{ "id": 5335825, "name": "FORT SUMNER MUNICIPAL SCHOOL BOARD, Appellant, v. Frances Eileen PARSONS and State Board of Education, Appellees", "name_abbreviation": "Fort Sumner Municipal School Board v. Parsons", "decision_date": "1971-04-23", "docket_number": "No. 559", "first_page": "610", "last_page": "618", "citations": [ { "type": "official", "cite": "82 N.M. 610" }, { "type": "parallel", "cite": "485 P.2d 366" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "81 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5368961 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0188-01" ] }, { "cite": "48 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560836 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/nm/48/0588-01" ] }, { "cite": "71 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348525 ], "weight": 4, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0182-01" ] }, { "cite": "59 N.M. 511", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589312 ], "weight": 5, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0511-01" ] }, { "cite": "79 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738847 ], "weight": 4, "pin_cites": [ { "page": "337" }, { "page": "507" } ], "opinion_index": 2, "case_paths": [ "/nm/79/0332-01" ] }, { "cite": "102 Mont. 521", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 8518365 ], "weight": 4, "year": 1936, "pin_cites": [ { "page": "51" } ], "opinion_index": 2, "case_paths": [ "/mont/102/0521-01" ] }, { "cite": "70 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853310 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "167" }, { "page": "121-122" } ], "opinion_index": 2, "case_paths": [ "/nm/70/0166-01" ] }, { "cite": "58 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587657 ], "weight": 4, "year": 1954, "pin_cites": [ { "page": "660-661" }, { "page": "661" }, { "page": "307" } ], "opinion_index": 2, "case_paths": [ "/nm/58/0648-01" ] }, { "cite": "86 Mont. 200", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 8517621 ], "weight": 2, "year": 1929, "pin_cites": [ { "page": "208" } ], "opinion_index": 2, "case_paths": [ "/mont/86/0200-01" ] }, { "cite": "81 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5368961 ], "weight": 5, "pin_cites": [ { "page": "191" }, { "page": "190" }, { "page": "191" }, { "page": "920" } ], "opinion_index": 2, "case_paths": [ "/nm/81/0188-01" ] } ], "analysis": { "cardinality": 865, "char_count": 27841, "ocr_confidence": 0.691, "pagerank": { "raw": 3.5322863123799175e-07, "percentile": 0.8843646868987343 }, "sha256": "ef243c7ff9429194a9162edf9e8df8b7820a1be2d6b5da9525a42d7a2dac3c01", "simhash": "1:4197d311b04c8be8", "word_count": 4528 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FORT SUMNER MUNICIPAL SCHOOL BOARD, Appellant, v. Frances Eileen PARSONS and State Board of Education, Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThe Local Board (Fort Sumner Municipal School District) decided not to reemploy a tenure teacher although retaining two non-tenure teachers. Mrs. Parsons, the tenure teacher, appealed to the State Board of Education. The State Board reversed the Local Board\u2019s decision. The Local Board has appealed directly to this court. See \u00a7 77-8-17(F), N.M.S.A.1953 (Repl.Vol. 11, pt. 1). The appeal presents questions as to: (1) how new evidence before the State Board is to be considered; (2) whether the Local Board\u2019s decision is supported by substantial evidence; and (3) the nature of the State Board\u2019s review.\nHow new evidence before the State Board is to be considered.\nThe Local Board was faced with a decreased enrollment of students and the concomitant decrease in funds. It determined that the school curriculum could be preserved but that the number of classes offered in certain subjects should be reduced. The reduction in classes was principally in areas in which Mrs. Parsons was certified to teach \u2014 English and Language Arts and Social Studies. With the reduction in classes, it was necessary to reduce the faculty. The Local Board determined that the faculty above the sixth grade level would have to be reduced by two. This reduction was reached by the resignation of one teacher and the decision not to' re-employ Mrs. Parsons.\nAlthough Mrs. Parsons was not to be reemployed, the Local Board retained two non-tenure teachers, Lewis and Williams. As a part of their duties, both non-tenure teachers were to teach subjects that Mrs. Parsons was qualified to teach. The evidence before the Local Board shows the subjects assigned to Lewis and Williams, which Mrs. Parsons was certified to teach, amounted to approximately one-half a full time teaching load.\nBetween the time of the Local Board hearing and the State Board hearing, Mrs. Parsons was certified to teach additional subjects. This \u201cnew evidence\u201d was admitted by stipulation at the State Board hearing. Section 77-8-17(D), N.M/S.A.1953 (Repl.Vol. 11, pt. 1) authorizes the State Board to consider new evidence, but it does not state how the new evidence. isr to' be considered.\nAt oral argument, Mrs. Parsons contended the State Board -could weigh this new evidence as against the evidence presented at the Local Board hearing, and'having weighed the evidence, reach an independent result. We doubt that the State Board could proceed in this manner. The State 'Board has the control, management and direction of public schools, but only as \u201cprovided by law.\u201d N.M.Const. Art.' XII, \u00a7 6(A). Section 77-8-17(D), supra, does not appear to authorize the State Board to weigh new evidence presented to it as against evidence presented at the Local Board hearing. However, we do not decide the question'of weighing the evidence. The question of \u201cindependent result\u201d is discussed and decided in the third issue of-this opinion-.\nThe State Board\u2019s decision, reversing the Local Board is : \u201c * * * the record does not contain substantial evidence supporting the [Local] Board\u2019s decision not to re-employ Eileen Parsons, a tenure teacher, when non-tenure teachers were employed in areas in which she is qualified to teach.\u201d The wording of this decision shows the State Board did not weigh the new evidence against the evidence presented at the Local Board hearing. The State Board determined there was no substantial evidence to support the Local Board\u2019s decision. In reaching this result, the only effect the State Board could .have given the new evidence was to consider it as if it had been presented at the Local Board hearing.\nConsidering the new evidence before the State Board as if it had been presented at the Local Board hearing, the evidence then shows the subjects assigned to Lewis and Williams, which Mrs. Parsons was certified to teach, amounted to more than one-half, but less than a full-time, teaching load. This evidence is largely uncontradicted.\nFor purposes of this appeal, we do not consider the fractional teaching load aspect. Rather, we assume that the uncontradicted evidence shows the non-tenure teachers, between them, were to teach the equivalent of a full-time teaching load in subjects Mrs. Parsons was qualified to teach.\nWhether the Local Board\u2019s decision is supported by substantial evidence.\nIn holding the Local Board\u2019s decision was not supported by substantial evidence, the State Board focused on the fact that non-tenure teachers were retained although Mrs. Parsons, a tenure teacher, was not re-employed. The State Board did so because of Swisher v. Darden, 59 N.M. 511, 287 P.2d 73 (1955).\nIn Swisher the Local Board informed the tenure teacher that she would no longer be employed because the department in the school at which she was teaching was being closed at the end of the school term. This notification was by letter dated February 9, 1953. The New Mexico Supreme Court stated:\n\u201c* * * Admittedly, the Booker T. Washington School was closed for economic reasons. But more was required. Absent grounds personal to the teacher, to terminate her services it was necessary to show affirmatively that there was no position available which she was qualified to teach. The only grounds advanced were set forth in the letter dated February 9, 1953, and it is silent in this respect. On the contrary, there is evidence that several positions were available and were held by non-tenure teachers. * * * \u201d\nSee Hensley v. State Board of Education, 71 N.M. 182, 376 P.2d 968 (1962).\nHere, there were no grounds \u201cpersonal to the teacher\u201d for the non re-employment of Mrs. Parsons. The Local Board specifically found that Mrs. Parsons\u2019 teaching had been satisfactory.\nBecause Mrs. Parsons\u2019 teaching had been satisfactory, and because the retained non-tenure teachers were to teach subjects that Mrs. Parsons was qualified to teach, Mrs. Parsons argued to the State Board that she has shown a position was available to her. She did not have to make such a showing. Swisher v. Darden, supra, prevents her non re-employment in this case unless there was an affirmative showing that no position was available to her.\nIn holding there was no substantial evidence before the Local Board of \u201cno position\u201d available to Mrs. Parsons, the wording of the State Board\u2019s decision shows that it considered the tenure teacher vs. non-tenure teacher aspect of the evidence to be controlling. In doing so, the State Board appears not to have considered other findings of the Local Board.\nThese findings are: (1) the Local Board aimed at preserving the curriculum in order to offer its students the best academic program possible. (2) In a small school, such as Fort Sumner, it is necessary to employ teachers who are certified to teach in more than one field. (3) Non-tenure teacher Lewis is certified to teach English and Spanish and will teach in those fields. (4) No teacher was certified to teach any foreign language except Spanish. (5) To be accredited by the North Central Association, a school system is required to offer one foreign language. (6) One teacher, other than Lewis, is certified to teach Spanish, but that teacher is the only teacher certified to teach in the field of Special Education. (7) Non-tenure teacher Williams is certified to teach U.S. History and planned to become certified to teach Physical Education and Athletics during the summer; Williams\u2019 rehiring was conditioned on obtaining this additional certification. (8) The school, by law, was required to offer Physical Education and it was desirable to offer Athletics to the ninth grade (which Williams taught) because of the large number of students participating in the athletic program. (9) No other certi\u2018fied teachers were available to teach Physical Education and Athletics.\nThe essence of these findings is that there was no one but Lewis to teach Spanish and no one but Williams to teach Physical Education and Athletics. Mrs. Parsons was not qualified to teach these subjects. If Mrs. Parsons was re-employed, the Local Board would be unable to offer either Spanish, required for accreditation, or Physical Education, required by \u201claw.\u201d The evidence on which these findings are based is also largely uncontradicted.\nThus, the Local Board, in its opinion, was faced with the problem of either failing to re-employ a tenure teacher or not offering required subjects. One witness, characterizing the situation as \u201ca very distasteful problem,\u201d said there was no solution other than failing to re-employ Mrs. Parsons unless there were additional resignations.\nThe brief of the State Board, joined in by Mrs. Parsons, emphasizes the public policy of retaining experienced teachers through indefinite tenure during satisfactory performance by the teacher. Hensley v. State Board of Education, supra; see Ortega v. Otero, 48 N.M. 588, 154 P.2d 252 (1944). Mrs. Parsons takes the view that even in the interest of preserving the curriculum, a Local Board may not retain a non-tenure teacher even though the non reemployed tenure teacher \u201c * * * is not qualified to teach in all the same areas as the non-tenure teacher. * * * \u201d Specifically, she takes the position that \u201csecurity of employment\u201d for the tenure teacher is the controlling consideration.\nThe Local Board\u2019s position is: \u201cThe tenure laws in situations requiring a reduction of teachers cannot be the mechanism to subordinate the rights and welfare of the public and school children or to destroy the right of school boards to determine educational policy. * * * \u201d Compare \u00a7 77-4-2, N.M.S.A.1953 (Repl.Vol. 11, pt. 1).\nIn our opinion, the answer to this point does not require a choice by this court as to which of the allegedly competing public policies is paramount. The question is whether there was substantial evidence supporting the Local Board\u2019s decision. That question is to be decided within the guidelines of Swisher v. Darden, supra.\n\u201cSubstantial evidence\u201d is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Wickersham v. New Mexico State Board of Education, 81 N.M. 188, 464 P.2d 918 (Ct.App.1970). The Local' Board\u2019s conclusion reads:\n\u201cThat good cause exists for terminating the employment of Mrs. Eileen Parsons, as a part of the necessary reduction of faculty, in that classes she is now teaching are being cut and that these classes can be cut without affecting the academic program adversely, whereas other subjects, to be taught by non-tenure teachers being re-hired, cannot be cut without seriously affecting the academic program.\u201d\nThis conclusion is consistent with the requirement of Swisher v. Darden, supra \u2014 that there be an affirmative showing of no position available to Mrs. Parsons at which she was qualified to teach. There is such a showing because if she was rcemployed the academic program would be seriously affected. Substantial evidence, largely uncontradicted, supports the Local Board\u2019s, conclusion. It had authority to reach this conclusion under \u00a7 77-4 \u2014 2, supra, ITU (A) and (D).\nThis court may review the State Board\u2019s decision to determine whether the State Board\u2019s action was unreasonable. In holding the Local Board\u2019s decision was not supported by substantial evidence, the State Board acted unreasonably. Wickersham v. New Mexico State Board of Education, supra.\nNature of the State Board\u2019s review.\nThe State Board and Mrs. Parsons urge, however, that the State Board\u2019s decision should be affirmed because substantial Evidence supports the State Board\u2019s decision. This contention'mistakes the nature of th'e State Board proceeding.\nOur statutes no longer provide that the State Board decides the issues between contending parties. .Compare Swisher v. Darden, sup\u2019rai The State Board controls the public schools as provided by law. N.M. Const.\u2019Art. XII, \u00a7 6(A). Section 77-8-17 (C), N.M.S.A.1953 (Repl.Vol. 11, pt. 1) states- the State Board is to conduct a \u201cre\u2022view proceeding.\u201d\n\"Section 77-8-17(D), supra, states what is to be done at the review proceeding. It may take \u201cnew evidence.\u201d This was discuss\u00e9d earlier in this opinion. It shall \u201c'* review all procedures and regulations followed by the local school board * .* There is no issue in this case concerning procedures and regulations. \u201c * * ' * The state board shall also determine whether or not there is evidence in the transcript to sxxbstantiate the findings of the local school board that cause exists for refusing to re-employ * * * the person * * Section 77-8-17(D), supra. Here, the State Board reviewed the evidence and unreasonably determined there was no substantial evidence to support the Local Board\u2019s decision.\nThe issue is not whether there is substantial evidence to support the State Board\u2019s decision. Since the State Board reviewed the Local Board\u2019s decision, as provided by law, the issue in this court is whether the State Board\u2019s decision, after such a review, is arbitrary, unreasonable, unlawful or capricious. Wickersham v. New Mexico State Board of Education, supra. Here, the State Board\u2019s action was unreasonable. This holding decides the appeal. It decides the appeal because the State Board, by law, is not authorized to reach an independent result. The State Board\u2019s authority is to review the Local Board\u2019s decision as provided in .\u00a7 77-8-17 (D), supra, and on the basis of that review, affirm or reverse the Local Board\u2019s decision. Section 77-8-17(E), N.M.S.A. 1953 (Repl.Vol. 11, pt. 1).\nThe decision of the State Board is reversed. The cause is remanded to the State Board with instructions to set aside'its decision and enter a new decision affirming the Local Board.\nIt is so ordered.", "type": "majority", "author": "WOOD, Judge." }, { "text": "SPIESS, C. J.,\nconcurs.\nI concur in the result and will' file a specially concurring opinion at a later date.", "type": "concurrence", "author": "SPIESS, C. J.," }, { "text": "SUTIN, Judge\n(specially concurring).\nThe purpose of this special concurring opinion is to advise the teaching profession that its quarrel on reemployment is with the legislature and the State Board of Education, and not with the courts.\nFirst, this court discussed the question of \u201cHow new evidence before the State Board is to be considered.\u201d This was not an issue on appeal. In its decision, the State Board recited \u201cthat new evidence, as to appellant\u2019s certification was stipulated in the record by the parties.\u201d The stipulation was:\n\u201cIt is stipulated and agreed between counsel for the parties that the Appellant, Eileen Parsons, is, as of this date, certified to teach the subjects of U. S. History and Vocational Economics, these certifications having occurred subsequent to the date of the hearing before the Board which,' as I recall, was May 22nd, 1970.\u201d [Emphasis added].\nSection 77-8-17(D), N.M.S.A.1953 (Reph Vol. 11, pt. 1), provides in part:\n\u201c * * * The state board may consider new evidence not presented at the hearing conducted by the local school board when there is a showing that, although due diligence was used, the new evidence was unknown or unavailable to present at the hearing conducted by the local school-board. A transcript shall be made of all new evidence considered by the state board.\u201d [Emphasis added].\nThis provision does not include new evidence not in existence at the time of the Local Board meeting. It covers new evidence unknown or unavailable at the time of the Local Board hearing. Mrs. Parsons was certified to teach U. S. History and Vocational Economics subsequent to the hearing before the Local Board. Due diligence of Mrs. Parsons could not produce this \u201cnew evidence\u201d at the time of the Local Board meeting. This \u201cnew evidence\u201d was created by Mrs. Parsons after the Local Board hearing to find a \u201cposition\u201d available in the school. Neither the State Board nor Mrs. Parsons could rely upon this \u201cnew evidence\u201d to support her position.\nSecond, the opinion does not disclose that in 1967, the legislature gave to the Local Board a new power, the right to refuse to reemploy tenure teachers by conducting a hearing and finding \u201cgood and just cause for, refusing to re-employ the person.\u201d Section 77-8-12(C) and (D), N.M.S.A. 1953 (Repl.Vol. 11, pt. 1). This statute favors the Local Board and not the teacher, but we do not inquire into the policy or justness of acts of the legislature. Wickersham v. New Mexico State Board of Education, 81 N.M. 188, 191, 464 P.2d 918 (Ct.App.1970). Previously, the Local Board only had the right to discharge for \u201cgood and just cause.\u201d Section 77-8-14. In both statutes, the Local Board, in the exercise of its sound discretion, could determine the question of \u201cgood and just cause,\u201d and make findings thefeof; The State Board, in its sound discretion, could determine whether the evidence at ' the hearing substantiated the findings of' the Local Board and whether \u201cgood and just cause\u201d existed. Section 77-8-17(C), (D) and (E). These are also new provisions.\nIn view of these new sections, I,do not concur in adopting the law set forth in previous decisions. , We have a'duty to interpret these new statutes in line with Article XII, Section 6 of the Constitution .under the subject of \u201cThe Nature of the State Board\u2019s Review.\u201d\nThird, the court discussed , \u201cThe ISTp-tijire of the State Board\u2019s Review.\u201d\nThe State Board of Education was.created by the people as a constitutional agency before the people created the Court of Appeals. Article XII, Section 6, provides in part: . \u2022 .\n\u201cThe State Board of Education shall determine public school policy and'vocational educational policy and shall have control, management and direction 'of' all public schools, pursuant to authority 'and powers provided by lavu.\u201d [Emphasis added].\nThe State Board of Education is a part of the executive department of' the state government \u2014 one of its agencies \u2014 and as such it is subject to legislative control. The words \u201cprovided by law\u201d may b'e a law enacted by the people exercising the, initiative or by the people acting through the legislature. The legislature may provide for the extent of the authority and powers of the State Board. State ex rel. Public Service Commission of Montana v. Branno, 86 Mont. 200, 283 P. 202, 208 (1929).\nArticle XII, Section 6 conferred on the State Board such limited, judicial powers as the legislature granted it. This does not constitute an unconstitutional infringement upon the judicial branch of the government. McCormick v. Board of Education, 58 N.M. 648, 660-661, 274 P.2d 299 (1954). Suk sequently, this court further said:\n\u201c * * * [T]hat, within the limited area prescribed by Art. 12 of the constitution, the decisions of the board of education are final and conclusive as between the parties, and not subject to review. This conclusion, however, does not deprive the courts of jurisdiction of the many purely legal questions which may arise in connection with the teacher tenure act, and other educational acts, such as the question here presented as to whether or not appellee had tenure; and, as suggested in the discussion of the preceding point, the action of the State Board of Education zvould be subject to reviezv on the ground that it was wholly arbitrary, unlawful, unreasonable or capricious.\u201d [58 N.M. at 661, 274 P.2d at 307], [Emphasis added].\nIn Lopez v. State Board of Education, 70 N.M. 166, 372 P.2d 121 (1962), the court said:\n\u201cIn the absence of a statutory definition of the term, it was the function of the State Board of Education in the exercise of its sound discretion to determine the question of \u2018good cause.\u2019 And, its determination is conclusive unless the evidence discloses that it acted unlawfully, arbitrarily or capriciously. Hence, our review of the record will be limited to a determination whether the action of the state board was unlawful, arbitrary or capricious.\u201d [70 N.M. at 167, 372 P.2d at 121-122]. [Emphasis added].\nIn State ex rel. School Dist. No. 29 v. Cooney, 102 Mont. 521, 59 P.2d 48 (1936), the court said:\n\u201cBoth the state board and superintendent and the local board are quasijudicial bodies or officials, and both exercise discretionary powers [citing cases], and when such powers are exercised in the manner prescribed by law, no right of review exists.\u201d [59 P.2d at 51].\nThus far, we must remember that the State Board of Education is a constitutional quasi-judicial body of the executive department with discretionary powers. We must now determine, (1) what powers of review were granted the Court of Appeals, and (2) what authority and powers were granted the State Board of Edttcation by the legislature.\n(1) Appellate jurisdiction of the Court of Appeals grants to the court the right to review \u201cdecisions of those administrative agencies of the state where direct review by the court of appeals is provided by law; and decisions in any other action as may be provided by law.\u201d Section 16-7-8 (F) and (G), N.M.S.A.1953 (Repl.Vol. 4). The State Board of Education is not an administrative agency of the state because it is created by the constitution, not by the legislature. Jurisdiction may be found under the provision of subsection (G). The only provision for review from the decision of the State School Board is \u00a7 77-8-17(F), N. M.S.A.1953 (Repl.Vol. 11, pt. 1). It simply says: \u201cAny party aggrieved by a decision of the state board after a review proceeding pursuant to this section may appeal the decision to the court of appeals * * The legislature did not fix any scope of review of quasi-judicial decisions as it has done in other nonconstitutional, administrative agencies. For example, see \u00a7 4-32-22, N.M.S.A.1953 (Repl.Vol. 2, Supp. 1969), entitled \u201cScope of Review\u201d under \u201cAdministrative Procedures Act; \u201d \u00a7 72-13-39(C), N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1969), under the \u201cTax Administration Act.\u201d\nWhen no scope of review is provided by law, what powers can the Court of Appeals grasp to review decisions of the State Board of Education?\nIn Board of Education v. State Board of Education, 79 N.M. 332, 443 P.2d 502 (Ct.App.1968), this court said:\n\u201c* * * Our review of the State Board\u2019s action is limited to determining whether the State Board acted arbitrarily, unlawfully, unreasonably or capriciously.\u201d [79 N.M. at 337, 443 P.2d at 507]. [Emphasis added].\nIn Wickersham v. New Mexico State Board of Education, supra, this court said:\n\u201cOur review, under \u00a7 77-8-17, supra, is limited to a determination of whether the State Board\u2019s decision is arbitrary, unreasonable, unlawful or capricious.\n\u00edj\u00ed s|\u00ed >\u00a1\u00ed ifc ^\n\"This does not mean that the evidence question will not be reviewed. If the State Board affirmed a Local Board decision, and the Local Board\u2019s decision was not supported by substantial evidence, the State Board\u2019s decision would be unreasonable. [81 N.M. at 190]. [Emphasis added].\n\u00ed\u00a1\u00ed % i|\u00ed Hfi \u00ed\u00a1\u00ed\n\u201cIn asking us to weigh the evidence, the teacher asks us to substitute our judgment for the judgment of the State Board. This we are not permitted to do. * * * It is not the province of this court to retry the case brought before it on appeal from the State Board.\n\"We may not weigh the evidence since our function is limited to a review of the State Board\u2019s decision. In conducting that review, we consider only whether the State Board\u2019s decision was arbitrary, unreasonable, unlawful or capricious.\u201d [81 N.M. at 191, 464 P.2d at 920]. [Emphasis added].\nIn the instant case, the majority opinion says:\n\u201cHere, the State Board reviewed the evidence and unreasonably determined there was no substantial evidence to support the Local Board\u2019s decision.\n\u201cThe issue is not whether there is substantial evidence to support the State Board\u2019s decision. Since the State Board reviewed the Local Board\u2019s decision, as provided by law, the issue in this court is whether the State Board\u2019s decision, after such a review, is arbitrary, unreasonable, unlawful or capricious. * * * Here, the State Board\u2019s action was unreasonable. This holding decides the appeal. It decides the appeal because the State Board, by law, is not authorized to reach an independent result. The State Board\u2019s authority is to review the Local Board\u2019s decision as provided in \u00a7 77-8-17 (D), supra, and on the basis of that review, affirm or reverse the Local Board\u2019s decision.\u201d [Emphasis added].\nThe trouble with these decisions is that they rely on decisions prior to the creation of the Court of Appeals and its power of review.\nThe time has now come to try and decide \u201cThe Nature of the State Board\u2019s Review.\u201d We should try to develop a uniform rule.\nWe must not forget that the State Board of Education is a constitutional, quasi-judicial body with discretionary powers to determine the question of \u201cgood cause\u201d found in the Local Board hearing.\nWhat are the limits of the power of the Court of Appeals to review the decisions of the State Board of Education?\nArticle XII, Section 6 of the Constitution grants the State Board its powers \u201cpursuant to authority and powers provided by law.\u201d Since the legislature did not provide a scope of review, our power of review is limited to whether the State Board acted \u201cpursuant to authority and powers provided by law.\u201d If it did, we affirm because its decision is final and conclusive. If it did not, we reverse.\n(2) What authority and powers were granted the State Board by the legislature?\nUnder \u00a7 77-8-17(C), (D) and (E), supra, the legislature provided that \u201c[t]he state board shall conduct a review proceeding\u201d and at this review proceeding, \u201c[t]he state board shall also determine whether or not there is evidence in the transcript to substantiate the findings of the loc\u00e1l school board that cause exists for refusing to re-employ or discharging the person.\u201d It \u201cshall render a written decision affirming or reversing the decision of the local school board.\u201d We are, therefore, bound by the constitution. We must determine as a matter of law whether the State Board\u2019s decision complied with the above statute.\nThe State Board held a review proceeding and rendered its decision reversing the Local School Board. We are not permitted to substitute our judgment for the judgment of the State Board. We do not review the evidence or weigh the evidence before the Local Board or the State Board. We can only determine if the State Board acted according to authority and powers granted by the legislature. The State Board found:\n\u201c * * * [T] he record does not contain substantial evidence supporting the [Local] Board\u2019s decision not to re-employ' Eileen Parsons, a tenure teacher,. [when non-tenure teachers were employed in areas in which she is qualified to teach.\u201d] (Brackets added).\nIf the bracketed words had been omitted, I would dissent because the decision would have complied with the law. The State Board acted honestly and in good faith. But the reason for its decision that the record did not contain substantial evidence was that the Local Board refused to reemploy Mrs. Parsons because nontenure teachers were employed in her place. This was- not the issue before the Local Board. The State Board did not comply with its statutory powers upon the \u201cgood and just cause\u201d issue before the Local Board. It did not determine whether the evidence in the transcript substantiated the thirty-two (32) findings of the Local School Board. Therefore, I specially concur.\nIt would greatly impair the government and the efficiency of the common schools if the honest judgment and the discretion of a constitutional state board, exercised in good faith, could be reviewed and reversed. State v. Cooney, supra. We must pay homage to.this principle under the present statutory structure.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Charles S. Solomon, Santa Fe, for appellant.", "Jerry Wertheim, Jones, Gallegos, Snead & Wertheim, Santa Fe, for appellee Frances Eileen Parsons.", "E. P. Ripley, Santa Fe, for N.M. State Board of Education." ], "corrections": "", "head_matter": "485 P.2d 366\nFORT SUMNER MUNICIPAL SCHOOL BOARD, Appellant, v. Frances Eileen PARSONS and State Board of Education, Appellees.\nNo. 559.\nCourt of Appeals of New Mexico.\nApril 23, 1971.\nCertiorari Denied May 19, 1971.\nCharles S. Solomon, Santa Fe, for appellant.\nJerry Wertheim, Jones, Gallegos, Snead & Wertheim, Santa Fe, for appellee Frances Eileen Parsons.\nE. P. Ripley, Santa Fe, for N.M. State Board of Education." }, "file_name": "0610-01", "first_page_order": 666, "last_page_order": 674 }