Lowenstein v. Newark Bd. of Ed.

• Decision Date: 22 May 1961
• Docket Number: No. A--67,A--67
• Parties: Robert LOWENSTEIN, Appellant and Cross-Respondent, v. NEWARK BOARD OF EDUCATION, Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

Page 94

35 N.J. 94

171 A.2d 265

Robert LOWENSTEIN, Appellant and Cross-Respondent, v. NEWARK BOARD OF EDUCATION, Respondent and Cross-Appellant.

No. A--67.

Supreme Court of New Jersey.

Argued Jan. 9 and 10, 1961.

Decided May 22, 1961.

Morton Stavis and John O. Bigelow, Newark, for appellant and cross-respondent.

Jacob Fox, Newark, for respondent and cross-appellant.

The opinion of the court was delivered by

HALL, J.

This case is before us for the third time. The prior occasions are reported in Laba v. Newark Board of Education, 23 N.J. 364, 129 A.2d 273 (1957) and Lowenstein v. Newark Board of Education, 33 N.J. 277, 163 A.2d 156 (1960). The appellant now challenges the affirmance by the State Commissioner of Education of his third dismissal as a teacher by the respondent Newark Board of Education. This result ensued from further proceedings after our reversal of the earlier similar action in the last-cited opinion. The Board's cross-appeal concerns only the effective date of the dismissal, fixed by it as of the inception of the controversy in 1955, but modified by the Commissioner to relate to the date in 1957 when the charges involved in the second case were preferred following the remand directed by the Laba decision. The Commissioner consequently awarded back pay for the two year interim. The appeals are here pursuant to our retention of jurisdiction. 33 N.J., at pp. 291--292, 163 A.2d, at p. 163.

To bring into focus the precise issues now presented, some retilling of old soil becomes necessary. The controversy stems from the refusal of appellant and two other Newark teachers to answer questions concerning past and present Communist membership and association propounded by a Congressional investigating committee in May 1955. The declination was grounded on the Fifth Amendment privilege against self-incrimination and was made on the advice of counsel. They were never cited by the committee for contempt of Congress. Dr. Lowenstein at the time was a high school language teacher with about 20 years' service, of acknowledged academic and pedagogical competence and protected from dismissal by the tenure provisions of the school law, N.J.S.A. 18:13--17, 'except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause' after notice and hearing on written charges. He had also been prominent for many years in the local and state branches of a national teachers' union.

The city superintendent of schools suspended appellant and the other two on the day of the committee session. Appellant has not taught or received any salary from the Newark school system since. Four days later each of the three was formally charged with conduct unbecoming a teacher based solely on the invocation of the constitutional privilege and consequent refusal to testify before the committee. The Board sustained the charges by a vote of 5 to 4 and ordered dismissal as of the date of suspension. The Commissioner reversed the dismissals and this court, in Laba, affirmed by reason of the decision of the United States Supreme Court in Slochower v. Board of Higher 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), handed down after the Board's action. It was there held that violation of the constitutional safeguard of due process of law occurs where a discharge from public employment is based entirely upon the exercise of the privilege before a body whose inquiry is not directed at the witness' fitness or conduct in his employment and that no sinister meaning either of confession of guilt or presumption of perjury can be imputed from the exercise of this constitutional right. The privilege is designed to protect the innocent who nonetheless may have a reasonable fear of prosecution as well as to preclude a revolting inquisitorial system of justice permitting the prosecution to trust habitually to compulsory self-disclosure as a source of proof. Slochower, supra (350 U.S., at pp. 557--558, 76 S.Ct., at pp. 640--641, 100 L.Ed., at p. 700); 8 Wigmore, Evidence, 307--309 (3d ed. 1940); Griswold, The Fifth Amendment Today (1955); Chafee, The Blessings of Liberty, ch. vii, The Right Not to Speak, 179--235 (1956). We therefore held in Laba that the invocation of the Fifth Amendment could not constitute Per se conduct unbecoming a teacher and just cause for dismissal. The California Supreme Court, prior to Laba, and the Pennsylvania Supreme Court since, have held to the same effect. Board of Education of San Francisco Unified School District v. Mass, 47 Cal.2d 494, 304 P.2d 1015 (Sup.Ct.1956); Board of Public Education School District of Philadelphia v. Intille, 401 Pa. 1, 163 A.2d 420 (Sup.Ct.1960), certiorari denied 364 U.S. 910, 81 S.Ct. 273, 5 L.Ed.2d 225 (1960).

Laba went on to say: 'In the light of our controlling legislation it is clear that in this State any person who is now a member of the Communist Party or who is now subject to its ideologies and disciplines is unfit to teach in our public schools and should be dismissed under R.S. 18:13--17.' (23 N.J., at p. 388, 129 A.2d, at p. 287.) State policy forms the basis of this declaration, as found in the educational oath statute, N.J.S.A. 18:13--9.1 and 9.2, sustained and interpreted in Thorp v. Board of Trustees of Schools for Industrial Education, 6 N.J. 498, 79 A.2d 462 (1951), judgment vacated as moot 342 U.S. 803, 72 S.Ct. 35, 96 L.Ed. 608 (1951). Consistent with this legislatively-fixed policy of conclusive emphasis on the present the Board has quite properly agreed throughout that no right to dismiss exists merely because a teacher was a member of the Communist Party in the past when it is clear he is not presently. See Lowenstein I, supra (33 N.J., at pp. 284--285, 163 A.2d, at pp. 159--160). At no time has appellant been charged with either past or present party affiliation or subjection and such cannot in the present proceeding furnish a basis for dismissal, directly or indirectly.

Laba did not order immediate reinstatement but affirmed the action of the Commissioner in remanding the matter to the Board for appropriate inquiry by the supervisory school authorities. The theory was that, because 'of the acknowledged need for keeping sensitive areas, such as the public school systems, wholly free from subversive elements which seek the overthrowal of our free society' (23 N.J., at p. 373, 129 A.2d, at p. 278), the action of the teachers before the Congressional committee gave the school authorities the right of private inquiry of them to determine or assist in determining whether they were presently members or subject to the ideologies and disciplines of the Communist Party and, if so, subject to direct charges of unfitness to teach for that reason. The inquiry approach was premised on the obligation of a teacher to respond fully, without any right to rely on the constitutional privilege, to Relevant questions of the employer, acting through the superintendent of schools, relating to continued fitness to teach, whether the reason giving rise to the inquiry be a matter of possible Communist allegiance, moral turpitude or any other unbecoming conduct. Laba pointed out (23 N.J., at p. 389, 129 A.2d, at p. 287) that a willful refusal to answer pertinent questions fairly submitted by administrative superiors at such an interview could also afford an ample basis for dismissal charges under N.J.S.A. 18:13--17. Our further comments in Lowenstein I are appropriate at this point:

'The right to interrogate is only for the purpose of enabling the employer to judge whether there is a reasonable ground for the bringing of dismissal charges on the basis of the employee's answers to relevant questions and of any other information at hand. It is not a broad investigation such as a legislative committee conducts, a trial or an adversary proceeding in the usual sense. Nor is it to be considered an end in itself or as a primary method of dismissal, absent clear lack of cooperation or wilful refusal to answer pertinent queries.' (33 N.J., at p. 284, 163 A.2d, at p. 159.)

'In protecting democratic government we 'must do so without infringing the freedoms that are the ultimate values of all democratic living.' Wieman v. Updegraff, 344 U.S. 183, 188, 73 S.Ct. 215, 217, 97 L.Ed. 216, 220 (1952). While the opprobrium of dismissal from public employment for true disloyalty is deserved if fully and fairly proved, the stain is so deep and the consequences so devastating (the same holds true where the dismissal is for refusal to answer questions relating to loyalty) that the very fibre of every constitutional right we seek to preserve, as well as every consideration of civilized human decency, dictate that this brand of infamy shall never be implanted without complete understanding on all sides of applicable principles, abundant proof and every requisite of due process. Such grievous guilt can never be found from mere association or simply on suspicion, by innuendo or through alleged inference from truly non-relevant facts. Cf. Wieman v. Updegraff, supra; Kutcher v. Housing Authority of the City of Newark, 20 N.J. 181, 119 A.2d 1 (1955). A back door or indirect approach cannot be approved to disguise the real basis not directly and properly proved.' (Id., 33 N.J., at pp. 290--291, 163 A.2d at p. 162).

Another possible avenue of the inquiry and basis of disciplinary action was also outlined in Laba (23 N.J., at pp. 388--389, 129 A.2d, at pp. 287--288), namely, whether the refusals to answer before the committee were patently contumacious or frivolous rather than in good faith. This was quite properly not later pursued when it appeared at appellant's subsequent interview that the privilege had been exercised on advice of counsel. As we noted in Lowenstein I (33 N.J., at pp. 282--283, 163 A.2d, at pp. 158--159), this phase was thereby permanently removed from the case and nothing remained of the original...