Laba v. Board of Educ. of Newark

• Citation: 23 N.J. 364,129 A.2d 273
• Decision Date: 04 February 1957
• Docket Number: No. A--58,A--58
• Parties: Estelle LABA et al., Appellants-Cross-Respondents, v. The BOARD OF EDUCATION OF NEWARK in the County of Essex, Respondent-Cross-Appellant.
• Court: United States State Supreme Court (New Jersey)

Page 364

23 N.J. 364

129 A.2d 273

Estelle LABA et al., Appellants-Cross-Respondents, v. The BOARD OF EDUCATION OF NEWARK in the County of Essex Respondent-Cross-Appellant.

No. A--58.

Supreme Court of New Jersey.

Argued Dec. 17, 1956.

Decided Feb. 4, 1957.

John O. Bigelow and Emil Oxfeld, Newark, argued the cause for appellants (Richard F. Green, Elizabeth, attorney for Perry Zimmerman; Rothbard, Harris & Oxfeld, Newark, attorneys for Estelle Laba).

Jacob Fox, Newark, argued the cause for respondent.

David D. Furman, Deputy Atty. Gen., argued the cause for State Commissioner of Education (Grover C. Richman, Jr., Atty. Gen., of New Jersey, attorney).

The opinion of the court was delivered by

JACOBS, J.

The Newark Board of Education dismissed three teachers (Mrs. Laba, Dr. Lowenstein and Mr. Zimmerman) after they had pleaded the Fifth Amendment during a hearing before a subcommittee of the House Un-American Activities Committee. On appeal, the State Commissioner of Education determined that the dismissals were contrary to the recent ruling of the United States Supreme Court in Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), rehearing denied, 351 U.S. 944, 76 S.Ct. 843, 100 L.Ed. 1470 (1956); however, he did not order reinstatement of the teachers but remanded the proceedings to enable full and fair inquiry as to their continued competence and fitness to teach in the Newark public school system. Without awaiting such inquiry or review by the State Board of Education (R.S. 18:2--4, N.J.S.A.; R.S. 18:3--15, N.J.S.A.) and without obtaining court leave (R.R. 4:88--8(b)) the teachers appealed to the Appellate Division and the Newark Board cross-appealed. In view of its public importance we have certified the matter on our own motion (R.R. 1:10--1(a)) and have by-passed preliminary procedural points. See Appeal of Pennsylvania Railroad Co., 20 N.J. 398, 120 A.2d 94 (1956); Waldor v. Untermann, 10 N.J.Super. 188, 76 A.2d 906 (App.Div.1950).

Dr. Lowenstein received his B.A. degree from Rutgers University in 1928, his M.A. from the University of Pennsylvania in 1929 and his Ph.D. from Johns Hopkins University in 1934. He has taught in the public school system of Newark since 1935 except for three years when he was in military service and one year when he was an exchange teacher at a boys' normal school in southern France. Mrs. Laba received her B.A. from New York University in 1935 and has taught in the public school system of Newark during every year since 1935 except for several years when she was employed at a hospital on a research grant. Both Dr. Lowenstein and Mrs. Laba duly acquired tenure protection under the New Jersey School Laws. See R.S. 18:13--16, N.J.S.A.; R.S. 18:13--17, N.J.S.A. Mr. Zimmerman received his B.S. from State Teachers College at Newark in 1940 and thereafter received his M.A. from New York University. He began teaching in the public school system of Newark in 1952 and had not acquired tenure protection when he was dismissed by the board. However, in view of the terms of R.S. 18:13--11, N.J.S.A., all of the parties and the State Commissioner have, for present purposes, not differentiated his case from the others. When dismissed by the board, Dr. Lowenstein was teaching languages at Barringer High School, Mrs. Laba was teaching biology at Central High School and Mr. Zimmerman was teaching arithmetic at Dayton Street Public School.

In May 1955 a subcommittee of the House Un-American Activities Committee conducted hearings at Newark. Representative Clyde Doyle presided and pointed out that the committee had been charged by Congress with the responsibility of investigating (1) the extent, character and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda which is instigated from foreign countries or has a domestic origin, and attacks our form of government as guaranteed by the Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. The committee's power to conduct such investigatory hearings in aid of the Congressional legislative function is now beyond question. See Quinn v. United States, 349 U.S. 155, 160, 75 S.Ct. 668, 99 L.Ed. 964, 971 (1955); Barenblatt v. United States, 240 F.2d 875 (D.C.Cir.1957). Cf. Eggers v. Kenny, 15 N.J. 107, 114, 104 A.2d 10 (1954). Dr. Lowenstein, Mrs. Laba and Mr. Zimmerman were called to testify before the subcommittee and they all appeared on May 19, 1955. They answered preliminary inquiries but then declined, generally after conferring with their counsel, to answer particular questions which bore, Inter alia, on present and past membership in, or association with, the Communist Party. In one form or other their refusals were rested on the Fifth Amendment of the United States Constitution; their refusals were for the most part honored by the subcommittee and, in any event, they were never cited for contempt. See Byse, 'Teachers and the Fifth Amendmen,' 102 U.Pa.L.Rev. 871 (1954); Finkelhor and Stockdale, 'The Professor and The Fifth Amendment,' 16 U.Pitt.L.Rev. 344 (1955). On the same day the Superintendent of Schools of the City of Newark suspended them (R.S. 18:6--42, N.J.S.A.) and four days later he preferred charges which referred to their refusal to testify before the House subcommittee and alleged that such conduct constituted just cause for dismissal under R.S. 18:13--17, N.J.S.A. A hearing on the charges was held before the Board of Education of Newark and a fair reading of the transcript indicates that the single issue under consideration was whether the refusal to testify before the House subcommittee, in itself, constituted just cause for dismissal under R.S. 18:13--17, N.J.S.A. which provides that teachers under tenure shall not be dismissed 'except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause.' Counsel for the board repeatedly pointed out during the hearing that the sole charge was that the teachers had refused to talk when they should have, that they thereby lost their usefulness and fitness as teachers, and that that was 'the only issue.' At one point he remarked that the teachers were charged with having 'refused to talk at a certain place'; that it would be no defense for them to assert that they were good teachers and were not Communists; that it would, however, be a defense if they established that the record of their refusals to testify was wrong; and that none of them could 'offer any evidence on that except I did or didn't refuse to testify. The rest of it is argument.' During the hearing the teachers did offer to answer one, though only one, question which was apparently designed to elicit that they were not then Communists; the offer was declined.

At the conclusion of the hearing the board, by a vote of five to four, sustained the charges against the teachers and dismissed them as of May 19, 1955. They appealed to the State Commissioner of Education in accordance with R.S. 18:3--14, N.J.S.A. The State Commissioner took no additional testimony but he did have a complete transcript of the proceedings before the board. A hearing was held on September 15, 1955 before the Assistant Commissioner. All counsel argued and briefs were filed by the parties as well as various Amici curiae. On May 9, 1956 the State Commissioner filed his formal decision which remanded the matter for further proceedings before the board. He noted that the evidence before the board had consisted of little more than the transcript of the House subcommittee hearing; that no other inquiry whatever had been made as to the 'fitness' of the teachers; that 'no evidence was adduced as to what the appellants' affiliations were in fact, or as to their reasons or justifications for exercising their constitutional privileges'; and that the board had 'rested its decision squarely on the proposition that in a Congressional inquiry into Communism and subversion generally, where a witness is questioned as to his affiliations and associations, his invoking the privilege against self-incrimination is Per se conduct unbecoming a teacher and just cause for his dismissal under R.S. 18:13--17 (N.J.S.A.).' He then recognized that the board's action would fly directly in the face of the Supreme Court's decision in the Slochower case which, though it was rendered after the board had taken its action, was fully binding upon him as it is upon us. Accordingly he set aside the board's decision though, in view of the acknowledged need for keeping sensitive areas, such as the public school system, wholly free from subversive elements which seek the overthrowal of our free society, he did not order immediate reinstatement of the teachers but remanded the proceedings for appropriate inquiry by the supervisory school authorities of Newark. See Thorp v. Board of Trustees of Schools for Industrial Ed., 6 N.J. 498, 513, 79 A.2d 462 (1951), judgment vacated as moot, 342 U.S. 803, 72 S.Ct. 35, 96 L.Ed. 608 (1951), where this court sustained the constitutionality of New Jersey's statutory requirement that public school teachers take a prescribed oath of allegiance which disavows membership in or affiliation with organizations (such as the Communist Party) which advocate governmental changes by force or violence. See Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). Compare Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951), with Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). In the Thorp case, supra, Justice Heher had the following to say for all members of this court (6 N.J. 498, 79 A.2d 462):

'The maintenance of the purity of the educational process against corruption by subversive influences is of the highest concern to society. It is in no real sense a...