*1 AL., LABA, ET ESTELLE APPELLANTS-CROSS-RESPOND ENTS, v. THE BOARD OF EDUCATION OF NEWARK ESSEX, THE OF RESPONDENT-CROSS- IN COUNTY APPELLANT. February Argued 4, 1957. December 1956 Decided *5 Mr. John Mr. Bigelow O. Emil argued Oxfeld Green, cause the appellants for Richard F. (Mr. attorney Zimmerman; Rothbard, Messrs. Harris & Perry Oxfeld, for Estelle attorneys Laba). Jacob
Mr. Fox the cause for the argued respondent. Furman, Mr. David D. Deputy Attorney-General, argued the cause for the State Commissioner of (Mr. Education Richman, Jr., Grover C. Attorney-General New Jersey, attorney).
The of the court was delivered opinion Newark Board of Education dismissed Jacobs, J. three Laba, teachers Dr. Lowenstein and Mr. Zimmer (Mrs. after man) had Fifth pleaded the Amendment during before a subcommittee of the House hearing Un-American Activities Committee. On appeal, State Commissioner of Education determined that the dismissals were contrary to the recent of the United States ruling Supreme Court Education, v. Board Slochower 350 U. 76 Ct. S. S. 100 L. Ed. denied 351 U. (1956), rehearing S. 100 L. however, S. Ed. 1470 (1956); he did order reinstatement of the teachers but remanded the to enable full and fair proceedings inquiry as their continued and fitness to competence teach the Newark public Without such system. awaiting review the State Board of Education 18:2-4; (R. S. R. 18:3-15) without court leave obtaining R. (R. the teachers to the 4:88-8(&)) appealed Appellate Division and the Newark Board cross-appealed. view of its public *6 onr own motion the matter on have certified we
importance pro have preliminary and by-passed B. (a)) 1:10—1 (.R. Co., Railroad Pennsylvania Appeal See cedural points. Untermann, Super. 10 J. v. N. Waldor J. 398 20 N. (1956); 1950). Div. 188 (App. from Rutgers his B.A. received degree Lowenstein
Dr. University Pennsyl- his M.A. from in University University Ph.D. Johns Hopkins and his from in 1929 vania system in the school has taught public He in 1934. in three when he was years for except 1935 Newark since he was an and one .when year exchange military service southern Mrs. school in Prance. normal boys’ at teacher in 1935 University B.A. from New York received her Laba Newark school system during in public and has taught she was when years since 1935 several except for every year research Both Lowen- on a Dr. hospital grant. at employed tenure under protection Laba duly acquired stein and Mrs. 18:13-16; B. B. S. School Laws. See S. the New Jersey Zimmerman received his B.S. from State Mr. 18:13-17. thereafter at Newark in and received Teachers College York He University. began teaching his M.A. from New Newark in 1952 and had system in public when he-'was dismissed by tenure protection not acquired However, 18:13~11, in the terms of B. view of S. the board. have, Commissioner all and State parties differentiated his case from the others. present purposes, board, Dr. Lowenstein was When dismissed teaching School, Mrs. Laba was High teaching at Barringer languages and Mr. Zimmerman Central School High at biology arithmetic at Street Public School. Dayton 'teaching the House 1955 a subcommittee of Un-Amer- May conducted at Activities Committee Newark. hearings ican Doyle out that the Clyde presided pointed Representative with the by Congress responsi- committee had been charged extent, objects character and (1) bility investigating States, activities in the propaganda United of Un-American diffusion within United States of subversive (2) which is and un-American from propaganda instigated countries has a attacks domestic foreign origin, our Constitution, form of. guaranteed government all other aid relation thereto that would (3) questions com remedial Congress any necessary legislation. mittee’s to conduct such power hearings investigatory aid of the function is now Congressional beyond legislative States, Quinn 155, 160, v. question. See United U. S. v, L. Barenblatt (1955); Ed. United, States, 240 F. C. 2d Cir. 1957). (D. Cf. N. J. Kenny, 15 Lowen Eggers (1954). Dr. stein, Mrs. Laba and Mr. Zimmerman were called to testify subcommittee and all appeared May 19, 1955. answered then They preliminary declined, but inquiries *7 counsel, after with their generally to answer conferring alia, particular bore, which inter questions on present in, with, past membership association the Communist Party. one form or another their refusals were rested on the Fifth Amendment of the Constitution; United States their refusals were for the most part honored the by sub- and, event, committee were any never they cited for ” contempt. Byse, See “Teachers and the Amendment Fifth 102 U. Pa. L. Stochdale, Rev. (1954); Finhelhor and Amendment,” “The and The 16 U. Pitt. Professor Fifth L. Rev. 344 On the same (1955). the day Superintendent the of Schools of of Newark City suspended them (R. S. days four later he 18:6-42) preferred charges which referred their to refusal before testify the House sub- committee and that such conduct alleged constituted just under cause for dismissal R. S. A 18:13-17. hearing on the was held before the Board charges of Education of Newark and a fair of the reading transcript indicates that the issue under single consideration was whether the refusal before the House testify subcommittee, in itself, consti- tuted cause for just dismissal under S. R. 18:13-17 which that teachers under provides tenure shall not be dismissed for “except inefficiency, incapacity, conduct unbecoming just teacher or other cause.” Counsel for the board repeatedly out that pointed during hearing the sole was charge that have, talk when should they refused to teachers had teachers, their usefulness and fitness as lost they thereby
that At he “the issue.” one only point that was and that “re- with having the teachers were charged remarked that it defense that would be no at a certain place”; fused talk teachers and were that were they good for them to assert if Communists; however, would, defense of their refusals to testify the record established they none of them could “offer evidence and that any was wrong; The rest I did or didn’t refuse to testify. that except on did teachers During it is hearing argument.” was one, only one, question to answer though offer not then to elicit that were Com- designed apparently munists; was declined. the offer board, vote the conclusion of hearing
At the teachers four, sustained charges against of five to as 1955. May They appealed and dismissed them of with of Education accordance Commissioner State no Commissioner took additional B. 18:3-14:. The State 8. did have a complete but he transcript pro testimony A held hearing September before board. ceedings Commissioner. All counsel 15, 1955 the Assistant before filed well as various parties and briefs were argued 9, 1956 the On State Commissioner filed May amici curiae. remanded the matter further decision which his formal He noted that the evidence board. proceedings *8 little had of more than the the board consisted the House subcommittee that no hearing; of transcript made as had been to the “fitness” whatever other inquiry was teachers; that “no evidence adduced as what of fact, were in as affiliations or to their reasons the appellants’ their constitutional exercising for justifications privileges”; had “rested its decision squarely and that the board in inquiry a into Communism Congressional proposition a where witness is as questioned subversion generally, and associations, affiliations to his invoking privilege is conduct a se per self-incrimination unbecoming against his dismissal under cause for B. 8.18:13~17.” just teacher
373
He then
that the board’s action would
recognized
fly directly
in the face of the
in
Court’s decision
the Slochower
Supreme
case which,
it was rendered after the board had taken
though
action,
its
him as it
is
us.
fully binding upon
upon
he set aside the board’s decision
Accordingly,
though,
view of
need for
sensitive
acknowledged
keeping
such
areas,
as the
school
free
public
from
systems, wholly
subversive elements which seek the overthrowal of our free
he did not order
society,
immediate reinstatement of the
teachers but remanded the
for appropriate
proceedings
by
supervisory
authorities of Fewark. See Thorp
Ed.,
v. Board
Trustees
Schools
Industrial
6 N. J.
for
498, 513 (1951),
moot,
803,
vacated as
342
judgment
U. S.
35,
Ct.
96
S.
L. Ed. 608
where this court sus
(1951),
tained the
Few
constitutionality of
Jersey’s statutory require
ment that public school teachers take a
oath
prescribed
which disavows
allegiance
or affiliation with
membership
as the
organizations
Communist
(such
which advocate
Party)
governmental
by force or violence.
changes
See Dennis v.
States,
United
494,
U. S.
S.
95 L. Ed.
Ct.
Garner v.
(1951). Compare
Board
Public Works
Los
City
Angeles,
U. S.
Ct. 909,
S.
of
(1951), Wieman v. Updegraff, 344 U. S. L. Ed. 216 In the (1952). case, Thorp supra, Justice Heher had the following say all for members of this court: purity process against “The maintenance of the of the educational corruption highest subversive influences is concern to society. It is no real a sense denial of academic freedom to require teacher, employment, of a a condition to a sworn dis- allegiance avowal of to the doctrine of force or violence as mode overthrowing government. That would seem to be axiomatic. Loyalty government and its free democratic institutions is a first requisite teaching for the exercise of the function. Freedom from justifiable weapon belief in force or violence as for the destruction government very qualifications. is of the essence of a teacher’s apprehended danger abiding. long real We have had pressure godless ruthlessly ideology
evidences of the here of a fostered foreign power aim has its the violent overthrow of government society. weapons and free And one of is the teaching softening debasement of as a measure in the consummation *9 system process. opportunity The school affords of subversive tbe upon is intrusion subtle infiltration. There no .and means for intervenes, here, government personal as it has to freedoms when very peril is of A who bereft this to its existence. teacher avert government loyalty quality to his of and devotion the essential lacking society is in a basic of democratic the fundamentals our obliged qualification teaching. not to take the is for The teacher oath; In to so ho is not entitled teach. but if he refuses do struggle minds, within the State well the current for men’s process province ensuring integrity its of educational against pervert ends.” it to subversive those who would that, decision, suggested the State Commissioner Court Supreme and the earlier 'consistent with Slochower Education, 342 U. S. opinions Adler v. Board of Board L. Ed. 517 Garner (1952) there were Los City Angeles, supra, Public Works courses or combination open to the board following it could “its own into inquiry alleged thereof: conduct (1) of the refusal appellants”; activities or affiliations subversive for cause just to answer in such would constitute inquiry dismissal v. Board Trustees Schools Thorp (cf. for Ed., it could itself investigate Industrial supra); (2) before the House testify the refusal of appellants matter subject into such factors as the subcommittee “going the remoteness of the questions, period directed, are the existence for justification exercising and the reason or reasons why appellants privilege, view, made State Commissioner’s plea”; court, if in his brief before this such second indicated their refusals line of disclosed that to answer before House were “frivolous contu patently subcommittee there would for just likewise cause dismissal. macious” Education, S., v. Board Slochower U. supra, Cf. Ct., Ed., L. at at 76 S. at 700. page page page did the State Commissioner them, mention Although reference be made may appropriately paths suggested statements educators earlier outstanding throughout American Thus the Association of University the country. had the view that the Eifth expressed Professors invoking “in was not and of itself” justifiable cause Amendment *10 be con- its stand was not to dismissal cautioned that but action such by strued as or generally approving advising American The Association of under teachers investigation. the that “invocation of had voiced the opinion Universities a burden Eifth Amendment a places upon professor heavy and lays his fitness to hold a teaching position of of proof re-examine his qualifi- his an upon university obligation And in 1953 the its society.” in membership cations Aca- Law Committee on of American Schools’ Association had a comprehensive demic Ereedom and Tenure1 prepared it that a faculty on the took subject; position report ho dismissed because “solely be member could rightly to answer the ques- Eifth Amendment grounds refused on stressed, committee”; however, tions of a legislative information member is not justified withholding a faculty his own academic by conducted interview or any hearing which and made the comments bear following institution lines of inquiry suggested by State particular Commissioner: faculty legislative who has a a member refused answer “Whether may post only question can be found unfit for his be determined investigation circumstances, including by all the relevant a teacher and scholar and the reasons individual’s entire record as testify. prompted If his refusal the reasons involve conspiratorial activity continuing illegal or immoral
desire to conceal composed following distinguished legal The Committee was of the Fordham, University of scholars: Dean and Professor Jefferson B. Pennsylvania; Fuller, University; Pro Lon Harvard Professor L. Gellhorn, University; Professor Paul G. fessor Walter Kauper, Columbia University Michigan; Douglas Maggs, Professor B. Perkins, University University; Duke Professor Rollin M. Cali Sears, University Angeles; Los Professor Don W. fornia at University Oklahoma; Vliet, Colorado; Pro Professor R. Dale University, Although Ralph Fuchs, Indiana Chairman. fessor F. recommitted, ensuing report Committee’s the Committee’s report position adopted adhered to the which was faculty would not invocation of the Fifth Amendment member’s ground but was sufficient “in constitute for dismissal and of itself” general institution. to call for a fitness his educational ; Proceedings Schools, (1953) Law Association American Id., Proceedings 20, (1954). faculty others, judgment may an adverse member or of lay produced If reasons in confusion or fear course be reached. faculty may bearing investigation, they upon have little prin- fitness; political ethical or member’s if involved sincere hardly ciples, bearing If the witness’s refusal their will be adverse. past testify withhold evidence of resulted from decision to upon illegal conduct, question present of his fitness turns decision, upon justifiability continues, the conduct of his whether upon to his academic duties. A relevance of that conduct privilege good-faith upon to remain silent the constitutional reliance legislative misconduct, toward a com- is not but contumaciousness weighed in the balance.” Association mittee Proceedings (1953) Schools, American Law *11 Schools, 115 Proceedings Association American Law
Cf. Id., Id., and Program 119 Proceedings (1955); (1954); ; Freedom and 41 Academic Committees Reports (1956) A. P. Quest 42 U. Security, Tenure in the National A. Bulletin 49 1956). (Spring con- well-known the now The Fifth Amendment contains be shall that no person stitutional privilege (or right) a witness against to be criminal ease compelled any have application himself. Its and current history origin, Wigmore, 8 See dealt with elsewhere. extensively been “The 2250-2284; Morgan, ed. 1940), Evidence (3d §§ Rev. 1 L. 34 Minn. Self-Incrimination,” Privilege Against 10 Self-Incrimination,” “Privilege Against Clapp, (1949); Williams, “Problems L. Rutgers Rev. (1956). Cf. 19 (1955); L. Rev. Fordham Amendment” 24 the Fifth Essay 1956 Ross Claflin, "The elf-Incrimination —The have Clause,” some Although 42 A. A. J. 935 (1956). B. and the inquisitorial 12th Century to the traced privilege its beginnings Courts significant of the Ecclesiastical practices in the have occurred said to law may common make the accused had customary It been Century. 17th are and there frighten- himself evidence against person give actually which were methods torturous descriptions ing was brought Lilburn used. In 1637 “Freeborn John” but heretical books imported for having Star Chamber sentenced to He was the oath to answer. refused to take actually was and the sentence and pilloried be whipped carried Thereafter the House out. of Commons declared that the sentence unjust, was most “illegal, subject” of the ordered that against liberty Lilburn be After indemnity. this occurrence paid large entrenched a vital became of the privilege part English law, common carried law, was over into Colonial American was in the 1776 included Declaration of Rights, Virginia and was embodied in 1791 Bill of of the United Rights States Constitution as an individual safeguard op against and harassment pression by the created federal newly govern ment. In Twining State New Jersey, U. S. 53 L. S. Ct. Ed. 103 (1908), Justice Moody out that then pointed now, “as privilege regarded as a value, to the privilege great protection innocent, a shelter to the and a though guilty, against safeguard heedless, unfounded, tyrannical prosecutions.” years has survived
Throughout privilege though it has means been no free from intermittent attacks. In subject many article on the cites Clapp Judge earlier Bentham, Pound, criticisms by and others. Terry Baker, A current attack be found in Incrimina "Self ” tion: Is B. Privilege an Anachronism 42 A. A. J. Pittman, "The Yester (1956). Amendment: Cf. Fifth ” day, Tomorrow A. B. Today and A. J. 509 (1956). Connecticut, *12 319, Palko 302 325, v. State U. S. of 58 288, S. Ct. 82 Ed. 292 149, (1937), L. Justice Cardozo with that, protection physical suitable acknowledged against torture, and mental done under justice bemay systems (such as prevail parts in other of the which contain no world) he immunity self-incrimination, from and noted compulsory that “there are students of our who look penal system upon the a benefit, as mischief rather than a and who immunity would limit or it scope its But there altogether.” destroy are at least and sincere competent students who equally firmly believe and their otherwise views have found recent favor Quinn opinions Supreme the United States Court. See States, States, supra; v. United v. Ullmann United 350 422, 76 426, 497, U. S. Ct. 100 L. 511, S. Ed. 518 (1956); Education, Fary, v. supra; v. State
Slochower Board of cf. “The addresses, In his recent 431, 19 N. J. 434 (1955). has Dean 'Griswold Today” Amendment (1955), Fifth self-incrimina that “the forcefully suggested privilege against to man’s landmarks in struggle is one of the great tion that it civilized”; make himself he has out pointed the but conscientious also culpable invoked alone risk in fear are innocent honestly men who although and he that if privilege- has prosecution; urged which the inquisitional dangers remain effective against to rather curb, it comprehensive dt has to must be given sought Quinn Chief narrow In case Justice than application. cited Dean Griswold’s discussions approvingly Warren the Eifth Amend that the self-incrimination clause of noted in favor of the ment is entitled to a'liberal construction In the intended to secure. case Justice Ullmann right that Griswold stressed since Frankfurter quoted advance in the important Eifth Amendment represented liberties it is not to be interpreted our development And in spirit. a or the Slochower case hostile niggardly cited Dean Clark likewise Griswold Justice vigorously that use the Eifth Amend only notion guilty rejected in the of his a ment; opinion majority course Ct., S., 557, at page he said U. S. at (350 page court Ed., L. at : 640, page 700) practice imputing must the outset we condemn “At meaning person’s right of a to exercise constitutional sinister right person Fifth Amendment. The of an accused under to England merely testify, had been in rule of evi refuse important dence, was so our forefathers raised it enactment, dignity recognized aof constitutional and it has been prerogatives valuable v. as ‘one of the most the citizen.’ Brown 610, 591, 825, 644, 652, Walker, 16 S. Ct. 40 L. U. S. Ed. 819. recently principle faith in this Quinn have reaffirmed our We States, 668, L. Ed. S. 75 S. Ct. United 349 U. 964. States, L. Ed. v. United U. S. Ullmann month, assumption we who scored those decided last perjurers. privilege privilege this are either criminals claim mockery against hollow if be reduced to a self-incrimination would equivalent taken either confession exercise could be its pointed guilt presumption perjury. As we out aor conclusive *13 Ullmann, may prosecution witness have a fear of reasonable yet any wrongdoing. privilege and innocent The serves to protect by might ambiguous the innocent who otherwise be ensnared Griswold, Today (1955).” circumstances. The See Amendment Fifth In Slochower an associate Brooklyn at professor College, York, institution New had maintained City Internal appeared Subcommittee of Security Committee on the States United Judiciary Senate and had refused answer his Com- questions concerning munist 1940 and 1941 Party on the membership during that his tend incriminate answers him. ground might thereafter was his Shortly he from at suspended position and it later under college declared vacant section 903 of the New section City York Charter. That provided if refused any to answer city employee questions ground him, his answers tend to incriminate may then his would terminate. New York employment Court of Appeals sustained Slochower’s automatic dismissal he and violation the Due appealed Process and asserting and Immunities Clauses of the Eourteenth Amend- Privileges ment. The Court sustained claim under Supreme Due Process and reaffirmed the Clause or adopted following A or its state subdivisions principles: governmental may not, without the Due Clause, Process dismiss a violating to a statute public employee pursuant patently it exclude discriminatory arbitrary may persons —thus from public on the basis of employment solely organiza- tional without of their memberships regard knowledge unlawful nature. Wieman v. It supra. Updegraff, may, however, dismiss after notice and public employees who, are advocate found to the overthrow of hearing, government unlawful who are means or unable to explain satisfactorily found have that aim. membership Adler organizations Education, Board supra. Similarly may inquire matters as to which relate to their public employees con- tinued fitness to serve public employees, including past the Communist present membership Party asso- organizations, employees ciated who fail discharge *14 380 which the supervising
to disclose 'information pertinent Works Board Public authorities Garner may require. v. of infer it not City Angeles, Los But supra. guilt of of without public employees solely (and regard discharge constitu- exercised their to other because they circumstances) the Pifth Amendment before a tional under privilege 558, 350 U. S. committee. See investigating Congressional 641, 559, 700, McKay, 76 100 L. S. Ct. Ed. 701. Cf. Law,” 1358, L. 1359 31 N. Y. Rev. “Constitutional U. Term,” Note, 70 “The Court 1955 Harv. Supreme (1956); Note, L. Rev. Rev. 31 St. John's 83, L. 120-123 (1956); Note, Note, 41 Minn. Rev. 128 78, 91 (1956); (1956); L. Note, L. 90 Rev. 139 35 C. Rev. 10 Vand. L. N. (1956); Note, Note, 25 16 Md. L. 259 (1956); Rev. (1956); Note, 54 Mich. L. Rev. Fordham L. Rev. 526 (1956); Public Education Dist. 126 See Board School (1955). of Beilan, 82, 327, 125 2d 332 v. 386 Pa. A. Philadelphia of Kutcher Housing Authority City v. (1956). Cf. of Newark, Annotation, But 181, 20 N. J. 188 (1955). cf. “Assertion or immunity ground removing discharg- as or 44 A. L. R. 2d 789 ing public employee” (1955); officer Boston, Mass. Faxon v. Committee 331 School 772, 44 L. R. Davis 120 N. 2d A. 2d (1954); E. Kansas, D. 129 F. C. W. Mo. University Supp. (D. 1955). The board seeks to Slochower on the distinguish no was there afforded to the professor, hearing ground did here the teachers have a hearing whereas Clause, the Due But the Process required by board. hearing be, opinion indicates, must court’s Slochower Belleville, one Handlon v. Town fair meaningful (cf. turn, does as did the 4 N. J. not hearing (1950)) matter, factual exclusively in the instant issue single teachers did the Pifth Amend actually plead whether the before the subcommittee. The fact that Congressional ment did was never As Slochower disputed. U. S. they [350 was realistically S. Ct. there no “opportunity 639] no consideration was to explain”; given controlling issue of whether in the all the general light pertinent were fit continue circumstances individuals involved in the to “such no public system; weight given factors as the subject matter of remoteness questions, to which directed were or period” “justification for exercise “whether and mattered privilege”; from plea mistake, resulted inadvertence or advice legal wisely whether See conscientiously given, unwisely.” Ct., S., Ed., U. at at at L. page page *15 700. The that State Commissioner found the properly board rested its decision the invalid that the proposition teachers’ invocation of the Fifth the Amendment before committee un constituted se conduct Congressional “per under a teacher cause for his dismissal becoming just R. 18:13-17.” S. We are satisfied that in the light Slochower, the were remanded holding proceedings properly for further reinstatement of the teachers inquiry (without in the and the has no interim) board or reasonable just basis for about action. See San Francisco complaining Cal., Mass, Board Education 304 P. v. 2d 1015 (Decem of ber 21, 1956), where the Court, California Supreme Slochower, fulfillment of set aside recently a local board of education’s dismissal of teacher, made after hear confined to the issue of whether he had ing Amendment, fact the Fifth pleaded and remanded the a full the inquiry before board. proceeding We come now to the several points advanced by the teachers in individual of their contention that support the State Commissioner should not have remanded the pro but should have taken final action ceedings them. reinstating B. 18:3-14 provides 8. the State Commissioner shall decide all under Laws; controversies the disputes School shall, if Commissioner, facts required by be made to him known written by parties by statements oath; verified and that his decision by shall be binding “until a decision thereon is state given board on While the appeal.” leaves statutory language much to be desired it evidences the sufficiently legislative purpose with internal appeals
set up comprehensive system insure tribunals to broad vested in the administrative powers in accordance with disposed that controversies are justly direction, Laws. Absent specific legislative School mould their own procedures administrative tribunals with due process so conform operate fairly long Co., F. Broadcasting C. v. Pottsville See C. principles. 437, 84 L. Ed. 662 (1940); 309 U. 60 Ct. S. Belleville, Within the supra. statutory Handlon Town a determination a local board from phraseology, appeal a course follow may readily permitted of education judicial in our structure. ordinary appeal comparable record the board is wholly Thus where original after deter the State Commissioner adequate may, hearing, where further testimony; mine the matter additional without he have the record necessary may supplemented. evidence is Bayonne, Schwarzrock v. Board Education 90. See 4:88-9. N. J. L. 370 R. R. 1917); reaching (Sup. he must, course, his determination due give weight below, nature his primary responsi findings although make certain that the terms and bility policies is to ¡Laws are Boult effectuated. faithfully Schobl being Cf. Passaic, 136 N. J. L. 521 v. Board Education City *16 of of of & v. 1948); A. Viemeister Board Education (E. of Park, N.5 215 Prospect J. Where Super. Div. 1949). (App. he concludes that his will best reasonably responsibility be_ decision, immediate by final but by discharged, board, remand further know for we inquiry him of no basis for from such precluding taking rational action.
The inherent remand in the interests procedural power to has in the courts. Ford justice long applied been See Board, Motor Co. National Labor Relations 305 v. U. S. 373, 221, 59 Ct. 83 L. 229 364, 301, Ed. Grant (1939); Co., 463, v. Grant Casket 137 N. J. L. 465 1948), (Sup. J. 15 affirmed 2 N. Since the creation new of our (1949). under the 1947 Constitution, structure court judicial pro cedures we have become more flexible and have displayed
383 consistent that must conform with recognition always justice; instances this court good'sense appropriate has not hesitated to remand for further in the inquiry court below even strict adherence to the though procedural niceties well have dictated might another course. See Devlin v. Surgent, Stika, 18 J.N. Vacca v. (1955); J. 471, N. this Similarly, court has acknowl (1956). if administrative are edged tribunals to permitted be to function must effectively they likewise have broad powers adjust to their in furtherance of their procedures proper Belleville, objectives. Handlon v. See Town Air- supra; Branches, Review, Way Inc. v. Board 10 N. J. Co., In re Water 14 N. J. (1952); Plainfield-Union Handlon case we held (1954). power reconsider be “may to invoked administrative agencies serve the ends essential and the justice policy law”; and in the case we referred Air-Way “enlight ened view” that administrative agencies advance the may interests justice by powers exercising comparable to courts, those possessed “of their reopening determinations Forkosch, further consideration and disposition.” See Davis, Law 486 Administrative (1956); Administrative Law 323 (1951).
The well State Commissioner acted within his authority to the remanding board for proceedings further and, if necessary, for the amendment and supple mentation of the charges against teachers. power amend and supplement in the widely applied courts R. even 4:15) broader (R. given scope this administrative where the proceeding traditional judicial of limitations and problems new causes of action have no Co., whatever. See Gudnestad bearing Seaboard Coal Dock 15 N. J. Welsh v. (1954). Board Ed. Cf. J. Tewksbury Tp., Super. N. Div. (App. 1950). And we find error in the no State Commissioner’s refusal order reinstatement of the teachers further in pending *17 and determination. While the quiry individual interests are concerned of great importance, interest society’s is also 384 the State Commissioner and undoubtedly
of great importance,
in
his conclusion that
them conscientiously
reaching
balanced
served
a remand for further
by
interest will best be
the public
interim
On the record
reinstatement.
without
proceedings
in
that he erred
judgment
us we cannot say
of merit
the
nothing
exceeded his
We find
authority.
the
that
the further
called for
inquiry
teachers’ point
him
should be held before
rather than
Commissioner
State
the Newark school authorities.
There is no substantial
the local
is not
personnel
sufficiently
to believe that
reason
fair
or that
impartial
inquiry,
to conduct a
and
equipped
so in
with the
compliance
principles expressed
it will fail to do
and this court. The
Commissioner
School
by the State
issue
that where
of fitness
Laws contemplate
general
should
determination
be made
presented
locally
is
original
on review before the state
with
school
ample safeguards
v.
22
and
courts. See Russo
N. J.
Meyner,
arrthorities
In the instant matter
there has never
156,
(1956).
at
suitable
determination
local
any
been
Commissioner,
soundly believing
the State
level,
be,
there should
took
action.
appropriate
made
An attack is
on
sufficiency
statutory
the Newark
necessarily guide
standard which will
board.
in R.
18:13-17 which
tenure
provides
It
found
dismissed
teachers shall be
only
“inefficiency, incapacity,
just
a teacher or other
cause.” It
conduct
has
unbecoming
statutes for almost
c.
been in our
years (L.
243)
standards embodied
and is
comparable
is,
most
enactments of
other states.
It
tenure
but measured
course,
terms
common under
general
its
fairly
conveys
adequately
meaning to
standing
De George,
v.
all
See Jordan
U. S.
concerned.
703,
385 Division cited of the statutes cases which many permit removal of public employees for cause. See v. just Haight Love, 39 N. L. 14, J. Ct. affirmed 39 N. J. L. (Sup. 1876), Burk, & A. (E. 1877); Brokaw v. J. L. 132, N. J., Ct. (Sup. 1916); Heher, in Russo v. Meyner, supra, J., 22 N. at 179. And in the Ward ease we referred to standards, many statutory state, both federal and which have been constitutionally at least as upheld though general in terms. See Schier stead v. N. City Brigantine, 20 J. 164, 169 State, Motors v. (1955); Metropolitan J.N. 208, 213 Super. Div. The (App. 1956). courts have found little difficulty a commonsensible reaching application of R. S. 18:13-17. Thus v. Carty, Smith N. J. L. 335 & A. (E. 1938), school teacher was found to be unfit to teach in the Paterson school she system because had obtained a loan actual fraud and through misrepresentation; Court of Errors and Appeals sustained her dismissal upon that the evidence finding supported determination of the school authorities that she had been of conduct guilty a teacher. In Harrison unbecoming v. State Board Edu cation, 134 N. J. L. 502 Ct. (Sup. court found 1946), had prosecutrix evinced resentment of supervision had repeatedly “a wilful refusal displayed of submis sion” to the her authority of superiors; sustained her dismissal for insubordination cause just within constituting R. S. 18:13-17. Similarly Cheeseman v. Gloucester City, 1 N. J. Misc. 318 Ct. (Sup. 1923), dismissal of a teacher was sustained for insubordination in refusing obey order of On the other hand in transfer. School Dist. of Education, Wildwood v. State Board 116 N. J. L. 572 Ct. there was a 1936), (Sup. summary rejection of the contention that a teacher constitute marriage by may just dismissal; cause for her the court the State accepted Board’s reference position statutory to other just cause “ ‘a dereliction implies teacher, be the ” matter of a subject her.’ charge against v. Redcay Cf. Education, State Board 130 N. J. L. 369 (Sup. 1943), affirmed 131 & N. L. 1944). J. A. (E. Pennsylvania Supreme recent decision very Dist. Phila- Public Education School in Board Court Beilan, Mr. dealt with the dismissal of supra, delphia in the District of Beilan, Philadelphia, a teacher School dismissal under a state statute was protected against who Beilan had than etc. Mr. “incompetency” reasons other which were propounded during refused to answer questions *19 There- interview with his school superintendent. a private conducted a which the local board of education hearing, after Mr. Beilan’s and at the conclusion was at request, also private refusal he dismissed “for to pertinent questions answer and, therefore, a his fitness as teacher directly upon bearing 2d,A. The Pennsyl- at 329. page his See competency.” dismissal, sustained Court his out Supreme pointing vania Slochower, that, unlike it was in nowise based a refusal upon a before a committee during hearing Congressional to answer on a that he had refused answer finding was based to but his fitness an interview with his relating during questions In the course his superior. opinion administrative after that Chidsey, the court Justice out incom- pointing for dismissal as a cause should be a broad given petency said: meaning, “Certainly respond pertinent a who teacher refuses to to a in competent quiry his fitness to teach is not relative to within the term, inquiry loyalty that whether the inquiry. broad reach of any concerns subject proper cooperation Frankness and other with superior directly upon competency. an administrative They bear a teacher’s occupying- post public as essential in one are trust and qualifications. responsibility seriously civic argued as academic Can it be trustworthy superintendent that where the of schools has indicating information that a teacher an has incurable communicable peddler narcotics, or, here, may or that he is a disease that he ideologies Communistic which could be entertain youth transmitted to the care, inquiry in his that no can be made as to the fact and required respond. that the teacher is not brief of counsel for the As well stated in the * * appellant: The State Constitution Assembly
requires thorough to maintain a and efficient General Const, system public [P. art. § 1]. schools 8. The School implementation legislative duty. of this Code is the Constitutional rights Superintendent grown custom The duties of a have with Many professional usage. imposed with duties on and him tradition. his are is of his It one duties under the School Code teaching competent, make sure that the staff is and therefore to weed professionally process continuing unfit teachers. This is a out Superintendent Superintendent power carries on. has the inquire duty, need, indicate the into whenever the facts Unquestionably and a cooperate. reevaluate fitness of teacher.’ there is reciprocal part fully frankly duty of the teacher to proper inquiry by He not block such secretiveness or concealment.” Committee on Academic Freedom report Schools, and Tenure American Law Pro- (Association of is made that ceedings point (1953)) investigation of a teacher administrative is not a superior traditional adversary and that member proceeding faculty is not justified relevant information is withholding sought thereof. And in course during response to a contention the local school superintendent was not the authorized to make initial superior court in the Beilan case said: aptly “Appellee Superintendent contends also that the was not authorized inquiry. important govern- to make the There is no more branch of public system. ment than the administration of our It *20 continuing process a mocracy. of education for the maintenance of our de- right superintendent of a of schools to reevaluate a position teacher’s to be fitness retained in his is inherent and need by expressly regulation. not be authorized or statute local rule or private respond pertinent In a inquiry school the refusal to to a superintendent to a fitness teacher’s made or head of the certainly tolerated, institution would not be but would result in discharge. public placed the teacher’s an inferior the School Code A school should not position regard. provisions in this While the tenure protect positions political teachers in their from or arbitrary interferences, they
other were not intended to insulate them proper inquiry from discharge as to their fitness and their for failure cooperate superiors authority to their with to the detriment of public system. the efficient administration of the school The School expressly provides incompetence Code that shall be cause for meaning properly dismissal and under the broad ascribed to that term, appellee incompetent rendered himself as a member of the organization.” school
In the instant matter the State Commissioner courses of suggested which, after inquiry consideration of all the pertinent circumstances, either may satisfy the local all of the individual one, that or
school authorities two Newark are continue to teach in the School teachers fit to or the need for further prosecution indicate System may as amended under B. 18:13-17 the present 8. charges^ and controlling legislation In the of our supplemented. light this who is now member it is clear that in any person State its subject of the who is now to ideologies Communist Party schools and public and is unfit to teach in our disciplines R. 18:13-17. See R. S. should be dismissed under S. 18:13-9.1; 18:13-9.2; Trustees R. Board Thorp S. Ed., The matter no may Schools Industrial supra. for freedom of be viewed as one of academic simply thought longer actually self-preserva has become one of expression, tion; we is an alien concept are convinced that Communism which is dedicated to the overthrowal of our form govern to us ment, if and seeks necessarjr, deprive force dear; hold liberties which we all so basic constitutional very furnish further evidence of the world recent happenings and the of its of its solemn barbarism futility promises We have doubt examining deliberate actions. no Newark their teach the school into continued fitness school teachers with authorities may appellant interrogate their association with the Com past present respect and are entitled organizations munist and affiliated Party full dictates Orderly procedure frank and disclosures. subject fairly on the be made the preliminary inquiry the local superintendent S. conscientiously by (R. 18:4r-7; 18:4-10; 18:6-38); R. R. S. interrogation about the teachers’ conduct before also include questions this should subcommittee, the House although as a means of constitu undoing acknowledged be used the Fifth Amendment but should be protection tional directed towards whether the limited and ascertaining fairly were contumacious or frivolous patently answer refusals *21 Association Law than in faith. See American rather good of Schools, on the Committee Academic Freedom Beport of Tenure, 113 Byse, at 881. Proceedings (1953); supra, 223, Y. 174 461 In 255 N. N. E. Levy, (1931); also re See
389 Grae, 127 L. R. 428, 963, In re 282 N. Y. 26 N. E. 2d A. State, Fla., 1276 82 2d 657 Sheiner v. So. (1940). Cf. Holland, 346, N. E. 543 In re Ill. 2d (1955); If after the teachers (1941). inquiry appears are subject are now members of the Communist or now Party its v. Board Trustees disciplines ideologies (Thorp Ed., Schools Industrial or that have will they supra) refused to answer fully pertinent questions fairly submitted their administrative Public Educa superiors (Board of Beilan, tion v. Philadelphia School or that supra) Dist. of have refused to answer contumaciously frivolously House subcommittee re re (In Levy, supra; Grae, then there would seem to basis for ample supra) board action within the broad and valid standard statutory embodied in R. 18:13-17.
The final
relates
our attention
question requiring
the effect
various Hew
Jersey statutory provisions
further
the Hewark
School
Superintendent
the Board of Education. Unlike
all other
substantially
states, Hew Jersey’s Constitution contains no express pro
self-incrimination,
vision
against
embodying
privilege
it has
been
of our common law and
always
part
although
has been dealt with from time to time in
enact
legislative
J.,
435;
ments.
v.
19 N.
at
Fary, supra,
page
State
State
Pillo,
Toscano,
v.
13 N. J.
In re
11 N. J.
418,
(1953);
Vince,
8,
443,
In re
2 N. J.
Bianchi
(1952);
(1949);
36 N. J.
Hoffman,
Div.
Super.
(App.
1955).
due
there would
Subject
requirements
process,
to be
either our Eederal or State Constitu
appear
nothing
from
tion which
our
prohibits
Legislature
scope
curbing
See
v. State New
Twining
Jersey, supra;
privilege.
California,
Adamson v.
People
State
U. S.
testify; shall that no party had a proviso the adverse but party, recover to “where the action is brought to compelled testify be Three 1849, L. a forfeiture.” 265. a or to enforce penalty ¶. in the extended most suits later the statute was years In 1855 a 1852, 119, 257. p. L. c. Chancery. Court of was submitted to Legislature of law commissioners report evidence a act concerning thereto comprehensive pursuant some 236, 668. It extended 1855, L. c. p. was adopted. interest forth that a set testify, what the party right and directed a from witness disqualify testifying, shall material from answering that witness shall not be excused a a him to “the answers will not expose provided questions a forfeiture of or or to penalty, criminal prosecution an indicted provided In 1871 Legislature estate.” “if he shall admitted to at his trial testify shall be person 1871, L. in his behalf. himself” as a witness own offer in the There were later revisions 40, culminating 12. p. c. to the administration revision of statutes relating reference has justice; particular, of civil and criminal :81-5, 2A the teachers’ behalf to N. J. S. made on been 2A 2A :81-6 and N. J. :81-8. J. S. N. S. :81-8, that on the
N. J.
2A
which provides
S.
admitted to
indictment
the defendant shall be
trial of an
witness,
as a
has
real
if he offers himself
no
bearing
testify
that “in all
actions
N. J.
2A :81-6
civil
provides
here.
S.
shall
evidence when
of record”
any
party
give
court
shall
adverse
“but no
thereto
party
party
called
action
sworn or
evidence
give
any
brought
to be
compelled
a forfeiture.”
Its express
or to enforce
penalty
to recover
in the
seem to indicate its
instant
inapplicability
terms would
However, N. J.
2A :81-5 does
more
provide
matter.
S.
answer
that “no witness shall be
compelled
comprehensively
if the answer will
him to a criminal
expose
any question'
estate”;
to a forfeiture of his
we
or
penalty
prosecution
that this
fully
assume
provision applies
proceedings
shall
as well as judicial
administrative tribunals
tribunals.
Rixon,
217, A. L. R.
573,
231 N. W.
v.
Minn.
See State
N.
Hanley,
346,
v.
228 N. Y.
E.
(1930); Hirshfield
Prince,
313 Mass.
(1920).
Commonwealth
Cf.
46 N. E. 2d
152 A. L. R. 571
affirmed 321
(1943),
U.
described
sanction,
a remedial
and noted that “the
of such
imposition
to the person
be of serious
may
consequence
although
affected,
as a forfeiture of a
not be
regarded
right”
“the
also
but
See
only
privilege.”
withholding
202 Misc.
115 N. Y.
2d
Delehanty,
S.
Application of
Div.
1952),
affirmed
App.
(Sup.
affirmed 304 N. Y.
N. Y.
2d 614
Div. 1952),
S.
(App.
2d,
725, 727, 108 N. E.
46 (1952).
that a teacher’s loss of tenure may properly
Assuming
forfeiture,
estate,
we still find
viewed as a
nothing
2A
in the
or terms
N. J.
:81~5 which
history,
S.
purpose
it was
a teacher
protect
suggests
designed
against
he
refused
dismissal under B.
18:13-17 where
has
his administrative
answer
submitted
pertinent questions
In the instant matter the teachers’
conduct
superiors.
subcommittee
calls for
fitness
reasonably
Congressional
which the teachers have
duty
inquiry during
cooperation
and an affirmative
in the
of their
burden
establishment
*24
If
remain
under the
fitness.
choose to
silent
protection
they
N. J.
2A :81-5
must do so with full realization
they
of
S.
that
their administrative superiors may justifiably conclude
that
are no
fit to teach. See Board
Public
they
longer
of
Education School Dist.
v.
Philadelphia
Beilan,
Brownell,
supra. Cf.
Prosecution versus
“Immunity from,
Privilege
Self-Incrimination,”
1,
28 Tul. L. Rev.
against
(1953);
83,
534,
73 Ct.
97 L. Ed.
Willoughby,
U. S.
S.
Orloff
As the court
indicated in the Beilan
(1953).
case,
no
institution of
would hesitate to
supra,
private
learning
a teacher
expeditiously
reasonably
who
proceed
against
refused to answer
the course
questions
pertinent
during
a fitness
and the
interest
that
inquiry
public
clearly requires
similar
be afforded to our
institutions
authority
public
we find
in our statutes which
learning;
nothing
may fairly
denial
such
any
be construed
evidencing
legislative
Indeed, any doubts as to the' wishes of our
power.
Legis
lature have
been
the tenor of its recent
largely
dissipated by
1949,
23,
e.
L.
J.
g.,
enactments. See
c.
S. A.
p.
(N.
18:13-9.1,
1953,
259,
L.
9.2);
c.
J.
p.
(N.
:81-17.1,
210,
2A
L.
17.2).
c.
J.
p.
S. A.
(N.
Cf.
The 1953 statute
that
40:694-167).
provides
any public
refuses,
self-incrimination,
who
on
employee
grounds
testify
matters
relating
employment
any
of the
which has the
body
State
under oath
right
inquire
into such matters shall forfeit his
and his
employment
right
of tenure or
pension,
relates to a matter
provided
inquiry
which occurred or arose within the
five
It
years.
preceding
not,
course,
does
restrict
power of a
pre-existing
supervisory
to conduct an
authority
into the
inquiry
continued fitness
aof
teacher but
the addi
has
seemingly
if,
tional
effect
the course of
such
during
inquiry,
there is a refusal
to answer which falls within all of the
terms
pertinent
statute,
of the
then dismissal is mandatory.
We consider it clear that a teacher’s fitness
is one
inquiry
which would relate to his
within the
employment
meaning
of the 1953 enactment. See Shlakman v. Board
Higher
Education, 282
Div.
122 N. Y.
App.
S. 2d 286 (App.
Div.
affirmed
nom.
1953),
sub.
Daniman v. Board of
Education,
306 N. Y.
privilege Congressional dismissal, tute an or automatic justify admission guilt full as to whether it does call for a and conscientious inquiry of his he in the discharge teaching to continue qualified the advancement of at a dedicated to place responsibilities The like attitude of New Com- Jersey’s democratic ideals. matter to us missioner of Education in the instant appears with laws and the public to be consonant our wholly organic fair to the individuals concerned. entirely interest his action is in all respects: Accordingly, Affirmed. I I cannot part). J. (concurring regret
Weintraub, Mr. in the able Justice join completely opinion Jacobs. with which I part opinion probably disagree influence the outcome of further could not proceedings this matter under facts of the case. Yet states an which can consequences hardly important proposition, now, I it, be estimated and since cannot with I feel agree state my to reasons. compelled Mr. The authorities cited Justice Jacobs demon- by fully that under strate circumstances present employ- right ment as teacher in a denied public system may a of the overthrow of our advocacy because government unlawful means or in an by membership known organization aim, the teacher to have that and further that a refusal answer of the school authorities inquiries pertinent the basis of dismissal. subject may be Hence I agree the school authorities each may teacher here interrogate this concerned with respect subject may conclude, of such refusal upon finding advocacy membership or that a teacher pertinent questions, to answer is unfit for continued employment.
I am troubled so much of the as holds opinion dismissed a teacher also be upon distinctly different basis, that reliance namely, Fifth Amend- finding upon ment the Subcommittee of the House Un-American short, Activities Committee patently contumacious. *26 the in into relation to disloyalty fitness although should be in a examina- resolved teacher’s favor full upon authorities, tion the may school there be a yet dismissal if be concluded the exercise in right it that of a it forum in which was assured was un- constitutionally founded and contumacious.
I am sure court much every member of the as as regrets I do limitation Yet any upon freedoms. personal intended Constitution is to be the fabric of government not its burial shroud. The must be self-defense right paramount not, like it hence, some of our portion liberty when as suspended is so to danger great it. require I “our” say because is truly liberty liberty indivisible, and when it is in area the finest any suspended citizen feels a thinks, curtailment to what he right say lest he be in a it enveloped But seems suspicion. smog to me that just necessity constitutes basis for impinge- ment freedom, upon so necessity also marks the limit beyond which we should beyond what the occasion go, go demands is a waste of just liberty.
The here is to necessity protect school system against subversive end infiltration. To that inquiry by authorities into of a teacher with loyalty to dis- power miss for or for a refusal to answer disloyalty fully inquiry, sufficient completely safeguard public interest. we Should further and go permit school authorities the difficult pass whether a upon question constitutional asserted before a right contumaciously congressional committee ? The finds that Slochower v. Board majority Education York, New 350 U. City S. Ct. 637, S. 100 L. Ed. (1956) permits further I inquiry.
have that it does, doubt and I grave that if it suppose does we have the would still troublesome problem whether as a matter of law we local to permit ought pertinent it. text of the S., majority opinion Slochower reads U. (350 Ct., at at page page 641): mind, application [the consider § “With this we interpreted courts, applied statute]. New York As state city operates discharge every employee who Fifth invokes the practical questions asked Amendment. effect are taken as discharge. and made basis of the No confessed consideration *27 subject given question, of the is to such factors as the matter re period directed, justification or of the to which moteness are privilege. plea for It exercise of the matters not whether the re mistake, legal conscientiously or advice sulted from given, inadvertence wisely unwisely. heavy hand of statute whether or privilege, all falls who their constitutional the full alike exercise enjoyment every person of which is to receive. action entitled Such squarely prohibition Updegraff, falls within the of Wieman supra. [344 L. 216] U. S. Ed. thing city inquire It into is one authorities themselves fitness, quite discharge based Slochower’s but another for his to he entirely inquiry occurring' on events committee whose federal affairs, property, government or was announced as not at ‘the directed * * city employees.’ city, official conduct of this respect materially Garner, present differs from where the case city attempting necessary information to elicit determine * * qualifications employees. its It not clear whether the first the quota- is paragraph tion inwhy above was intended merely explain principle it to base a dismissal assertion of the unjust upon Amendment, Fifth it was intended or whether to suggest with state authorities conduct an may inquiry respect to the several elements there stated and conclude that there was a of the contempt Congress.
We for contempt. do not have before us conviction I A And conviction would different situation. present must suppose it be conceded that in administra- abstractly tive into be may fitness criminal conduct considered inquiry But even reduced to a of conviction. though judgment we with the exercise of an liberty, are dealing important must constitutional and hence the answer be found right, all a mere the factors and not in mechanical weighing of a rule which in another application may indisputable setting.
I it difficult of an find to visualize the course the kind which the All authorize. of the teachers majority here were concerned counsel. The represented by reputable record is studded with notations of consultations between the teachers and their If it attorneys. should appear, evident, now seems followed, counsel’s advice was the school authorities further and seek disclosure of go what between transpired attorney and client and then perhaps evaluate counsel’s application of the difficult rules controlling availability and the loss ? waiver privilege Shall school boards pass upon question pertinency to the congressional or “the remoteness inquiry, of the period to which the were questions directed” or make their appraisal of whether answers to the questions would have in- criminated or been a link in the chain? What “reasons or justifications for their constitutional exercising privileges” will suffice? I intend no reflection upon capacity school authorities as such. My is that point inquiries this kind would tax the talents ablest lawyers divide them If there sharply. were any for all necessity *28 this, of it would be another matter. But I see no necessity, because the direct inquiry into fitness the by school authorities all the gives which protection the public interest requires. It is an fact that the inescapable other fellow’s liberty is not always popular. The right against self-incrimination is particularly vulnerable in today the hands of the many who do not understand its history its worth in our of way life. The is real that danger the kind of fuzzy of which we are now the speaking, decision will be controlled an unrevealed dislike by for the constitutional right.
views of Mr.
Quinn
Chief
Warren
Justice
v. United
States,
at
U.
page
S. Ct.
at page 674,
It is one for federal thing government to vindicate of the authority Congress by a prosecuting of charge for or local It is another a state
criminal contempt. quite face is simply what on the of probe things beneath agency which a constitutional assertion the assertion of right —an deter- no whatever —to in and of itself imports impropriety mentioned, whether on the elusive basis of the factors mine, has been offended. of Federal dignity Legislature that a constitutional should not thus It seems to me right need, absence a and there burdened in the of compelling is none. a portion
We could well wait for clarification quoted Slochower, at least until we are with confronted a us, decision a imperatively requires case not. I in the case, I see this it does this because say light States, Quinn it seems v. United inconceivable that supra, any school authorities could find that teachers In that case it was held patent was guilty contempt. the criminal offense that is not shown unless committee informed the witness his claim of was over- privilege him to Let us at the ruled directed answer. look testi- before subcommittee. mony Lowenstein, As to the record Dr. discloses not a claim of was overruled and at single privilege no point was Quinn he ordered answer. is squarely applicable. Zimmerman, As to Mr. the chairman will assume (I that his action the action present purposes represented entire directed subcommittee answers to two) three whether he namely, member a union questions, 1942 to 1948 when he was during period employed in he was whether a member of the industry, Union, Teachers in the week and whether hearing meeting teachers in the area was held at which a lawyer *29 were instructed all who to subpoenaed refuse to answer the Mrs. subcommittee. Laba was directed the answer but to wit, chairman to two whether questions, she the ever member of American was Federation of Teachers the she actively during period engaged and teaching, she is now member of any whether teachers’ union! But the meaty to to questions relating and past present in the membership Communist like, Party subcommittee did not overrule the claim of privilege an order answer. The before the board of educa- charges tion of the board the ease of each findings teacher assertion only the of the specified privilege as to questions in the concerning membership Communist Party, no reference was made to refusal to answer the questions which the chairman had ordered to be answered. Although the board’s now amended charges may be specify Mr. refusal of Zimmerman and Mrs. Laba answer directed to be answered questions chairman, trial would so distant from the heart resulting of the matter of fitness as not to be worthwhile. opinion authorizes an majority ascertain
“whether the refusals to answer were patently contumacious Thus far I or frivolous.” have construed this mean only “contumacious.” If it is patently intended to there suggest be a dismissal upon the refusal finding “frivolous,” patently thereby meaning less than something a criminal contempt, is all my disagreement more pro- nounced. The nature fuzzy inquiry would then be even practical fuzzier. an operation, inquiry into the propriety (non-criminal) exercise of a constitutional can lead right only to unnecessary dilution of that right. I would modify State Commissioner’s order accordingly. For Justice Vanderbilt, and Justices affirmance—Chief Burling Heher, Oliphant, Wachenfeld, and Jacobs —6.
For "Weintraub —1. modification—Justice