RICHARDSON, J., Concurring and Dissenting. I concur with the majority’s conclusion that the Kentfield School District’s (District) compliance with section 44956 of the Education Code must be measured by whether or not its criteria of competence were applied evenhandedly to laid-off teachers with preferential reemployment rights and to continuing teachers. (All further statutory references are to that code.)
In view of the fact that no continuing teacher applied for the physical science teaching position after it was advertised to laid-off teachers with the criteria at issue in September 1979, appellant’s assertion of discriminatory treatment depends upon her claim that this position was the same one left unfilled the previous spring. If it was the same position, her argument that different criteria were applied to continuing and laid-off teachers would have some validity. (Even in such a case, however, discrimination would not necessarily have been established; for it is at least arguable that the District properly could have decided to upgrade the requirements for all new appli[303]cants—continuing and laid-off—when it made a new effort to fill the position in September.) On the other hand, if it was not the same position offered previously, then no claim of discriminatory application of the criteria would be tenable, because it is undisputed that only laid-off teachers sought the teaching position announced in September 1979.
I respectfully dissent, however, from the majority’s remand for further factual determination because it is unnecessary in view of the record before us. Contrary to appellant’s suggestion, the District has not sought unlimited discretion in the development and application of employment criteria.
The development of criteria for teacher competence is clearly within the District’s statutory authority. There was no finding here that the criteria which the District applied to appellant’s qualifications would not have been applied to any continuing employees who might have sought the new teaching position and there is no basis in the record for any such finding.
In a day when a national educational commission reports that “the educational foundations of our society are . . . being eroded by a rising tide of mediocrity that threatens our very future as a nation and a people” (“A Nation At Risk,” a Rep. by the National Com. on Excellence in Education, N. Y. Times (Apr. 26, 1983) p. 13, cols. 1-4), the District’s earnest and good faith pursuit of excellence in those who teach its children should be acknowledged and encouraged rather than frustrated.
Appellant was a permanent employee of the District, teaching grades two through five in one of its elementary schools. At the end of the 1978-1979 school year, the employment of appellant and several other permanent teachers was terminated as a result of declining student enrollment and a reduction in particular programs, pursuant to section 44955. Appellant does not challenge the propriety of that termination.
In September 1979, the District established a third-year physical science course for grades seven and eight in its middle school. Unable to find a competent person among its existing staff to teach the new course, the District published an announcement of the teaching vacancy, listing several criteria of qualifications, and sent copies of the announcement to those teachers, including appellant, who were entitled to preferential reemployment rights pursuant to section 44956. Appellant was the most senior teacher on the list.
The criteria established by the District for employment in the new position were: (a) appropriate credential; (b) academic preparation; (c) experience in teaching physical science; (d) experience with middle school programs [304]and students; (e) recent experience teaching physical science; and (f) recent experience teaching middle school students. The announcement for the teaching position requested that any applicant submit to the District superintendent a resume of credentials, experiences and academic course work for each of the criteria.
Appellant and one Eisan were the only applicants. Eisan supplied the requested information; appellant did not. Nonetheless, the District’s superintendent interviewed both Eisan and appellant, reviewed their qualifications and recommended to the District’s board of trustees that Eisan be hired.
On September 12, 1979, the board met for the purpose of selecting a teacher for the new position. Both appellant and Eisan appeared. Because the superintendent’s recommendation appeared to be “passing over” a more senior former employee, appellant was offered, and she accepted, the opportunity for an immediate hearing on her qualifications. The board described this hearing as one “to determine competency of [appellant] for the position . . . .”
The evidence developed at the hearing established that appellant had a standard elementary school teaching credential. Her academic preparation included a bachelor of science degree, with a major in conservation of natural resources. She maintained a B average in undergraduate and graduate studies and received a master’s degree in science education, which required about 57 and ⅓ graduate units. She was first employed by the District on October 1, 1973, teaching grades two through five in its elementary school until she was terminated in 1979. She had never taught physical science as a separate subject, although science was included as part of her elementary school teaching program.
After the hearing the board deliberated and made specific factual findings that appellant had the appropriate teaching credential for the middle school level, but did not have sufficient academic preparation in physical science to support that school’s physical science program, criterion (b). Nor did she have any experience teaching middle school programs and students, criterion (d). (By necessary implication, those findings also confirmed that appellant could not have had recent experience teaching middle school students, criterion (f). In addition, although the board did not make a specific finding on the matter, it appears to be undisputed that appellant had neither recent nor any experience teaching physical science as a separate subject, criteria (c) and (e).) The board expressly concluded that appellant “is not competent to teach the Middle School physical science curriculum as required by” the District.
[305]Having concluded its hearing on appellant’s competency, the board then reconvened its normal meeting. In support of his recommendation to hire Eisan, the superintendent earlier had testified that Eisan had the appropriate teaching credential, the degree of bachelor of science with a major in sciences, a B average in all of his undergraduate and graduate studies, and 66 graduate units after his bachelor of science degree. Eisan had taught eighth grade science in the District in 1968-1969, seventh and eighth grade mathematics and science at another school district from 1968 to 1974, and seventh and eighth grade science in the District’s middle school from 1974 to 1979. He had, accordingly, both experience and “recent experience” teaching physical science and teaching middle school students. (It was only because he was last rehired by the District on September 1, 1974, however, that Eisan had 11 months less “seniority” than appellant in the District.) Having disqualified appellant because she was not competent to teach the new course, the District then hired Eisan, finding him to be the most senior applicant who was both properly certificated and competent to teach middle school physical science.
In denying appellant’s petition for a writ of mandate, the trial court found that the board had full discretion to establish the criteria of competency hereinabove set forth, and that it faithfully abided by those criteria in finding appellant “incompetent.” Concluding that the board did not abuse its discretion, the trial court refused to interfere with the board’s decision. In my view, that judgment was sound.
Mandamus will lie to correct an abuse of discretion, but not the manner of exercise of discretion. (King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 1022-1023 [152 Cal.Rptr. 782]; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 65, pp. 3843-3844, § 75, pp. 3851-3852, § 77, pp. 3853-3854.) Further, it is established that in this appeal from the decision of the trial court which found no abuse of discretion by the District in declining to hire appellant, we must uphold that determination as to the basis of the administrative action if supported by substantial evidence. (Adcock v. Board of Education (1973) 10 Cal.3d 60, 66 [109 Cal.Rptr. 676, 513 P.2d 900].)
The applicable selection guidelines are clear. In pertinent part, section 44956 provides: “For the period of 39 months from the date of . . . termination [of an employee like appellant, any such employee] . . . shall have the preferred right to reappointment, in the order of original employment ... if the number of employees is increased . . . , with no requirements that were not imposed upon other employees who continued in service; provided, that no . . . other employee with less seniority shall be employed [306]to render a service which said employee is certificated and competent to render.” (Italics added.)
In essence, the majority concludes that the District may have violated this section when it found appellant incompetent to teach middle school physical science insofar as that finding was based upon appellant’s lack of recent or other experience with middle school programs and students—factors which had not been “imposed upon other employees who continued in service” (§ 44956) when a teaching position in the science department had opened up the previous spring. I wholly disagree.
Initially, I suggest that the majority errs in failing to distinguish between criteria which may be relevant to a prospective teacher’s competence to teach a specific course and the minimal requirements for employment as a teacher generally. There is a cognizable difference between the two. If there was not, the Legislature’s express mandate for reemployment of the most senior “certificated and competent” teacher would be meaningless. (See § 44956, italics added.) Further, common sense suggests that while a teacher whose training is limited to the arts, for example, and one whose experience lies in the sciences may both be “certificated” and, therefore, generally qualified to teach school at a given academic level, neither may be “competent” to teach courses in the other’s discipline. In my view, the statute takes note of this obvious fact of academic life in authorizing school districts to assess the “competence” as well as to determine the “certification” of prospective rehirees.
Further, as I read the District’s “criteria” to which the majority objects, neither “experience” nor “recent experience with middle school students and programs” was an absolute prerequisite to reemployment. Rather, each was a factor to be considered with others in the board’s formulation of its overall judgment of competence to teach the new science course. An examination of the criteria themselves supports this interpretation. If, for example, the criterion of “recent experience teaching Middle School students” (italics added) was an absolute prerequisite or “requirement” for appointment to the new position, then any additional “requirement” of mere “experience with Middle School programs and students” would be wholly superfluous or redundant. Similarly, a “requirement” that the applicant have “recent experience teaching physical science” (italics added) would make meaningless any additional “requirement” that such applicant merely have “experience in teaching physical science.” In fact, however, each of the criteria established by the District can be seen as intended to provide independently relevant information of qualifications to assist the District in assessing an applicant’s overall competency within the meaning of the statute. Indeed, the District here made clear that, notwithstanding appellant’s [307]qualifications in other areas, its finding of appellant’s incompetence to teach middle school physical science was based upon a consideration of several factors, including both insufficient academic preparation in physical science and lack of recent or any experience with middle school programs and students. Furthermore, the record reveals appellant’s inability to satisfy the additional criteria of recent and, indeed, any previous experience in teaching a physical science course.
Even accepting, arguendo, the majority’s characterization of the District’s “criteria” of competence as “requirements” within the meaning of section 44956, the assumption that such “requirements” were—or would be—discriminatorily applied has no basis in the trial court’s findings here. The court below did not find that the District would have applied to teachers who had “continued in service” criteria which were different from those applied to petitioner and Eisan in determining their competence to teach the new physical science course, assuming any such continuing teachers had chosen to apply for the new position. (In fact, of course, none did.)
Appellant’s claim that the District was engaged in a “continuing recruitment process” from late spring of 1979 to September 1979 to fill a “vacant science position” has no basis in the record. Therefore, her conclusion that imposition of the “criteria” at issue here in September 1979 represents discrimination because the same position was offered to continuing employees in the spring without such criteria is without foundation.
It is obvious that here, as in most cases, conflicting testimony was offered on the issues. It is not our task, however, to reweigh the evidence in order to determine the facts of the case for the purposes of our review. Rather, it is the trial court’s findings, insofar as they are supported by substantial evidence, which determine the facts, whether we like them or not.
Here the trial court quite simply did not find that the position denied to petitioner was the “same position” which was vacated by a science teacher in the spring of 1979. What the trial court found was “On or about September 4, 1979, respondent [District] determined to reinstate the physical science component of its three year science program in its Middle School.” (Italics added.) The court found further that “On September 5, 1979, respondent announced the position opening of the 7th and 8th grade Physical Science Teacher with the [criteria which are at issue in this case].” The court also found that the criteria of prior middle school experience had not been imposed upon “continuing employees as a qualification to teach at the middle school previously” or “in the past.” (Italics added.) Finally, it found “That respondent district in imposing the requirement of experience teaching physical science at the middle school did not depart from the cri[308]teria enunciated in its position vacancy announcement of September 5, 1979.” (Italics added.)
No one contends that any of these findings were not supported by substantial evidence. Indeed, the letter of September 5, 1979, announcing the opening to teachers like petitioner and Eisan who were entitled to preferential rehiring rights, itself provides substantial evidence of the crucial finding that the physical science course was newly reinstated on September 4, 1979. That letter stated, in relevant part: “Last night the Board of Trustees [of District] accepted the resignation [of another teacher] and decided to reestablish the third year of Science instead of a third year of Literature.” (Italics added.)
It would seem absolutely clear that the trial court’s finding that a decision was made “on or about September 4, 1979,” to reinstate a physical science course means that the course was not in place or in existence prior to that date. Equally obviously, a course reinstated in September 1979, could not have been offered to continuing employees earlier, in the spring of 1979, under different criteria. Indeed, there is neither finding nor evidence to establish the nature of the science teaching position which was vacated in the spring of 1979 and “left open” in the late spring of that year because— as the trial court did find—the District “was unable to find a qualified (competent) person” to fill it from its “regular staff.” Without such finding or evidence, assertions that it was the “same course” are baseless. Whatever that earlier course entailed, however, it is clear that the District did not institute in the spring of 1979 a “continuing recruitment process” which culminated in the hiring of Eisan in September of 1979. As the majority acknowledges, attempts to fill the earlier vacancy simply were abandoned: “The position was left open and the District decided to offer a third year of literature instead(Ante, p. 297, italics added.) Only in September 1979 was the decision made to offer the 7th and 8th grade physical science course.
In short, to interpret the trial court’s findings as being ambiguous on the question of whether the District imposed different requirements on continuing and laid-off employees in this case obviously distorts the meaning of the findings. No continuing employee applied for the position which was reinstated in September 1979. Further, how any trier of fact could conclude from the undisputed evidence that the District would not have applied the same criteria to any continuing teacher who might have sought the position is a mystery. Thus, remanding this case to the trial court to afford it an opportunity to make just such a finding is unwarranted.
It is important to note that section 44956 cannot be read to bar the imposition upon laid-off and continuing teachers alike of any requirements [309]which had not previously been imposed upon continuing employees. Even appellant acknowledges that “It is not required that the district be frozen to a past practice. In the Kentfield District, and with respect to any other district, changed circumstances might indicate the need to revise employment or selection practices. But all that a district need do is to apply no greater requirements on reemployment list employees than are applied to continuing or other employees.” The demand of section 44956 is for even-handedness and nothing more.
Equally important, the prohibition of discrimination against laid-off employees (by imposing requirements upon their reemployment which are not imposed upon continuing teachers) is not the sole command of the statute. There is also the express statutory condition upon preferential rehiring, namely, that a former employee must be “competent to render” the service sought by the district. (§ 44956.) That condition clearly implies that a school district has both the duty and authority to establish standards for determining the competency of an applicant for a specific position within the meaning of the statute.
In construing the identically worded predecessor to section 44956 (see former § 13448), the Court of Appeal has quite properly noted that the application of the section “obviously requires that someone make informed determinations whether a laid-off employee reached by the statute is both ‘certificated and competent’ to hold a position to which he claims reemployment rights .... [T]hese determinations necessarily involve ‘discretionary decisions’ by a school district’s responsible officials because they ‘have a special competence’ to make them. We perceive in [this section] no legislative intent to negate or limit this ‘special competence’ and its ‘discretionary’ exercise. Both are essential to the implementation of the reemployment rights which the statute grants to laid-off employees.” (King, supra, 89 Cal.App.3d at p. 1023; see Moreland Teachers Assn. v. Kurze construing in similar fashion the identical standard in § 44955 for determining the order of termination of employees after a decision has been made to reduce their number]; Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 402-403 [116 Cal.Rptr. 833] [construing the predecessor of § 44955 (former § 13447) similarly].)
The facts in King, supra, 89 Cal.App.3d 1016, were strikingly similar to those here. In that case, a laid-off teacher was reemployed to teach seventh and eighth grade mathematics. Three other laid-off employees—each credentialed to teach the position, each with some experience teaching mathematics, and each senior to the successful applicant—also had applied for the job. Because the academic background of each of the three was limited, however, the school district, exercising its permissible discretion, conclud[310]ed that they were not competent to occupy the position within the meaning of the statute. (Former § 13448, the predecessor to § 44956.)
In my view, King pointed the direction we should follow here. In approving the hiring of a teacher with less seniority and the nonhiring of more senior laid-off teachers who had some training and experience in the (mathematics) specialty involved in the position to be filled, King clearly concluded that the school district had discretion to determine whether the respective qualifications of the applicants demonstrated “competence” to occupy the vacant position. Further, by its affirmance of the trial court’s denial of mandate sought by the three unsuccessful senior applicants to secure their reemployment, the King court held that the school district acted well within its discretion in its evaluation. (89 Cal.App.3d at p. 1023.)
A comparable exercise of discretion was undertaken here by the District in determining competence. If, as in King, insufficient academic preparation is an adequate basis for concluding that an applicant for a newly created position is incompetent to teach it, there is no reason why insufficient relevant teaching experience may not also be considered in determining a job applicant’s competence. In any event, here the District expressly considered both factors, insufficient academic preparation and teaching experience, and these exercises of judgment were well within the local district’s power. And, as indicated, appellant failed to meet other criteria as well.
In a similar context, the United States Supreme Court recently sounded the proper note: “[C]ourts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy.’ San Antonio Independent School Dist. v. Rodriguez, 411 U.S., [1] 42 [(1973)].” (Hendrick Hudson Dist. Bd. of Ed. v. Rowley (1982) 458 U.S. 176, 208 [73 L.Ed.2d 690, 713, 102 S.Ct. 3034].) Thus, in rejecting a challenge to the manner in which one state chose to fulfill the requirements of a federal statute in order to qualify for federal funding of a state educational program for handicapped children, the court declared: “[0]nce a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.” (Ibid.)
We previously have affirmed the broad discretion and responsibility of school officials to administer schools in California. In Adcock, supra, 10 Cal.3d 60, 67, for example, we observed that ordinarily a school superintendent’s exercise of discretion to transfer teachers between schools when it was in the best interests of the school district would not be reviewed or interfered with by the trial court in the absence of claimed violation of the teachers’ constitutional rights. (See Thompson v. Modesto City High School Dist. (1977) 19 Cal.3d 620, 623 [139 Cal.Rptr. 603, 566 P.2d 237].) This [311]principle has equal application here. In the absence of some constitutional infringement, we should not interfere with the local District’s creation and application of its own criteria for determining teacher competence under the circumstances herein presented.
It is apparent from the trial court’s findings here that what the District did was to propose its new criteria for employment on September 5, 1979, the day after it decided to “reinstate the physical science component of its three year science program’’ by offering a 7th and 8th grade physical science course, and that such change in criteria was “applied equally from the date of the change to all potential applicants . . . .” (Ibid., italics added.)
Finding no abuse of that discretion conferred upon the District by section 44956, pursuant to its duty to decide whether former employees seeking reemployment are “competent to render” the service required by the District, I would affirm the trial court’s judgment denying mandate.
Mosk, J., and Kaus, J., concurred.