Gish v. Board of Ed. of Borough of Paramus, Bergen County

• Decision Date: 04 November 1976
• Citation: 366 A.2d 1337,145 N.J.Super. 96
• Parties: John GISH, Petitioner-Appellant, v. The BOARD OF EDUCATION OF the BOROUGH OF PARAMUS, BERGEN COUNTY, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 96

145 N.J.Super. 96

366 A.2d 1337

John GISH, Petitioner-Appellant, v. The BOARD OF EDUCATION OF the BOROUGH OF PARAMUS, BERGEN COUNTY, Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 13, 1976.

Decided Nov. 4, 1976.

Emil Oxfeld, Newark, for petitioner-appellant (Rothbard, Harris & Oxfeld, Newark, attorneys).

Joseph A. Rizzi, Hackensack, for respondent-respondent (Winne & Banta, Hackensack, attorneys; Robert M. Jacobs, Hackensack, on the brief).

Before Judges MATTHEWS, SEIDMAN and HORN.

PER CURIAM.

This appeal represents another step in the continuing efforts of appellant John Gish to resist conformance to a directive of the Paramus Board of Education (board) that he submit to a psychiatric examination. An earlier unsuccessful proceeding by which he challenged the constitutionality of the statutes under which the board acted, N.J.S.A. 18A:16--2 and 3, is reported as Kochman v. Keansburg Bd. of Ed., 124 N.J.Super. 203, 305 A.2d 807 (Ch.Div.1973). These statutes read as follows:

18A:16--2. Physical examinations; requirement

Every board of education shall require all of its employees, and may require any candidate for employment, to undergo a physical examination, the scope whereof shall be determined under rules of the state board, at least once in every year and may require additional individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health.

Any such examination may, if the board so requires, include laboratory tests or fluoroscopic or X-ray procedures for the obtaining of additional diagnostic data.

18A:16--3. Character of examinations

Any such examination may be made by a physician or institution designated by the board, in which case the cost thereof and of all laboratory tests and fluoroscopic or X-ray procedures shall be borne by the board or, at the option of the employee, they may be made by a physician or institution of his own choosing, approved by the board, in which case said examination shall be made at the employee's expense.

In affirming the constitutionality of these statutes Judge Lane appropriately stated:

Before a teacher is ordered to submit to a psychiatric examination, he is entitled to a statement of the reasons for such examination, Cf. Monks v. N.J. State Parole Board, 58 N.J. 238, 249--250, 277 A.2d 193 (1971), and to a hearing, if requested, Cf. Williams v. Sills, 55 N.J. 178, 186, 260 A.2d 505 (1970), * * *. (Kochman, supra at 213, 305 A.2d at 812).

A brief history of the events constituting the prelude to this appeal is necessary. Appellant has been employed as a teacher in a high school under the jurisdiction of the board since 1965. Until 1975 he taught classes in English and related subjects. In addition, he was the advisor to the high school newspaper staff for several years, led the production of a school play and for a number of years led a discussion on 'Great Books.' In June 1972 Gish assumed the presidency of the New Jersey Gay Activists Alliance and thereafter participated in a number of communications though various public media in which he promoted the Alliance. He also attended a convention of the National Education Association and helped organize a caucus there.

On July 10, 1972, following a meeting held that day, the board adopted a resolution directing appellant to undergo a psychiatric examination by Dr. Richard Roukema pursuant to the foregoing laws. This resolution recited as reasons for the directive that the board had authorized its Superintendent (of Schools) and the board attorney to consult with Dr. Roukema, the board's consulting psychiatrist, as to his opinion whether the 'overt and public behavior' of Gish indicated a strong possibility of potential psychological harm to students of the school district as the result of their continued association with him, and that the doctor had given an affirmative reply.

Appellant then filed the above-mentioned action to test the constitutionality of the statutes under which the board had acted. On June 7, 1973, after Judge Lane's opinion was entered, the Superintendent delivered to Gish by letter a copy of the July 10, 1972 resolution and a statement of reasons for the board's requirement of the examination.

On June 28, 1973 the board, by resolution, rescinded the directive that the examination be conducted by Dr. Roukema, reciting that it felt that it should be conducted by a psychiatrist 'totally independent of the overt and public behavior' of Gish. It required the examination to be made by Dr. Edward Lowell instead of Dr. Roukema.

On August 9, 1973 the board met privately with Gish and his two attorneys, at which time a letter containing additional reasons for the requested examination was given to him. At that meeting, the proceedings of which were recorded stenographically, Gish's attorney noted the absence of Dr. Roukema and that said absence 'deprives Mr. Gish of that basic right to confront the witnesses against him.' He then argued successively that the asserted reasons of July 9, 1972 constituted an attempted restriction on his client's right of free speech and free association, and that there was no finding by the board that his client's activities, as stated in the July 9, 1972 statement of reasons, showed a significant deviation from mental health or adversely affected his ability to teach.

Since Gish and his counsel had not had an opportunity to study the additional reasons supplied by the board, the board and Gish agreed to meet again on August 22, 1973. Between these two meetings the board presented a hypothetical set of facts, based on the reasons given theretofore to Gish, to Dr. Lowell for his opinion. On August 16, 1973 Dr. Lowell, on the basis of said hypothesis, reported that Gish showed evidence of deviation from normal health.

At the August 22, 1973 meeting, likewise stenographically recorded, a copy of the statement of hypothetical facts as well as the reply from Dr. Lowell was presented to Gish's counsel. Appellant's counsel argued that Dr. Roukema and Dr. Lowell must be produced for cross-examination, since their respective opinions were relied upon by the board and their respective qualifications and credentials would be subject to questioning. Counsel indicated that following said cross-examination they might desire to produce opposing expert witnesses.

At the same meeting appellant's counsel again endeavored to persuade the board that the examination was not properly sought. Counsel argued that the request for the examination was in violation of appellant's constitutional rights to free speech and free association; that one assigned reason was factually erroneous, and that others might furnish the basis for disciplinary action, if true, but would not support a determination that such an examination was reasonably appropriate.

On August 28, 1973 the Superintendent addressed another letter to Gish which again directed that he submit to the examination. The letter stated that the examination was sought on the basis of the earlier statements of reasons, the opinions of Drs. Roukema and Lowell, 'upon a consideration of the evidence presented by counsel on your behalf (at the hearings held on August 9 and 22, 1973)' and because 'the Board of Education has determined that your conduct during said period evidences a harmful, significant deviation from normal mental health affecting your ability to teach, discipline and associate with students of the Paramus Public Schools * * *.'

Thereafter Gish appealed to the Commissioner of Education. When he affirmed the action of the board after an administrative hearing, Gish next appealed to the State Board of Education. ¹ That Board affirmed the decision of the Commissioner by a divided vote. The present appeal followed.

As has already been indicated, the reasons which caused the Paramus Board of Education to seek the psychiatric examination revolve around appellant's undisputed activities in the Gay Activists Alliance. Included in those activities was his encouragement of a 'Hold Hands Demonstration' as part of the Alliance sponsorship, on the George Washington Bridge on May 6, 1973. The full panoply of specific instances need not be recited, because in large measure they appear to be factually uncontroverted. The position of appellant in his challenge below and on this appeal depends on the application of constitutional and legal principles, rather than upon a dispute of the substantive facts. And as part of this premise it may be added for the sake of clarity that the reasons do not include a single instance of any undue conduct or actions in the classroom or out of the classroom with respect to a particular student.

With this background we now approach the arguments for relief which are advanced to us. The first is that the Board's directive to submit to the psychiatric examination constituted a violation of his constitutional rights under the First (freedom of speech and press) and Fourteenth (due process) Amendments, as well as Article I of the New Jersey Constitution. N.J.Const. (1947), Art. I, vouchsafes rights and privileges which parallel in large degree those which are guaranteed by our Federal Constitution. However, our attention is not directed to any particular paragraph of Article I.

This contention is without substance. The right to speak freely has long been recognized as being not without some restriction. Whether or not it is constitutionally permissible may depend on its timing, its substance, its purpose, its truthfulness and other factors. It is certain that the guarantee is dependent on the circumstances of each particular instance. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). See also, Pickering v. Bd. of Ed., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); New York...