Lowenstein v. Newark Board of Education

94 LOWENSTEIN, AND APPELLANT CROSS-RE

ROBERT EDUCATION, SPONDENT, RE NEWARK BOARD OF v. AND SPONDENT CROSS-APPELLANT. May 22, January Argued 1961. 1961 Decided and John O. the Bigelow argued Mr. Morton Stavis Mr. cross-respondent. for appellant cause for cause cross- respondent Jacob Fox argued Mr. appellant.

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

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

99 of superintendent suspended appel The schools city session. lant and other of the committee day two on from has not or received Appellant salary taught Four later each Newark school since. system days a with unbecoming three was conduct formally charged of the constitutional teacher based the invocation solely com refusal before the testify privilege consequent a of 5 to 4 vote mittee. The Board sustained charges The suspension. dismissal as of the of and ordered date Laba, court, in reversed dismissals and this Commissioner States affirmed reason of the decision of United Education, Higher v. Court Slochower Board Supreme 637, L. Ed. 692 551, 76 Ct. 100 (1956), 350 U. S. S. 843, 351 76 Ct. 100 Ed. denied S. S. L. rehearing U. after It was handed the Board’s action. 1470 down (1956), that violation of the constitutional safeguard there held em from public of law occurs where process discharge due exercise of the upon privilege is based ployment entirely witness’ whose directed at the body inquiry before no sinister or conduct employment fitness presumption of confession of either meaning guilt from the exercise of this constitu imputed can be perjury The the innocent designed protect right. privilege tional have a fear of may prosecution reasonable who nonetheless system well to preclude revolting inquisitorial as habitually to trust permitting prosecution justice Slochower, as a source of proof. self-disclosure compulsory Ct., 640-641, S., 557-558, at 76 S. pp. U. (350 pp. supra Evidence, Ed., 8 307-309 IFignore, L. 700); at p. Griswold, The Amendment Today 1940); ed. (3d Fifth vii, Liberty, ch. The Blessings The Chafee, (1955); We therefore held (1956). 179-235 Not to Speak, Right of the Fifth Amendment could invocation Laba that and just teacher se conduct unbecoming not constitute per Court, Supreme prior California dismissal. cause since, Laba, Supreme Court Pennsylvania and the Board Education San same effect. have held to Mass, 494, 47 2d Francisco District v. Cal. School Unified Public Education 304 P. 2d 1015 Ct. Board 1956); (Sup. Intille, 1, 401 Pa. 163 A. District v. Philadelphia School 910, 2d 420 Ct. certiorari denied 364 U. S. 1960), (Sup. 81 L. 273, S. Ct. 5 Ed. 2d 225 (1960).

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

Laba did not order immediate reinstatement but affirmed the action of the Commissioner in the matter to remanding the Board for appropriate inquiry by supervisory school authorities. The that, was because “of the theory acknowl areas, need for sensitive such edged keeping as the public free from systems, school subversive wholly elements which J., seek the overthrowal of our free society” N. at (23 p. the action of the teachers 373), before the Congressional committee the school authorities the gave right private of them to determine or assist in whether inquiry determining or subject were members they presently ideologies and, so, of the Communist if disciplines subject that reason. The direct of unfitness to teach for charges of a teacher on the approach premised obligation inquiry without the constitu any rely to respond fully, right tional employer, acting to relevant privilege, schools, to continued superintendent relating through rise teach, inquiry whether the reason giving fitness to turpi moral be a matter of possible allegiance, pointed conduct. Laba out tude or other unbecoming J., answer per that willful refusal N. at (23 p. 389) superiors submitted administrative tinent questions fairly basis for an ample an could also afford such interview further N. A. 18:13-17. Our under J. dismissal S. charges at I this point: in Lowenstein are appropriate comments enabling right interrogate only purpose is “The to employer judge ground for the to is a whether there reasonable charges employee’s bringing answers of dismissal on the basis of the any questions hand. It is and of other information at to relevant conducts, investigation legislative committee not a broad such as a adversary proceeding in Nor an usual sense. a trial or primary as method of dis an in itself or to be considered end cooperation missal, or willful refusal to answer absent clear lack of J., queries.” (33 p. 284.) pertinent N. at government protecting ‘must so without we do “In democratic infringing of all are the ultimate values demo the freedoms that Updegraff, 183, living.’ 188, Ct. Wieman v. 344 U. S. 73 S. cratic opprobrium 215, 216, (1952). of dismissal L. Ed. 220 While the 97 if,fully employment disloyalty public for true is deserved from consequences deep fairly proved, so so and the devastat stain is ing (the to the dismissal for refusal holds true where .same every very questions relating loyalty) to fibre answer every preserve, right as we as well considera seek constitutional infamy decency, this brand of of civilized human dictate that tion complete understanding implanted on sides be without all shall never every requisite proof applicable principles, of due of process. abundant guilt grievous can never found from mere asso Such by through suspicion, alleged simply or or innuendo ciation truly Updegraff, Wieman v. from non-relevant facts. inference Cf. Housing Authority City supra; Newark, v. 20 Kutcher approach (1955). A or back door indirect cannot be N. J. approved disguise directly properly proved.” the real basis not (Id., pp. 290-291.) at and basis of dis- avenue possible inquiry Another J., N. at action was also outlined Laba (23 ciplinary answer before 388-389), whether the refusals namely, pp. frivolous the committee were contumacious patently not later rather This was properly than faith. good quite when it interview pursued appeared appellant’s subsequent advice of counsel. privilege had been exercised on J., As noted in 282-283), we Lowenstein N. at pp. (33 this from phase removed the case thereby permanently nothing remained of the charges preferred original 1955. They were dismissed the Board at finally by after the just to, decision referred we had there hearing indicated should be done.

Following remand, Laba and the superintendent Board, in May pursued procedure which inquiry that decision had authorized. Its based charges outcome— on his refusal to respond pertinent allegedly questions the superintendent, dismissal based thereon unanimous vote Board and affirmance the Commissioner— the matter brought us before Lowenstein again I. issue there involved was the of those relevancy which appellant declined answer. They related pri marily past associations and conduct as distinct from the present. Appellant denied membership or at activity the time the of and for a inquiry period of less than something prior two to years his appearance before the committee. Congressional We were convinced that both sides had the misapprehended of what was import said in Laba about the the scope of the inquiry with result that neither the approach the nor course conformed to what we intended, despite our belief that all involved undoubtedly every made effort to with the comply mandate as con they ceived We were it. therefore impelled, in the cause of both interest and the of public certainty fairness to all parties to reverse involved, the dismissal and remand the matter level, to the local but without again reinstatement in the way so a new interim, pursued inquiry might Lab a contemplated. in an was,

The as we saw it and it out spelled trouble J., in which member of the court N. opinion every joined (33 of the at that both sides somewhat lost pp. 285-287), sight e., membership i. only subject present proper inquiry, of Com- to the disciplines subjection ideologies munist On the one hand there overlooked Party. activities affiliations and essential that as to questioning but permissible, only is not relevant and automatically always in of reasonable doubt of the truth so the event rational and order to such statements present of denials as to in test J., hand, appellant N. On the other 289). at (33 p. in conclusive misconceived the on concept insisting equally invasion and of reason of time alone irrelevancy by alleged J., 287-289). privacy pp. N. (33 the second interview appellant There followed 1960 which September present superintendent grounds to thoroughly after appeal. appellant, attesting Again Americanism, answer and belief in declined to present loyalty of 1953. related views and events back which questions were that the preferred were basis Charges fair refusal impeded and the thereto pertinent reply if to Com- determine he was presently subject inquiry unbecoming He was found conduct munist ideology. guilty and the Board ordered dismissal teacher thereon grounded a 5-4 affirmed. —this time vote. Commissioner that, under the circumstances We are assume willing that outlined interview, its followed pattern sufficiently which led past events, I. Questioning Lowenstein refusals, for the followed part exploration most respect claim doubt with interrogator’s assertions current There was allegiance. appellant’s as to “the meant present” some whether disagreement no real 1955. The difference is of significance 1957 or fair, over-all, issue We think it before us. considering sought, faith, the two participants good to presume prior to adhere to the laid down onr decisions principles as realistically well as conld be both expected. parties Since were advised the interview throughout by reputable and capable counsel not counsel was (the superintendent’s be to attorney whose first endeavor had to Board) see followed, mandate of this court was the deviations on both sides that on the face can well appear exist attributed to the fact that the acual were participants lay- men and cannot be held to a standard of strictly precise legal expression. however, There a formalism and apparent, strictness of attitude and which would we position throughout like to have otherwise, seen but which we must recognize as probably of litigation unavoidable after over five years and public local interest in an are area which convictions bound to be and strong run feelings high. Consequently interview became an with actually adversary proceeding, appellant as a witness under in a cross-examination per- vading atmosphere Numerous rigidity. objections legal questions being outside the limitations discussed in Lowenstein I on the hand, one and insistence thereon on other, fill the transcript. course, They were, resolved at the interview and the conflict resulted only refusals to on answer the advice of counsel.

The precise, and issue before the concededly only, Board, very and explained painstakingly correctly by its counsel at the on the was indeed a hearing charges, simple and a narrow It resolved itself into whether one. the super intendent was justified, as of objective matter rationality reasonableness, and denials doubting appellant’s of present Communist affiliation and subservience affirmations loyalty allegiance to the American system democratic reason solely by of answers to certain other gave concerning related aspects, so entitled to probe into appellant’s past views associations with respect Communism. If the superintendent justified, was so Lowenstein was answer, bound to penalty dismissal, the four basis of the refused the questions forming charges. The as whether he was particular may be summarized queries a Communist aor member of front any organi zation or subject to or believer in Communist ideology, or at to discipline principles July time from 1950 1953. any If there was no such the justification, could not stand. charges

We state issue as we have because of non judicial nature of the before the proceedings superintendent. e., But the matter is of i. fundamentally law, one the legal relevance of the of disputed queries to the object super intendent’s If the been had before inquiry. proceeding judge, matter would been ruled at once as have upon a legal determinable the court and as an question by issue to be decided the trier of the facts. do this Judges trial constantly every of a passing propriety particular and of interrogation admissibility evidence. would then Appellant have known where he immediately here, stood. But mechanics, because of administrative no court could enter the question decide this picture legal until the case reached us. So had to be question put to the Board and the lay administrative Commissioner — agencies way which was and appellant —in before the our guess superintendent what would ruling be and finally take his stand accordingly. See the discus sion in Chafee, Liberty, Blessings 210- supra, pp. Our 212. discussion of subsequent review of relevancy the action of the lower tribunals is therefore undergirded by this as point of view if we were as legal a trial sitting court rule on the having pertinence While questions. matter of relevancy must be considered in the full factual and a certain amount must setting leeway be allowed, nonetheless it must be clear affirmatively to a court that the disputed objective have some queries “tendency in reason” object N. J. relating inquiry. See S. 2A :84A-3. We picture should make the concrete more brief resumé of the pertinent parts of It interrogation. com- menced with responses to of his appellant’s inquiry views were clear They and “Americanism.”

on Communism Communism against that he was stating unequivocal. of telling in the course understood philosophy its he commented: why, length, at some any any good people our it is extent “I don’t think regime party organization over- violent or favor and condone the Government, attitude am hostile throw of the approach. suppression notice of free formulation Wherever I opinion, the institutions individual unfettered restrictions improvement people or evolve the that have labored over centuries to life, anything spiritual I to that of or am hostile material the hard won attainments of civilization.” threatens these may of to the American system His testament allegiance well be quoted: imagine any being “I not human on this earth would could anything if I cer- an American citizen he could. rather be tainly but anything but an citizen. would want American ours, historically involved, I of There are some institutions inadequate inequitable, consider so so to the needs our national for, today life looks to America but on the whole what the world got institutions, I think better set of a frame- we have better work of founded on our on our bill of Government Constitution

rights any people can of. than other boast government oppor- the we have in our form maximum think any history tunity granted people so far in the of the world to for individual social betterment.” strive He he was a positively then denied Communist or member Communist front and asserted that he any organization did subject ideology was not not believe in Communist said, He ques- or also discipline. response specific tion that he attended Com- relating had not munist in dis- or met and organization meetings engaged cussions with views were known Communists. of these (All at the also reiterated end of the interview and when appel- lant testified his own behalf at the Board subsequent On his motion he related the effect of all own hearing.) since, back summer 1953 answers as said. he had been as that date at willing speak superin- the tendent’s 1957 inquiry.

Then came a series of which the answers to questions, evolved at the Board superin- as the basis of the hearing tendent’s claim of doubt truth of the affirmations and denials outlined. no forth in just While basis was set the formal preferred charges superintendent, to be interrogation now summarized was out pointed Board’s counsel at the as source of claim hearing and was specified such in the Board’s written findings The few of them sustaining charges. first sought extent appellant’s of the Communist knowledge and its party program state, United States and this which was in effect he knew reply Next nothing. awas as to whether he believed in 1955 that query advocated the violent overthrow Party Government, United States to which he that he responded did so believe because United Supreme States Court so. subject said matter was extended to the inter- national sphere as to his whether by question views inquiring the Communist was beliefs merely advocating political was an international one of objects whose conspiracy to overthrow government this force. The answer by was he tried to scrupulously avoid at arriving opinions conclusions about matters not his special sphere within competence citizen, as a that he did not think the Supreme on had this so spoken phase, Court that he did not really know what international was communism today.

The was then appellant whether in 1955 interrogated he a Communist was a believed fit to teach in person the Newark schools. He public replied: question interpret differently “The of fitness I teach from my

many people. opinion, society person in a free who meets legal requirements capacity engage in, in whatever he chooses to professional requirements position, teach, for the entitled provided position of course that he is not abusive of his and con- legal professional requirements to all forms and maintains his competence in status those areas.” believed a in 1955 he was whether

The next question also a American loyal be a could person so; could and he one probably citizen. He said thought When the not; ques- on the individual. could depended he answered: tion include his belief today, was enlarged * “* * I my think modify I would so what drastically fewer and fewer say view in probably that would citizens and Com- be American people today loyal could view change He ascribed his munists at the same time.” in the relations to the of events and international course five years. “Does question: Then came rather double-edged is required universal that a Communist general knowledge aof the rules break cheat, to deceive and and generally into, enter it, does this in way as we know game citi- American loyal be opinion, inability into their your this and wondered ?” he about zens He knew replied nothing premise. might what element of truth there beliefs in the related to appellant’s The final series queries have could who was a Communist as to whether teacher scholarship teaching methodology requisite the required well respect in a school as as public system position affirmative, answer was in the for the individual. His the matter in a statement that he had studied prefaced held on it detail, some views educators including differing own, as well our and that in other democratic countries position. there was no generally accepted prior super- It also be just should mentioned doubt, he Lowenstein whether intendent’s claim asked Dr. Midvale, New Jersey, Sep- he attended picnic was that he had not and when reply tember 1956. further if he knew about a at that picnic asked anything date, location that he had driven to explained area deliver a life insurance a customer that policy traffic day, surprised had been as to conditions heavy and was vicinity, as to the cause told there was inquired

109 He never even did picnic nearby. saw not spot know the nature of the affair. point

At this stated his doubts. He superintendent put way: them this you I “The fact is that do have information that were an active Communist; just passive or in

militant lukewarm. And this you capacity representative Jersey; were a of the State of New you represented groups State, particularly the teachers’ represented particularly capacity in You Newark. in that you president. Newark Teachers’ Union of which were at one time have, together This information which I with further information regarding picnic gathering super- [which in Midvale amplified appellant intendent seen at the effect that and his car were point spot gathering press picnic near the labor —a * * recognized] *, at which several Communist members were together your with fact of' indirect answers some these * * *, together your general with attitude and demeanor many you given frankly me, of the answers that have X am skeptical things you present, as to some of the said about the view I do sincere and these have honest doubts. Therefore choice, alternative,, it seems to me that have no no but question you your persons as to some of activities and some of the * * involved The prior information was activity stated to be from an admitted former Communist, but not further identified beyond fact, at the specified request appel- counsel, lant’s it “covered a period up including some 1944, time in the year 1945.” information (The referred obviously was testimony given Dr. Bella Dodd in a hotel room Newark to two members of the Con- gressional committee night before the May 1955 com- mittee and referred to in hearing the Board prior proceedings to Laba. one, session was closed with no outsiders present and, course, no cross-examination. Needless to say, such testimony would never be considered by any court The terminal date law.) significance since established before Board Lowenstein was in service from 1942 until military November much of overseas, the time thus placing party activity nature suggested prior to and at least years before of his command- the Incidentally, testimony

“the present.” the Laba the after hearing the Board at before ing officer when of his services complimentary was highly decision among Americanism both our in Italy behalf stationed the civilian troops population. own and the agreed made that was should also be Note of the many and demeanor attitude phrase “general had reference only me” have you given answers and to manifestations physical the answers not content of while testifying. the of doubt followed expression which

The questions and association acquaintance, dealt with largely appellant’s individuals, named respect with with to certain activity York Teachers’ the New affiliated with people principally J., we raised N. 289) Lowenstein (33 p. Union. line of materiality the matter of the of the same questioning, The need us here. scope but that matter not further concern As of the was without limit of time. soon generally queries counsel appellant’s as dealt with matters back of they on the the reasons asserted ground objected doubt the truth as claim of superintendent grounding denials of affiliation or sub Communist prior “do and of the affirmations of current not jection loyalty Supreme within the Court authority come language past.” does not into so-called justify your inquiry We can be read mean that objection fairly believe superintendent the reasons could not given validly as a matter of objective rationality amount doubt therefore as to was inquiry reasonableness relevant. advised Consequently appellant not to answer most such and did not. queries superintendent speci fied in his refusal charges only respond last which, indicated, we have four as to inquired membership to or belief in subjection Com and discipline munist between 1950 ideologies and 1953. him counsel did advise answer Appellant’s one question time. This without limit of whether inquired he had ever

Ill fashion personally promoted communistic point of view in classroom or had been instrumental soliciting other He teachers do so. that he had replied not.

At the Board hearing on charges, only evidence was the support transcript the superintendent’s inquiry. Beside Dr. Lowenstein’s own as to his beliefs and testimony several loyalty, witnesses testified to his high reputation for and integrity fact, the veracity. Board’s counsel was willing stipulate the evidence in the only case was that of good on all the reputation scores. After argument counsel, in which we said the issue have the Board had out, to decide was most clearly pointed the hearing adjourned for five on which continued days, date vote dismiss was taken after several members had made statements giving their reasons for their decisions, individual of which more will be mentioned A week shortly. after the vote the Board met and again adopted formal resolution of dismissal as 20, 1955. The May resolution set forth at length answers to the questions detailed previously which it found justified the “reasonably doubts by Superin asserted tendent and the additional inquiry which he believed necessary thereof.” by reason It further recited that it was to answer appellant’s duty the four questions we have previously referred “and that his refusal to do so and to any information as give to Communist affiliations prior to 1953 'cut-off’ July him, date fixed by ob unduly structed” the effort to ascertain “all of the relevant facts which would serve to establish whether or not he is now member of Communist Party subject to its ideologies disciplines.” Commissioner,

The in his decision of affirmance on concluded that appeal, appellant was not justified his refusal to answer the questions put. In reaching that result, the of the uses a language opinion much broader brush than was indicated by precise issue before the Board before on review;. course, so him Of under familiar if the result principles, for other right reasons, we need process the articulation with not be concerned overly However, reliance particular which it was reached. we which upon aspect to have been one appears placed the view took strongly should comment. Commissioner laid down had, principles contrary that appellant I, 1953) fixed date arbitrarily again (June Lowenstein on the con speak ground he would not beyond which laid in on this opinion was irrelevancy. clusive Stress the primary question was said about nothing and practically for the basis rational reasonable of whether there on the content of claim of doubt based superintendent’s the view We believe answers to certain of questions. we not read the appellant’s taken warranted since do is not we have already pointed to answer as As arbitrary. refusals out, promptly objected exploration his counsel superin the reasons advanced ground on the valid a matter for his were not legally tendent doubts and stated rationality reasonableness objective The latter appellant would advise answer. conse he was doing refused and said so on advice of quently him about not by further statements Any going counsel. must read in that context beyond light be lay earlier observation that should participants our in their lan precision held to standard of legal be think it fair to infer that in his appellant, We guage. answer, effect, inwas though inarticulately, declinations to asserted his counsel. ground previously by adopting Moreover, in his if counsel correct there was objection, all permit no basis to “past” inquiries sufficient us that matters really so it also seems not what else to have when he said thereafter refused to appellant may particular queries. respond reasons returning given by Before various members votes, Board their we prior casting should perhaps our earlier statement that the only issue before the amplify there rational was whether Board reasonable basis for the claim of doubt of the superintendent’s denials of answers reason of the solely by allegiance related aspects concerning the appellant gave when It will recalled that we have detailed. which the inter- during his claim of doubt superintendent expressed he said he information view, it was on grounded also concerning 1945 and to 1944 or up activity of Communist was advanced these bases Neither of picnic. the Midvale excursions into its as justifying the Board counsel before told the Board specifically the first item he As to past. and he no placed a doubt to ground it was insufficient brief in this court Board’s reliance on the second. factually neither is enough, it is conceded expressly This present. doubt reasonable legally, generate have proper matter could Neither correct. eminently issue it. determination of the before in the Board’s place volunteered their nine Board members Six Three in favor of dismissal voted. were they reasons before to be decided of the issue Understanding and three against. individual’s decision basis for the proper expressions four, each considering evident the case of sufficiently are But we must since made by laymen. as a whole as statement about the comments other we concerned greatly are the maker and seconder of the two, were, respectively, who motion to relate the dismiss and the subsequent motion to Their votes were numerically dismissal back to 1955. May the reasons Appellant they 5-4 results. urges decisive by' in a failure the Board to abide our resulted gave Lowenstein I. The Commissioner did not pass decision us, fair upon convinces considera study Our point. two, that, remarks of these though persons the total tion of and understand honesty purpose sincerity, of undoubted matter, in the whole did not they convictions strong ably but instead voted for plainly presented, the issue decide so with which had not been appellant on grounds dismissal had valid reasons which no place and for charged conclude, apart We must therefore from anything matter. stand. else, the dismissal cannot that by saying his remarks prefaced these two first of less more or from a viewpoint at this “I am looking that and a spectator” more as even and perhaps as a father concluded: “* * * making so far to what decision X am not making my Supreme decision or hasn’t said. am has said Court go children to school that I am a father with who

on the fact my person type teach children.” I would like to have strongly statement he spoke to the latter up Leading “his respect,” had lost he sure” “awfully appellant was teacher” “he was a normal American doubts that grave effectiveness see “where he has any as a father could not views his to have based school He system.” appeared our refusal of appellant’s on the substantive matter only certain whether a Communist before answer he had been he could time. at face value statement Accepting * * * time not absorb the “legal implications to the Board allotted” was one of three new (he appointees clear that since it is perfectly nonetheless case), he all and simple problem did not consider at the plain answers reason of appellant’s whether the superintendent, by his doubt to other reasonably justified questions, Rather he found present allegiance. appellant guilty substantive offense of unfitness uncharged reason refusal reveal affilia- teach tion. This is to a a defendant jury analogous convicting he had and defended himself of murder when been indicted on a charge larceny.

The second member whose remarks concern us especially also did not on the basis of the attempt pass judgment decision, said, the Board. His “is based on issue before is, issue that is involved.” It of course, elementary the moral ideas of moral personal right that vague wrong of a issue of specific a determinant the kind cannot be that, from the moral Apart Board had to decide. issue as the unwillingness in mind he defined had he apparently us some informa- to give “to bend backwards of appellant for the years of the issues us decide some tion to help mean, not that interpret 1953.” can only We preceding a view in this but as to present loyalty, so much skepticism a Com- had been appellant to dismiss if member of right was there Not only mentioned. year munist prior clear as made as but it had been no such involved charge such that the Board’s own concession could be anything if true. for dismissal even was no valid ground mem- these two seems inferable that reasonably It further in their had least, if the entire also majority, bers at not exercise of appellant’s minds because vestige guilt Congressional the Eifth Amendment before the privilege reason other committee in 1955. It is difficult to find date, to that for their motion to relate the dismissal back in Lowensiein after we had so especially spoken directly invalid of the original that whatever remained nothing on that basis. preferred charges the state of mind

It be noted in may passing two members is contrast sharply pointed up by these other members on same matter. subject comments of two between broad the distinction articulating decide, had to these they before them and the issue precise that, both indicated while understood they thoroughly two had the to stand on this appellant right legal position court had defined it in the decisions and had to prior they matter un- decide the were nonetheless accordingly, they he had to so chosen limit his happy responses. They their that he had expressed thought thereby impaired usefulness to school system value and and that it would for the community have been better profession so adamant. This was a natural he not been viewpoint time a very proper at the same that an recognition issue out of valid insistence cannot arising legal right Board, the Commissioner or this judged by court —on — whether it was the wise course for the individual to pursue under the circumstances.1

Our conclusion fall the dismissal must the reason rests most fundamental given upon principles. action is “Administrative of the necessity judged by grounds from which it proceeded record.” re according Co., Water 11 395-396 382, N. J. (1953). Plainfield-Union A court should where interfere the action is readily illegally as distinct from a situation where is in grounded, there volved the only reasonableness of the administrative result Rocco, on a reached basis. Fanwood v. proper Borough Cf. of Hock, 33 N. J. 414-415 Bivona v. 5 N. J. (1960); Div. Retail Super. 1949); Jersey South (App. Liquor Burnett, Dealers Ass’n v. 125 N. L. 105 1940). J. Ct. (Sup. where, here, as And the power agency Board) to (the act and the extent of that are power prescribed delineated a in the matter and the by prior judicial opinion court’s remand, mandate on the becomes appellate judgment 1 In this connection there of comes to mind the observation Chafee, Jr., greatest late Professor Zechariah one of nation’s rights, Blessings Liberty, (The defenders of civil supra) work his last of said, of where he with reference to invocation the self- privilege, equally applicable incrimination but which seems to in legal questioning by employer: sistence on strict limitation of an prospective contemplated “If I were consulted witness who possibility claiming privilege keep wanted to silent reason, pieces give him for other I should two of advice: only legal requirement, large First. ‘It is not but also good citizenship principle of wisdom and for an individual called court, grand jury, commission, before a an administrative or a legislative investigating committee, questions frankly to answer honestly. keep privilege exception The constitutional silent is an your legal obligation testify; legal privi- but even when the available, lege when it is there are times best not exercise it. thing, although plain you For one guilt the law is do not that admit by claiming right silence, the law cannot this control the opinion. you public necessary fact on The feel it effect government agency ground on information to a refuse inevitably you, your reputation, will incriminate casts a shadow fairly enterprise you you work, or not. Also hurt the where whether * * your job you perhaps imperil (at p. 217) will there’

11? duty a peremptory law and the under of the case agency Co., Water not to In re from it. depart Plainfield-Union McFeely, v. N. J. 296, Flanigan 302-303 (1954); cf. v. Realty Corp. 20 N. J. Reinauer 414, 420-421 (1956); Paramus, affirma J. 406 When it Borough 34 N. (1961). as clearly on the face of the record below tively appears on ex were based it does here that decisive votes two decision, fundamental body traneous issues not before the v. Borough results. Reinauer Realty Corp. unfairness abe Paramus, record it would In the face supra. cured by defect was somehow travesty to suggest and findings formal resolution of dismissal the letter-perfect later. some days Board’s counsel and adopted prepared by review judicial standard In this kind of situation the substantial justice. fundamental premise must J. 22 N. v. New Jersey, Russo The Governor State of 156, 168 (1956). what itself is that now question presents where make of the Ordinarily we should case. disposition matter decides a improperly, an administrative agency the erring will remand the reviewing proceeding court here, But tribunal for redetermination on basis. proper said, fundamentally law what is as we of is question have if Moreover, if we at the matter as involved. even look the and the of Board we were shoes standing strictly have make Commissioner, power this does undoubted court will exercise that right of its own and independent findings 4:88-13; R. the interests R. justice require. where of Salimone, N. J. Ridge Park v. 21 1:5-4(b). Borough of Smith, 28, Super. 39 Greco v. 40 N. J. 182 (App. (1956); J. Welfare, Rushin v. Board Child 64 N. Div. 1956); cf. Div. The considerations 1961). 504 Super. (App. here. the are not present dictate course usually opposite we the issue is whether repeat only objective, Again and reasonable doubt of denials of cur appellant’s rational Communist affiliation and can grounded rent be subjection make earlier detailed as to answers so legally permissible, into the relevant

inquiry we it I. An Lowenstein essential of the factual spelled out con appellant’s matter of And setting veracity. by cession, or there is not involved the matter of demeanor other manifestation so physical during questioning, element due for the regard personal opportunity R. is absent. See R. interrogator judge credibility Also it question any particular exper is not 1:5-4(b). tise the field the Board by either Commissioner. Russo The New v. Governor State Jersey, supra J.,N. Jersey Housing v. (22 p. 169); Connelly City 424, 63 N. Authority, Super. J. Div. (App. 1960). all, All in for court question peculiarly one determi nation, which can be done on printed record. fairly

Moreover, and of this greater significance, has controversy lasted six and it is in already years the interest of essential justice that be A finally concluded. remand reason of the fundamental error mentioned would have to the Board. (It be observed that may very recently has Legislature procedure for the changed hearing against tenure teachers. charges Such matters are here- after to be determined in the first instance Commis- sioner and no the local L. longer by 136; board. c. A. N. J. S. 18:3-23 et seq. statement annexed to bill as one for the gave reason change at- "publicity tendant on the local often hearing Tears the community apart’ disrupts the orderly conduct of local school If result, dismissal were affairs.”) again the another appeal to the Commissioner would undoubtedly follow. light view latter’s in his expressed decision, a further review would ensue. And the meritorious question on which the case finally must turn then at last before us would be no than different it All today. considerations clearly that we indicate should now it determine once and for all and we shall do so.

In Lowenstein we pointed out that while em an may not ployee rely on fundamental privilege against in an to answer questions in refusing self-incrimination fitness, “[p]rior with to respect interview employer sake for their own may posed just event be queries as one’s soul to bare involuntarily cannot compelled one be the object to Relationship for that reason alone. to past J., N. p. 285.) (33 must inquiry appear.” which speak not to is a words, right there qualified other worthy a setting, insisted even such upon be may and benefits primary objects in the interests protection So require- to lost of. society sight a free and not be shed ment, inquiry as here purpose where beliefs an employee’s present and ascertain light upon to the motivations, doubt as rational and reasonable exist before must objectively truth of current professions and then can be explored, the immediate more than a as conclusion coming aid the interrogator only a Although response concerning present. truth of concept the somewhat theoretical must deal with we standard doubt, is nonetheless rational and reasonable areas constantly many known and courts applied well then, there If, we are convinced thoroughly of the law. on the in reason or for such doubt logic is no sound basis it, which we must conclude assigned basis answer were not relevant legally refused to appellant We are find that were. they not properly the Board could so convinced. fact in there is not shred of

The Board concedes indicate that Dr. Lowen- tending any way this record and dis- subject ideology stein was Communist And, from at least 1953 on. even if party, cipline us, were we cannot infer reasonably before from question unless the Dodd informa- any prior membership the record and that did not extend admittedly beyond tion is considered Moreover, 1945. are 1944 or those accusations conceded to in themselves and there us be too remote seems to no then supporting bridge sufficient between present. said, is also have that the only It we conceivable agreed, as basis for to any doubt the truth of his assertions to certain other present content answers given questions. These answers fairly can be characterized “unorthodox” the sense that differed they many respects from be probably those would given e., same most i. questions by today, citizens this country were not or It they popular expected responses. is not they answers, were not true and sincere suggested fact, but rather that were they oral “queer.” argument, counsel expressly Board stated that if the replies “orthodox,” been would superintendent not could not have had doubts as to professions loyalty and non-Communist adherence.

The particular responses relied queries upon by Board and earlier set forth in detail herein fall into two The general categories. first dealt with essentially appellant’s belief and in 1955 understanding and since about objectives and methods of the Communist here and interna- tionally. replies were to the effect lack of precise, personal sufficient form knowledge express to an opinion where, except to his the United States understanding, Supreme Court had spoken on subject which instance he its adopted conclusion. Appellant obviously person mind, of independent not to or given forming expressing without opinions being conscientiously convinced soundness and accuracy of the His mental underlying facts. to processes appear be those of the scholar who does not or jump conclusions held accept popularly viewpoint without These question study. answers clearly seem to be honest ones from a intellectually man who is reluctant to talk of matters about which he does feel thoroughly We fail see qualified. where could they possibly indicate any preference for Communism induce a rational skepti- cism of his professions loyalty.

The second category related to appellant’s views as fitness of a Communist be a teacher and ability American loyal citizen. With respect expressed belief of fitness, teaching stated that frankly he held different views from As many much people. would, most persons not are agree, permitted Communists to teach in other democratic nations and view is appellant’s held many eminent members by of the teaching profession in this whose cannot country loyalty suspected be slightest. Quest See Academic and Freedom Tenure National Security, Report of Committee of Special the American Professors, Association of 42 University Bulletin (of the 49 varied Association) (1956). many Haber, on the are listed writings subject in Emerson and and Political Civil Rights the United 1084-1085 States ed. (2d 1958). as much Again say, we as this group answers well be may dissented from the vast by majority of our people, they appear honest views which represent appellant has every hold and which right express cannot any way cast doubt on his or the truth allegiance of his assertions thereof.

Moreover, further reflection makes it clear to us crystal these “unorthodox” answers buttress truth his professions of American belief and denials of Communist affiliation and subjection rather than detract therefrom. It must not be he forgotten that was not just participant in a discussion between two but a sworn people witness under cross-examination in to a what amounted rigid tense with a adversary history hard proceeding long fought behind it. one in litigation position No his could help but know the kind of answers which and end satisfy would whole matter If he had lied favorably. about his present affiliations, beliefs and he safe would say have by and, him, followed as to giving popular dishonest answers under subsequent qriestions discussion. So the very fact that he responded them the he did is the way strongest kind of proof expressions of his veracity basic tenets and of the unreasonableness of any doubt thereof. we, deeper aspect

Prom as a free can people, never reach point where the of a man can loyalty only be such answers to his one set “stock” giving

established as a position he can be deprived where view, an no express unpopular teacher because dares Al- think that view to how be. many may matter wrong won, war surely immediate battle though might were to contrary prevail. be lost if the would ultimately a dismissal warrant in this ease to just There is enough set It is therefore for refusal to answer the four questions. If school authorities aside and reinstatement directed. a Communist believe that appellant sound basis to we disciplines, subject party ideologies member or that effect there would have been specific charge assume directly, fully fairly which that would be question tried out and determined. of back

There remain the interrelated pay from the Commissioner’s modifica- the Board’s cross-appeal which of its aside that whereby portion tion action set as of 1955 of as had made the dismissal effective instead reason this reversal By of the date of the 1957 charges. for 1955 he awarded the two between pay year period back as at same time the dismissal 1957, the sustaining the date. latter respect.

We no merit in this position see the Board’s I, in Lowenstein clearly As was indicated Laba said by warrant for the 1955 legal charges, they there no being By token, fell. the same completely suspension accompany- all fact legal efficacy. them also lost The mere that we ing I that not directed Laba and Lowenstein be appellant and final inquiry reinstated outcome under pending pertinent we outlined as did not revive that procedure appropriate the only to rest after Laba The case had suspension. and since. The 1957 Commissioner charges preferred error to relate that it was the dis- finding was correct is the matter somewhat 1955, although missal back to of our academic in the decision dismissal light stand at all. cannot

123 While the Commissioner effect to his gave practical change of the dismissal date for pay back the two awarding year period, interim our that he was correct holding .not intended to or, settle for time for right salary that matter, for any subsequent period. Appellant appears to claim full since salary the last although only sentence of his brief mentions it: pay “Back will follow pursuant 1948, to R. S. 18:5-49.1 c. The 241).” (Laws of Board has not in its argued question beyond point brief contesting Commissioner’s determination as to the effective date dismissal in which it did refer to the back pay So we do aspect all. not know whether it thereby intended to concede it was for full liable between salary 1955 and if 1957 this court sustained the dismissal but agreed

with the as Commissioner date or for full the effective salary if, here, from 1955 to date we the result set aside dismissal and ordered reinstatement.

Under the circumstances we feel we should not attempt make any disposition now. statute question referred to J. S. A. if a (N. 18:5-49.1) provides dis suspension missal or local board of education “shall be upon appeal cause,” decided to have been good without person involved “shall be entitled to compensation" covered, period written provided application therefor filed with local board days “within after thirty such judicial determination.” (Emphasis added) also (Note 1960, 136, c. L. sec. J. S. (N. 18:3-28), A. effective 1960, October directing statute charges against tenure teachers to be heard and determined the by Commissioner the board, rather than local which provides that a board the may suspend person whom a against made charge upon Commissioner, certification thereof to the but that if dismissed, the immediate charge ultimately reinstatement shall follow with as of the time the of pay" suspension.) "full J. S. seems N. A. 18:5-49.1 contemplate to the matter of back should be pay disposed separately of and subsequent the the to determination of substantive charges. It there-

124 the course follow us should appellant fore to appears Board to the application in the statute make laid down for our mandate down of days coming within 30 If entitled to. the he is legally such sum as he deems the Board upon, settled and agreed amount cannot then deter the to the Commissioner certify question should 1960 procedure prescribed by pursuant mination including full et after seq.) hearing act J. S. A. 18:3-23 (N. In as be material. may of such evidence presentation this final disposition phase of expeditious interest we retain extent controversy, jurisdiction will this court from the directly either may appeal party a notice of by filing appeal Commissioner’s determination thereafter. Without either days intending within ten be raised or to indicate issues which should circumscribe contentions, we attention to in their call might counsel aspects problem of the various of back discussion McGuire, Miele N. J. recent v. pay opinion our with reference to particularly 347-352 (1960), question amount sums were reduction thereof which earned or have been earned actually period could during costs fees of the appellant’s attorney’s less (possibly of the actual of and language legis litigation) light J. S. lative intent evidenced N. A. 18:5-49.1 and 18:3—28 since after substantively enacted this contro (if applicable R. versy 40:46-34, S. as amended. arose). Compare The determination of the Commissioner of af- Education modified, action of respondent Newark Board firming, is reversed dismissing appellant Education and respond- ent appellant position is ordered reinstate as a teacher. v. J. Laba Newark Board (dissenting). Francis,

Education, 23 N. Jacobs, J. Justice (1957), speaking court, for this noted that Lowenstein had pleaded Fifth Amendment being interrogated by Congressional committee with respect membership or association with the Communist and that his Party, reliance thereon resulted dismissal the Newark Board position of Education from his teaching public school system. opinion, unanimous representing view of the court this phase with (on problem) agreed Commissioner of a State Education that of that plea nature could not of itself for the provide basis action taken the local board. approving Commissioner’s for a further remand certain were hearing, observations made with respect to the course and that the scope inquiry might take. properly

The court said that assertion the constitutional privi- lege against self-incrimination not does automatic justify dismissal, but it “does call for a full and conscientious inquiry as to whether person] qualified to con- [such tinue in the of his discharge responsibilities at teaching a place dedicated to the advancement of democratic ideals.” J., 23 N. 393, at 394. In an pp. that character inquiry of Lowenstein had “duty of and an cooperation affirmative burden in Id., the establishment of fitness.” at [his] 392; and p. him the examining school authorities could with propriety interrogate “with respect [his] past association with the and affiliated organizations” and were “entitled they to frank and full Id., disclosures.” 388. p.

At 16, the rehearing on May before Edward Kennedy, Superintendent F. of Schools, the information justifying inquiry limited assertion of the Fifth Amendment before the privilege Congressional committee. The record shows additional material of varying probative degrees (for force of this purposes type inter- view) concerning Lowenstein’s alleged Communist con- nections and activities. The information came largely from statements of one Dr. Bella Dodd, former Communist, given her apparently before testimony the Congressional committee. For at the example, interview 21, 1955, of June the following in the record placed for Lowenstein

counsel her testimony: from excerpt purpose calling you is time The in at this “Q. Committee’s you knew, you or not as a member of the Communist ask whether

Party, an the of Dr. Lowenstein? individual name Yes, A. I did.” on the Moreover, appendix in the of Lowenstein’s brief and answers of in this court further questions second appeal Dodd included: Dr. were you or Lowen- the committee whether not Mr. Robert “Q. Will tell meetings frequent of was fraction the

stein in attendance at the you just Party York, have in New described? Communist which came to Dodd: Mr. Lowenstein was the individual who top meeting in the committee of the the held Communists Teachers, in when held American Federation New York. you whether or Q. Will tell the committee not Mr. Robert objective? played any part accomplishment that Lowenstein regarded important Lowenstein Dr. Dodd: Mr. was as the most although group activity, member of the Communist this given leadership Party was to the Communist member who technical became the American State Chairman Federation Teachers. * * * although person, was the official Mr. Robert Lowen- She instrument, person was stein the effective who did the or- ganizing.” At the Lowen- Kennelly outset of informed rehearing stein that he was interested in one “only thing, situation”; at the truth of this since testi- getting was oath by to be under consent he mony given anticipated “we will get truthfully fully.” which began informal interrogation friendly, an basis soon reached Lowenstein denied impasse. present in the Party Communist and denied that membership he the aims or disciplines subscribed to but Party, he he had been refused to whether say (1) member within or ten five whether years years, (2) during he been member of period same Pox “Ralph Branch either Newark or Essex (cid:127)whether the same he County,” (3) during period active in teachers in the Federation “recruiting American of Teachers for communist His reason for membership.” the refusal was were that the too remote and questions were not relevant to the issue of teach fitness to school In this he system. connection selected and sought upon Superintendent time impose boundary, July 1953, back of which announced he would not answer as to Communist membership or activities. That noted, date, it may less than two years prior to the committee three Congressional proceeding, weeks more than prior two to the first years Board Education hearing less than four years before slightly His rehearing. was in this fashion: position put Kennelly, prepared you I am “Dr. to tell that from the summer of I 1953 on have not been and I am not a of member the Com- Party

munist say, Kennelly, “I will Dr. no that at time since the of summer Party.” I 1953 have been a member of the Communist Other illustrations of the nature of his stand are: you Ralph “Q. Were ever a member of the Pox Branch of Party County? in Communist either Newark or Essex That A. question is too broad me to answer.” period “Q. That ‘at time’ would include the after the summer 1954, Well, sir, wouldn’t it? A. after the summer of 1954 with, on I have been a member of nor affiliated nor whatever phraseology— repeat Ralph me Q. Let Pox it. Branch of the Communist Party. sir, no, anything A. The answer would be as far as sub- sequent to the summer of 1954 is concerned. Subsequent you Q. to the summer of 1954 had been aware existence it? No, A. sir. you question respect ask Q. will the same with to 1954. (Dr. counsel.) Lowenstein consults with question, sir, negative. A. I will answer and that respect Q. is with to That 1953? Yes, negative. pushed A. sir. And in the IBut will not be back year by year.” some interrogation to Dr. Lowenstein submitted Although remained more remote than matters relating to the subjects in his to answer as adamant refusal times referred above. dis- from the opinion appeal subsequent

The court’s covering ten-year missal that recognized if the would have been proper the five-year periods necessary were they faith felt that Superintendent good in his mind remove doubts satisfy order to or to mem- witness’ disavowal the truthfulness in or adherence to the ideology bership at that My impression and so advised the witness. Party, from the record was that of Dr. Lowenstein’s person time have would intelligence gathered education seeming such Dr. motive. was Kennelly’s which rise to that view should gave of the factors

Some I have referred to already Kennelly’s be mentioned. at the inception hearing purpose statement at the of the situation. the course of truth get when the witness was asked about member- questioning, in the Communist ten ship previous years he was then asked: answer, declined you question, purpose mean Do of which “Q. membership non-membership Party, determine in the Communist purpose relevant this conference? not (Dr. counsel.) Lowenstein consults with already time, sir, A. I have answered for the I think years membership non-membersliip ago or ten is irrelevant. you right, you Q. All then I ask this: Have boon a member of years? within five give that, A. I the same to answer sir.” And at another he said: point “* * * anything beyond I think [summer 1954] that of remote, any anything rather and in I case have never felt that beyond really my or this side of that to relevant fitness to teach. willing anything But I would be to talk about from the summer of 1954 on.” At the conclusion of the but before questioning closing Dr. made this hearing, Kennelly observation to the witness: “Q. Bob, you, record, I would like to advise and also for the that questions you of these I

none that have asked are meant to relate any particular period portion your prior of the of career to the already said, nothing magic summer of As I 1953. have there is 1953, anything to me about the summer of nor would there be particularly magic to me about the fall of 1949 itself. The whole questions purpose respect so framed with to the time element my attempt get helpful was information that would be to me in progressive steps attempt my part judge, of terms and an on your therefore, May now, fitness as of 1955 and as of to continue to thought be a teacher the Newark Pubiic Schools. So with that you Imind have not been able to share with the distinctions you any particular magic the reasons have used as to date determining remoteness on one hand or lack of remoteness on the hand, point you your and I other wish to out reluctance to questions prior you selected, answer all to the date which the sum- give hoped mer of helpful does not me information that I would be determining responsibility I what have the to determine. saying you you my I am so that will understand from point placing special emphasis any par- I of view that no year, date or ticular season and it was within that frame- exploring questions. Therefore, I work that was those I will ask you if, light explanation once more of this statement mine, you your change responses my wish to to those of period prior that had to do with that broad summer of 1953. (Dr. counsel.) Lowenstein consults with you opportunity you given me, A. I thank for the have but my change will not answers.’'

Thereafter, following filing by Superintendent and his transcript testimony Dr. charges against Lowenstein based the refusal to answer upon the questions, was had before the Board of hearing my Education. was marred an proceeding this judgment, unprecedented action, is, Kennelly Dr. to the witness calling for the purpose permitting stand Lowenstein’s counsel him as to cross-examine support found before him for the taken filed with testimony charges were then Board which heard. The being record showed Board consented for the as an accommodation counsel that such procedure All can said for unique to this that step. unfair Lowenstein. is that it was not to Dr. additional ques- discussions of counsel Prom the in Dr. Lowenstein’s at that place hearing which took tioning there seemed have become plain (assuming presence, on which that at least one basis was doubt prior thereto) to Lowenstein put Superintendent were questions an Por credibility. example, during argument was that of counsel Kennelly, of a asked as to the propriety question Board said: for the “* * * say you trying a man when are to find out whether * * conducting today *, you an is a when are inquiry believing to determine whether there was a basis for whether Communist, you asking to-day him about his a man is a are present protestations weigh association his that he is not to-day, legitimate question any question is that could throw some veracity denial,

light ‘I am not on the of his bald now * * *” Communist; I have not been since 1954.’

Later, resumed his as a witness and capacity Lowenstein made a statement as to his to the United long present loyalty States. At that time he was specifically oppor- given to add he wished to the record. The tunity par- anything ticular which he refused answer before Dr. questions were called to his attention and he remained Kennelly again 1, steadfast in his position prior July anything was too remote and not relevant as to teach. capacity fact, he said he was “ashamed” of answered having as to subjects, and that he was pre-1953 “sorry” them; he had not refused to answer the answers con- stituted “a permanent blight” him, and because he against answered described the record as an “ignominious” one. And he was asked if he when conceived that “it into affiliations impossible any inquiry prior to that date, 1, could under July any circumstances cast light as far present employment, as communist affiliation [his] concerned,” he replied that under the Constitution “no that kind of is authorized.” inquiry give light The state of the record at that time me the im gave that pression it would have made no in Lowenstein’s difference attitude if the had the Superintendent specifically proffered information that as to the were questions past being prat But, the issue of I veracity. that thinking might be mistaken in view of the and we majority opinion because were in such a acting area, sensitive the remand joined in order to remove doubts. felt My colleagues Dr. Kennelly have the sense might misinterpreted of the Laba opinion concluded that the reference to present affiliation sanction for provided interrogation without limit into the past. Such misinterpretation, they reasoned, have been for his might responsible failure to advise the witness as to the nature of the was he light was that seeking. My feeling of this language court in context was construed too perhaps broadly Dr. by Uennelly; it was properly Lowenstein, construed but him in misapplied to furnish answers some refusing of the questions.

As I read Laba it authorized an into inquiry affiliation well as affiliation as (as of the date of the Con- Committee gressional with or adherence to the hearing) principles purposes Communist Party. It also an approved excursion into such past connection to the point of remoteness. Examination into the past to the point remoteness would serve two ends: assist in (1) forming as to the truthfulness judgment denial of such exist- beliefs; or and, affiliation if ing (2) and dis- membership association in the recent reasonably past did appear, provide information to the nature and extent of Lowenstein’s member, activities while a e. g., whether he taught Party Communism in his classes, enlisted others to join the and teach Communism Party (in to their sense) It must students. in mind kept that disposition of the if any were made after such an charges, interview, might not result in dismissal in all cases. The Board might not dismiss on finding involving only past membership Mrs. she Party. Communist Laba was not dismissed after discre- admitted Dismissal would rest membership. tion of the Board. It nature might depend upon extent teacher had him- party discipline subjected to, party self whether line his class- taught he had other rooms or whether solicited teachers to join Party. In the interview by first the refusal to Superintendent answer on the was based were ground too remote. “Remoteness” in a of this kind ease is not susceptible of fixed definition. As a my said, colleagues a a question whether teacher was ever Communist is im- proper. Manifestly, reveal, as some histories case there a substantial difference between who listened the persons siren of Communism in song depression the the days of 1930’s who early and withdrew on of its learning treasonous motives, and who others the joined Party subscribed to its after disciplines the Korean conflict. it Accordingly, seemed to me that the in- Superintendent interview correctly assumed unlimited interrogation into the past hand, was On approved. the other Dr. Lowenstein, who said he had made Laba deep study of the opinion, correctly concluded he was answer obliged to questions as present connection with the Communist Party and past connection the point of remoteness. The impropriety he at took the position interview and in the testimony before the arose from Board his 1, decision to set July as the terminal and the point relevancy, beginning point of the remoteness. On record then before us that arbitrary not be limitation could the justified. On other hand, paucity of information which resulted from the abortive made us questioning impossible for to establish a fixed at point which remoteness began. of his part explanation answer, refusal to Dr. Lowen-

stein had he stated that had studied the Laba decision under counsel and guidance of felt that selecting July 1953 as the back date of which would he not permit ques- consistent, explanation sensible he was tioning, making He legal was his obligation. of what the court indicated “This is the Court says that when the Supreme said also law,” Eor that reason answered he abides law. law-abiding felt answer as a which he obliged assumed sincere, as these statements Accepting citizen. at make fair and answers responsive that he would all which Superintendent questions put by reinterview to would be relevant. proper some I con- reasons stated and with misgivings,

Eor the interview. in the remand of the matter for third curred did not of this court from opinion depart The second in Laba. Lowenstein’s reliance upon enunciated principles Committee, Amendment Congressional Fifth before his dismissal. But it itself, justify imposed would a full Kennelly inquiry upon duty conducting if Lowenstein is remain as qualified to determine dedicated to furtherance of democratic place teacher Questioning ideals. association and affiliated with the Communist organizations for it made basis more approved explicit. said:

opinion questions relating- e., (i. all “If he answers to current status asso- subjection Party disciplines) with the or ciation to its whatever, negative employer in the no and has reason either the possession skepticism other information in his or of as because of general from to the answer should be believed stand- whether the point credibility, sincerity full to doubt the truth and the them, inquiry need to test and does must denials feel * ** inquirer doubts, if the has honest in- end. But or other at hand seems inconsistent with the so formation disavowal query, privileged for and further as indicate the need test he is to probe interview, from date of the for to backward conduct present.” I, J., relevant Lowenstein N. then becomes added) p. (Emphasis and at insertion 286. role in the continued inquiry to be as sug- Lowenstein’s He had a “duty Laba. and an by cooperation gested in fitness”; burden the establishment affirmative [his] full frank and Superintendent was “entitled to I, however, disclosures.” In was made ruling Lowenstein with he had to a basic which respect position controversial assumed at in interview and in his previous argument this court. He was told there no "* * * legal justification inquiry for a teacher under to set an arbitrary beyond speak ground date he will not which irrelevancy.” p. conclusive At 288.

At this point must digress momentarily express sym- with the pathy difficulty apparently experienced by parties, Education, in Superintendent the Board of as understanding reaching ground common to the sig- nificance of the words “now” and “present” by used this court. said that opinion or “present” membership with affiliation the Communist or Party “present” subjection its was the test of ideology public fitness teach school But it did not system. elaborate as to what was just meant by “present” affiliation or membership, subjection. Obviously, it did not signify such association Lowenstein on the date of the interview alone. Naturally that day to be included but could not be said be exclusive. Strictly is the speaking, today present and is the yesterday past, but in a context such as this the period constituting be present must of broader Would coverage. anyone if a say that teacher withdrew from the Communist Party today he could not be dismissed as unfit or otherwise dis- ciplined by Education, the Board of even though years up yesterday been teaching his students the party them principles inciting to overthrow the government So, force? under ordinary circumstances, “present” must denote at or about time of the teacher’s suspension from duty active the school system.

Thus, for of this case purposes (except for circumstance mentioned), membership or adherence to its about the date of program Lowenstein’s suspension e., should be the test i. applied, May 19, 1955. That date therefore “present” beginning must be The covered period of the inquiry. focal point of any 1955 to the date May would be from “present” controversy through a went Otherwise, if such reinterview. sent and then was back years for ten courts in the proceeding, of some error Superintendent because the test date. would be date the reinterview reasonably not could of a teacher’s cause strongest partisan a such rule. adopt court, the matter in this of the ease appearance the last Superintendent right centered about contention Communism, particu with into connections inquire It did time 1953. prior July to a

larly respect with con precise to elaborate about the then necessary not seem which was the date or period or “present” notation factual framework its limits. But actually within association, was meant by “present” of what the question e., the reinterview or some the date of i. whether meant unnecessary part date an period, played earlier treatment of the ease. diversionary influence exerted had summer Lowenstein testified “from previously he had been member of the Communist 1953 on” not had not after the of 1953 on” he “and that summer Party Fox of the Communist Ralph a member of Branch been himself made the As Lowenstein Party. consequence Was he member the Communist issue clear: primary in July, its in the summer ideology (or or subject to If at he also of 1953 or thereafter? the forth put it) believed the statement of Kennelly interview Dr. coming day July or connection on that or back nonassociation if 1953, it was incumbent on him to end the But inquiry. he had entire record of the case date mind with the veracity an as to the of Lowen honest reasonable doubt denial, quest stein’s he was his the truth justified, backward from 1953 to interrogation July in pursuing would reasonable point persons disagree where reached. remoteness been

136 case, now the main

Returning stream of it seems necessary to refer to deep-rooted by some which principles the mental attitude and of all the conduct actors involved in the The public reinterview should have been guided. of this State as established policy Legislature opposed to or teachers appointment retention of public system, school who believe in or the over advocate throw of the State or Federal Government force or Laba, violence. N. S. A. 9.1, 9.2; 41:1-3; J. supra, 18:13— 392, at pp. 393. So if Dr. emphatic the policy in a Kennedy, one, situation like present asked a if, teacher within the years, five he had been a previous member a group of which believed or advocated that type of overthrow of our and he government refused to answer Amendment, on the Fifth relying immediate dis charge would be N. proper. fact, J. S. In 2A:81-17.1. the statute that such refusal shall says forfeit his employ ment, tenure pension.

This court in Lowenstein I with the remarks of agreed Justice Heher in v. Board Trustees Schools Thorp of for Education, Industrial 6 498, N. J. 513 (1951), “loyalty to government and its free democratic institutions is first for requisite exercise the teaching function. Freedom from belief in force or violence aas justifiable weapon destruction is of the essence government very of a teacher’s qualification.” The United States Supreme Court Education, in Adler v. Board 485, 342 U. S. 72 S. Ct. 96 L. Ed. 517 (1952), matter of discussing teacher indicated loyalty, plainly “past conduct well relate may fitness; to present have past loyalty may a reasonable rela- tionship to future trust.” It said also: “A teacher works in sensitive area in a school room. There shapes young society attitude minds towards in which they this, preserve live. the state has vital concern. It must integrity of the schools. That the school authorities have the duty right officials, teachers, employees and the to screen the integrity part their fitness maintain the schools as a society, S., p. 493, of ordered cannot be U. at doubted.” Ct., p. 72 S. 385. factor Another to be recalled in the orientation process reinterview, for the and which the record demonstrates was in the minds of the actually parties throughout ques- was the of the terms “Communism” tioning, significance and “Communist left Party.” Laba no doubt that score. The opinion said: may longer simply “The matter no be viewed as one of academic thought expression, actually freedom of and for it has one become self-preservation; of we are convinced that is an Communism alien concept govern which is dedicated to the overthrowal of our form of ment, by necessary, deprive very force if and seeks us of the dear; basic constitutional liberties which we all hold so recent happenings futility

world furnish of further evidence its promises solemn and the barbarism its deliberate actions.” J., p. N. at 388. That view is peculiar to this court. Both the United States Supreme Court and have Congress given expression it; the former referred to it “the long widely accepted States, view.” See Barenblatt v. United 360 U. S. 109, 128, 79 S. Ct. 1081, 3 L. Ed. 2d 1129 (1959).

Finally, of equal importance to an understanding the nature of the held, conference it about was neces- sary to be mindful that it was not loyalty There hearing. was no charge by Superintendent that Dr. Lowenstein was a Communist 1955 or at the time of the interviews. vital circumstance (This quite obviously was not compre- hended by at least one member of the Board Education who voted to reinstate Lowenstein because the record made reinterview failed to sustain the that he was charge then Communist.) The interviews were precipitated by his plea the Fifth Amendment before the Congressional Committee which this court had said warranted an inquiry into his present fitness to teach. Their purpose to find out if he was currently the sense (in a member explained) of the Communist or a Party believer its disciplines. case, however, there of the background view of the Superintendent’s some realistic approach

must be as to with questions If such an interview began problem. or adherence membership answer Party, negative of the purposes disciplines judgment reasonable see how received, were do not denial credibility the issue of the could be formed on can be “no” answer A exploration. without some further same it remains the turned down and inside out and upside factual set in a Only up pertinent bare word. when the formation which will perspective, reasonably permit become “no,” interview value can the judgment meaningful. consideration, now under

At the outset of the reinterview under- to the principles Dr. Lowenstein asserted loyalty and his States, opposi- government of the United lying however, immediately, again tion Communism. Almost con- the 1957 laid down the time barrier that ran through e., ference, long prior i. 1953. asked how Upon being July views, he he to 1953 held those declined to answer. did not know As the he said he questioning progressed, conspiracy, if was an international Party the Communist government one whose aims was to overthrow States force. He the United States by thought United had said that was the of the Supreme purpose Court such declare, did Party, American Communist and if the Court so in he it. Then he the belief that 1955 accepted expressed members of the he that some probably thought Americans; but he felt that because Party could be loyal in relations in the five years, international changes in loyal fewer of such members could be Americans 1960. He knew on any about nothing obligation part deceive and Communists to cheat and break generally rules of the and he wondered element of “what truth game, there in indicated his belief that may be that.” He fit to Communist could be a teach in the Newark person schools; public he could have the teaching scholarship, methodology respect for individual requisite position. He declined answer in whether believed 1955 that a Communist could possess display the ethical standards that teach person fit school public system.

At this juncture, Dr. Kennelly, who participated all previous and so was familiar with proceedings thoroughly them, as expressed doubt and skepticism Lowenstein’s denial current membership or to its subjection ideology. repeat that such “current” connection with Communism in the framework of the case covers the back July period 1953. The majority does to define its opinion attempt not use of or “present” association; “current” or to express any view as to whether 19, the date fulcrum or May 1953, July or whether the date has moved for progressively ward with each interview so that membership subjection date of precise interview, 2, 1960, the last September would be event, the decisive point. whether Dr. Kennelly’s doubt related to or affiliation party membership as of 2, 1960, September or as of back time any previous plainly was doubt Lowenstein’s engendered by answers at the reinterview considered light previous history of the case. background Whether doubt was a reasonable one that context now as emerges the crucial issue the case. No one suggests Kennelly’s skepticism motivated bad faith or any other than a thing desire to discharge responsibility Superintendent of the Newark public school More system. over, neither the Board of Education, nor the State Commis sioner Education, nor this court be justified would in dis the statement of regarding doubt as a matter of law, unless can be said that the reasonable, minds of intelligent conscientious officials would differ as whether the doubt was If unreasonable. conclusion unqualified cannot fairly reached, then Dr. justified was Kennelly fact (in Laba, J., I, see obliged, 23 N. 375; at p. Lowenstein J.,N. p. 283) pursuing inquiry back- progressively his to resolve in an effort of remoteness point

ward to doubt. of of the Board Educa- of some members

The statements ad- make it before them at the close of the argument tion the retrospective clarify significance ques- visable were three of it. There end results possible tioning Dr. would resolve The further questions (1) possibilities. indicated) above current the sense Kennelly’s doubt (in belief in Dr. a state of produce connection Communist á of insubordi- result in disavowal, Lowenstein’s (2) charge reason- answer nation refusal upon pertinent questions doubt, or if the (3), related to the resolution of ably current membership sufficient evidence of answers revealed a ideology, justify charge or its advocacy to teach on that of unfitness ground. voice and to his desire to probe

After doubt giving had a if Lowenstein been further, Kennelly inquired Dr. subject to its or believed Communist, ideology a or had been member Com- ideology, any since All these 1950. organization munist-front Lowenstein’s met with refusal to answer. position were 1953; his “cut was counsel’s July was that off” period that such was “out bounds” objection questioning was The refusal resulted in under the decision of this court. Dr. that Lowenstein was finding Kennelly guilty teacher, conduct and that insubordination, unbecoming as a his usefulness teacher substantially impaired the Newark school system. matter

When came before the Board of Education charge those constituted to be decided. It findings neither that there was nor again emphasized charge finding Communist; currently further, that Lowenstein was Dr. was Kennelly’s to sustain Board not called findings make respect. determination upon simple history issue was: On basis of record of the there a and the reasonable interrogation, case basis for doubt as to Dr. Lowenstein’s dis- Kennelly’s feeling

141 in or membership avowal of current to the subjection of the Communist principles Party.

After argument and second lengthy improper of calling aas Kennelly Dr. witness before the reviewing Board for counsel, by cross-examination Lowenstein’s and some oral of Board, views some expression by members of the a 5 charge was sustained vote. Whatever may have been the oral of which, utterances the various members, except member, case of one plainly appeared to be seven extemporaneous, days before the elapsed final and detailed formal order of was entered. discharge And we were advised at the oral argument this that in court counsel meantime for the Board consulted with the members thereof with the form respect and set findings forth therein order represented their final action. order says: The opinion “It is the of decision this Board that the answers

given response Superintendent’s questions, to the abstracted annexed, reasonably justified the Schedule the doubts asserted Superintendent inquiry and the additional which he believed to be necessary by reason thereof.” conclusion, On the basis it adjudged Lowenstein guilty unduly obstructing Superintendent’s inquiry to answer by refusing the questions relating connections between 1950 and July 1953.

The State Commissioner of Education was of the same said: view. He against background “Considered climate environment case, given by appellant Superintendent’s this answers

inquiries achieving purpose fell short of the interview and appellant’s such were as to raise a reasonable doubt fitness teach, judgment. the Commissioner’s The need for further testing thereby adequately established.” of this have majority court now disagreed with the Superintendent, the Board of Education Commis- sioner Education. To me the unfathomable aspect of as matter law holding

their opinion which from facts or inferences facts record barren about Kennelly’s doubt a reasonable basis provide effect, In to Communism. current adherence Lowenstein’s and the fair all the revealed material that on say they for dif- no reasonable ground inferences therefrom there and conscientious opinion among intelligent ference of If doubt. Kennelly’s as the of Dr. rationality officials trial, a of the viewpoint were proceeding jury a was the issue whether doubt would mean that majority for determina- not be submitted to jury could justified the trial would have be decided tion; by question law to the assertion rea- as a adversely matter judge this with decisions of court Familiarity sonable doubt. me that less formidable factual settings leaves without doubt a held determination of the require jury been have particular problem presented. if reasonable

Let us at the record to see there look Dr. Kennelly’s veracity doubt about justify basis mem- Party disavowal of current Communist Lowenstein’s its or bership subjection disciplines. reinterview,

At the Lowenstein denied September in Communist in membership Party current or belief connection, this an obvious disciplines. (In its ideologies Communism, must kept be mind. speaking fact Dr. Lowenstein Kennelly both meant belief of the overthrow of advocacy govern- our Likewise, ment he reaffirmed the by force.) position he had at the 1957 interview. said respect taken He believed probably 1955 he Communist could be loyal American and he the view also that expressed at the present some of them could be such Americans. time Further and to the present more he indicated germane inquiry, plainly be a fit person that a Communist can to teach in the public schools.

After these answers the hearing Superintendent, being case, background conscious of the expressed as doubt to the credibility of the disavowal of Communism. He uncertain in his own as mind to whether to face accept value and felt to probe need further to resolve the The uncertainty. majority opinion seems to accept Board's characterization of the answers referred to above “unorthodox,” but their suggests very unorthodoxy makes clear” the “crystal truthfulness of current rejec- tion of My colleagues Communism. of the majority contrast answers, what i. they cal! “stock” negative ones whether a Communist can loyal American or a in a fit teacher school with public system, Lowenstein's ones, “unorthodox” and find the latter more indicative of his truthfulness on the main issue. That conclusion in my certain judgment disregards fundamentals as well as the background public case. policy of this State as promulgated by Legislature as enunciated this court, denies teaching post public school system to a Moreover, Communist Party member. Lowenstein's view that a a such can be fit teacher person brings mind the Barenblatt, comment of United in Supreme the States Court in connection with the a supra, right of Congressional Com- mittee Communism in investigate the public school system in and to that interrogate teachers connection: suggest Party may sponsor “To that because the Communist also peaceable political reforms the constitutional issues before us should just judged Party ordinary political party as if now be were an that standpoint security, from of the national is to ask this Court blind itself to world affairs which have determined the whole course * * *." policy II, of our national since the close of War World S., p. Ct., 128, 129, p. 1094, 2d, S. 360 U. at 79 3 L. at Ed. at p. 1130. Further, in Barenblatt's claim that discussing the ques- the the violated First Amendment of Federal tioning Con- stitution, the court said: long widely in for turn “Justification its exercise rests on the

accepted Party of the Communist view tenets include of of ultimate overthrow the Government the United States force * ** p. p. Id., S., Ct., U. 79 S. at and violence .” 1093. which, there in association with background What is reasonably of Lowenstein, “unorthodox” answers might these between membership stimulate a as his denial Party doubt is point 1960? The July September beginning 1953 and Fifth Amendment before Con reliance upon proof party Such not plea Committee. gressional a for called but, reasonably membership taught, Laba cooperation he duty fitness which inquiry fitness.” “an in the establishment affirmative burden [his] Communist, had told Com Dodd, a Dr. Bella former member, a Party him as under she knew mittee oath that top in New York held meetings who came Federation the American of the Communists in committee important most of Teachers. She said also in the organization the Communist group member of denied the latter Lowenstein Party teachers in the interest. and 1960 in the 1957 testimony portions two Dodd’s declined, however, membership to deny interviews. He back of 1953. evaluation of the make final It not our function to are conflicting They simply declarations. credibility of those justification which plays part circumstance however, I do with agree, not inquiry. the Superintendent’s type in an of this the passage inquiry contention 1940’s has circumstance early emptied of time since inferences, facts and even all The bridging significance. testimony Dr. Dodd’s preserve though great quantity, open in the to consideration picture as factor total an In of Communist investigation the Superintendent. awareness that are hard there must some facts affiliation be to come by. Lowenstein at the 1957 employed by

The phraseology after 1953 membership cannot denying interview 1953 the summer of on have not been “From overlooked: a member of the Communist “at time since no Party”; * * summer of 1953 have I “after *”; been member the summer a mem- of 1954 I have not been [and 1953] ber or with affiliated Fox the Com- Ralph Branch of munist These did not come from the Party.” statements mouth uneducated, of an The majority man. unintelligent opinion him describes as a of aca- person “acknowledged demic and pedagogical competence”; person “obviously mind, independent not or given forming expressing opinions without of the being conscientiously convinced soundness and facts.” For accuracy pur- underlying poses of our his dis- present problem, significance avowal of “from the summer Party membership, Ion have a member,” etc., not been must be evaluated light appraisal that of his mental acuteness competence. On that basis and against backdrop Dr. Dodd’s it that testimony, seems his statements are plain reasonably of the inference that a Com- susceptible he was munist member prior to, some time and perhaps until, even of 1953. The deprecate summer majority it testimony, Dodd’s would be re- saying never ceived in a of law. are court But we an concerned with administrative a trial not proceeding, according common law. No declaration made that her sworn assertions as to Lowenstein’s active do not Communism supply proper competent basis for inquiry Superintendent to present Party connection belief in forceful of our fact, overthrow government. propriety information of this and even formal using less J., type is Lowenstein I. 33 recognized N. 287. pp. used, Such not used, material nor it be prove could its asserted; limited, here, the fact function is as it was providing justification interrogation of the teacher. inference does have suggested not to be drawn and dissent is purpose of this say should be drawn. Nor is assert my purpose to the inference represents the But inference is one fact. which may was open and it testimony be drawn from reasonably it, if in the conscientious accept to to the Superintendent was his he felt that public responsibility discharge warranted. be the Superintendent

It that when seems obvious quite a feels that Com came that Lowenstein presently aware some of American citizen munist can be loyal a doubt school public system, them can be fit teachers for to whether he should arose in his mind —an uncertainty —as alle of present as truthful Lowenstein’s disavowal accept of overthrow objective the Communist or its Party to giance force of our The doubt its generative found government. in that were facts and the inferences totality a state him. record was in available to The investigatory Court, akin which in Supreme to that the United States California, v. Bar 81 S. Ct. 997 (1961), State Konigsberg as of “sufficient to regarded uncertainty” justify question . At Communist affiliations this ing respect with to past it was not to point, his burden Lowenstein prove Communist. The he owed school duty public sjcstem to was in sincere to resolve his doubt as to effort engage in If in his further Lowenstein’s discretion credibility. was aid in Lowen needed to him that purpose, terrogation stein in faith was under the obligation cooperate good the endeavor. the total record reasonable basis my opinion, provides Moreover,

for assertion doubt. there Kennedy’s that his was not the suggest doubt nothing product faith. Under circumstances good justified the additional membership propounding Lowen- the Communist activity stein was of insubordina- properly subjected charge as a tion and of impeding investigation consequence In the refusal to answer. factual cannot setting escape the world would be much place the conviction better assert their so to live in if those who would rights vigorously their responsive obligations. be equally its reversal does not limit majority opinion reasonable basis for to of absence of finding discharge of Lowenstein’s disavowal doubt to the truthfulness in its pur- connection with the or belief Communist It holds also to overthrow the pose by force. government stand cannot that the decision of the Board of Education two of its members because the oral statements given by votes their close of counsel show that argument the scope were cast on which were not within grounds Lowenstein. charge against and con- a lengthy

The criticized utterances came after in our previous as to what was meant fusing argument frame- membership opinion by “present” the first It was in that atmosphere work of the case. court, this re- is criticized member, majority who far as decision so what marked that he was “not making any Then he ex- has said or hasn’t said.” Court Supreme children that doubts as a father of school pressed grave But those was “a normal American teacher.” Lowenstein have mean that he came from this record. They doubts dis- of Lowenstein’s had doubts about the truthfulness too avowal of Communism. member whose vote to discharge regarded

The second difficult for to understand layman as invalid said it was discussed, and he was technicalities going the legal moral issue involved. Then his decision on the base proceeded as they should be ask why, * * since “our courts have been so lenient * defending a person, * * ^[*] should not be to bend backwards to willing give Lowenstein us decide some of help information these issues some 1953.” Does not that reveal preceding language for the years who has doubt about Lowenstein’s layman the mind of wished to into probe and who therefore the past? disavowal dismissal, two votes for analyzing majority the motivation for from commenting refrained votes the oral as indicated reinstatement comment. For member, who quite such came obviously One example: with a statement, meeting lengthy prepared said it was the Superintendent’s duty to substantiate the charge Lowenstein was an active militant Communist "beyond any doubt in the minds of this tribunal.” view can hardly Such be described as a product of the Laba or Lowenstein I opinions this court. Another member who voted the same way felt that obviously Kennelly Lowen charging stein with Communism rather than insubordination for re fusing cooperate answering questions to find designed out if he was currently Communist. She referred to the of our portion opinion Lowenstein I which, in passing, said that dismissal of a teacher for is not deserved disloyalty unless the proof thereof is “abundant.” Then she declared that the “burden of abundant producing proof not been adequately She said discharged.” also: say, frankly, “I irrep- must that I feel Dr. Lowenstein has done damage system. arable to his value and usefulness in this While judged demanding rights, he cannot be for his Constitutional still placed one responsibilities would rather wish that his community profession rights. before those As Dr. Lowen- attorney system stein’s own stated to us—and I fear our school will display legal fencing not be better for this believe that such —I victory ‘rights’ truly victory; a hollow almost a caricature right.” of the Constitution [sic] In the of the light quoted statement and of her misconcep- tion of the problem she was called being upon decide, is it not plain that she too had doubts like those of Dr. ? Kennelly

As I have already indicated, after these oral expressions had been voiced, counsel for the Board met with its members prepare put form proper their findings fact and order of dismissal. That document sustains Dr. Ken- nelly’s finding reasonable doubt about Lowenstein’s credi- a trial bility. Frequently judge, on a ruling motion or a case from the bench deciding fashion, in summary will make statements that do not seem to dovetail with his subse- written opinion or formal quent judgment. Yet absent some most unusual circumstance, the written opinion the final would be treated as judgment decisive on appeal. So, too, in the situation, should course be followed, particularly since the oral statements criticized by the majority opinion can be re- analysis reasonably as consistent with and as garded the basis for supporting desire to move his Kennelly’s of Lowen- interrogation stein back to 1950? The oral comments of the two Board members I have spoken about, who voted to reinstate Lowen- stein, because apparently misconceived the issue to they be resolved, should not obstacle to the provide any acceptance of the formal and order as the findings to be judgment reviewed this court. These two members voted against dismissal either because adhered their they an- orally nounced impressions or because did not they with the agree formal expression of the views and findings majority of the Board.

But since such an of the final order appraisal may I do regarded legalistic, not rest dissent my upon refusal to treat it as the majority my colleagues of the Board’s In repository action. my judgment, as to whether the order the final and question represents resolution of understanding issue to be decided precise to be remanded to the Board and not decided this ought court. This is so where reinstatement particularly may expose $45,000 of Newark to a City of between liability $50,000. J. See, 18:3-28; N. S. A. 18:5-49.1. written, when Laba was the contention was made that the remand further interview to be to the ought State Commissioner Education and not to Newark Super- intendent and Board of Education. On that occasion the court said: personnel is no substantial “There reason to believe that the local sufficiently equipped impartial inquiry,

is not to conduct fair and compliance principles it will fail do so in or with the ex- pressed by the State Commissioner and this court. The School Laws contemplate general presented that where the issue of fitness is ample safeguards locally original with should be made determination the courts.” authorities the state school on review before J., p. N. 384. And now. then and it sound That attitude was sound court’s interference the limit of this represent it should order dismissing of Education’s Board with True, school public system. Lowenstein from the Newark court and has reached this the case has taken a time long times, private rights three but there are important public we should much as the is to be delay regretted, involved and deter- with proper original not allow to interfere impatience local level. mination of the matter at the further, no to the Superintendent; Remand need not be sent record should be interview is necessary. existing to answer two questions: back to the with directions Board was there a reason- record, 1. the basis of the entire On Dr. doubt as to the truthfulness Kennelly’s able basis for in the Com- membership Lowenstein’s disavowal subjection disciplines subsequent to to its munist 1953? July so, If Dr. Lowenstein of insubordination

2. guilty obstruction of the improper investigation refusing to that for the subject period answer questions relating back to 1950? answers, affirmative produce Super-

If both questions and the dismissal of Dr. intendent’s was warranted charge Lowenstein from the staff would be teaching proper. stated,

For reasons I cannot with the agree majority If, this case. Moreover, we must live opinion. beyond us, a of a public a record such as it brings Superintendent school has system press interrogation beyond no right the interview formula so forth established, the limit now has of all announced Laba been emptied significant rightly content. me

Justice Pkoctok and Justice Haneman authorize in this dissent. they join say and Justices For reversal—Chief Justice Weintraub, Hall Jacobs, and Schettino —4.

For reversal and remandment —Justices Ftancis, Proctor Hangman —3. PLAINTIFF-RESPONDENT, JERSEY, v. OF STATE NEW RODRIGUEZ, JESUS DEFENDANT-APPELLANT. Argued May May 9, 1961. 1961 Decided for the cause argued appellant. Nathaniel Rogovoy Mr. Russell, Prosecutor, County Assistant Douglas Mr. N. Tuso, respondent (Mr. Joseph E. the cause argued Prosecutor, attorney). County

Case Details

Case Name: Lowenstein v. Newark Board of Education

Court Name: Supreme Court of New Jersey

Date Published: May 22, 1961

Citation: 171 A.2d 265

Court Abbreviation: N.J.