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Lowenstein v. Newark Board of Education

Decided: May 22, 1961.

ROBERT LOWENSTEIN, APPELLANT AND CROSS-RESPONDENT,
v.
NEWARK BOARD OF EDUCATION, RESPONDENT AND CROSS-APPELLANT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Hall and Schettino. For reversal and remandment -- Justices Francis, Proctor and Haneman. The opinion of the court was delivered by Hall, J. Francis, J. (dissenting). Justice Proctor and Justice Haneman authorize me to say that they join in this dissent.

Hall

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

To bring into focus the precise issues now presented, some retilling of old soil becomes necessary. The controversy stems from the refusal of appellant and two other Newark teachers to answer questions concerning past and present Communist membership and association propounded by a Congressional investigating committee in May 1955. The declination was grounded on the Fifth Amendment privilege against self-incrimination and was made on the advice of counsel. They were never cited by the committee for contempt of Congress. Dr. Lowenstein at the time was a high school language teacher with about 20 years' service, of acknowledged academic and pedagogical competence and protected from dismissal by the tenure provisions of the school law, N.J.S.A. 18:13-17, "except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause" after notice and hearing on written charges. He had also been prominent for many years in the local and state branches of a national teachers' union. [35 NJ Page 99] The city superintendent of schools suspended appellant and the other two on the day of the committee session. Appellant has not taught or received any salary from the Newark school system since. Four days later each of the three was formally charged with conduct unbecoming a teacher based solely on the invocation of the constitutional privilege and consequent refusal to testify before the committee. The Board sustained the charges by a vote of 5 to 4 and ordered dismissal as of the date of suspension. The Commissioner reversed the dismissals and this court, in Laba, affirmed by reason of the decision of the United States Supreme Court in Slochower v. Board of Higher Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956), rehearing denied 351 U.S. 944, 76 S. Ct. 843, 100 L. Ed. 1470 (1956), handed down after the Board's action. It was there held that violation of the constitutional safeguard of due process of law occurs where a discharge from public employment is based entirely upon the exercise of the privilege before a body whose inquiry is not directed at the witness' fitness or conduct in his employment and that no sinister meaning either of confession of guilt or presumption of perjury can be imputed from the exercise of this constitutional right. The privilege is designed to protect the innocent who nonetheless may have a reasonable fear of prosecution as well as to preclude a revolting inquisitorial system of justice permitting the prosecution to trust habitually to compulsory self-disclosure as a source of proof. Slochower, supra (350 U.S., at pp. 557-558, 76 S. Ct., at pp. 640-641, 100 L. Ed., at p. 700); 8 Wigmore, Evidence, 307-309 (3 d ed. 1940); Griswold, The Fifth Amendment Today (1955); Chafee, The Blessings of Liberty, ch. vii, The Right Not to Speak, 179-235 (1956). We therefore held in Laba that the invocation of the Fifth Amendment could not constitute per se conduct unbecoming a teacher and just cause for dismissal. The California Supreme Court, prior to Laba, and the Pennsylvania Supreme Court since, have held to the same effect. Board of Education of San

Francisco Unified School District v. Mass, 47 Cal. 2 d 494, 304 P. 2 d 1015 (Sup. Ct. 1956); Board of Public Education School District of Philadelphia v. Intille, 401 Pa. 1, 163 A. 2 d 420 (Sup. Ct. 1960), certiorari denied 364 U.S. 910, 81 S. Ct. 273, 5 L. Ed. 2 d 225 (1960).

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

Laba did not order immediate reinstatement but affirmed the action of the Commissioner in remanding the matter to the Board for appropriate inquiry by the supervisory school authorities. The theory was that, because "of the acknowledged need for keeping sensitive areas, such as the public school systems, wholly free from subversive elements which seek the overthrowal of our free society" (23 N.J., at p. 373), the action of the teachers before the Congressional committee gave the school authorities the right of private inquiry of them to determine or assist in determining whether they were presently members or subject to the ideologies and disciplines of the Communist Party and, if so, subject to

direct charges of unfitness to teach for that reason. The inquiry approach was premised on the obligation of a teacher to respond fully, without any right to rely on the constitutional privilege, to relevant questions of the employer, acting through the superintendent of schools, relating to continued fitness to teach, whether the reason giving rise to the inquiry be a matter of possible Communist allegiance, moral turpitude or any other unbecoming conduct. Laba pointed out (23 N.J., at p. 389) that a willful refusal to answer pertinent questions fairly submitted by administrative superiors at such an interview could also afford an ample basis for dismissal charges under N.J.S.A. 18:13-17. Our further comments in Lowenstein I are appropriate at this point:

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

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

Another possible avenue of the inquiry and basis of disciplinary action was also outlined in Laba (23 N.J., at pp. 388-389), namely, whether the refusals to answer before the committee were patently contumacious or frivolous rather than in good faith. This was quite properly not later pursued when it appeared at appellant's subsequent interview that the privilege had been exercised on advice of counsel. As we noted in Lowenstein I (33 N.J., at pp. 282-283), this phase was thereby permanently removed from the case and nothing remained of the original charges preferred in 1955. They were finally dismissed by the Board at the hearing after the decision just referred to, as we had there indicated should be done.

Following the Laba remand, the superintendent and the Board, in May 1957, pursued the inquiry procedure which that decision had authorized. Its outcome -- charges based on his refusal to respond to allegedly pertinent questions of the superintendent, dismissal based thereon by unanimous vote of the Board and affirmance by the Commissioner -- brought the matter before us again in Lowenstein I. The issue there involved was the relevancy of those questions which appellant had declined to answer. They related primarily to past associations and conduct as distinct from the present. Appellant denied any Communist membership or activity at the time of the inquiry and for a period of something less than two years prior to his 1955 appearance before the Congressional committee. We were convinced that both sides had misapprehended the import of what was said in Laba about the scope of the inquiry with the result that neither the approach nor the course conformed to what we had intended, despite our belief that all involved undoubtedly made every effort to comply with the mandate as they conceived it. We were therefore impelled, in the cause of both the public interest and the certainty of fairness to all parties involved, to reverse the dismissal and remand the matter again to the local level, but without reinstatement in the

interim, so that a new inquiry might be pursued in the way Laba contemplated.

The trouble was, as we saw it and spelled it out in an opinion in which every member of the court joined (33 N.J., at pp. 285-287), that both sides somewhat lost sight of the only proper subject of the inquiry, i.e., present membership or subjection to the ideologies and disciplines of the Communist Party. On the one hand there was overlooked the essential that questioning as to past affiliations and activities is not automatically relevant and always permissible, but only so in the event of rational and reasonable doubt of the truth of denials as to the present in order to test such statements (33 N.J., at p. 289). On the other hand, the appellant equally misconceived the concept in insisting on conclusive irrelevancy by reason of time alone and of alleged invasion of privacy (33 N.J., at pp. 287-289).

There followed the second interview of appellant by the superintendent in September 1960 which grounds the present appeal. Again appellant, after thoroughly attesting to his present loyalty and belief in Americanism, declined to answer questions which related to views and events back of 1953. Charges were preferred on the basis that the questions were pertinent and the refusal to reply thereto impeded a fair inquiry to determine if he was presently subject to Communist ideology. He was found guilty of conduct unbecoming a teacher grounded thereon and the Board ordered dismissal -- this time by a 5-4 vote. The Commissioner affirmed.

We are willing to assume that, under the circumstances of the interview, its pattern sufficiently followed that outlined in Lowenstein I. Questioning as to past events, which led to the refusals, for the most part followed exploration of the present and the interrogator's claim of doubt with respect to appellant's assertions of current allegiance. There was some disagreement as to whether "the present" meant 1960, 1957 or 1955. The difference is of no real significance in considering the issue before us. We think it fair, over-all, to presume that the two participants sought, in good faith,

to adhere to the principles laid down by our prior decisions as well as could realistically be expected. Since both parties were advised throughout the interview by reputable and capable counsel (the superintendent's counsel was not the attorney for the Board) whose first endeavor had to be to see that the mandate of this court was followed, the deviations on both sides that appear to exist on the face can well be attributed to the fact that the actual participants were laymen and cannot be strictly held to a standard of precise legal expression. There is apparent, however, a formalism and strictness of attitude and position throughout which we would like to have seen otherwise, but which we must recognize as probably unavoidable after over five years of litigation and local public interest in an area in which convictions are bound to be strong and feelings run high. Consequently the interview became actually an adversary proceeding, with appellant as a witness under cross-examination in a pervading atmosphere of legal rigidity. Numerous objections to questions as being outside the limitations discussed in Lowenstein I on the one hand, and insistence thereon on the other, fill the transcript. They were, of course, not resolved at the interview and the conflict resulted only in refusals to answer on the advice of counsel.

The precise, and concededly the only, issue before the Board, very painstakingly and correctly explained by its counsel at the hearing on the charges, was indeed a simple and a narrow one. It resolved itself into whether the superintendent was justified, as a matter of objective rationality and reasonableness, in doubting appellant's denials of present Communist affiliation and subservience and his affirmations of loyalty and allegiance to the American democratic system solely by reason of answers he gave to certain other questions concerning related aspects, and so was entitled to probe into appellant's past views and associations with respect to Communism. If the superintendent was so justified, Dr. Lowenstein was bound to answer, on penalty of dismissal,

the four refused questions forming the basis of the charges. The particular queries may be summarized as whether he was a Communist or a member of any Communist front organization or subject to or a believer in Communist ideology, discipline or principles at any time from 1950 to July 1953. If there was no such justification, the charges could not stand.

We state the issue as we have because of the non-judicial nature of the proceedings before the superintendent. But fundamentally the matter is one of law, i.e., the legal relevance of the disputed queries to the object of the superintendent's inquiry. If the proceeding had been before a judge, the matter would have been ruled upon at once as a legal question determinable by the court and not as an issue to be decided by the trier of the facts. Judges do this constantly in every trial in passing on the propriety of a particular interrogation and the admissibility of evidence. Appellant would then immediately have known where he stood. But here, because of administrative mechanics, no court could enter the picture to decide this legal question until the case reached us. So the question had to be put to the Board and the Commissioner -- lay administrative agencies -- in the way in which it was and appellant had to guess before the superintendent what our ruling would finally be and take his stand accordingly. See the discussion in Chafee, The Blessings of Liberty, supra, at pp. 210-212. Our subsequent discussion of relevancy in review of the action of the lower tribunals is therefore undergirded by this legal point of view as if we were sitting as a trial court having to rule on the pertinence of the questions. While a matter of relevancy must be considered in the full factual setting and a certain amount of leeway must be allowed, nonetheless it must be affirmatively clear to a court that the disputed queries have some objective "tendency in reason" relating to the object of the inquiry. See N.J.S. 2A:84A-3.

We should make the picture more concrete by a brief resume of the pertinent parts of the interrogation. It commenced with appellant's responses to inquiry of his views

on Communism and "Americanism." They were clear and unequivocal. In stating that he was against Communism as he understood its philosophy and in the course of telling why, at some length, he commented:

"I don't think it is good for our people to any extent that any regime or party or organization favor and condone the violent overthrow of the Government, and I am hostile to that attitude and approach. Wherever I notice suppression of free formulation of individual unfettered opinion, restrictions of any of the institutions that people have labored over centuries to evolve or the improvement of the material or spiritual life, I am hostile to anything that threatens these hard won attainments of civilization."

His testament of allegiance to the American system may well be quoted:

"I could not imagine that any human being on this earth would rather be anything but an American citizen if he could. I certainly would not want to be anything but an American citizen. There are some institutions of ours, historically involved, that I consider so inequitable, so inadequate to the needs of our national life today in what the world looks to America for, but on the whole I think we have got a better set of institutions, a better framework of Government founded on our Constitution and on our bill of rights than any other people can boast of.

I think we have in our form of government the maximum opportunity granted any people so far in the history of the world to strive for individual and social betterment."

He then positively denied he was a Communist or a member of any Communist front organization and asserted that he was not subject to and did not believe in Communist ideology or discipline. He also said, in response to a specific question relating to 1955, that he had not attended any Communist organization meetings or met and engaged in discussions with known Communists. (All of these views were reiterated at the end of the interview and also when appellant testified on his own behalf at the subsequent Board hearing.) On his own motion he related the effect of all his answers back to the summer of 1953 since, as he said

he had been willing to speak as of that date at the superintendent's 1957 inquiry.

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

The appellant was then interrogated whether in 1955 he believed a Communist was a fit person to teach in the Newark public schools. He replied:

"The question of fitness to teach I interpret differently from many people. In my opinion, in a free society a person who meets the legal requirements in whatever capacity he chooses to engage in, the professional requirements for the position, is entitled to teach, provided of course that he is not abusive of his position and conforms to all legal and professional requirements and maintains his status of competence in those areas."

The next question was whether in 1955 he believed a person could be a Communist and also a loyal American citizen. He said he probably thought so; one could and could not; it depended on the individual. When the question was enlarged to include his belief today, he answered: "* * * I would so drastically modify what I think my view was in 1955, that I would probably say fewer and fewer people today could be loyal American citizens and Communists at the same time." He ascribed his change in view to the course of events and international relations in the past five years.

Then came a rather double-edged question: "Does the general universal knowledge that a Communist is required to deceive and cheat, and generally break the rules of a game as we know it, does this in any way enter into, in your opinion, into their inability to be loyal American citizens?" He replied he knew nothing about this and wondered what element of truth there might be in the premise.

The final queries in the series related to appellant's beliefs as to whether a teacher who was a Communist could have the required scholarship and teaching methodology requisite for his position in a public school system as well as respect for the individual. His answer was in the affirmative, prefaced by a statement that he had studied the matter in some detail, including differing views held on it by educators in other democratic countries as well as our own, and that there was no generally accepted position.

It should also be mentioned that just prior to the superintendent's claim of doubt, he asked Dr. Lowenstein whether he had attended a picnic at Midvale, New Jersey, in September 1956. The reply was that he had not and when further asked if he knew anything about a picnic at that location on that date, he explained that he had driven to the area to deliver a life insurance policy to a customer that day, had been surprised as to heavy traffic conditions in the vicinity, inquired as to the cause and was told there was a

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

At this point the superintendent stated his doubts. He put them this way:

"The fact is that I do have information that you were an active militant Communist; not just passive or lukewarm. And in this capacity you were a representative of the State of New Jersey; you represented the teachers' groups in the State, and particularly in Newark. You represented particularly in that capacity the Newark Teachers' Union of which you were at one time president.

This information which I have, together with further information regarding the picnic or gathering in Midvale [which the superintendent amplified to the effect that appellant and his car were seen at a point near the spot of the gathering -- a labor press picnic at which several Communist members were recognized] * * *, together with the fact of your indirect answers to some of these questions * * *, together with your general attitude and demeanor in many of the answers that you have given me, that frankly I am skeptical as to some of the things you said about the present, and in view of these I do have sincere and honest doubts. Therefore it seems to me that I have no choice, no alternative, but to question you as to some of your activities and some of the persons involved in the past * * *."

The information as to prior Communist activity was stated to be from an admitted former Communist, but not further identified beyond the fact, specified at the request of appellant's counsel, that it "covered a period up to and including some time in the year 1944, 1945." (The information referred to obviously was testimony given by Dr. Bella Dodd in a hotel room in Newark to two members of the Congressional committee the night before the May 1955 committee hearing and referred to in the Board proceedings prior to Laba. The session was a closed one, with no outsiders present and, of course, no cross-examination. Needless to say, such testimony would never be considered by any court of law.) The terminal date had significance since it was established before the Board that Dr. Lowenstein was in military service from 1942 until November 1945, much of the time overseas, thus placing any party activity of the nature suggested prior to 1942 and at least 15 years before

"the present." Incidentally, the testimony of his commanding officer before the Board at the hearing after the Laba decision was highly complimentary of his services when stationed in Italy on behalf of Americanism both among our own troops and the civilian population.

Note should also be made that it was agreed that the phrase "general attitude and demeanor in many of the answers that you have given me" had reference only to the content of the answers and not to physical manifestations while testifying.

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

Appellant's counsel did advise him to answer one question without limit of time. This inquired whether he had ever

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

At the Board hearing on the charges, the only evidence in support was the transcript of the superintendent's inquiry. Beside Dr. Lowenstein's own testimony as to his beliefs and loyalty, several witnesses testified to his high reputation for integrity and veracity. In fact, the Board's counsel was willing to stipulate that the only evidence in the case was that of good reputation on all scores. After the argument of counsel, in which we have said the issue the Board had to decide was most clearly pointed out, the hearing adjourned for five days, on which continued date the vote to dismiss was taken after several members had made statements giving their reasons for their individual decisions, of which more will be mentioned shortly. A week after the vote the Board met again and adopted a formal resolution of dismissal as of May 20, 1955. The resolution set forth at length the answers to the questions previously detailed which it found "reasonably justified the doubts asserted by the Superintendent and the additional inquiry which he believed to be necessary by reason thereof." It further recited that it was appellant's duty to answer the four questions we have previously referred to "and that his refusal to do so and to give any information as to Communist affiliations prior to the July 1, 1953 'cut-off' date fixed by him, unduly obstructed" the effort to ascertain "all of the relevant facts which would serve to establish whether or not he is now a member of the Communist Party or subject to its ideologies and disciplines."

The Commissioner, in his decision of affirmance on the appeal, concluded that appellant was not justified in his refusal to answer the questions put. In reaching that result, the language of the opinion uses a much broader brush than was indicated by the precise issue before the Board and so before him on review. Of course, under familiar principles, if the result is right for other reasons, we need

not be overly concerned with the articulation of the process by which it was reached. However, particular reliance appears to have been placed on one aspect upon which we should comment. The Commissioner strongly took the view that appellant had, contrary to the principles laid down in Lowenstein I, again arbitrarily fixed a date (June 1953) beyond which he would not speak on the ground of conclusive irrelevancy. Stress was laid in the opinion on this and practically nothing was said about the primary question of whether there was a rational and reasonable basis for the superintendent's claim of doubt based on the content of the answers to certain of his questions. We believe the view taken is not warranted since we do not read the appellant's refusals to answer as arbitrary. As we have already pointed out, his counsel promptly objected to exploration of the past on the ground that the reasons advanced by the superintendent for his doubts were not legally valid as a matter of objective rationality and reasonableness and stated he would advise appellant not to answer. The latter consequently refused and said he was doing so on the advice of his counsel. Any further statements by him about not going beyond 1953 must be read in that context and in the light of our earlier observation that the lay participants should not be held to a standard of legal precision in their language. We think it fair to infer that appellant, in his declinations to answer, was in effect, though inarticulately, adopting the ground previously asserted by his counsel. Moreover, if counsel is correct in his objection, there was no sufficient basis to permit "past" inquiries at all and so it also seems to us that it really matters not what else appellant may have said when he thereafter refused to respond to particular queries.

Before returning to the reasons given by various members of the Board prior to casting their votes, perhaps we should amplify our earlier statement that the only issue before the Board was whether there was rational and reasonable basis for the superintendent's claim of doubt of the denials of

present Communist allegiance solely by reason of the answers appellant gave to the questions concerning related aspects which we have detailed. It will be recalled that when the superintendent expressed his claim of doubt during the interview, it was also grounded on information he said he had of Communist activity up to 1944 or 1945 and concerning the Midvale picnic. Neither of these bases was advanced before the Board by its counsel as justifying excursions into the past. As to the first item he specifically told the Board it was insufficient to ground a doubt and he placed no reliance on the second. In the Board's brief in this court it is expressly conceded that neither is enough, factually or legally, to generate reasonable doubt as to the present. This is eminently correct. Neither matter could have any proper place in the Board's determination of the issue before it.

Six of the nine Board members volunteered their reasons before they voted. Three were in favor of dismissal and three against. Understanding of the issue to be decided and expressions of a proper basis for the individual's decision are sufficiently evident in the case of four, considering each statement as a whole as we must since made by laymen. But we are greatly concerned about the comments of the other two, who were, respectively, the maker and seconder of the motion to dismiss and the subsequent motion to relate the dismissal back to May 1955. Their votes were numerically decisive in the 5-4 results. Appellant urges the reasons they gave resulted in a failure by the Board to abide by our decision in Lowenstein I. The Commissioner did not pass on the point. Our study convinces us, upon fair consideration of the total remarks of these two, that, though persons of undoubted sincerity, honesty of purpose and understandably strong convictions in the whole matter, they did not decide the issue so plainly presented, but instead voted for dismissal on grounds with which appellant had not been charged and for reasons which had no valid place in the matter. We must therefore conclude, apart from anything else, that the dismissal cannot stand.

The first of these two prefaced his remarks by saying that "I am looking at this from a viewpoint more or less as a father and perhaps even more as a spectator" and concluded:

"* * * I am not making any decision so far as to what the Supreme Court has said or hasn't said. I am making my decision on the fact that I am a father with children who go to school and the type of person that I would like to have teach my children."

Leading up to the latter statement he spoke strongly that he was "awfully sure" appellant had lost "his respect," had grave doubts that "he was a normal American teacher" and as a father could not see "where he has any effectiveness in our school system." He appeared to have based his views only on the substantive matter of appellant's refusal to answer whether he had been a Communist before a certain time. Accepting at face value his statement that he could not absorb the "legal implications * * * in the time allotted" (he was one of three new appointees to the Board since the 1957 case), it is nonetheless perfectly clear that he did not consider at all the plain and simple problem whether the superintendent, by reason of appellant's answers to other questions, was reasonably justified in his doubt of present allegiance. Rather he found appellant guilty of the uncharged substantive offense of present unfitness to teach by reason of refusal to reveal past Communist affiliation. This is analogous to a jury convicting a defendant of murder when he had been indicted and defended himself on a charge of larceny.

The second member whose remarks especially concern us also did not attempt to pass judgment on the basis of the issue before the Board. His decision, he said, "is based on the moral issue that is involved." It is, of course, elementary that vague and personal ideas of moral right and wrong cannot be a determinant of a specific issue of the kind the Board had to decide. Apart from that, the moral issue

he apparently had in mind he defined as the unwillingness of appellant "to bend backwards to give us some information to help us to decide some of the issues for the years preceding 1953." We can only interpret that to mean, not so much skepticism as to present loyalty, but a view in this member of a right to dismiss if appellant had been a Communist prior to the year mentioned. Not only was there no such charge involved but it had been made as clear as anything could be by the Board's own concession that such was no valid ground for dismissal even if true.

It further seems reasonably inferable that these two members at least, if not the entire majority, also had in their minds a vestige of guilt because of appellant's exercise of the Fifth Amendment privilege before the Congressional committee in 1955. It is difficult to find any other reason for their motion to relate the dismissal back to that date, especially after we had spoken so directly in Lowenstein I that nothing whatever remained of the original invalid charges preferred on that basis.

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

whether it was the wise course for the individual to pursue under ...


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