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Lowenstein v. Newark Board of Education

Decided: July 18, 1960.

ROBERT LOWENSTEIN, APPELLANT,
v.
NEWARK BOARD OF EDUCATION, RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.

Hall

The appellant was one of the three Newark school teachers whose dismissals by the city board of education in 1955 were set aside by the State Commissioner of Education and that action affirmed by this court in Laba v. Newark Board of Education, 23 N.J. 364 (1957). The dismissals had been grounded on the teachers' refusal, in reliance on the Fifth Amendment of the United States Constitution, to answer questions, particularly as to their past and present Communist membership and association, posed by a subcommittee of the Un-American Activities Committee of the federal House of Representatives in the course of a hearing in Newark on May 19, 1955, investigating the current leadership of the Communist Party in the New Jersey area and infiltration in the fields of labor and education. The board concluded that invocation of the privilege against self-incrimination in such an inquiry in itself constituted conduct unbecoming a teacher and justified dismissal under R.S. 18:13-17.

The reversal was based on 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 (1957), handed down after the Board action, which held that violation of due process of law occurs where a discharge from public employment is based solely upon exercise of the privilege before a congressional investigating committee whose inquiry was not directed at the witness'

fitness or conduct in his employment. Mr. Justice Clark pointedly said: "The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury." 350 U.S., at pp. 557-558, 76 S. Ct., at p. 641, 100 L. Ed., at p. 700.

The Laba decision, did not, however, direct reinstatement of the teachers, but continued their suspension without pay and ordered a remand of the matter to the local school authorities. The purpose of the remand was to enable a full and fair inquiry as to their continued competence and fitness to teach, which it was pointed out was called for by their conduct before the subcommittee. The purpose, scope and governing principles of that inquiry and any subsequent proceedings were set forth generally in the following portion of the opinion:

"In the light of our controlling legislation it is clear that in this State any person who is now a member of the Communist Party or who is now subject to its ideologies and disciplines is unfit to teach in our public schools and should be dismissed under R.S. 18:13-17. See R.S. 18:13-9.1; R.S. 18:13-9.2. * * * The matter may no longer be viewed simply as one of academic freedom of thought and expression, for it has actually become one of self-preservation; we are convinced that Communism is an alien concept which is dedicated to the overthrowal of our form of government, by force if necessary, and seeks to deprive us of the very basic constitutional liberties which we all hold so dear; recent world happenings furnish further evidence of the futility of its solemn promises and the barbarism of its deliberate actions. We have no doubt that in examining into their continued fitness to teach the Newark school authorities may interrogate the appellant school teachers with respect to their present and past association with the Communist Party and affiliated organizations and are entitled to frank and full disclosures. Orderly procedure dictates that the preliminary inquiry on the subject be made fairly and conscientiously by the local school superintendent (R.S. 18:4-7; R.S. 18:4-10; R.S. 18:6-38); his interrogation may also include questions about the teachers' conduct before the House subcommittee, although this inquiry should not be used as a means of undoing the acknowledged constitutional protection of the Fifth Amendment but should be fairly limited and directed towards ascertaining whether the refusals to answer were patently contumacious

or frivolous rather than in good faith * * *. If after the inquiry it appears that the teachers are now members of the Communist Party or are now subject to its ideologies and disciplines * * * or that they have willfully refused to answer pertinent questions fairly submitted by their administrative superiors * * * or that they have contumaciously or frivolously refused to answer before the House subcommittee * * * then there would seem to be ample basis for board action within the broad and valid statutory standard embodied in R.S. 18:13-17." (23 N.J., at pp. 388-389).

In the course of the superintendent's inquiry which followed in May 1957, appellant denied any Communist membership or activity presently and for a period of something less than two years prior to his 1955 appearance before the subcommittee. While he answered some questions relating to matters back of that time, for the most part he refused to respond to such queries, not on the ground that he might incriminate himself, but rather on a claim of remoteness and irrelevance to his present fitness to teach and of an improper invasion of his right of privacy and personal dignity. It should be noted that, after appellant told the superintendent he had claimed the privilege before the subcommittee on the advice of counsel, that subject was quite properly not pursued further. The matter of contumacious or frivolous refusal to answer as a basis for disciplinary action was thereby permanently removed from the case and nothing remained with respect to the original charges.

After the interview the superintendent preferred "supplementary" charges (actually new ones) asserting that appellant's unjustified refusals to answer questions claimed to be pertinent, particularly those relating to past Communist association, amounted to insubordination and conduct unbecoming a teacher, impeded an inquiry to determine whether he was on May 19, 1955 or since a member or subject to the ideologies and disciplines of the Communist Party, and rendered him since that date unfit to teach in the Newark public schools. The board sustained the charges

after a hearing and ordered dismissal as of May 20, 1955, the day after appellant's appearance before the subcommittee and suspension. Mention should be made that at the hearing the board denied an application to dismiss the original charges. While no special point is made of it before us, we may say that the motion should have been granted since, as has been said, no basis remained to support a claim of any improper conduct before the subcommittee.

The Commissioner sustained the dismissal, holding in effect that membership in the Communist Party "at any past time" may always be inquired into as relevant to the question of present subjection to its ideologies and disciplines and of present fitness to teach. However, he made the effective date the day in 1957 on which the refusal to answer the superintendent's questions occurred and awarded the appellant back pay from the date of suspension to that of the interview. Appellant sought review of the dismissal affirmance and the board cross-appealed ...


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