
    In the Matter of the Arbitration between the Board of Education of Middle Island Central School District No. 12, Respondent, and Middle Island Teachers Association et al., Appellants.
    Argued April 25, 1980;
    decided May 29, 1980
    
      POINTS OF COUNSEL
    
      James R. Sandner and Jams Levart Barquist for appellants.
    1. There are no public policy considerations prohibiting arbitration of this dispute. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Associated Gen. Contrs. [Savin Bros.], 36 NY2d 957; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122.) II. The agreement to arbitrate is broad and clearly encompasses the instant dispute. III. As the requirements of the Liverpool decision have been met, the merits of the grievance should be left to the arbitration forum and not resolved by the courts. (Matter of Board of Educ. v United Federation of Teachers, Local No. 2, AFT, AFL-CIO, 46 NY2d 1018; Board of Educ. v Chautauqua Cent. School Teachers Assn., 41 AD2d 47.)
    
      
      John H. Gross for respondent.
    I. The decision of the court below in granting a stay of arbitration upon public policy grounds was proper and should be sustained. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Morris Cent. School Dist. Bd. of Educ. v Morris Educ. Assn., 54 AD2d 1044, 42 NY2d 804; Clifton-Fine Cent. School Dist. Bd. of Educ. v Wisner, 59 AD2d 50, 43 NY2d 643; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Conte v Board of Educ., 58 AD2d 219; Board of Educ. v Chautauqua Cent. School Teachers Assn., 41 AD2d 47; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411.) II. The demand for arbitration does not present an arbitrable issue since the parties have not agreed to arbitrate the denial of tenure for nonclassroom acts. Hence, the arbitration should be permanently stayed. (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 66 AD2d 895; Matter of Board of Educ. v West Babylon Teachers Assn., 60 AD2d 577.)
   OPINION OF THE COURT

Per Curiam.

At issue is whether a probationary teacher, denied tenure for alleged professional incompetence in the performance of his nonclassroom duties, has a right to arbitrate alleged breaches of contract evaluation procedures specifically referable to classroom performance. The Appellate Division has stayed the arbitration noting that "the demand for arbitration avoids dealing with the fact that irrespective of respondent [teacher’s] classroom performance — he may have been an outstanding teacher — the school board denied tenure for unrelated, nonarbitrable reasons.”

There is no question, and both courts below agree, that the demand states a basis for arbitration. Although the decision whether or not to grant tenure is not within the permissible area of negotiation in the public employee sector, the performance of a probationary teacher preliminary to a tenure determination is (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774).

In addition, the two-tier analysis established in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (42 NY2d 509) would indicate that the reference to arbitration is authorized under the Taylor Law (Civil Service Law, art 14) and that the subject matter of the dispute is encompassed by the broad arbitration clause contained in the agreement.

Nevertheless the school board urges that the arbitration be stayed because the results of that proceeding would be violative of public policy. It fears, as does the Appellate Division, that the remedy fashioned by an arbitrator for a violation of the evaluation procedures would prevent the school board from exercising its authority to deny tenure. This is not a valid reason to stay the arbitration.

Even though the board has the right to deny tenure to a probationary teacher without an explanation, the bargained for right to procedural steps preliminary to the tenure determination cannot be considered a nullity (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra, p 778; see, also, Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167). The courts should not, by staying arbitration, “foreclose any remedy for alleged violations of procedural guarantees as well as substantive rights said to be afforded under the contract” (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 415).

The school board is bound by the agreement it negotiated and signed — an agreement which requires certain teacher evaluation procedures. Its failure to perform as required is appropriately claimed as a grievance under the terms of the contract and may be submitted to arbitration. The procedural aspect of the contract is discrete from the denial of tenure and should be so treated.

The judgment of the Appellate Division should be reversed, with costs, and the order of Special Term reinstated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated.  