
    Bernice Steele, Individually and on Behalf of All Others Similarly Situated, Respondent, v Board of Education of the City of New York, Appellant. In the Matter of Phyllis Gerstein et al., Respondents, v Board of Education of the City of New York, Appellant. In the Matter of May Fisher et al., Respondents, v Board of Education of the City School District of the City of New York, Appellant. In the Matter of Genevieve Marino et al., Respondents, v Board of Education of the City of New York et al., Appellants.
    Argued June 9, 1976;
    decided July 6, 1976
    
      
      W. Bernard Richland, Corporation Counsel (Diane R. Eisner, L. Kevin Sheridan and Joseph F. Bruno of counsel), for appellant in the first, second, third and fourth above-entitled proceedings.
    I. Within the New York City School System tenure is determined by seniority in the subject license. Assuming arguendo that tenure generally may not be so determined, guidance is nonetheless a proper "special tenure” area. (Matter of Baer v Nyquist, 34 NY2d 291; Garfield v Scribner, 39 AD2d 602; Matter of Becker v Board of Educ., 9 NY2d 111.) II. Petitioner lacks standing to bring this proceeding on behalf of the class she purports to represent. (Matter of Wulff v Teachers’ Retirement Bd. of City of N. Y., 27 AD2d 929, 21 NY2d 802; Matter of Papasidero v Fasano, 19 NY2d 440; Schuster v City of New York, 5 NY2d 75.)
    
      Spencer Steele for respondent in the first above-entitled proceeding.
    I. Guidance has never been judicially recognized as a separate tenure area, by any appellate court. (Garfield v Scribner, 39 AD2d 602.) II. The tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it. (Matter of Baer v Nyquist, 34 NY2d 291; Matter of Boyd v Collins, 11 NY2d 228.) III. The motivation of the commissioner and of local school boards in seeking recognition of vertical tenure areas is to allow dismissal of teachers without charges and hearings. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588.) IV. There is no legislative or judicial recognition of special tenure areas. V. The collective bargaining agreement is consistent with the tenure classification described in Point I. (Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137.) VI. Dismissed teachers should be recalled by seniority in their tenure area and not by seniority in license. VII. The claim of respondent is typical of and involves questions of law and of fact common to all of appellant’s employees, whether dismissed or not.
    
      Robert D. Stone and Lawrence W. Reich for Ewald B. Nyquist, amicus curiae.
    
    The decision of the Court of Appeals in Matter of Baer v Nyquist does not preclude continued recognition of special subject tenure areas. (Matter of Baer v Nyquist, 34 NY2d 291; Matter of Becker v Board of Educ., 16 Misc 2d 909, 8 AD2d 885, 9 NY2d 111; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Mitchell v Board of Educ., 48 AD2d 835; Matter of Baron v Mackreth, 30 AD2d 810, 26 NY2d 1039; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711.)
    
      Eugene J. Fox and William N. Carroll for Board of Education of Yonkers City School District, amicus curiae.
    
    I. Matter of Baer v Nyquist is distinguishable from the case herein and insofar as it is applicable to large good faith layoffs should be modified. (Matter of Baer v Nyquist, 34 NY2d 291; Matter of Becker v Board of Educ., 9 NY2d 111.) II. The entire educational concept should be considered together and not separated in these cases. (Matter of Lynch v Nyquist, 34 NY2d 588.) III. Long-established areas of vertical tenure should be recognized by the courts if the board and teachers in the system have recognized them. (Matter of Becker v Board of Educ., 9 NY2d 111.)
    
      A. Michael Weber and James R. Sandner for respondents in the second above-entitled proceeding.
    I. The action of appellant board of education in summarily terminating petitioners-respondents who have seniority over other teachers in the elementary and secondary tenure area violated section 2585 of the Education Law and their rights as tenured teachers under the Education Law and the Constitution, and is, therefore, illegal, arbitrary and capricious. (Matter of Siniapkin v Nyquist, 68 Misc 2d 214; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Mitchell v Board of Educ., 48 AD2d 835; Matter of Van Heusen v Board of Educ., 26 AD2d 72l; Matter of Becker v Board of Educ., 9 NY2d 111; Matter of Boyd v Collins, 11 NY2d 228; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711; Garfield v Scribner, 39 AD2d 602.) II. The board of education, in eliminating the positions of guidance counselor within certain districts in the City of New York, has violated mandates of the Education Law of the State of New York and the Rules and Regulations of the Commissioner of Education which have the full effect of law. (Matter of Vetere 
      
      v Allen, 15 NY2d 259; Hodgkins v Central School Dist. No. 1, 48 AD2d 302.) III. Petitioners-respondents represent all guidance counselors similarly situated and, therefore, have standing to pursue this proceeding as a class action.
    
      Jerome Tauber, I. Philip Sipser and Marianna O’Dwyer for respondents in the third above-entitled proceeding.
    I. The board violated subdivision 3 of section 2585 of the Education Law by laying off guidance counselors within their license area rather than within their entire elementary grade level tenure area. (Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Becker v Board of Educ., 9 NY2d 111; Matter of Boyd v Collins, 11 NY2d 228; Matter of Baer v Nyuquist, 34 NY2d 291; Matter of Jadick v Board of Educ., 15 NY2d 652; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Mitchell v Board of Educ., 48 AD2d 835; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Baron v Mackreth, 30 AD2d 810.) II. The board’s arguments that the provisions of section 2585 (subd 3) of the Education Law are inapplicable to New York City are wholly without merit. (Matter of Lynch v Nyquist, 41 AD2d 363.)
    
      Morris Weissberg and Robert J. Krengel for respondents in the fourth above-entitled proceeding.
    Appellants failed to lay off teachers in conformity with subdivision 3 of section 2585 of the Education Law, in that they did not determine seniority for lay-off purposes by combining in one lay-off unit the seniority of all teachers and guidance counselors in the city’s school district in the elementary school tenure area, crediting service as a teacher together with service as a guidance counselor for lay-off seniority purposes, and discontinuing the employment of those who had the least seniority in such tenure area so determined. (Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Becker v Board of Educ., 9 NY2d 111; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Lynch v Nyquist, 34 NY2d 588; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Mitchell v Board of Educ., 48 AD2d 835; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of McCarthy v Board of Educ., 73 Misc 2d 225, 43 AD2d 815; Matter of Coates v Ambach, 82 Misc 2d 532.)
   Jasen, J.

In these four appeals, most of the 27 named

petitioners are elementary school guidance counselors who were discharged from employment by the Board of Education of the City of New York prior to the commencement of the 1975-1976 school year. Each of them sought an order directing the board, inter alia, to revise its seniority formula and to reinstate them with back pay. In each proceeding the Supreme Court, Kings County, ordered that the board establish a new tenure list and make appropriate adjustments with respect to each petitioner. The Appellate Division, Second Department, affirmed the order and judgment in each case and granted leave to appeal on certified questions. For the reasons which follow, we disagree with these determinations and would dismiss the petitions.

In early August, 1975, the city board of education was informed that due to New York City’s precarious financial position the board’s proposed budget for the 1975-1976 school year would be reduced approximately $230 million. The board estimated that this would result in a 17% overall reduction in the educational staff. Thereafter the board allocated the existing funds to the Chancellor of the city school district and to the boards of education of the community school districts. In late August, 1975, the city board was advised by the community boards and the Chancellor that as part of massive staff, program and service reductions approximately 409 guidance counselors would have to be laid off. Upon receipt of this information, the division of personnel of the city board established a city-wide excess list and began the process of placing the most senior guidance counselors in the remaining guidance counselor positions. To determine which guidance counselors would be retained, the division of personnel established a formula for computing an "adjusted seniority date” for all guidance counselors. This formula took into consideration the time actually served by each person in the title of guidance counselor. To this was added veteran’s credit, if any. Unpaid leave of absence, while in this title, if any, was subtracted. After an adjusted seniority date for each guidance counselor was calculated, it was determined that each elementary school guidance counselor whose adjusted seniority date fell on or after October 5, 1970, would be laid off. The corresponding date for junior high school counselors was October 1, 1969.

Petitioners attack this seniority formula because experience as a guidance counselor, with certain modifications, was made the primary seniority component. They contend that the formula instead should have used as its primary component total service within the school system. Since most of these petitioners had previous service within the system as elementary school teachers, they argue that this prior service should also have been considered in determining seniority.

A board of education may abolish teaching and staff positions, even where this requires discharging an employee tenured in that position. (Matter of Young v Board of Educ., 35 NY2d 31.) When such positions are abolished, terminations, when necessary, must be made in accordance with subdivision 3 of section 2585 of the Education Law which provides as follows: "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” (Emphasis added.) Petitioners contend that the relevant tenure area here is elementary school teaching, of which guidance counseling is but one facet. The board of education, on the other hand, asserts that the relevant tenure area is elementary school guidance counseling, and that time spent as an elementary teacher therefore is of no significance.

Conceptually, there is no legal impediment to establishing elementary school guidance counseling as a separate tenure area. In Matter of Becker v Board of Educ. (9 NY2d 111), this court recognized the validity of the general concept of "tenure areas”. In Matter of Baer v Nyquist (34 NY2d 291, 295), we suggested that this concept was an expandidle one, and could encompass "vertical” subject matter classifications. We cited music and physical education as examples of special subject tenure areas (p 294.) While stating that tenure limited to curricular classifications could be permitted under the tenure statutes, we held that "they may not be imposed by local school boards subject only to retrospective approval by the Commissioner of Education” and that "[rjadical restructuring of tenure areas * * * should not be free of controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature” (p 294). In response to Baer, comprehensive regulations defining the various tenure areas have been promulgated. (8 NYCRR Part 30.) While these regulations have no direct applicability here, it is significant that "school counseling and guidance” is defined as a "special subject tenure area”. (8 NYCRR 30.8 [b] [2].) This is consistent with the Commissioner of Education’s ruling that "[t]he area of guidance has been traditionally held to constitute a special area” and "has long been accepted as a special tenure area”. (Matter of Glowacki, 14 Ed Dept Rep 122, 124.)

The teaching of Matter of Baer v Nyquist (supra) relevant here is that a board of education may not engage in "radical restructuring” of the traditional tenure areas without reference to some controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature, and even then may do so only in a prospective manner. However, since elementary school guidance counseling has always been a traditional tenure area in the City School Districts of the City of New York, we conclude that the board in this regard has not undertaken any restructuring of tenure areas whatsoever and thus we would uphold its seniority formula.

While no single factor leads inexorably to this conclusion, we note a number of factors which, taken together, compel a determination that elementary school teachers were sufficiently alerted to the fact that in leaving their classrooms and taking on the duties of guidance counselors they were entering an entirely independent tenure area, one in which their previous elementary teaching experience would not be relevant in determining seniority. In the first place, as indicated in Matter of Glowacki (supra), and reaffirmed in the regulations referred to, the Commissioner of Education and the Board of Regents view guidance counseling as a separate tenure area. These views by our State’s chief educational officers are certainly entitled to great weight. Secondly, by virtue of section 298 of the by-laws of the city board, guidance counseling has been made a separate license area. (See Education Law, § 2573, subd 1, par [a], which permits creation of special licensing areas in school districts having a population of 400,000 or more.)

Another significant factor is that these petitioners found it appropriate to join with other guidance counselors in the city school district to create the Guidance Counselors Chapter of the United Federation of Teachers, their collective bargaining agent. In the chapter’s separate agreement with the board of education the following is one of the rules to be followed where "excessing” becomes necessary: "Within the school, district, bureau or other organizational unit, the guidance counselor with the latest date of appointment within license will be the first to be excessed”. (Emphasis added.) That provision is not specifically applicable to this situation because excessing is not precisely the same as laying off. Nevertheless, it clearly evidences the guidance counselors’ view that special importance should be attached to length of service within the separate license area of guidance counseling. The fourth factor we believe important is that in seeking licenses in this special area and in accepting positions as guidance counselors, petitioners voluntarily left their classrooms to assume radically different duties in their new positions. This again suggests that prior service as elementary school teachers should have no relevance in determining tenure area seniority.

Aside from these factors, the practical effect of a contrary holding must be noted. Few of the petitioners, even if successful in these proceedings, would likely be restored to their previous positions as guidance counselors, since many of those counselors who were retained would still have greater system-wide seniority. Instead, they would be returned to the positions they held some time ago when they were teachers in the elementary schools, thus "bumping” an equal number of the present tenured teachers. "Bumping” of this nature appears to be a procedure not contemplated by the by-laws of the city board of education. While section 248 .of these by-laws makes provision for a teacher to apply to be returned to his former position, either because his present position has been eliminated or for any other reason, such procedure can be used only to fill vacancies. Here there appear to be no vacancies which could be filled in this manner. Moreover, it hardly seems to make good educational sense to remove able teachers from the classrooms and replace them with persons whose most recent educational activity has been not teaching but counseling. Some of these counselors have not taught since 1970 or before, and all, undoubtedly, when appointed counselors, assumed they would never again teach and have therefore probably not continued their education in this regard. Some of the petitioners in these proceedings were, prior to being laid off, guidance counselors not in the elementary schools but in the junior high schools. The compelling factors already referred to apply equally to this group. Moreover, one additional consideration is present with respect to the junior high school counselors, namely, that tenure areas at the junior high school level generally are more likely to be defined by reference to the various specialized subject areas.

The dissent misconceives the majority view. The majority does not equate a license area with a tenure area. The cases make quite clear that license area and tenure area are not conterminous and there is no perverse conclusion that they should be so considered. That does not mean, however, that the particular license is not a factor to consider in determining the scope of a tenure area. Thus, a license to teach Spanish alone would not preclude elementary or secondary school tenure where horizontal tenure area obtains. On the other hand, a license to teach Spanish is hardly relevant to a tenure area confined to social studies or, as the dissent agrees, to guidance counseling.

The dissent also misconceives the purport of the clause "seniority in the system within the tenure of the position abolished”. The reference to system is to bar limiting seniority to a single school within a district, which otherwise could be the case. But it is an incorrect parsing of the sentence to detach the meaning of the phrase "within the tenure” from the clause "seniority in the system”, a clause which it logically and grammatically qualifies. Thus, a teacher of a Romance language would achieve seniority "within the tenure of the position” if the tenure area were horizontal and applied to all secondary teachers, or if the tenure area were vertical but extended to all Romance languages, or conceivably, to all foreign languages. On the other hand, if the system-wide tenure area were confined to a particular language, Spanish or Greek for example, then the seniority would be confined to that narrow area, and yet would extend to all the schools in the district.

Our analysis, if correctly applied, is simple enough but impenetrable only if the issue is confused. The issue before the court is not whether the city and its board of education may lay off teachers. That some teachers must be laid off seems inevitable in light of the city’s present financial situation. That unfortunate consequence is fiscal, and not legal. What is the legal issue is on whom the hardship must fall, and that is to be determined by the law as the court interprets it and not by the predilections or particular sympathies of the Judges who must interpret the law.

There is one further issue, present in only one of the proceedings before us (Matter of Gerstein v Board of Educ.), raised by way of cross appeal. It is argued that the city board has totally eliminated guidance counseling services in certain community school districts within the city, in violation of 8 NYCRR 100.1 (a) and (d). As relevant here, subdivision (a) requires that as part of the curriculum for four-year high schools a "guidance and counseling program shall be provided, including the services of personnel certified for guidance service.” Subdivision (d) mandates that in the junior high schools "[tjhere shall be a definite and effective plan of pupil guidance, including the services of personnel certified for guidance service.” This regulation imposes no such requirements on the elementary schools. We think the rejection of this argument by the lower courts was correct, as the petitioners have failed to prove this assertion. It is not enough to merely show, as is claimed by petitioners, that all guidance counseling positions have been eliminated in certain districts. The cited regulation requires a "program” and a "plan”, "including the services of personnel certified for guidance

service.” There is no mandate that this be done through the creation or retention of guidance counseling positions. The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions. Since there has been no showing that any guidance and counseling programs have been wholly eliminated, we conclude that this portion of the petition was properly dismissed.

Accordingly, in Matter of Gerstein v Board of Educ., the order of the Appellate Division should be modified in accordance with this opinion, the petition dismissed, and the question certified answered in the negative. In each of the remaining proceedings the order of the Appellate Division should be reversed, the petition dismissed, and the question certified answered in the negative.

Fuchsberg, J.

(concurring in part and dissenting in part). The issues raised on these four appeals involve the hard-earned seniority rights of literally thousands of educators in New York City and, indeed, throughout the State. In my view, it would be both unwise and unfair to permit the admittedly severe exigencies occasioned by New York City’s present financial crisis to outweigh the clear statutory protections of subdivision 3 of section 2585 of the Education Law, designed as it was to further both the integrity of our school systems and the rights of those who work in them. In fact, the economic retrenchment which the abolition of the positions affected here is intended to bring about can be accomplished just as well without undermining long-respected seniority standards. I, therefore, most respectfully suggest that both the schools and their teachers would, in the long run, be better served by a careful adherence to the statute’s requirements than by the short-term expedients, however appealing at the moment, which are granted the city today. Accordingly, I dissent from so much of the majority’s holding as I believe is inconsistent with the language and intent of subdivision 3 of section 2585.

All of the appellants before us have worked for the New York City School District (hereinafter the "board”) in other capacities before assuming their present responsibilities. Most of the counselors in these cases were formerly classroom teachers. Their concern emanates from two phrases in subdivision 3 of section 2585, which reads: "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” (Emphasis added.)

The petitioners take the position that the words "in the system” following "seniority” have a separate and distinct meaning apart from the phrase "within the tenure of the position abolished”. They argue that the latter phrase establishes the group or "tenure'area” within which someone must be discontinued, while the phrase "least seniority in the system ” establishes which employee within the group must be the one to go, and that it does so on the basis of the total time each employee has been employed by the board of education. A number of factors strongly support that interpretation of the statute.

The first is its legislative history. When the language of subdivision 3 of section 2585 was first enacted in 1940, a memorandum written by the Governor’s legal counsel, attached to the bill jacket, stated: "The bill is applicable to all cities of the State. It provides that when the Board of Education abolishes a position, layoffs shall be in the inverse order of seniority 'in the system within the tenure’ of the position abolished. It is clear from the bill that service within the system—meaning the board of education—is counted. It would not matter whether the employee started as kindergarten teacher and became a high school principal, the total service would be counted. This is in accordance with the State Civil Service Law and decisions of the court.” (Memorandum of Nathan R. Sobel, Bill Jacket Collection, L 1940, ch 754, pp 13-14 [emphasis added].)

In a similar memorandum, also attached to the bill jacket, the New York State Teachers Association, which sponsored the bill, indicated that the broadest interpretation of the modifying words "in the system” reflected the association’s intention as well, noting as did the Governor’s counsel, that this interpretation of seniority would bring educational employees into line with other civil service employees (Memorandum, Bill Jacket Collection, L 1940, ch 754, pp 9-10).

Consistent with those expressions of intent, the Commissioner of Education, in his first interpretation of the new law, made clear that seniority was to be calculated on the basis of an educator’s total time as an employee of the district. In Matter of Ducey (65 NY St Dept Rep 65, 68) he stated that: "I therefore conclude that the statute in referring to seniority in the system covers the entire consecutive time that a teacher has been employed by the board of education on a permanent basis. The date when a teacher commenced her service in the system is the date she started her probationary period, if that was the first date that she became connected with the system. ” (Emphasis added.)

From the Ducey decision to the present, the commissioner has continued to interpret the words "in the system” to mean total time employed by the particular school district (see Matter of Widmer, 72 NY St Dept Rep 20, 21, for a more recent repetition of the definition of seniority as commencing on the date when an employee first becomes "connected” with the system). I suggest that this interpretation accords perfectly with the legislative intent and ought to be observed by our court in the cases before us, all the more so since the petitioners all undertook their employment and earned their seniority under it.

The present commissioner, however, joins with the board in urging that seniority should be counted only insofar as it was earned in the present "tenure area”. The counselors, for example, would be credited only with the time they have spent in the counseling license area; teachers would be credited only with the time spent in tne particular subject they now are licensed to teach and in fact do teach. Thus, if the board’s view prevailed, long years spent in service to the board in any other educational capacity would count for nothing in the determination of which counselors must be laid off.

The board attempts to explain the statutory words "in the system” as being synonymous with "across individual schools”, suggesting that, were the former words not there, the phrase "within the tenure of the position abolished” would mandate dismissals within individual schools. There is simply no precedent for such a view. The statute identifies the employer as the board of education, not the individual school; it is the board, not the school, which abolishes a position. And the board does not point to a single instance to date wherein it has been held that the tenure area would otherwise be limited to a particular school within a multischool district (cf. Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111).

When massive cutbacks in personnel must be made in a district the size of New York City’s, flexibility is no doubt an asset. But its benefits must be balanced against those conferred on both the system and its employees by a stable, protective law which guarantees recognition to years of competent service. The Legislature has clearly favored the latter benefit. A reversal here of so many years of well-understood past precedent would, in my view, create precisely the sort of uncertainty and instability the tenure laws were designed to avoid (cf. Matter of Palmer v Merges, 37 NY2d 177, 181).

Even if it is clearly established that the total number of years spent in the district shall be counted toward the seniority of each individual employee, we are still left with the question of how to define the "tenure of the position abolished”, that is, the group within which system-wide seniority determines the order of layoffs.

Both in the cases before us and in Matter of Blum v Board of Educ. (39 NY2d 984), decided herewith, the board also asserted that tenure area is synonymous with the area covered by the license under which each employee, counselor or teacher, works. Were that the case, then counselors whose services are discontinued would not have the right to be returned to the classroom, for counseling takes place under a different license than does teaching.

Moreover, a definition of tenure area as limited to that of the particular license would have even more far-reaching effects. In the Blum case, for example, the petitioner, a senior high teacher of social studies who formerly taught that same subject at the junior high level, has been discontinued on the ground that he is least senior within social studies teachers at the senior high level, rather than having his seniority calculated as against that of all senior high teachers, for, at the secondary levels, licenses are issued by subject matter specialty. Indeed, in view of the broad sweep of the board’s contention, it is surprising to me that the majority does not choose to confront squarely the legal issues involved in this question either in the present case or in its memorandum in Blum. Given the serious implications which the board’s position here has for every single educator who works for it, I believe greater consideration of the licensing issue is more than warranted.

Such an analysis must begin with the fact that "tenure areas” have never been well defined. At the time subdivision 3 of section 2585 was enacted, school systems were divided into two basic areas, elementary education and secondary education. Neither kindergartens nor junior high schools, for example, then existed. In addition to those two basic areas circumscribed by grade levels—so-called "horizontal” tenure areas— there also existed a few special exceptions, notably certain administrative positions and special subjects such as art or music (see Matter of Ducey, 65 NY St Dept Rep 65, supra), which were considered separate tenure areas within the grade level—so-called "vertical” tenure areas.

As school systems have expanded, adding stratifications at grade level and additional fields of specialization among teachers and other support personnel, such as counselors, there has developed a concomitant tendency to refine and recast the tenure areas in keeping with that growth (see Matter of Becker v Board of Educ., 9 NY2d 111 [kindergarten]; Matter of Jadick v Board of Educ., 15 NY2d 652 [junior high]; Matter of Van Heusen v Board of Educ., 26 AD2d 721 [study hall supervision]; Matter of Silver v Board of Educ., 46 AD2d 427 [high school social studies]; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711 [high school French]; Matter of Mitchell v Board of Educ., 48 AD2d 835 [driver education]). As a perusal of the cases will indicate, on the whole, bifurcations of grade level or horizontal tenure areas have been upheld, while attempts on the part of school boards to define narrower vertical tenure areas within grade level have been discouraged. In explanation of the policy behind such a limitation upon the power of school boards to define new tenure areas, we recently stated: "Random experimentation with tenure areas by local school districts, subject only to ad hoc, retrospective approval by the Commissioner of Education, was never contemplated by the tenure statutes protecting teachers’ positions in the State’s public school system (see Education Law, §§ 3012, 3013). Were that the case, the legislative purpose to attract qualified persons to teaching and to provide job protection to teachers who have given years of satisfactory service would be thwarted. This is not to say that the concept of 'tenure areas’, recognized by this court in Matter of Becker v. Board of Educ. (9 N Y 2d 111), is not an expandable one, or that it could not encompass the 'vertical’ subject matter classifications employed by the Massapequa Board of Education. Instead, any further broadening of the tenure area concept must be effected only by prospective rule-making by the Board of Regents incorporating proper standards, pursuant to section 207 of the Education Law, or by the Legislature itself.” (Matter of Baer v Nyquist, 34 NY2d 291, 295.)

Under section 207 of the Education Law, the Board of Regents may empower the Commissioner of Education to promulgate rules and regulations governing school systems in the State, so long as it also provides the standards by which the commissioner is to act. As the Baer case makes clear, the commissioner’s actions must be prospective, not only in terms of notice to the personnel affected but also in terms of their effect on rights already vested.

Despite the courts’ repeated disapproval of attempts by school boards to place ad hoc limitations upon the concept of tenure area as grade-level wide by redefining these areas as coterminous with subject matter specialties, the board contends that it may so define tenure areas because it is empowered, under section 2569 of the Education Law, to create its own board of examiners and to set its own standards for licensing counselors, teachers, and other special services personnel in lieu of the certification areas and qualifications set by the Board of Regents for the rest of the State. In brief, the board interprets the licensing exception as an authorization to redefine tenure areas as coterminous with license areas.

I do not find that persuasive on the question of tenure areas of counselors or, for that matter, of teachers, for the purpose of determining seniority. The board’s licensing procedures are exact analogues of State certification procedures; both have as their goal the definition of who is qualified to be hired, not how seniority is to be assessed. That view is supported by our dispositive holding in Matter of Lynch v Nyquist (34 NY2d 588, affg 41 AD2d 363 [Cooke, J.]), that certification was not to be used to circumvent the seniority requirements set forth in section 2510 of the Education Law (§ 2510 is the exact duplicate of § 2585 save that it applies to cities with populations under 125,000).

The facts in Lynch are helpful; there a teacher certified in Latin had for some time also taught English and history. When Latin was deleted from the curriculum, the school board tried to discontinue the petitioner on the ground that she was certified only in Latin and was not therefore qualified to teach other subjects. The Lynch decision held that her lack of certification in other subjects did not constitute grounds on which to discontinue the teacher’s services when she was senior to teachers in those other subjects, pointing out that a contrary view would permit unlimited abuse by school districts of the protections which the tenure laws were designed to afford.

Procedures do exist for terminating the services of a teacher or counselor not qualified to teach in any position other than the one abolished; they provide for a hearing to determine whether in fact the employee is not qualified to fill any such position (see Education Law, §§ 3012, 3020-a). Moreover, the same law which permits New York City to license its own employees also permits the board to place them in positions for which they are qualified but not licensed (Education Law, § 2573, subd 11); indeed, according to the briefs on the appeals before us, the board has only recently given such a qualifying examination for some of its personnel pursuant to that statute (see, also, Matter of Formica, 11 Ed Dept Rep 162; Matter of Rodgers, 13 Ed Dept Rep 238). Consequently, there is no need to limit the tenure area to that of the license in order to preserve the quality of education in the city schools.

Even if it were the case that defining the tenure area as the entire grade level rather than just the license area would limit the board’s flexibility in personnel assignment, that argument has already been considered and rejected by the Legislature. In almost exactly the same terms as it is made to us, that argument was submitted to the Legislature by the city and rejected when the tenure laws were passed (see Memorandum of New York City Board of Education, Bill Jacket Collection, L 1940, ch 754, p 3; Memorandum of Mayor of City of New York, Bill Jacket Collection, L 1940, ch 754, p 12). And so, even if we would otherwise have arrived at a contrary view, I believe we are required to support that manifestation of legislative intent.

In short, nothing in the special legislation authorizing the board to create its own licensing procedures can be read to authorize it expressly to create new tenure areas as well. If anything, the legislative history of the tenure laws suggests the opposite. On the basis of the requirement, noted in the Baer case, that such power be given only to the commissioner, that it be accompanied by specific standards for its use and that it be used only prospectively, I cannot find any authorization for the board’s decision to make tenure area coterminous with license on a wholesale, city-wide basis.

That is not to say, however, that the commissioner could not have declared counseling to be a special vertical exception pursuant to such authorization. In fact, as an alternative to its more sweeping assertion of power to define tenure area as synonymous with license, the board contends here that the commissioner did so define counseling as a special exception and as a tenure area of its own many years ago and with sufficient clarity to meet the requirement of prospectivity even with respect to the currently employed counseling staff. That assertion seems eminently correct. And since the majority’s opinion, insofar as it is directed to this historically verifiable exception for counselors, sets forth accurately and amply the evidence which supports such a conclusion, I do concur in its holding that counselors who are discontinued need not be returned to the classroom.

However, for the reasons stated, I find it necessary to register a dissent from the calculation of seniority on the basis of time spent in the current tenure area rather than on the basis of time spent in the employ of the school district as a whole.

Accordingly, I would reverse so much of the Appellate Division’s order as held that guidance is not a separate tenure area and that counselors had insufficient notice that it was so considered, but I would sustain the petition to the extent of requiring the reformulation of seniority lists within the counseling tenure area to reflect system-wide seniority.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg concurs in part and dissents in part and votes to modify in a separate opinion.

In Steele v Board of Educ., Matter of Fisher v Board of Educ. and Matter of Marino v Board of Educ.: Order reversed, without costs, and petition dismissed. Question certified answered in the negative.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg concurs in part and dissents in part and votes to modify by granting petition in part in a separate opinion.

In Matter of Gerstein v Board of Educ.: Order modified, without costs, and petition dismissed in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative. 
      
      . This figure of 409 included 286 elementary school and 123 junior high school guidance counselors. Approximately 518 guidance counselors were retained by the community school districts.
      Guidance counseling was but one of many areas in which large reductions took place. For example, the record indicates that after-school sports, recreation and cultural programs suffered a 40% reduction, that 50% of all evening high school programs were eliminated, and that 2,350 school crossing guards were relieved of duty.
     
      
      . These regulations have only prospective effect and are not applicable to city school districts located within cities having a population in excess of 400,000 inhabitants. (8 NYCRR 30.2.)
     
      
      . The Supreme Court, Albany County (Gibson, J.), granted judgment dismissing a petition to review and annul this determination. (Unreported decision.) An appeal from that judgment is presently sub judice in the Appellate Division, Third Department.
     
      
      . Section 248 of the by-laws provides as follows:
      "Return to Former Position from Present Position. An appointed teacher employed under these By-Laws, may, on his application, be reassigned by the Superintendent of Schools to a vacancy in a grade or salary level in which he served satisfactorily for one year and for which he holds a valid license. Said application, upon such reassignment, shall be regarded as a resignation from the present position, and the license for such present position shall thereupon terminate. His salary thence forward shall be fixed as though all regular service rendered by him was in the position to which he is returned. Restoration to the present position in such a case may be effected only by a new probationary appointment from an appropriate eligible list.
      
        "Notwithstanding the provisions of the preceding paragraph, where an employee requests reassignment hereunder because of the elimination of his or her position for budgetary reasons, the license for the present position shall not terminate and restoration to the present position may be effected by the operation of a preferred eligible list.”
      It should be noted that several of the petitioners unsuccessfully applied to the board under this section to be reassigned to their former positions.
     
      
      . In two of the cases before us class relief was sought, and an issue has been raised as to whether those could properly be maintained as class proceedings under CPLR article 9. Since we have concluded that none of the named petitioners who purport to represent the class are entitled to any relief, we do not reach this issue.
     
      
      . The court is aware of Assembly Bill No. 13043 recently passed by the Legislature and which awaits action of the Governor. The court has examined the bill and concludes that it involves so many issues and factors not involved in these cases that none of the questions which its enactment into law might raise would be entertain-able in these cases.
     
      
      . While subdivision 3 of section 2585 of the Education Law, which is the statute directly in issue here, applies only to school systems in our larger cities (see Education Law, § 2550), its exact analogue, section 2510, applies the same language to smaller cities as well (see Education Law, § 2501).
     
      
      . The petitioners in the Blum case accept the fact that junior and senior high school are different tenure areas and that, therefore, a teacher discontinued from one such area has no right to a position in the other. They ask only that their years in the former tenure area be counted toward seniority in the new one and that the senior high tenure area be defined as inclusive of all who teach core curriculum subjects.
     
      
      . The city also suggests that teachers have themselves accepted the concept of tenure areas .as coterminous with licensing because, in their collective bargaining contract with the city, they agreed that "excessing” should take place on the basis of licensing. "Excessing”, a procedure whereby available, vacant positions in other schools are assigned to teachers whose positions in a particular school are abolished, involves no layoffs and hence runs afoul of no statutory provisions for tenure. It is wholly a creature of contract and as such may be defined by the parties in any way they wish. Parties to a contract, however, have no power to alter vested statutory rights (see Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137).
     
      
      . I also concur in the majority’s decision to sustain so much of the order of the Appellate Division in the Gerstein case as affirmed the trial court’s dismissal of thfe petition to mandate guidance services at the elementary level.
     