LACY v. RICHMOND UNIFIED SCHOOL DISTRICT (1974)

California's Education Code provides that certain school district employees must have ‘certification qualifications' in order to be eligible for employment. They may, and often do, hold credentials evidencing more than one type of certification qualifications. Among the several types are ‘General Elementary Credentials' which certify to the qualifications of elementary classroom teachers. Another, called ‘Pupil Personnel Services Credentials,; authorizes several types of employment, including elementary school counseling.

School districts have broad powers to ‘assign all employees of the district employed in positions requiring certification qualifications, to the positions in which they are to serve.’ (Ed.Code, § 939, subd. (c).) The employees may, for instance, be assigned from a teaching position to any ‘special or other type of work, or given special classification or designation requiring [other] certification qualifications, . . .’ (Ed.Code, § 13314.) In Abraham v. Sims, 2 Cal.2d 698, 711, 42 P.2d 1029, 1035, it was said: ‘No more can it be doubted that despite the permanency of a teacher's tenure the board is fully empowered to change his assignment, and from time to time to prescribe his duties, so long as such power is reasonably exercised and the duties prescribed are in the line of his profession . . ..’

Education Code section 13304 provides: ‘Every employee of a school district . . . who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications,’ is continued in such employment, shall ‘be classified as and become a perma nent employee of the district.’¹ Such a permanent employee is sometimes said to have ‘tenure.’ (See Titus v. Lawndale School Dist., 157 Cal.App.2d 822, 826–827, 322 P.2d 56.)

Analysis of section 13304 discloses that ‘tenure’ does not attach to any particular ‘position’ or class of work requiring certification qualifications, that the employee has satisfactorily filled for three years. Instead, it attaches as a result of his continued employment in one or several of such positions over the stated period. This seems patent from the statute's provision that tenure follows three years of acceptable employment, without requiring that any single ‘position requiring certification qualifications' be held for that period of time.

Education Code section 13447 permits termination of permanent employees when in the school district's opinion it is necessary because of decreased student attendance, or reduction or discontinuance of school services.

And section 13448 provides, as relevant here, as follows:

‘Any permanent employee whose services have been terminated as provided in section 13447 shall have the following rights:

‘1. For the period of 39 months from the date of such termination, any employee . . . shall have the preferred right to reappointment, . . . if the number of employees is increased or the discontinued service is re-established, . . .’

The facts of the case at bench are without conflict. The conclusion to be drawn from them becomes an issue of law for our determination. (Morrison v. State Board of Education, 1 Cal.3d 214, 238, 82 Cal.Rptr. 175, 461 P.2d 375.)

Respondent Betty Lacy held general elementary credentials qualifying her for service as a classroom teacher. Also holding pupil personnel services credentials, she was assigned to counseling duties which she performed for several years until June 1969. At that time, for lack of funds, the services which she had been rendering were discontinued. She was thereupon assigned to duty as a classroom teacher under her general elementary credentials, which duty she has ever since been fulfilling.

Funding for the counseling services that respondent had previously performed became available from a different source in 1970, and the counseling position was reestablished. Respondent's claim of right to the recreated position, under the provisions of section 13448, was rejected by the school district which appointed another qualified employee. She thereupon took proceedings which culminated in the superior court's writ of mandate directing the school district to reinstate her to the position of elementary school counselor under her pupil personnel services credentials. The school district has appealed from the judgment directing the writ of mandate to issue.

The superior court had concluded, in effect, that an employee of a school district may acquire permanent status, or tenure, under as many credentials or certification qualifications as he may hold; and further that the employee may choose the specific permanent status under which he will serve.

We are of the opinion that this is not the intent of the Legislature as expressed by the pertinent provisions of the Education Code. Our reasons follow.

Education Code section 13314, to which we have previously adverted, states:

‘A permanent employee when advanced from a teaching position to an administrative or supervisory position, or assigned any special or other type of work, or given special classification or designation requiring certification qualifications, shall retain his permanent classification as a classroom teacher.’ (Emphasis added.)

This section, as shall see, has generally been interpreted as providing that a permanent employee with classroom teaching credentials has tenure only in that classification, even though he may have been serving under other certifications such as pupil personnel services credentials. Respondent was and is such a permanent employee with classroom teaching credentials.

Section 13314.5 (as in effect at the times here at issue), entitled ‘Retention of Permanent Classification of Nonteaching Certificated Employee Upon Advancement,’ recognized that some professional permanent employees' certifications, i.e., nurses, librarians, counselors, did not include classroom teaching. As to those employees, also deemed reasonably entitled to tenure, it was provided: ‘A permanent employee in a position which requires certification qualifications but which is not a classroom teaching position shall retain his permanent classification in that position when he is . . . assigned any special or other type of work requiring certification qualifications, . . .’ Respondent, with classroom teaching credentials, obviously was not covered by section 13314.5.

In 1972 and after the events with which we are her concerned the Legislature, apparently recognizing a lack of unanimity in the interpretation of ‘the rights of permanent certificated employees,’ enacted several amendments and additions to the Education Code. (See Stats. 1972, ch. 795, pp. 1414–1417.) They were enacted ‘in order to clarify the rights of permanent certificated employees' of school districts. (Emphasis added.) (Id., p. 1417.)

One of the newly added sections, numbered 13314.3, subdivision (b), made it clear that even though a permanent employee may be ‘authorized to render service in more than one type of position for which certification qualifications are required,’—‘[i]f he is authorized to render service as a classroom teacher, he shall acquire permanent status as a classroom teacher.’² (Emphasis added.)

Section 13314.3, by the terms of its enacting statute, did not change the law but instead ‘clarified’ preexisting law on the subject. While there may be some question whether we are bound by one Legislature's interpretation of an earlier Legislature's statute (see Oakland v. Oakland Water Front Co., 118 Cal. 160, 170–173, 50 P. 277), certainly such a legislative clarification is entitled to consideration and respect.

We conclude that section 13314.3 4.3 correctly states the law applicable to the case before us. Under that law respondent acquired tenure and became a permanent employee as a classroom teacher. The school district was permitted to assign her to other duties under her pupil personnel services credentials, but her tenure remained that of a classroom teacher.

We recognize that the pertinent statutes may sometimes in their application fall short of perfection, or absolute equality. In the instant context, had respondent possessed only counseling credentials, she would have been entitled to reappointment to her earlier position when it was restored. Having two credentials, i.e., classroom teaching and counseling, the district was permitted to assign her to teaching duties.

The situation results from competing legislative interests. Of fundamental concern is the right of school districts to designate the positions in which their permanent certificated employees are to serve. (See Ed.Code, §§ 939, 13314; Abraham v. Sims, supra, 2 Cal.2d 698, 711, 42 P.2d 1029.) On the other hand is the strong state interest in assuring permanency of employment to such certificated employees. Where the employee has but a single certification, necessity requires that he be continued in that employment, or dismissed. But where, as here, the employee has classroom teacher's and counseling credentials, the district's right to determine the position to be occupied may be given effect without disturbing the permanency of the employment.

It is said that: ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations,—illogical, it may be, and unscientific. . . .’ (Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69–70, 33 S.Ct. 441, 443, 57 L.Ed. 730.) And: ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .’ (McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.)

Our holding is consistent with the several reported decisions dealing with the same general subject.

The nature of a school employee's tenure was considered in Mitchell v. Board of Trustees, 5 Cal.App.2d 64, 42 P.2d 397. There the court concluded that, regardless of the qualifications or positions held, the tenure law guaranteed no more than full-time employment as a classroom teacher. The court stated (p. 70, 42 P.2d p. 400): ‘While a permanent status may be acquired through service in one or more positions, we think the status when acquired cannot apply or relate to anything in excess of the regular and ordinary full-time employment of a teacher. We take it that these tenure laws, at most, give to a teacher a right to continue in full-time employment without arbitrary dismissal, . . . The purpose of the act is to give security in employment and to prevent dismissal without cause, and not to give a vested interest in certain classes, certain hours, or even in a certain salary. . . .’

A similar conclusion was reached in Leithliter v. Board of Trustees, 12 Cal.App.3d 1095, 91 Cal.Rptr. 215. There a school employee had a secondary classroom teacher's credentials, and ‘Pupil Personnel’ credentials under which he was performing services as a ‘psychometrist.’ Having been relieved of his ‘Pupil Personnel’ duties while work in that capacity remained available, he was reassigned to classroom teaching. The superior court rejected his application for mandate and restoration to the ‘Pupil Personnel’ job. Although an appeal from the judgment was dismissed for other reasons, the Court of Appeal saw fit to consider the issue presented and to agree with the superior court's ruling. It found controlling a contract which provided that: ‘The Board of Trustees reserves the right to make any assignment that your credential authorizes and to change that assignment at its discretion.’ (P. 1100, 91 Cal.Rptr. p. 218.) Obviously such an agreement would be invalid if contrary to the Education Code's pertinent provisions.

Adelt v. Richmond Sch. Dist., 250Cal.App.2d 149, 152–153, 58 Cal.Rptr. 151, states: ‘Subject only to the requirement of reasonableness, a school district is entitled to assign teachers anywhere within their certificate, according to the needs of the district. . . . The welfare of school districts demands that they have broad discretion to assign their teachers in the best interests of the school system. Consequently, the courts should not lightly undertake to interfere with the exercise of this discretion where it is not in conflict with statutory law.’

We find nothing in Klein v. Board of Education, 1 Cal.2d 706, 37 P.2d 74, of aid to respondent. That case, decided in 1934, dealt with no longer existent statutes which were interpreted to give tenure to school principals and vice-principals, a tenure distinct from that granted classroom teachers. A vice-principal demoted to teaching duties was restored to her former position because of her tenure in that office. The more recent statutes and decisions we have discussed do not permit such separate tenures in the case of classroom teachers and pupil personnel services workers.

We have considered the recent case of Otto v. Davie, 34 Cal.App.3d 570, 110 Cal.Rptr. 114. Otto, in a position comparable to that of respondent here holding both classroom teaching and counseling credentials, was assigned to classroom teaching It was held that his tenure required that he be assigned to counseling. The court had concluded that the record justified (p. 577, 110 Cal.Rptr. p. 119) ‘[d]isregarding for the moment the various statutes,’ including section 13314 reading; ‘A permanent employee when . . . given special classification or designation requiring certification qualifications, shall retain his permanent classification as a classroom teacher.’ A portion of the record heavily relied upon by the court established that Otto's classroom teaching credentials were not on file as provided in Education Code section 13157 (repealed 1970; reenacted the same year as § 13163). The counseling credential ‘was the only credential or certificate he had on file with the County Superintendent of Schools [under section 13157] as required by his contract with the district.’ When credentials were registered with the county superintendent under section 13157 the employee was ‘authorized’ to serve ‘in the capacity . . . for which the credentials were valid.’ The rationale of the court seems to be that, thus being ‘authorized’ only to serve as a counselor, his tenure was in that capacity. So viewed, the ruling is consistent with section 13314.3, subdivision (a) (see fn. 2 ante), stating: ‘A permanent employee not qualified to render service as a classroom teacher’ obtains tenure in the classification for which he is qualified.

Respondent misconstrues Education Code section 13310 which speaks of a ‘combination of tenure’ of school employees. The section is designed to prevent a certificated employee with tenure in a full-time position from attaining separate tenure for any additional daily time of employment. It would prevent the employee from holding night teaching tenure as well as full-time day classroom tenure; instead he is given ‘a choice which tenure or status to retain so long as that retained does not exceed one full-time position.’ (And see Curtis v. San Mateo Junior College Dist., 28 Cal.App.3d 161, 103 Cal.Rptr. 33.) We observe further that section 13310 applies only to employees ‘of a school district or districts, in which the average daily attendance of all said districts combined is in excess of 200,000, governed by the same governing board . . ..’ The appellant school district does not have an average daily attendance of 200,000.

Respondent's remaining contention, that the school district's appeal is ineffective since it was taken only by the district and not by the members of its governing body, is lacking in any merit. Education Code section 1002 provides: ‘In the name by which [a school] district is designated the governing board may sue and be sued, . . .’

The judgment is reversed; the superior court will enter judgment in favor of appellant Richmond Unified School District.

I respectfully dissent.

It is well established that a school district, despite the permanency of a teacher's tenure, is fully empowered to change his assignment and from time to time prescribe his duties. (Ed.Code, § 931 and § 939, subd. (c); Abraham v. Sims (1935) 2 Cal.2d 698, 711, 42 P.2d 1029; Leithliter v. Board of Trustees (1970) 12 Cal.App.3d 1095, 1100–1101, 91 Cal.Rptr. 215; Finot v. Pasadena City Bd. of Education (1967) 250 Cal.App.2d 189, 195, 58 Cal.Rptr. 520; Adelt v. Richmond Sch. Dist. (1967) 250 Cal.App.2d 149, 152, 58 Cal.Rptr. 151; and Mitchell v. Board of Trustees (1935) 5 Cal.App.2d 64, 69, 42 P.2d 397.) This right is expressly recognized in section 13314, which reads: ‘A permanent employee when advanced from a teaching position to an administrative or supervisory position, or assigned any special or other type of work, or given special classification or designation requiring certification qualifications, shall retain his permanent classification as a classroom teacher.’ In Mitchell v. Board of Trustees, supra, the right was qualified as follows: ‘. . . a board . . . has the power to reasonably change assignments with respect to a permanent teacher so long as the work assigned is of a rank and grade equivalent to that by which the permanent status was acquired and so long as the assignment is one for which the teacher in question is qualified.’ (5 Cal.App.2d at p. 69, 42 P.2d at p. 400.) This suggests inquiry as to the rank and grade by which permanent status was acquired, and with reference to the qualifications of the teacher. Moreover the power to assign and reassign in the event of a reduction in the number of permanent employees, necessitated by a decline in the average daily attendance in all of the schools of the district or by the reduction or discontinuance of a particular kind of service, is circumscribed by the provisions of sections 13447 and 13448 of the Education Code.

The code provides protection for a permanent employee who is ‘deprived of his position . . . whenever a particular kind of service is to be reduced or discontinued.’ (See § 13447¹ , emphasis added.) The section expressly provides ‘that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.’ (Cf. Otto v. Davie (1973) 34 Cal.App.3d 570, 577–578, 110 Cal.Rptr. 114.) The employee is entitled to notice of the termination of the services and a right to hearing, and if either is not furnished he is deemed reemployed. (See Jones v. Board of Trustees (1935) 8 Cal.App.2d 146, 149, 47 P.2d 804.) Finally, it is provided: ‘The board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.’

Section 13448 gives additional rights to any permanent employee whose services have been terminated as provided in section 13447. So far as is pertinent here it provides: ‘For the period of 39 months from the date of such termination, any employee . . . shall have the preferred right to reappointment, in the order of original employment . . . if . . . the discontinued service is re-established, with no requirements that were not imposed upon other employees who continued in service; provided, that no probationary or other employee with less seniority shall be employed to render a service which said employee is certificated and competent to render.’

It appears clear that under the foregoing provisions, the petitioner, if she were a permanent employee solely by reason of her having been reelected and served for a fourth year in a position requiring certification qualifications as a pupil personnel worker, and if she had been terminated with the discontinuance of the counseling service, would have been entitled to reappointment to the counseling position when it was reestablished. The respondent contends that because she was reassigned, as required by the last sentence of section 13447, since she also had a general elementary teaching credential, she forfeited such rights as she would otherwise have had to reappointment to the counseling position.

To avoid this anomalous and inequitable result which appears to strike at the heart of the seniority rights created by sections 13447–13452 of the Education Code, I would hold that when, as in this case, an employee holds a position which requires both an elementary teaching credential, and a specialized credential, here a pupil personnel services credential, and she has been elected to that position for over three complete consecutive school years (see § 13304), she is entitled to reappointment to that position if it is discontinued and then reestablished within the 39 months provided in the statute. The lower court so found and concluded. I would affirm the judgment.

In the trial court respondent's principal attack was predicated upon the theory that the petitioner could not claim to be a permanent classified employee as a certified pupil personnel worker because in the four preceding years she had been employed in a supervisory capacity in two of those years, 1965–66 and 1966–67, and had only served two years as a counselor, 1967–68 and 1968–69. Section 13315 provides in pertinent part: ‘A person employed in an administrative or supervisory position requiring certification qualifications upon completing a probationary period, including any time served as a classroom teacher, in the same district, shall, in a district having an average daily attendance of 250 or more pupils, be classified as and become a permanent employee as a classroom teacher . . ..’ Under similar earlier provisions it has been held that the only tenure acquired while acting in an administrative or supervisory position is permanent classification as a classroom teacher. (See Board of Education v. Swan (1953) 41 Cal.2d 546, 556–557, 261 P.2d 261 [cert. den. (1954) 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087, overruled on other grounds Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 588, 100 Cal.Rptr. 16, 493 P.2d 480]; Holbrook v. Board of Education (1951) 37 Cal.2d 316, 334, 231 P.2d 853; Hentschke v. Sink (1973) 34 Cal.App.3d19, 23, 109 Cal.Rptr. 549; and Griffin v. Los Angeles, etc., Sch. Dist. (1942) 53 Cal.App.2d 350, 351, 127 P.2d 939. Cf. Klein v. Board of Education (1934) 1 Cal.2d 706, 708–710, 37 P.2d 74, under prior law.) In this case, however, the court found, on facts which permitted conflicting inferences, ‘Petitioner was not an any time an administrative or supervisory employee of Richmond Unified School District.’ Section 13315 did not preclude petitioner from becoming a classified permanent employee certified as qualified as a pupil personnel worker.

Moreover, the court found that petitioner served the district under credentials, which were ultimately designated as for a pupil personnel worker from 1952 to 1956. As that period embraces more than three complete consecutive school years, it would appear that she became a permanent employee under that credential at that time. Prior to August 11, 1972, section 13314.5 provided in part: ‘A permanent employee in a position which requires certification qualifications but which is not a classroom teaching position shall retain his permanent classification in that position when . . . he is assigned any . . . other type of work requiring certification qualifications, or he is given special classification or designation requiring certification qualifications.’ Under those provisions petitioner would not have lost her permanent classification as a pupil personnel worker by accepting employment as a classroom teacher under other credentials which she held. So when she resumed counseling in the year 1965–1966 she already had permanent classification in that position.

Nor do the provisions of section 13314 require a contrary result. That section reads: ‘A permanent employee when advanced from a teaching position to an administrative or supervisory position, or assigned any special or other type of work, or given special classification or designation requiring certification qualifications, shall retain his permanent classification as a classroom teacher.’ The fact petitioner was protected in her permanent classification as a classroom teacher acquired during the years 1956 to 1965, when later she was assigned a special type of work and given a special classification, or designation, requiring certification qualifications as a pupil personnel worker, does not of itself indicate that she could not previously have acquired or subsequently acquired a permanent classification in that category.

Nevertheless in 1972, effective August 11, 1972, more than two years after February 25, 1970, when the discontinued service and the position formerly held by petitioner was re-established, the Legislature (Stats. 1972, ch. 795, §§ 7 and 8, pp. 1416–1417) amended the provisions of section 13314.5, which protected petitioner's permanent classification as a pupil personnel worker (see above), and added section 13314.3. The latter section insofar as is pertinent here, provides: ‘. . . (b) If an employee is authorized to render service in more than one type of position for which certification qualifications are required, either by virtue of his possession of one certification document authorizing service in two or more of such positions, or by virtue of his possession of separate certification documents authorizing service in two or more such positions, or any combination thereof, he shall, upon satisfying all other requirements prescribed by law, acquire permanent status as follows: [¶](1) If he is authorized to tender service as a classroom teacher, he shall acquire permanent status as a classroom teacher. [¶](2) If he is not authorized to render service as a classroom teacher, he shall acquire permanent status below the administrative or supervisory level as a staff employee with multiple qualifications. His right to serve in one or more of the positions for which he is qualified to serve shall be subject to the power of assignment of the school district governing board.’

The amendment modified the applicable part of section 13314.5 to read, ‘A permanent employee, as specified in Section 13314.3, when advanced to an administra supervisory position requiring certification qualifications, or assigned any special or other type of work requiring certification qualifications, or given special classification or designation requiring certification qualifications, shall retain his permanent classification as specified in Section 13314.3 . . ..’

It is pointed out that as a result of the foregoing amendments there can be but one permanent classification for a permanent employee who is authorized to render service as a classroom teacher regardless of the position he actually occupies. It is contended that the statute is merely declaratory of the existing law. The chapter does conclude, '. . . in order to clarify the rights of permanent certificated employees at the earliest possible time in the 1972–1973 school year, it is necessary that this act take effect immediately.' (Stats. 1972, ch. 795, § 10, p. 1417.) Nevertheless, insofar as it tends to destroy vested rights to permanent employment, or a preferred right to reappointment, it cannot be applied retroactively. (Klein v. Board of Education, supra, 1 Cal.2d 706, 708, 37 P.2d 74.)

It is unnecessary to determine whether or not, prior to the amendment, employees could acquire permanent status in more than one classification requiring certification qualifications, or only one. The question really depends on whether sections 13447 and 13448 provide a viable preferred right to reappointment when a discontinued service and position are reestablished. If so the general power of assignment is thereby qualified.

Respondent contends that since petitioner was reassigned (such reassignment was required by the provisions of the last paragraph of section 13447) when the service, as distinguished from her services, was terminated, she has no rights under those sections. In support of this view it points out that section 13448 provides many rights which would only be available to one ‘whose services have been terminated’ absolutely, rather than to one who had been reassigned from a ‘discontinued service.’ It refers to the right to waive reappointment for a year (apparently so that the terminated employee may enjoy a vacation or continuity of other employment) (subd. 2); the rights restored to an employee who is terminated and reappointed as commensurate with ‘a leave of absence’ (subd. 3); his right to make retirement fund contributions for such period (subd. 5); and continuing disability and retirement benefits during such period (subd. 6). The mere statement of the greater should not preclude the lesser. It is also provided that during the 39 month period the district shall offer the employee substitute service, at a pay commensurate with what he would receive if reappointed (subd. 4), and in certain cases employment by another district on similar terms (subd. 4a). Acceptance of such employment is not made contingent upon a waiver of the right to reappointment conferred by subdivision 1 of the section. It would be inconsistent to hold that acceptance of reassignment under the last paragraph of section 13447 provided a greater forfeiture.

The ‘position’ and ‘particular kind of service’ referred to in section 13447 must be distinguished from the types of positions for which certification qualifications are required and in which category or categories the employee may acquire permanent status, subject now to the provisions of section 13314.3. (See Schwalbach v. Board of Education (1936) 7 Cal.2d 459, 461, 60 P.2d 984 [teacher of class of ‘retarded’ children]; Davis v. Berkeley School District (1934) 2 Cal.2d 770, 40 P.2d 835 [traveling teacher in art]; Fuller v. Berkeley School Dist. (1934) 2 Cal.2d 152, 157, 40 P.2d 831 [assistant and associate kindergarten directors].) The credential required for a pupil personnel worker is referred to as ‘the standard designated services credential with a specialization in pupil personnel services.’ (§ 13196, emphasis added.) Nevertheless in Schwalbach v. Board of Education, supra, the court in construing provisions similar to section 13447 adopted the following statement: ‘The argument that, a particular kind of certificate should be the test as to what is meant by, ‘a particular kind of service’, is untenable.' (7 Cal.2d at p. 463, 60 P.2d at p. 985.) In Jones v. Board of Trustees, supra, the court concluded, ‘Section 5.710 [precursor of § 13447] would seem, therefore, to include the discontinuance of a particular kind of teaching, and is not limited to the discontinuance of the teaching of a particular subject. Thus by a change in the method of teaching or in the particular kind of service in teaching a subject, there is a discontinuance of the former ‘particular kind of service’ [citation].' (8 Cal.App.2d at p. 148, 47 P.2d at p. 805.)

In view of the foregoing it may be questioned whether the stress the parties have placed upon tenure in a position requiring a particular qualification is really determinative of the issue of the preferred right to reappointment. It is only so in the sense found in Adelt v. Richmond Sch. Dist., supra, which involved reinstatement after a leave of absence ‘in the position held by him at the time of the granting of the leave of absence.’ (§ 13462, emphasis added.) The court stated, ‘. . . the permanent employment protected is employment within the scope of the certificate under which tenure was acquired. [¶] Subject only to the requirement of reasonableness, a school district is entitled to assign teachers anywhere within their certificate, according to the needs of the district. Tenure does not bestow on the school teacher a vested right to a specific school or to a specific class level of students within any school. [Citations.]’ (250 Cal.App.2d at p. 152, 58 Cal.Rptr. at p. 153.) Applying those principles to this case, in the light of the law extant at the time of the discontinuance and reestablishment of the service, which required both an elementary teaching credential and the specialized credential, the trial court properly held that the reassigned teacher was entitled to reappointment to the position in which she had obtained the qualifications for permanent tenure in both classifications. It was a particular class of service, not merely a reassignment among schools or among a specific class levels of students within any school.

The conclusions herein expressed are more consistent than a contrary result would be with the opinion in Otto v. Davie, supra, 34 Cal.App.3d 570, 110 Cal.Rptr. 114. There the court concluded, as follows: ‘Petitioner served his entire probationary period in the district as a counselor or as a specialist in pupil personnel services. This was the only credential or certificate he had on file with the County Superintendent of Schools as required by his contract with the district. (See, § 13157.) Thus, petitioner gained his tenure as a counselor . . . we regard this case as largely one of tenure (or permanent status) and not of reassignment (demotion) to a lower position. Since there was another counseling position available in the district . . . petitioner should have been reassigned to ‘a rank and grade equivalent to that by which the permanent status was acquired’ and for which he was qualified, i. e., as a counselor. We therefore conclude the assignment of petitioner [to classroom teaching] was outside the scope of the credential under which he was elected to serve and under which he acquired tenure.' (34 Cal.App.3d at pp. 577–578, 110 Cal.Rptr. at p. 119.) It may be pointed out that the case rests on the circumstance that the petitioner did not have his teaching credential on file (§ 13157). Nevertheless the court faced with the following facts—‘It is not disputed that petitioner is a permanent employee of the district and has tenure. He is certificated both as a counselor and as a teacher’ (id., p. 572, 110 Cal.Rptr. p. 115)—ambivalently added at the end of the opinion to the material quoted above, ‘This conclusion follows even though petitioner was also certificated as a classroom teacher.’ (Id., p. 578, 110 Cal.Rptr. p. 119.) The court rejected the contention that either section 13314, or section 13314.5, either before or after its amendment, or new section 13314.3, could control the appointment for the 1971–1972 or 1972–1973 school years with respect to petitioner's status. On the basis of Otto v. Davie, the petitioner did have tenure in the counseling position, and should not have lost it by service under her teaching credential from 1956 to 1965.

For the foregoing reason I would affirm the judgment.

FOOTNOTES

1.  The full text of Education Code section 13304 follows:‘Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is re-elected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.’

2.  The full text of Education Code section 13314.3 follows:‘(a) A permanent employee not qualified to render service as a classroom teacher, when advanced to an administrative or supervisory position, or assigned any special or other type of work, or given special classification or designation requiring certification qualifications, shall retain his permanent classification for the performance of the type of service for which he was qualified prior to such advancement, assignment, or special classification or designation.‘(b) If an employee is authorized to render service in more than one type of position for which certification qualifications are required, either by virtue of his possession of one certification document authorizing service in two or more of such positions, or by virtue of his possession of separate certification documents authorizing service in two or more such positions, or any combination thereof, he shall, upon satisfying all other requirements prescribed by law, acquire permanent status as follows:‘(1) If he is authorized to render service as a classroom teacher, he shall acquire permanent status as a classroom teacher.‘(2) If he is not authorized to render service as a classroom teacher, he shall acquire permanent status below the administrative or supervisory level as a staff employee with multiple qualifications. His right to serve in one or more of the positions for which he is qualified to serve shall be subject to the power of assignment of the school district governing board.’

1.  Education Code section 13447 provides insofar as is relevant here: ‘No permanent employee shall be deprived of his position . . . except in accordance with the provisions of Section 13319 and Sections 13447 [and 13448] . . . [¶] [W]henever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of . . . such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render. Notice of such termination of services for a reduction or discontinuance of a particular kind of service to take effect not later than the beginning of the following school year, shall be given before the 15th of May in the manner prescribed in Section 13443, and services of such employees shall be terminated in the inverse of the order in which they were employed, as determined by the board in accordance with the provisions of Sections 13262 and 13263 of this code. In the event that a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 13443, he shall be deemed reemployed for the ensuing school year. [¶] The board shall make assignments and reassignment in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.’

ELKINGTON, Associate Justice.

MOLINARI, P. J., concurs.