Thornton v. Board of Trustees

STONE, J.

This appeal is from an order of the superior court denying a petition for a writ of mandate upon a review of an administrative proceeding pursuant to Code of Civil Procedure section 1094.5. The administrative proceeding followed respondent school board’s refusal to renew appellant's contract as a probationary teacher.

On December 6, 1966, respondent board adopted the following resolution: 1 ‘ Certificated personnel who have attained the age of sixty-five years prior to the opening of the school year, shall automatically be ineligible for employment as a teacher within the school district. This policy shall become effective July 1,1967.”

Pursuant to this resolution the board required every certificated employee to affirm that he would not be 65 prior to the opening day of the school year, September 1, 1967. Appellant, a probationary teacher, became 65 on August 10, 1967. She refused to make the affirmation, insisting that respondent

[763]

could refuse to renew her contract only for cause and that reaching 65 is not cause. The board refused to rehire her, whereupon she requested a hearing; respondent complied and one was held before a hearing officer, who upheld the board; his decision was adopted by respondent.

Appellant then filed a petition for writ of mandate in the Superior Court in and for Merced County, seeking a review pursuant to Code of Civil Procedure section 1094.5, and a writ of mandate to require respondent to offer appellant a contract for the school year commencing September 1, 1967. The matter was heard, and thereafter the court entered its order denying the motion.

It is clear that mandamus is a proper proceeding for a permanent school teacher to seek restoration to a position from which he claims he was wrongfully excluded. (Code Civ. Proc., § 1085;

Titus

v.

Lawndale School Dist.,

157 Cal.App.2d 822, 830 [322 P.2d 56].) Respondent contends this right is limited to permanent teachers, that is, those enjoying tenure contract rights.