For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For modification -- Justice Weintraub. The opinion of the court was delivered by Jacobs, J. Weintraub, J. (concurring in part).
[23 NJ Page 369] The Newark Board of Education dismissed three teachers (Mrs. Laba, Dr. Lowenstein and Mr. Zimmerman) after they had pleaded the Fifth Amendment during a hearing before a subcommittee of the House Un-American Activities Committee. On appeal, the State Commissioner of Education determined that the dismissals were contrary to the recent ruling of the United States Supreme Court in Slochower v. Board of Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956), rehearing denied 351 U.S. 944, 76 S. Ct. 843, 100 L. Ed. 1470 (1956); however, he did not order reinstatement of the teachers but remanded the proceedings to enable full and fair inquiry as to their continued competence and fitness to teach in the Newark public school system. Without awaiting such inquiry or review by the State Board of Education (R.S. 18:2-4; R.S. 18:3-15) and without obtaining court leave (R.R. 4:88-8(b)) the teachers appealed to the Appellate Division and the Newark Board cross-appealed. In view of its public
importance we have certified the matter on our own motion (R.R. 1:10-1(a)) and have by-passed preliminary procedural points. See Appeal of Pennsylvania Railroad Co., 20 N.J. 398 (1956); Waldor v. Untermann, 10 N.J. Super. 188 (App. Div. 1950).
Dr. Lowenstein received his B.A. degree from Rutgers University in 1928, his M.A. from the University of Pennsylvania in 1929 and his Ph.D. from Johns Hopkins University in 1934. He has taught in the public school system of Newark since 1935 except for three years when he was in military service and one year when he was an exchange teacher at a boys' normal school in southern France. Mrs. Laba received her B.A. from New York University in 1935 and has taught in the public school system of Newark during every year since 1935 except for several years when she was employed at a hospital on a research grant. Both Dr. Lowenstein and Mrs. Laba duly acquired tenure protection under the New Jersey School Laws. See R.S. 18:13-16; R.S. 18:13-17. Mr. Zimmerman received his B.S. from State Teachers College at Newark in 1940 and thereafter received his M.A. from New York University. He began teaching in the public school system of Newark in 1952 and had not acquired tenure protection when he was dismissed by the board. However, in view of the terms of R.S. 18:13-11, all of the parties and the State Commissioner have, for present purposes, not differentiated his case from the others. When dismissed by the board, Dr. Lowenstein was teaching languages at Barringer High School, Mrs. Laba was teaching biology at Central High School and Mr. Zimmerman was teaching arithmetic at Dayton Street Public School.
In May 1955 a subcommittee of the House Un-American Activities Committee conducted hearings at Newark. Representative Clyde Doyle presided and pointed out that the committee had been charged by Congress with the responsibility of investigating (1) the extent, character and objects of Un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda which is instigated from [23 NJ Page 371] foreign countries or has a domestic origin, and attacks our form of government as guaranteed by the Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. The committee's power to conduct such investigatory hearings in aid of the Congressional legislative function is now beyond question. See Quinn v. United States, 349 U.S. 155, 160, 75 S. Ct. 668, 99 L. Ed. 964, 971 (1955); Barenblatt v. United States, 240 F.2d 875 (D.C. Cir. 1957). Cf. Eggers v. Kenny, 15 N.J. 107, 114 (1954). Dr. Lowenstein, Mrs. Laba and Mr. Zimmerman were called to testify before the subcommittee and they all appeared on May 19, 1955. They answered preliminary inquiries but then declined, generally after conferring with their counsel, to answer particular questions which bore, inter alia, on present and past membership in, or association with, the Communist Party. In one form or another their refusals were rested on the Fifth Amendment of the United States Constitution; their refusals were for the most part honored by the subcommittee and, in any event, they were never cited for contempt. See Byse, "Teachers and the Fifth Amendment," 102 U. Pa. L. Rev. 871 (1954); Finkelhor and Stockdale, "The Professor and The Fifth Amendment," 16 U. Pitt. L. Rev. 344 (1955). On the same day the Superintendent of Schools of the City of Newark suspended them (R.S. 18:6-42) and four days later he preferred charges which referred to their refusal to testify before the House subcommittee and alleged that such conduct constituted just cause for dismissal under R.S. 18:13-17. A hearing on the charges was held before the Board of Education of Newark and a fair reading of the transcript indicates that the single issue under consideration was whether the refusal to testify before the House subcommittee, in itself, constituted just cause for dismissal under R.S. 18:13-17 which provides that teachers under tenure shall not be dismissed "except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause." Counsel for the board repeatedly pointed out during the hearing that the sole charge was that
the teachers had refused to talk when they should have, that they thereby lost their usefulness and fitness as teachers, and that that was "the only issue." At one point he remarked that the teachers were charged with having "refused to talk at a certain place"; that it would be no defense for them to assert that they were good teachers and were not Communists; that it would, however, be a defense if they established that the record of their refusals to testify was wrong; and that none of them could "offer any evidence on that except I did or didn't refuse to testify. The rest of it is argument." During the hearing the teachers did offer to answer one, though only one, question which was apparently designed to elicit that they were not then Communists; the offer was declined.
At the conclusion of the hearing the board, by a vote of five to four, sustained the charges against the teachers and dismissed them as of May 19, 1955. They appealed to the State Commissioner of Education in accordance with R. S. 18:3-14. The State Commissioner took no additional testimony but he did have a complete transcript of the proceedings before the board. A hearing was held on September 15, 1955 before the Assistant Commissioner. All counsel argued and briefs were filed by the parties as well as various amici curiae. On May 9, 1956 the State Commissioner filed his formal decision which remanded the matter for further proceedings before the board. He noted that the evidence before the board had consisted of little more than the transcript of the House subcommittee hearing; that no other inquiry whatever had been made as to the "fitness" of the teachers; that "no evidence was adduced as to what the appellants' affiliations were in fact, or as to their reasons or justifications for exercising their constitutional privileges"; and that the board had "rested its decision squarely on the proposition that in a Congressional inquiry into Communism and subversion generally, where a witness is questioned as to his affiliations and associations, his invoking the privilege against self-incrimination is per se conduct unbecoming a teacher and just cause for his dismissal under R.S. 18:13-17."
He then recognized that the board's action would fly directly in the face of the Supreme Court's decision in the Slochower case which, though it was rendered after the board had taken its action, was fully binding upon him as it is upon us. Accordingly, he set aside the board's decision though, in view of the acknowledged need for keeping sensitive areas, such as the public school systems, wholly free from subversive elements which seek the overthrowal of our free society, he did not order immediate reinstatement of the teachers but remanded the proceedings for appropriate inquiry by the supervisory school authorities of Newark. See Thorp v. Board of Trustees of Schools for Industrial Ed., 6 N.J. 498, 513 (1951), judgment vacated as moot, 342 U.S. 803, 72 S. Ct. 35, 96 L. Ed. 608 (1951), where this court sustained the constitutionality of New Jersey's statutory requirement that public school teachers take a prescribed oath of allegiance which disavows membership in or affiliation with organizations (such as the Communist Party) which advocate governmental changes by force or violence. See Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). Compare Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S. Ct. 909, 95 L. Ed. 1317 (1951), with Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952). In the Thorp case, supra, Justice Heher had the following to say for all members of this court:
"The maintenance of the purity of the educational process against corruption by subversive influences is of the highest concern to society. It is in no real sense a denial of academic freedom to require of a teacher, as a condition to employment, a sworn disavowal of allegiance to the doctrine of force or violence as a mode of overthrowing government. That would seem to be axiomatic. Loyalty to government and its free democratic institutions is a first requisite for the exercise of the teaching function. Freedom from belief in force or violence as a justifiable weapon for the destruction of government is of the very essence of a teacher's qualifications. The apprehended danger is real and abiding. We have long had evidences of the pressure here of a godless ideology ruthlessly fostered by a foreign power which has for its aim the violent overthrow of government and free society. And one of the weapons is the debasement of teaching as a softening measure in the consummation
of the subversive process. The school system affords the opportunity and means for subtle infiltration. There is no intrusion upon personal freedoms when government intervenes, as it has here, to avert this peril to its very existence. A teacher who is bereft of the essential quality of loyalty and devotion to his government and the fundamentals of our democratic society is lacking in a basic qualification for teaching. The teacher is not obliged to take the oath; but if he refuses to do so he is not entitled to teach. In the current struggle for men's minds, the State is well within its province in ensuring the integrity of the educational process against those who would pervert it to subversive ends."
In his decision, the State Commissioner suggested that, consistent with Slochower and the earlier Supreme Court opinions in Adler v. Board of Education, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952) and Garner v. Board of Public Works of City of Los Angeles, supra, there were open to the board the following courses or a combination thereof: (1) it could conduct "its own inquiry into alleged subversive activities or affiliations of the appellants"; refusal to answer in such inquiry would constitute just cause for dismissal (cf. Thorp v. Board of Trustees of Schools for Industrial Ed., supra); and (2) it could itself investigate the refusal of the appellants to testify before the House subcommittee "going into such factors as the subject matter of the questions, the remoteness of the period to which they are directed, the existence of justification for exercising of the privilege, and the reason or reasons why the appellants made the plea"; it was the State Commissioner's view, as indicated in his brief before this court, that if such second line of inquiry disclosed that their refusals to answer before the House subcommittee were patently "frivolous or contumacious" there would likewise be just cause for dismissal. Cf. Slochower v. Board of Education, supra, 350 U.S., at page 558, 76 S. Ct., at page 641, 100 L. Ed., at page 700. Although the State Commissioner did not mention them, reference may appropriately be made to the paths suggested in earlier statements by outstanding educators throughout the country. Thus the American Association of University Professors had expressed the view that invoking the Fifth Amendment was not "in and of itself" justifiable cause for
dismissal but cautioned that its stand was not to be construed as advising or generally approving such action by teachers under investigation. The Association of American Universities had voiced the opinion that "invocation of the Fifth Amendment places upon a professor a heavy burden of proof of his fitness to hold a teaching position and lays upon his university an obligation to re-examine his qualifications for membership in its society." And in 1953 the Association of American Law Schools' Committee on Academic Freedom and Tenure*fn1 had prepared a comprehensive report on the subject; it took the position that a faculty member could not rightly be dismissed "solely because he refused on Fifth Amendment grounds to answer the questions of a legislative committee"; it stressed, however, that a faculty member is not justified in withholding information in any interview or hearing conducted by his own academic institution and made the following comments which bear on the particular lines of inquiry suggested by the State Commissioner:
"Whether a faculty member who has refused to answer a legislative question may be found unfit for his post can be determined only by an investigation of all the relevant circumstances, including the individual's entire record as a teacher and scholar and the reasons which prompted his refusal to testify. If the reasons involve a desire to conceal continuing illegal or immoral conspiratorial activity
of the faculty member or of others, an adverse judgment may of course be reached. If the reasons lay in confusion or fear produced by the investigation, they may have little bearing upon the faculty member's fitness; if they involved sincere ethical or political principles, their bearing will hardly be adverse. If the witness's refusal to testify resulted from a decision to withhold evidence of his past or present illegal conduct, the question of his fitness turns upon the justifiability of his decision, upon whether the conduct continues, and upon the relevance of that conduct to his academic duties. A good-faith reliance upon the constitutional privilege to remain silent is not misconduct, but contumaciousness toward a legislative committee is and may be weighed in the balance." Association of American Law Schools, Proceedings 111 (1953)
Cf. Association of American Law Schools, Proceedings 115 (1954); Id., Proceedings 119 (1955); Id., Program and Reports of Committees 41 (1956); Academic Freedom and Tenure in the Quest for National Security, 42 A.A.U.P. Bulletin 49 (Spring 1956).
The Fifth Amendment contains the now well-known constitutional privilege (or right) that no person shall be compelled in any criminal case to be a witness against himself. Its origin, history and current application have been extensively dealt with elsewhere. See 8 Wigmore, Evidence (3 d ed. 1940), §§ 2250-2284; Morgan, "The Privilege Against Self-Incrimination," 34 Minn. L. Rev. 1 (1949); Clapp, "Privilege Against Self-Incrimination," 10 Rutgers L. Rev. 541 (1956). Cf. Williams, "Problems of the Fifth Amendment," 24 Fordham L. Rev. 19 (1955); Claflin, "The 1956 Ross Essay -- The Self-Incrimination Clause," 42 A.B.A.J. 935 (1956). Although some have traced the privilege to the 12th Century and the inquisitorial practices of the Ecclesiastical Courts its significant beginnings in the common law may be said to have occurred in the 17th Century. It had been customary to make the accused person give evidence against himself and there are frightening descriptions of the torturous methods which were actually used. In 1637 "Freeborn John" Lilburn was brought before the Star Chamber for having imported heretical books but refused to take the oath to answer. He was sentenced to be whipped and pilloried and the sentence was actually
carried out. Thereafter in 1641 the House of Commons declared that the sentence was "illegal, and most unjust, and against the liberty of the subject" and ordered that Lilburn be paid a large indemnity. After this occurrence the privilege became entrenched as a vital part of the English common law, was carried over into Colonial American law, was included in the 1776 Virginia Declaration of Rights, and was embodied in the 1791 Bill of Rights of the United States Constitution as an individual safeguard against oppression and harassment by the newly created federal government. In Twining v. State of New Jersey, 211 U.S. 78, 91, 29 S. Ct. 14, 53 L. Ed. 97, 103 (1908), Justice Moody pointed out that the privilege was then regarded "as now, as a privilege of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions."
Throughout the years the privilege has survived though it has been by no means free from intermittent attacks. In his article on the subject Judge Clapp cites many of the earlier criticisms by Bentham, Pound, Terry and others. A current attack may be found in Baker, "Self Incrimination: Is the Privilege an Anachronism," 42 A.B.A.J. 633 (1956). Cf. Pittman, "The Fifth Amendment: Yesterday, Today and Tomorrow," 42 A.B.A.J. 509 (1956). In Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288, 292 (1937), Justice Cardozo acknowledged that, with suitable protection against physical and mental torture, justice may be done under systems (such as prevail in other parts of the world) which contain no immunity from compulsory self-incrimination, and he noted that "there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope or destroy it altogether." But there are at least equally competent and sincere students who firmly believe otherwise and their views have found favor in recent opinions of the United States Supreme Court. See Quinn v. United States, supra; Ullmann v. United States, 350 U.S. 422, 426, 76 S. Ct. 497, 100 L. Ed. 511, 518 (1956);
Slochower v. Board of Education, supra; cf. State v. Fary, 19 N.J. 431, 434 (1955). In his recent addresses, " The Fifth Amendment Today " (1955), Dean Griswold has forcefully suggested that "the privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized"; he has pointed out that it may be invoked not alone by the culpable but also by conscientious men who are innocent although honestly in fear of the risk of prosecution; and he has urged that if the privilege is to remain effective against the inquisitional dangers which it has sought to curb, it must be given comprehensive rather than narrow application. In the Quinn case Chief Justice Warren approvingly cited Dean Griswold's discussions and noted that the self-incrimination clause of the Fifth Amendment is entitled to a liberal construction in favor of the right it was intended to secure. In the Ullmann case Justice Frankfurter quoted Griswold and stressed that since the Fifth Amendment represented an important advance in the development of our liberties it is not to be interpreted in a hostile or niggardly spirit. And in the Slochower case Justice Clark likewise cited Dean Griswold and vigorously rejected the notion that only the guilty use the Fifth Amendment; in the course of his opinion for a majority of the court he said (350 U.S., at page 557, 76 S. Ct., at page 640, 100 L. Ed., at page 700):
"At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as 'one of the most valuable prerogatives of the citizen.' Brown v. Walker, 161 U.S. 591, 610, 825, 16 S. Ct. 644, 652, 40 L. Ed. 819. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U.S. 155, 75 S. Ct. 668, 99 L. Ed. 964. In Ullmann v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The ...