[118 NJSuper Page 399] This case is the result of a decision of the Gloucester County College Board of Trustees not to renew the teaching contract of plaintiff Leonard Katz for a fourth year, the granting of which would have carried plaintiff into tenured status under New Jersey law. N.J.S.A. 18A:60-1 et seq. Suit has been instituted against the board and President William L. Apetz in his official capacity seeking the reinstatement of Katz as a member of the faculty with tenure and such other relief as may be just and equitable. It is alleged that defendants' determination violated the plaintiff's rights under the First, Fifth and Fourteenth Amendments to the United States Constitution, and more particularly his
rights of association "without fear of penalty or reprisal" conferred by Article I, paragraph 19 of the New Jersey Constitution, as implemented by N.J.S.A. 34:13A-1 et seq. Defendant board is further charged with violation of N.J.S.A. 18A:64A-12(f) and 18A:64A-13. Plaintiff has abandoned the third count of his complaint seeking damages for his wife's nervous condition allegedly attributable to defendants. Defendants deny the allegations of the complaint.
Plaintiff joined the Gloucester County College faculty in September 1968. He taught various courses in the Social Sciences Department for three years, progressing in rank from lecturer to instructor. During this period he organized and became first president of the Gloucester County College Faculty Association; he remained an active member thereafter, serving in various capacities, including salary negotiator for the faculty. He was also elected to the presidency of the Association of New Jersey County College Faculties. His extracurricular involvement included coaching the cross country team, advising the student government, chaperoning various student functions, and counseling (on an unofficial basis) students hopeful of continuing their education beyond the county college's two-year program.
Voluminous testimony has been adduced from numerous witnesses regarding Katz' abilities as a teacher. Several of his former students and Dr. Leonard Krivy, a former administrator at the college, found him knowledgeable and even inspiring; various administrative personnel expressed some dissatisfaction with his techniques; the board of trustees had little or no first-hand knowledge.
At a public meeting on January 25, 1971, following an executive session of the board, it was announced that Katz would not be awarded a contract for the academic year 1971-1972, his tenure year. N.J.S.A. 18A:60-2. The board had discussed the matter on at least two occasions before making its announcement. The decision was made on the recommendation of President Apetz, who had consulted with Dean of Instruction Joseph V. Summers and plaintiff's departmental
chairman, Michael D. Lindner. Both of these latter two individuals had personally observed and evaluated plaintiff's classroom abilities during 1970. In the six months preceding the board's decision several meetings between the administration and plaintiff had been held, at which certain suggestions for improving his effectiveness as a teacher were discussed.
No reason was given Katz for the board's determination; no hearing was afforded him to face his accusers. At trial it was testified that in addition to teaching ability, the administration had expressed to plaintiff its concern regarding his attire, tardiness, absences and parking habits.
Prior to trial two motions were made by defendants. The first was to dismiss the complaint for failure to state a cause of action and failure to exhaust administrative remedies. By letter opinion of March 15, 1971 we denied the motion in view of the possible constitutional issues involved.
Subsequently, on July 9, 1971, the court granted defendants' motion for a protective order, whereby the scope of plaintiff's discovery was limited to the extent that he could not ask the board members or other college personnel questions regarding the reason(s) for his nonretention. Further, and relatedly, plaintiff was denied any access to the executive sessions of the Board insofar as they pertained to his nonretention.
We are asked today to determine whether, as plaintiff alleges and has sought to prove, the nonretention of Katz, a nontenured college instructor at a state institution, violated his rights under the United States Constitution, the New Jersey Constitution, or statutes implementing the latter.
It can no longer be maintained that teachers "shed their constitutional rights to freedom of speech at the schoolhouse gate." Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Their exercise of First Amendment rights will generally not warrant their dismissal. Keyishian v. Board of Regents , 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629
(1967); Pickering v. Board of Education , 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); McLaughlin v. Tilendis , 398 F.2d 287 (7 Cir. 1968). Furthermore, in the absence of some illegal intent, a person's right to join or form a union is protected by the First Amendment. Thomas v. Collins , 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1944). The protection afforded has been held to be unaffected by the presence or absence of tenure. McLaughlin v. Tilendis, supra; Johnson v. Branch , 364 F.2d 177 (4 Cir. 1966), cert. den. 385 U.S. 1003, 87 S. Ct. 706, 17 L. Ed. 2d 542 (1967); Bomar v. Keyes , 162 F.2d 136 (2 Cir. 1947), cert. den. 332 U.S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947).
Shelton v. Tucker , 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), is clear authority for the proposition that teachers enjoy the right of free association, and that the unjustified interference therewith violates the due process clause of the Fourteenth Amendment. Our own Supreme Court has recently stated, in Burlington Cty. Evergreen Park Mental Hospital v. Cooper , 56 N.J. 579 (1970), a case involving the termination of a public hospital employee, that
Denial of permanent status to an employee solely because she had engaged in her constitutional or statutory right to join or to persuade other employees to join a union clearly would be ...