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Zimmerman v. Board of Education

Decided: June 29, 1962.

PERRY ZIMMERMAN, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF NEWARK AND EDWARD F. KENNELLY, SUPERINTENDENT OF SCHOOLS, RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J. Weintraub, C.J. (concurring). Francis, J. (concurring). Proctor, J. (concurring). Weintraub, C.J., and Jacobs and Hall, JJ., concurring in result.

Schettino

[38 NJ Page 67] Appellant, Zimmerman, seeks reinstatement as a teacher with tenure in the Newark school system. His case was originally reviewed in Laba v. Newark Board of Education, 23 N.J. 364 (1957). But unlike the two other teachers involved in that case, Zimmerman had not achieved tenure status at the time he was dismissed, as of May 20, 1955. He now argues primarily that we should order the Board to re-employ him even though his annual teaching contract expired on June 30, 1955 and was not renewed. In his view he is entitled to tenure because continued employment would have taken place but for the fact that he invoked before a congressional subcommittee the protection afforded by the Fifth Amendment. He further argues that he is now entitled to tenure because he was actually employed for three consecutive calendar years required by N.J.S.A. 18:13-16. In the alternative he asserts that he was employed for three consecutive academic years and that the period of litigation following his third academic year should be considered as a recognition by the Board of his continued status as an employee

at the beginning of the required fourth academic year. The Board is estopped to deny this, he says, as it continued its investigation of him subsequent to his dismissal.

A brief summary of the events is as follows. Zimmerman and defendant Board of Education agreed by a writing on June 30, 1952, that he would begin teaching in the system on September 1, 1952. Similar agreements were made in the two succeeding years and he was considered a "satisfactory" teacher. On May 19, 1955, Zimmerman invoked the Fifth Amendment privilege against self-incrimination when he was called to testify before a subcommittee of the House Un-American Activities Committee in Newark. The questions he refused to answer were related to his Communist Party membership and association both past and present. After notice of suspension and based solely upon the charge that Zimmerman refused so to testify, the Board resolved on June 28, 1955 to dismiss him as of May 20, 1955. Zimmerman was successful in having that resolution reversed by this court in Laba but he was not granted reinstatement. Instead, our opinion in that case recognized that a person "who is now a member of the Communist Party or who is now subject to its ideologies" should be dismissed (23 N.J., at p. 388) and that "the teachers' conduct before the Congressional subcommittee reasonably calls for a fitness inquiry during which the teachers have a duty of cooperation and an affirmative burden in the establishment of their fitness." 23 N.J., at p. 392.

The defendant Superintendent of Schools interviewed Zimmerman on May 16, 1957. Counsel for Zimmerman was present but was limited to the role of providing advice to Zimmerman when asked. Based upon the testimony at this hearing the Superintendent filed a report with the Newark Board of Education along with seven "supplementary charges." Substantially for the reasons cited in the charges, the Superintendent recommended that Zimmerman "be not restored to his employment," but that if the Board were to reinstate Zimmerman until the end of the

1954-55 school year, the Superintendent recommended that Zimmerman should not be re-employed thereafter.

Board hearings on the charges were held in November and December 1957. Zimmerman's counsel was permitted to take part in the proceedings by examination and cross examination of witnesses. The Board, by resolution dated June 24, 1958, found him guilty of five of the supplemental charges and again dismissed him as of May 20, 1955. It expressly stated that it did not draw any inferences as to Zimmerman's then present membership or subservience to the Communist Party.

On appeal the State Commissioner of Education in part reversed the Board, holding that Zimmerman was entitled to his salary for the period between May 20, 1955 and June 30, 1955, citing Lowenstein v. Newark Board of Education, 33 N.J. 277 (1960), and in part affirmed, upholding defendant's refusal to re-employ Zimmerman. Zimmerman appealed to the State Board of Education which affirmed the Commissioner's determinations. Zimmerman appealed from the refusal to order re-instatement beyond the end of the 1955 academic year. While his appeal was pending before the Appellate Division, we certified the cause on our own motion.

No appeal was taken by the Newark Board of Education from the order for payment of salary for the period from May 20, 1955 to June 30, 1955. We shall consider, therefore, only the tenure claim.

It has been said that the purposes of an educational system are to further the best interests of the community at large, the teachers and especially the school children. Both the appointment of school teachers and the determination regarding their term of office are, subject to constitutional restrictions, within the power and control of the Legislature. Historically the employment relationship between a school teacher and the municipal school body has been one of master and servant, one subject to termination at will. Absent statutory provision a teacher was in a position

similar to that of any other public employee whose employment was not protected by statute, i.e., his employment was subject to contract or the pleasure of his employer. 4 McQuillin, Municipal Corporations § 12.250, p. 305 (3 ed. 1949); 78 C.J.S. Schools and School Districts §§ 152-201 (1952). See Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S. Ct. 968, 3 L. Ed. 2 d 1012, 1016 (1959); Forkosch, Administrative Law § 116, pp. 177-78 (1956). In fact it was the right of either party, i.e. the school administration or the teacher, subject to the below limitations to terminate service before statutory tenure rights became effective. Ahrensfield v. State Board of Education, 126 N.J.L. 543 (E. & A. 1941). We note in passing that such an unprotected employee relationship is not uncommon in our State today for many public employees are still in such an unprotected and uncertain employment status. New Jersey Civil Service Commission, Department Civil Service, Fifty Fourth Annual Report, 1960-1961, p. 16.

In People ex rel. v. Chicago, 278 Ill. 318, 116 N.E. 158, 160, L.R.A. 1917E, 1069 (Sup. Ct. 1917) the court stated the historically prevalent view:

"A new contract must be made each year with such teachers as [the board] desires to retain in its employ. No person has a right to demand that he or she shall be employed as a teacher. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all. The board is responsible for its action only to the people of the city, from whom, through the mayor, the members have received their appointments. * * * Questions of policy are solely for the determination of the board, and when they have once been determined by it, the courts will not inquire into their propriety."

Today, the powers of a board of education in appointment, transfer or dismissal are not so broad. They are limited by the Fourteenth Amendment of the United States Constitution. For example, in Morris v. Williams, 149 F.2d 703, 708-09 (8 Cir. 1945), the court held that a custom or usage of a school board in discriminating against Negro

teachers of Little Rock in respect to salaries solely on account of color violates the Fourteenth Amendment. The board's powers are also limited not only by the terms of the contract of employment but also by the New Jersey Constitution, by the Teacher's Tenure Act, and by other statutory provisions such as the Law Against Discrimination, N.J.S.A. 18:25-1 et seq. Cf. Downs v. Board of Education, Hoboken, 12 N.J. Misc. 345, 348, 171 A. 528 (Sup. Ct. 1934), affirmed on opinion below, 113 N.J.L. 401 (E. & A. 1934). Except as provided by the above limitations or by contract the Board has the right to employ and discharge its employees as it sees fit. Cf. Halfacre v. Board of Education of School Dist. No. 167, 331 Ill. App. 404, 73 N.E. 2 d 124 (Sup. Ct. 1947).

In New Jersey, as well as elsewhere, today legislatures have provided that teachers may, by satisfying certain conditions, acquire permanent tenure so as to be subject to dismissal only for cause and in the manner provided by law. Such statutes changed the unlimited common-law right of boards of education to contract with teachers. In principle, civil service benefits and protection were accorded teachers by the legislatures. The objectives are to protect competent and qualified teachers in the security of their positions during good behavior, and to protect them, after they have undergone an adequate probationary period, against removal for unfounded, flimsy, or political reasons.

The defendant Board contends that tenure statutes should be construed strictly and in favor of school boards on the ground that such statutes create a new liability on the part of such boards and that the statutes should be given a construction which is most favorable to the general public, not a construction which will subordinate the paramount rights and welfare of the general public and of school children to those of the teachers. For emphasis it asserts that a teacher's tenure is subordinate to the fundamental public policy of obtaining a better education for children (Jacobs v. School District of Wilkes-Barre Township, 355 Pa. 449, 50 A. 2 d

354, 357 (Sup. Ct. 1947)) and that policy should guide a board's exercise of power to grant or deny re-employment to a probationary teacher at the end of a pre-tenure employment. The fear is expressed that the statute will be interpreted to deprive school administrators of their power and responsibility for the administration of schools.

As we have already emphasized, teacher tenure is a statutory right imposed upon a teacher's contractual employment status. In order to acquire the status of a permanent teacher under a tenure law and with it the consequent security of permanent employment, a teacher must comply with the precise conditions articulated in the statute. Moriarity v. Board of Education of Garfield, 133 N.J.L. 73 (Sup. Ct. 1945), affirmed 134 N.J.L. 356 (E. & A. 1946); Ahrensfield v. State Board of Education, supra; 78 C.J.S., Schools & School Districts § 180, p. 1014 (1952).

In our State tenure status may be secured by a teacher only after employment for the probationary periods specified in N.J.S.A. 18:13-16 as follows:

"The services of all teachers * * * of the public schools * * * shall be during good behavior and efficiency, (a) after the expiration of a period of employment of three consecutive calendar years in that district unless a shorter period is fixed by the employing board, or (b) after employment for three consecutive academic years together with employment at the beginning of the next succeeding academic year, or (c) after employment, within a period of any four consecutive academic years, for the equivalent of more than three academic years * * *.

An academic year, for the purpose of this section, means the period between the time school opens in the district after the general summer vacation until the next succeeding summer vacation."

Once a teacher acquires tenure status, he cannot be dismissed "except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause" and certain procedural prerequisites are required. N.J.S.A. 18:13-17. See also N.J.S.A. 18:3-23 et seq.

Inherent in the tenure legislation is the policy that a board's duty to hire teachers requires more than merely

appointing licensed instructors; it demands that permanent appointments be made only if the teachers are found suitable for the positions after a qualifying trial period. In essence this constitutes a "proving out" period. In another context, we said in Cammarata v. Essex County Park Comm'n., 26 N.J. 404, 412 (1958):

"It is difficult to evaluate the character, industry, personality, and responsibility of an applicant from his performance on a written examination or through cursory personal interviews. Knowledge and intelligence do not alone [suffice] * * *. The crucial test of his fitness is how he fares on the job from day to day when suddenly confronted by situations demanding a breadth of resources and diplomacy. Many intangible qualities must be taken into account, and, since the lack of them may not constitute good cause for dismissal under a tenure statute, the [employer] * * * is entitled to a period of preliminary scrutiny, during which the protection of tenure does not apply, in order that it may make pragmatically informed and unrestricted decisions as to an applicant's suitability."

The same thoughtful philosophy applies with manifold emphasis to the selection of school teachers. See Morris, supra, 149 F.2d, at p. 708.

I.

With the above authorities in view, we consider appellant's contentions. He contracted with the defendant on June 30, 1952, to begin teaching on September 1, 1952. In his view recognition of his employment status up through June 30, 1955 would constitute "employment" for the required period. In practice many, if not most, teachers are hired far in advance of the time they are to begin teaching. Contracts are frequently entered into during one academic year anticipating an employment relationship at the commencement of the following academic year. Thus, if appellant's interpretation of the word "employment" were to be adopted, tenure would be acquired in many instances before the teacher had completed teaching for three academic years. That interpretation would also shorten the length

of the minimum probationary period specified in terms of "academic" years as the latter is defined in the last paragraph of N.J.S.A. 18:13-16, quoted above. Such a reading would clearly detract from the statutory purpose.

Our former Supreme Court had occasion to interpret the word "employment" contained in N.J.S.A. 18:13-16 under similar circumstances and held contrary to the position urged by Zimmerman. Carroll v. State Bd. of Education, 8 N.J. Misc. 859, 152 A. 339 (Sup. Ct. 1930). There a teacher signed a one year teaching contract (and the Board approved it) on July 15, 1926, to begin teaching on September 7, 1926. Two subsequent annual teaching contracts were also entered into and each contained a provision that either party could terminate the agreement upon 30 days' notice. The board served notice on July 15, 1929, that it would terminate the relationship as of August 15, 1929. The court held that "employment" had not originally commenced until September 7, 1926, and, therefore, the teacher had not been employed for three calendar years. Compare Chalmers v. State Board of Education, 11 N.J. Misc. 781, 168 A. 236 (Sup. Ct. 1933).

We agree with this interpretation. Consequently, appellant was not employed for three calendar years prior to June 30, 1955, within the meaning of the statute. It follows that he is not entitled to tenure on that theory.

II.

Zimmerman's next contention is based upon the testimony of the principal of the school in which Zimmerman taught. In the opinion of that witness "tenure" would normally follow automatically where a teacher had received satisfactory ratings for three academic years. Up to the point of the House subcommittee hearings, Zimmerman had received such ratings. But the argument overlooks the nature of the employment relationship between a teacher and the Board.

Except for statutory conditions, a teacher is retained solely on a contract basis during his probationary employment. At the expiration of an annual contract period, the employment relationship ceases to exist unless a new contract has been entered into. While some states provide for automatic re-employment or renewal of contract unless contrary notice is given, our statute does not so specify. And except to the extent of constitutional or statutory limitations, there is no legal duty on the part of a board to re-employ a teacher at the end of a contract term. Brooks v. School Dist. of Moberly, Mo., 267 F.2d 733, 739 (8 Cir. 1959), cert. denied 361 U.S. 894, 80 S. Ct. 196, 4 L. Ed. 2 d 151 (1959); Rees v. Murray City Board of Education, 6 Utah 2 d 196, 310 P. 2 d 387, 388 (Sup. Ct. 1957); Bourne v. Board of Education of City of Roswell, 46 N.M. 310, 128 P. 2 d 733 (Sup. Ct. 1942); Knickerbocker v. Redlands High School Dist., 49 Cal. App. 2 d 722, 122 P. 2 d 289, 291 (D. Ct. App. 1942); Chase v. Mason, 216 App. Div. 562, 216 N.Y.S. 205 (App. Div. 1925), aff'd 244 N.Y. 545, 155 N.E. 890 (Ct. App. 1926).

Accordingly, unless Zimmerman by an affirmative act of the Board was re-employed subsequent to June 30, 1955, he cannot be said to have been employed for three consecutive academic years "together with employment at the beginning of the next succeeding academic year." N.J.S.A. 18:13-16. This statutory step had to take place, for, "it is axiomatic that the right of tenure does not come into being until the precise condition laid down in the statute has been met." Ahrensfield, supra, 126 N.J.L., at p. 544.

We hold that Zimmerman is not entitled to tenure status ...


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