However, this deference must be balanced with a teacher's right to "security in employment and to prevent dismissal of a teacher without cause." Huffman v. Bd. of Ed. of Mobridge, 265 N.W.2d 262, 266 (S.D. 1978). To reconcile these competing interests, we adopted a limitation upon a school board's right not to renew a teaching contract.

It sets a dangerous precedent and invites improper future ad hoc consideration of appeals in these cases. This court must and should determine whether the school board, rather than the trial court, was clearly erroneous or abused its discretion. Under our settled law: (1) school boards are legislatively created entities and, thus, are entitled to such consideration under the doctrine of separation of powers, see Strain and Moran cited in the majority and Henderson dissent; (2) deference to school boards is compelled by SDCL 13-8-39, see also Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist. Etc., 265 N.W.2d 262, 265-66 (S.D. 1978); and (3) a circuit court's findings of fact and conclusions of law must be restricted to the legality of a school board's decision. Strain, etc.

In making its determination that the staff needed to be reduced, and in ultimately deciding that it should let appellee go and retain Anderson, it was essential that "the school board's decision be based upon competent, credible evidence." Moran, supra at 602; Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., etc., 265 N.W.2d 262 (S.D. 1978). The superintendent of schools testified that if appellee was retained and Mrs. Anderson dismissed, existing programs in the school could be maintained.

It is a limited type of hearing at which the circuit court takes evidence and hears testimony solely for the purpose of determining the legality, and not the propriety, of the school board's decision. Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262 (S.D. 1978); Collins v. Wakonda Ind. School Dist. No. 1, 252 N.W.2d 646 (S.D. 1977); Mortweet v. Ethan Bd. of Ed., Davison Cty., 241 N.W.2d 580 (S.D. 1976). It differs from a true trial de novo in that the court may not substitute its judgment for that of the school board, and the court need not justify the school board's decision by a preponderance of the evidence received.

As Justice Wollman recognized, "The question of the applicable scope of review is of more than academic interest, for the `clearly erroneous' standard of review gives a reviewing court greater latitude in reviewing a lower court's findings than does the `substantial evidence' test." Huffman v. Board of Educ., 265 N.W.2d 262, 263 (S.D. 1978)(citing K. Davis, Administrative Law Treatise § 29.02 (1958)). On the other hand, Professor Schwartz believes that there is "not much practical difference in review" between the clearly erroneous and substantial evidence tests, except at the "level of legalistic logomachy."

When reviewing a school board's decision under the arbitrary, capricious, or abuse of discretion test, we must determine if there is substantial evidence to support the school board's decision. Moran at 599; Huffman v. Bd. of Education, 265 N.W.2d 262 (S.D. 1978). As outlined above, there exists substantial evidence.

See, e.g., Jager v. Ramona Bd. of Educ., 444 N.W.2d 21 (S.D. 1989); Sutera, 351 N.W.2d at 458. In Jager, we pointed out that even that deference is limited by requirements of just cause, avoidance of arbitrariness, and abuse of discretion. 444 N.W.2d at 25 ( citing Sutera, [ supra]; Huffman v. Board of Educ. of Mobridge, 265 N.W.2d 262, 266 (S.D. 1978); Mortweet v. Ethan Bd. of Educ., 90 S.D. 368, 241 N.W.2d 580 (1976); and Collins v. Wakonda Ind. School Dist. No. 1, 252 N.W.2d 646, 647 (S.D. 1977)). This case does not involve a question of whether to renew an individual teacher's contract.

She may not now claim all of her procedural rights. We next turn to Jones' claim that Board's decision was not based upon competent, credible evidence, and that it was in fact based upon bias. Jones maintains that her situation is like that in Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262, 266 (S.D. 1978), in which we overturned a school board's decision because it was based upon "inherently subjective and nebulous criticism" of a teacher. In order to meet the requirements of a fair tribunal, a school board must base its decision upon competent, credible evidence, and there must be no evidence of actual bias toward the teacher whose contract is not being renewed.

In reviewing the sufficiency of the evidence we do not sit as a trial de novo of the agency but limit our review to whether the findings and decision of that agency are clearly erroneous. SDCL 1-26-36(5); Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262 (S.D. 1978). The review by this court is the same as that conducted by the circuit court without a presumption of correctness as to the lower court's findings.

SDCL 13-43-9.1 through 13-43-10.1. As stated in Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262, 265 (S.D. 1978): "If there is one thread that runs through our decisions that have interpreted the provisions of our continuing contract law, it is that the courts should show great deference to the good faith determinations of school district boards made upon the basis of competent, credible evidence." As stated previously, legality and not propriety of the board's decision is the test upon court review.