaintiff, deprivation of this right is akin to the revocation of a license. Section 13200 et seq. of the Education Code set forth specific educational and training qualifications necessary to the acquisition of a probationary teaching credential. Although the Board's decision in the instant case does not revoke plaintiff's probationary credential, it effectively denies him the value of that credential by imposing on his opportunity for future employment as a probationary teacher the debilitating stigma of having been fired for cause. I note that there presently exists a nationwide surplus of qualified elementary and secondary school teachers over the number of available teaching positions. This problem is particularly acute in California. It is, therefore, extremely unlikely that any teacher, once fired for cause, will be rehired in the foreseeable future over the countless applicants whose records do not bear the blemish of an earlier dismissal.
Comment, The Scope of Judicial Review of Probationary Teacher Dismissal in California: Critique and Proposal (1974) 21 U.C.L.A.L. Rev. 1257, 1279-1280 and footnote 104. The author cites a recent National, Education Association report which found teachers facing the worst job market since the depression and predicted a nationwide surplus of more than 100, 000 annually by 1976.
Id. at page 1280 and footnote 104. As the Court of Appeal in Young noted: ‘ Ironically, the statute enacted to protect Young now might affect her chances for immediate employment as a teacher. Although she is not losing her probationary certificate, the fact that she was not rehired is, as a practical matter, notice to those in her profession that she was released for cause; thus, her chances of being hired by another school district are diminished. Section 13443 provides that the reason for not rehiring the employee shall remain confidential until the employee requests a hearing. Many, if not most, employees will request a hearing, thereby establishing a record open to all future employers. This further illustrates the possible economic sideeffects caused by the section— it has created an interest that can affect the employee in varying ways. Thus it meets another Bixby test in that the interest has an important economic aspect to it. . . .’ (40 Cal.App.3d 769, 780, 115 Cal.Rptr. 456, 463.)
Moreover, the realities of the teaching profession compel the conclusion that a probationary teacher who is deemed unsuitable for rehiring by a board of education is encumbered with a stigma which, for practical purposes, forecloses his opportunity to obtain further employment in his chosen profession. (Board of Regents v. Roth (1972) 408 U.S. 564, 572-575, 92 S.Ct. 2701, 33 L.Ed.2d 548.) We have held that an administrative decision which so crucially affects the right to practice one's profession or trade must subject itself to the scrutiny of a trial court so that it may [121 Cal.Rptr. 724] [535 P.2d 1180] independently weigh the evidence on which the agency has based its decision.
Bixby v. Pierno (1971) 4 Cal.3d 130, 144-145, 93 Cal.Rptr. 234, 481 P.2d 242.
Although I believe that the trial court applied the wrong standard of judicial review in deciding this case and would reverse on that ground, I find it necessary to clarify one additional point. In Strumsky v. San Diego County Employees Retirement Assn. ( supra , 11 Cal.3d 28, 34, 112 Cal.Rptr. 805, 520 P.2d 29) we reaffirmed our position in Bixby v. Pierno ( supra , 4 Cal.3d 130, 144-147, 93 Cal.Rptr. 234, 481 P.2d 242) that when an administrative decision affects a fundamental vested right, a full and independent judicial review of that decision becomes necessary because ‘ [t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.’ ( Id. , at p. 144, 93 Cal.Rptr. at p. 244, 481 P.2d at p. 252.) Our interest in affording an independent judicial review is not to ensure that all probationary teachers are rehired, but only to see to it that none is unjustifiably stripped of his fundamental right to practice his chosen profession.
Since the right of plaintiff constitutes a fundamental vested right, the case on remand should go to the trial court for an independent review of the evidence on which the dismissal was based. Such review, however, need not constitute a substitution of the judgment of the trial court for that of the Board as to the sufficiency of the cause for dismissal; under the statute the court need only determine whether the grounds adduced as ‘ cause’ by the Board had a basis in fact and were, in the statutory language, related ‘ solely to the welfare of the schools and the pupils thereof.’ (Ed.Code, § 13443, subd. (d).) The Board has broad discretion under section 13443, but it may not predicate as cause for dismissal a charge baseless in fact or unrelated to educational concerns. (Lindros v. Governing Board of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 108 Cal.Rptr. 185, 510 P.2d 361.)
Plaintiff has not raised, and we therefore need not reach, the distinct question of the constitutionality of that portion of Education Code section 13443, subdivision (d) which purports to shield from any judicial review the school board's judgmental determination as to the sufficiency of the cause for dismissal. It therefore remains an open question whether the constitutional scheme of separation of powers permits the Legislature to insulate from judicial review this aspect of a decision affecting a fundamental vested right. (Bixby v. Pierno (1971) 4 Cal.3d 130, 141-144, 93 Cal.Rptr. 234, 481 P.2d 242.) I dissent in the instant case on the ground that even if such a partial insulation from review should withstand constitutional scrutiny under Bixby and Strumsky , to dismissed teacher at least stands entitled to Bixby-Strumsky review of the existence of the alleged cause, as opposed to its sufficiency as grounds for dismissal.
In order to require Bixby-Strumsky review of the administrative record one need not contend that the Board may not dismiss plaintiff for failing to teach algebra; the Legislature has given the Board that discretion in the statute. If such a charge is to cost petitioner his job, however, it must at least be true as determined by an independent judicial examination of the record of a scope and quality outlined by Strumsky v. San Diego County Employees Retirement Assn., supra , 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29.
The decisions in Griggs v. Board of Trustees (1964) 61 Cal.2d 93, 37 Cal.Rptr. 194, 389 P.2d 722, and Bekiaris v. Board of Trustees (1972) 6 Cal.3d 575, 100 Cal.Rptr. 16, 493 P.2d 480, mentioned in the majority opinion, did not involve the issue before us. The court in Griggs held ‘ where the cause for dismissal found by the board can reaonably be said to relate to the ‘ welfare of the schools and pupils thereof, ’ the reviewing court may not consider whether the facts found are sufficiently serious to justify dismissal.' ( Id. at p. 96, 37 Cal.Rptr., at p. 197, 389 P.2d at p. 725.) In Bekiaris the court stated that ‘ it remains for the court to determine as a matter of law whether such cause [for dismissal] relates to the welfare of the school and its pupils and is therefore adequate under the provisions of section 13443 to justify dismissal.’ ( Id. at p. 589, 100 Cal.Rptr. at p. 24, 493 P.2d at p. 488, italics in the original.) Obviously any reference in these cases to the standard of review as to factual findings must be read in the light of the subsequent ruling in Strumsky .
[121 Cal.Rptr. 725] [535 P.2d 1181] Since the trial court applied an erroneous standard of review, the question of the proper disposition on reversal arises. The scheme of review in Bixby v. Pierno, supra , 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, precludes this court from exercising our independent judgment on whether or not the record establishes the existence of the cause alleged as ground for plainteff's dismissal ( id. at p. 143, 93 Cal.Rptr. 234, 481 P.2d 242). An essential part of the plan there set forth requires the trial court, which has limited power to take new evidence under Code of Civil Procedure section 1094.5, subdivision (d), to exercise its independent judgment on consideration of the entire record, including such newly received evidence. Moreover, such independent judgment of the trial court is not subject to appellate reversal if supported by substantial evidence. (Bixby v. Pierno, supra , at p. 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242.) Both for jurisdictional and institutional reasons, then, the trial court constitutes the proper forum for an application of the Strumsky review standard. (Tupman v. Haberkern (1929) 208 Cal. 256, 280 P. 970; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45-46, 112 Cal.Rptr. 805, 520 P.2d 29; Young v. Governing Board (1974) 40 Cal.App.3d 769, 781, 115 Cal.Rptr. 456.)
I note in passing the majority's misstatement of the mode of review under Bixby and Strumsky . Those cases require not ‘ trial de novo review’ as the majority imply (ante, p. 718 of 121 Cal.Rptr., p. 1174 of 535 P.2d), but an independent judicial examination of the administrative record, supplemented in special circumstances by the admission of limited sorts of additional evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Code Civ.Proc., § 1094.5, subd. (d); State of California v. Superior Court (Robins) (1971) 16 Cal.App.3d 87, 94, 93 Cal.Rptr. 663.)
The majority opinion ignores both legislative intent and economic reality; it thereby opens the way for a diminution in the protection of individual rights which the Legislature meant to sanctify. Because a probationary teacher has a fundamental vested interest in not being dismissed in the absence of a showing of cause, I would reverse and remand for reconsideration by the trial court in light of the Strumsky standard of review.
WRIGHT, C. J., and SULLIVAN, J., concur.
A further difference occurs where the administrator improperly excluded relevant evidence or there is relevant evidence which in the exercise of reasonable diligence could not have been produced at the hearing. In substantial evidence rule cases, the trial judge remands to be reconsidered in the light of such evidence; in cases involving vested fundamental rights the court may admit the evidence without remanding. (Code Civ.Proc., § 1094.5, subd. (d).)
Traditionally, the procedure in the fundamental vested right cases has been referred to as a ‘ limited trial de novo.’ (E. g., Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242 (opn. by Tobriner, Acting C. J.); Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72, fn. 3, 64 Cal.Rptr. 785, 435 P.2d 553 (opn. by Tobriner, J.); State of California v. Superior Court (1971) 16 Cal.App.3d 87, 94, 93 Cal.Rptr. 663; 5 Witkin, California Procedure (2d ed. 1971) pp. 3966-3967, 3969, 3976.) Because of the two differences, weighing of evidence and admissibility of additional evidence, the terminology of ‘ limited trial de novo’ appears appropriate, and we reject the dissent's claim ( Post , p. 725, fn. 11 of 121 Cal.Rptr., p. 1181 of 535 P.2d) that our use of the traditional terminology constitutes a ‘ misstatement.’