Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1949 No. 169 - Nov 25 1949
Attorney General Smith Troy


It is extremely doubtful if a school district may dismiss a competent, capable, married woman teacher who has taught for some three years in such district where she asks for four months leave of absence for birth of her expected child.

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                                                               November 25, 1949

Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County Court House
Vancouver, Washington                                                                                                              Cite as:  AGO 49-51 No. 169

Dear Sir:

            We have your letter of November 8, 1949, in which you ask the following question:

            May a school district dismiss a competent and capable married woman teacher who has taught for such district for some three years where she asks for a four months leave of absence for the birth of her expected child, expected on December 1, 1949.

            The conclusions reached may be summarized as follows:

            It is extremely doubtful if such teacher may be dismissed on such ground only.


            Your letter reads in part as follows:

            "* * * One of their teachers who has been with them for three years was re hired for the current school year, signing her contract in June.  She did not advise the Board of her being pregnant prior to the opening of the school term in September.  She has been teaching, but now requests that she be permitted to take four months leave of absence.  The expected delivery is approximately December 1.

            "She has been a competent, capable teacher.  Her contract carries only the usual provision for five or ten days annual sick leave.  The Board is not willing to grant a leave of absence for such a long period of time, largely for the inability to secure a satisfactory substitute teacher unless on a contract for the balance of the year.

            "Your opinion is requested as to whether or not the Board would have sufficient cause to dismiss this teacher either for her failure to advise them of her condition when signing a new contract, or for her failure to perform as a teacher during such a long anticipated absence."

            We must assume from the wording of your letter that the teacher in question did advise the school authorities of her pregnant condition at the opening of school or shortly thereafter, or in any event, that the condition of the teacher has been known to the school authorities for a considerable period of time, and yet they have taken no action up to the present time.  This might even constitute an estoppel against the school district if they now attempt to dismiss the teacher for  [[Orig. Op. Page 2]] failure to advise them of her pregnant condition at the time she signed her contract in June 1949.  Weir v. School District, 200 Wash. 172, 93 P. (2d) 308.

            We are inclined to doubt that the teacher's failure to apprize the school directors of her pregnant condition at the time she signed the contract could be held sufficient ground for her present dismissal.

            As early as February 17, 1916, the State Superintendent held that there was nothing in the law to prevent a married woman from teaching school in this state.  We know that in most, if not all, districts in this state no particular discrimination is made against the hiring of married women as teachers.  It would almost seem as though the present condition confronting the school district in question is a foreseeable condition, which is likely to confront any school district which employs married women of child bearing age as teachers.

            The only case we can find directly involving the right of a school board to dismiss a teacher on the ground that she was absent from her duties at the time of the birth of her child isPeople ex rel. Peixotto v. Board of Education of City of New York, 212 N.Y. 463, 106 N.E. 307.  In that case the teacher left the school on February 3, 1913, advising the proper school authorities that the reason for her absence was an infection of her nose and ears.  The birth of a child occurred on April 7, 1913.  On April 22, 1913, the superintendent preferred charges against the teacher for "neglect of duty."  A hearing was had and she was found guilty.  She did not take an appeal to the Commissioner of Education as the New York Code then provided, but brought an action of mandamus against the school board.  Judge Seabury who heard her case in the court below decided in her favor.  144 N.Y. Supp. 80.  She then took an appeal and the decision of the lower court was reversed in the intermediate court (145 N.Y. Supp. 853), such reversal being on the ground that she should have taken her appeal to the Commissioner of Education.  On appeal, the Court of Appeals sustained the appellate division.  However, two justices signed vigorous dissents.  We quote from the dissent of Willard Bartlett, C.J., as follows:

            "Married women have been employed as teachers in our public schools for so many years that their employment in this capacity must be deemed to have the approval of the Legislature.  * * * Maternity, requiring occasional absences at periods of childbirth, is a natural consequence of the employment of potential mothers as teachers.  If the Legislature had regarded this consequence as detrimental to the welfare of the schools, it would certainly have guarded against it by a prohibitory enactment.  We find no such prohibition in the law or in any duly authorized rule or regulation of the board of education adopted pursuant to law.  It is true that the board has virtually endeavored to establish such a rule by its action in the present case, but I think it had no authority so to do.  The reasons for and against the employment of young mothers as public school teachers, set out in this record in the majority  [[Orig. Op. Page 3]] and minority reports of the committee on elementary schools of the board of education, are appropriate for the consideration of the lawmaking power, but do not concern the courts.  The question which we are called upon to decide in this proceeding is whether the specific accusation upon which the relator has been dismissed from her position, to wit, 'absence for the purpose of bearing a child,' constitutes neglect of duty, within the meaning of section 1093 of the Greater New York charter.  I agree with the learned judge who heard the case at Special Term (Mr. Justice Seabury) that it does not.  * * *"

            We assume from your letter that the teacher in question is still performing her duties in a satisfactory manner.  Therefore, the school authorities could not dismiss her at the present time.  The law applicable thereto is section 4776 Rem. Rev. Stat. as last amended by section 1, chapter 179, Laws of 1941 (4776 Rem. Supp. 1941).  The first subdivision of section 4776 as amended, supra, empowers the board of directors of school districts:

            "* * * To employ for not more than one year, and for sufficient cause to discharge teachers, * * *"

            We are not passing upon the question of the right or duty of the school board in question to grant the request of a teacher for a four months leave of absence, because we believe this is a matter resting within the discretion of the directors.  We do, however, express the thought that at the present time there is nothing in this case which would justify the directors in dismissing the teacher in question.

            In an opinion to your office dated November 6, 1946, we called attention to the distinction existing between the question of the authority of the directors to discharge a teacher and the question of whether the district would be liable for a breach of contract resulting from such discharge.  We concluded such opinion by saying:

            "Accordingly, you are advised that it is the opinion of this office that the school directors have the authority to discharge a teacher whenever, in the reasonable exercise of their discretion, such discharge is for the best interests of the school district; and that they have the authority to negotiate a settlement with the discharged teacher, if necessary, and to hire a replacement, subject to the qualification that the total budget for the fiscal year must not be exceeded, unless the matter can be justified as an emergency."

Very truly yours,

Attorney General

Assistant Attorney General