This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Mark Henderson,





Independent School District No. 706,

Virginia, Minnesota,




Filed May 7, 2002

Foley, Judge


Independent School District No. 706



William F. Garber, Education Minnesota, 41 Sherburne Avenue, St. Paul, MN 55103-2196 (for relator)


Kevin J. Rupp, Amy E. Mace, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Relator challenges the decision of respondent school district to hire two teachers with no seniority instead of realigning teaching positions and recalling relator from an unrequested leave of absence (ULA).  Relator argues respondent violated his rights under the Teacher Tenure Act.  Because the realignment options proposed by relator were neither reasonable nor practical, and would deny respondent adequate flexibility to effectively administer the school district, we affirm.    


            In August 1994, respondent Independent School District No. 706, Virginia, Minnesota, hired relator Mark Henderson as a teacher.  Relator holds a Minnesota teaching license, valid until June 2002, to teach French and Social Studies in grades 7-12.  Relator held a full-time teaching position during the 2000-2001 school year.  At its April 23, 2001 meeting, the Virginia school board (school board) placed relator on ULA effective June 30, 2001. 

            On June 25, the school board hired Jessica Hanson to a 0.8 full-time equivalency (FTE) position teaching physical science.  On July 16, the school board recalled relator to a 0.6 FTE position and increased Hanson’s contract to 1.0 FTE.  In August, relator’s union representative met with district representatives to discuss the possibility of realigning teaching assignments in order to reduce Hanson’s appointment and recall relator to a full-time position.  Respondent chose not to realign. 

            Kathleen Neff, a licensed health teacher, was placed on ULA at the end of the 2000-01 school year.  On August 13, 2001, respondent offered to recall Neff to a part-time position; she had 30 days to consider the offer.  Angelyn Skipper was hired to teach health on a part-time, hourly basis while Neff considered respondent’s offer.  Respondent did not realign positions in order to recall relator to a full-time position instead of hiring Skipper pending Neff’s decision.  This appeal followed. 


            Minn. Stat. § 122A.40 (2000) (the Teacher Tenure Act) grants public school teachers certain procedural and substantive protections pertaining to their employment and termination.  Cloud v. Indep. Sch. Dist. No. 38, 508 N.W.2d 206, 209 (Minn. App. 1993).  A school board may place teachers on ULA “because of discontinuance of position * * * [or] financial limitations.”  Minn. Stat. § 122A.40, subd. 11 (2000).  In order to protect the seniority rights of teachers on ULA, school boards may not appoint a new teacher to a vacant position when a teacher licensed to fill the vacancy remains on ULA.  Id., subd. 11(f). 

            When the senior teacher on ULA is not licensed to teach the vacant position, the school district is required to realign positions and reassign teachers in order to create a vacancy for which the senior teacher on ULA is licensed.  Harms v. Indep. Sch. Dist. No. 300, 450 N.W.2d 571, 575 (Minn. 1990).  “This duty to realign, however, [is] limited to where ‘practical and reasonable.’”  Id. (quotation omitted). 

            The school board is not required to consider every possible realignment configuration, but is required to make a reasonable and good-faith attempt to accommodate the most senior teachers.  Id. at 576.  School boards retain substantial discretion to determine whether the realignment is “practical and reasonable” in the context of each individual case.  See Strand v. Special Sch. Dist. No. 1, 392 N.W.2d 881, 886 (Minn. 1986).  “[P]ublic school districts must be accorded sufficient flexibility to effectively administer the schools.”  Id. (citation omitted); see also Destache v. Indep. Sch. Dist. No. 832, 434 N.W.2d 270, 273-74 (Minn. App. 1989) (rejecting realignment option as unreasonable because not in students’ best interests).

            A teacher challenging a school board’s decision to hire new teachers without realigning “has the burden of showing there was no good faith attempt by the school district to reasonably and practically realign in the recall process.”  Harms, 450 N.W.2d at 577.

            “A school district is acting in an administrative capacity when making personnel decisions.”  Shaner v. Indep. Sch. Dist. No. 2884, 604 N.W.2d 803, 804 (Minn. App. 2000), review denied (Minn. May. 28, 2000).  Thus, we will affirm a school district’s decision to maintain a teacher on ULA unless the decision is “fraudulent, arbitrary, unreasonable, not supported by substantial evidence on the record, not within its jurisdiction, or based on an erroneous theory of law.”  Ganyo v. Indep. Sch. Dist. No. 832, 311 N.W.2d 497, 500 (Minn. 1981).  We review de novo questions of law, such as the construction of statutes and rules.  Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 702 (Minn. 1999). 

            Relator contends that respondent proceeded under an erroneous theory of law by hiring Hanson and Skipper without reasonably realigning positions in order to bring him back from ULA to a full-time position.

            1.         The Hanson Hire

            Relator argues that respondent erred by failing to adopt his proposed realignment instead of hiring Hanson to teach physical science.  Respondent argues that relator’s proposal is neither practical nor reasonable because it fails to appropriately consider licensure requirements.  We find merit in respondent’s argument.

            Under relator’s proposed realignment, relator would take over history classes from teacher Rich Odell, who is licensed to teach history and life science, and Odell would take over an earth science class from a less senior teacher.  Because Odell is the only teacher in relator’s proposal who shares a teaching license with relator, the practicability of relator’s proposal depends entirely on whether the Minnesota rules governing secondary school licensure authorize Odell to teach eighth grade earth science.  The parties dispute the scope of Odell’s license. 

            Odell is licensed to teach grades 7-12 life science.  Relator argues that Minn. R. 8710.4750, subp. 1 (2001) (“Teachers of Science”) properly determines the scope of Odell’s license:

A teacher of chemistry, earth and space science, life science, or physics is authorized to provide instruction in all science disciplines to students in grades 5 through 8 and either chemistry, earth and space science, life science, or physics, and integrated science offerings, to students in grades 9 through 12.  The science discipline that the teqacher is qualified to teach in grades 9 through 12 shall be identified on the teacher’s license.


Relator therefore contends that Odell’s life-science license authorizes him to teach eighth grade earth science. 

            Respondent argues that Minn. R. 8700.3600 (1993) and Minn. R. 8710.0300, subp. 8 (2001) govern the scope of Odell’s license, and do not authorize him to teach eighth grade earth science.  Under Rule 8700.3600, teachers can be licensed to teach grades 7-12 earth science, grades 7-12 physical science, grades 7-12 life science, or grades 5-9 science, which includes basic elements of earth, physical, and life sciences.  Minn. R. 8700.3600, subp. 1, 2 (1993).  Odell holds a license to teach grades 7-12 life science.

A teacher holding secondary school licensure valid for teaching in grades 7 through 12 may teach in grades 7 and 8 * * * in those subjects or fields for which valid licensure is held.


Minn. R. 8710.0300, subp. 8.  Under the plain meaning of this rule, Odell’s grade 7-12 life-science license does not authorize him to teach eighth grade earth science because he does not hold a valid license to teach grades 7-12 earth science.  Therefore, respondent contends the rule prohibits Odell from teaching earth science.

            We find respondent’s argument compelling.  Odell is licensed to teach grades 7-12, and the scope of his license is therefore determined by Minn. R. 8710.0300, subp. 8, which applies to licenses to teach grades 7-12.  Minn. R. 8710.4750, subp. 1, establishes the licensure scope of teachers holding grades 9-12 licenses, and not that of teachers holding grades 7-12 licenses, like Odell. 

            Odell’s license is therefore controlled by Minn. R. 8700.3600 (1993) and 8710.0300, subp. 8.  We conclude that Odell is not licensed to teach an eighth grade earth-science class, because he does not hold a valid license to teacher grades 7-12 earth science.  Relator’s proposed realignment is therefore impractical because all teachers would not be properly licensed to teach the classes proposed. 

            The Teacher Tenure Act is intended to protect seniority, but is not intended to place unreasonable restrictions on the powers a school district must possess to effectively administer the operation of the public schools.  Walter v. Indep. Sch. Dist. No. 457, 323 N.W.2d 37, 42 (Minn. 1982).  Both compliance with state licensing requirements and the hiring of new teachers to teach courses for which no current teacher is licensed are obviously central to the effective administration of the schools, in the students’ best interests, and within respondent’s broad discretion.

The policy basis for according discretion to school boards is premised not on the fact that school board discretion is an end unto itself, but rather that this discretion be exercised so as to advance and protect the educational interests of school children.


Moe v. Indep. Sch. Dist. No. 696, 623 N.W.2d 899, 903 (Minn. App. 2001) (quoting In re Indep. Sch. Dist. No. 318, 435 N.W.2d 81, 84-85 (Minn. App. 1989)).

            Relator also argues that respondent illegally failed to consider realignment before hiring Hanson on June 25.  We have held that a school district fails to make a good-faith effort to reasonably and practically realign in the recall process when, based on the record,

it appears that the district has fixed its teaching schedule and attempted to fit [the teacher on ULA] into that schedule rather than attempting to realign subject matter and teaching assignments * * *.


Westgard v. Indep. Sch. Dist. No. 745, 400 N.W.2d 341, 346 (Minn. App. 1987)  (quotation omitted), review denied (Minn. Apr. 17, 1987).  Relator’s reliance on Westgard, therefore, is misplaced because the record here shows that the class schedule was not fixed until August, approximately two months after Hanson was hired.  The record further shows that relator was discussing realignment scenarios with respondent until after the beginning of the school year.  There is no evidence that respondent refused to consider relator’s realignment proposals.  See id. at 345 (concluding that school district violated obligation to realign by refusing to consider realignments proposed by teacher). 

            According to the record, Hanson is the only teacher in the Virginia Secondary School who teaches physical science.  Relator acknowledges the difficulty of finding teachers with Hanson’s credentials.  The board’s decision to hire Hanson in response to a perceived academic need falls squarely within its discretion to effectively administer the schools with the necessary degree of flexibility.

The school board * * * is vested with the management, supervision, and control of the school system; and the unrequested leave of absence provisions of the tenure act do not eliminate the board’s flexibility.


Laird v. Indep. Sch. Dist. No. 317, 346 N.W.2d 153, 155 (Minn. 1984) (citations omitted). 

            Relator further argues that the record submitted by the district was insufficient to permit meaningful review of the decision to hire Hanson.  See Harms, 450 N.W.2d at 577 (“[r]eview of the writ of certiorari shall be based on the record made before the school board”).  We agree that the record made before the school board was sparse.  But given the broad discretion afforded school districts to hire appropriately licensed faculty in order to meet the students’ curricular needs, the record is sufficient to permit our conclusion that respondent committed no error of law by hiring Hanson.

            It is true that the licensing requirements can make realignment unreasonable or impractical, and that senior teachers may consequently remain on ULA when respondent makes new hires.  But “the exercise of school management prerogatives * * * may limit the availability of positions and the possibilities for * * * realignment.”  Kvernmo v. Indep. Sch. Dist. No. 403, 541 N.W.2d 620, 622 (Minn. App. 1996), review denied (Minn. Mar. 19, 1996).  We cannot interfere with respondent’s decision to hire Hanson in the absence of evidence that it acted in bad faith or on an erroneous interpretation of the law, evidence lacking here. 

            2.         The Skipper Hire

            Relator challenges respondent’s decision to hire Angelyn Skipper to teach two hours of health a day, arguing that since the hire was not made publicly, he was deprived of an opportunity to propose a realignment as an alternative to the hire.  Respondent argues that it hired Skipper on a temporary basis while another teacher, Kathleen Neff, considered their job offer, and that it had no obligation to make realignments so relator could be recalled for the period Skipper was working.  We agree.

            Neff, a licensed health teacher, was placed on ULA in 2001.  Respondent offered to recall her from ULA in the summer of 2001 to teach health classes.  See Minn. Stat. § 122A.40, subd. 11(e) (2000) (providing that teachers placed on ULA “must be reinstated to the positions from which they have been given leaves of absence or, if not available, to other available positions in the school district in fields in which they are licensed”).  Neff had 30 days to consider the recall offer before the position could be offered to another teacher.  See Minn. Stat. § 122A.40, subd. 11(f).

            Relator argues that the Skipper hire violates Minn. Stat. § 122A.40, subd. 11(f), which provides that “[a]ppointment of a new teacher must not be made while there is available, on unrequested leave, a teacher who is properly licensed to fill such vacancy.”  This argument is not convincing.  First, the Skipper hire cannot reasonably be considered an “appointment.”  It was clearly a temporary measure; Skipper was hired on a part-time, hourly basis. 

            Second, respondent hired Skipper in the course of complying with Minn. Stat. § 122A.40, subd. 11(e)’s requirement that Neff, who has more seniority than relator, be reinstated to a position in which she is licensed, and Minn. Stat. § 122A.40, subd. 11(f)’s requirement that Neff be given 30 days to make her decision.  Relator cannot credibly argue that respondent, by its good-faith effort to comply with one part of Minn. Stat. § 122A.40, violated another part of the statute. 

            Relator does not dispute respondent’s decision to offer Neff the health job before offering relator a position, because Neff is licensed to teach health and is senior to relator.  Relator argues instead that since Neff did not begin teaching health until the beginning of the second quarter of the school year, respondent had an obligation to realign positions in order to allow relator to return from ULA instead of hiring Skipper.  Relator contends that he was entitled to recall for the academic quarter during which Skipper was employed. 

            Relator correctly cites Harms for the proposition that reassigning teachers over a quarter break is not unduly disruptive to students.  450 N.W.2d at 576.  But relator’s argument is flawed for its failure to acknowledge the temporary nature of the Skipper hire and respondent’s uncertainty about when, or if, Neff would return to work. 

            The school board’s decision to hire Skipper while Neff considered respondent’s offer falls well within the board’s right to operate with sufficient flexibility to effectively administer the school system.  On the record before us, it would have been neither reasonable nor practical for respondent to realign positions in anticipation of a temporary, hourly, part-time position such as Skipper’s.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.