For reversal -- Chief Justice Hughes and Justices Jacobs, Hall, Sullivan and Pashman. For affirmance -- Justices Mountain and Clifford. The opinion of the Court was delivered by Jacobs, J. Mountain, J. (dissenting). Clifford, J. joins in this dissent.
The Appellate Division affirmed the dismissal of the petition which the plaintiff had filed with the State Commissioner of Education. 115 N.J. Super. 228 (1971). We granted certification on the plaintiff's application (59 N.J. 272 (1971)) and the matter has been fully argued and reargued before us by counsel for the parties and the amici curiae.
The plaintiff Mary C. Donaldson was employed by the respondent Board of Education of the City of North Wildwood from January 1967 through June 1969 as a teacher at the Margaret Mace Elementary School. In January 1969 she was notified by the North Wildwood Superintendent of Schools that her contract would not be renewed for the 1969-70 school year. She was not told why and though she persistently sought the reason or reasons from the Superintendent, and from the board which confirmed his action, she has been unable to obtain any pertinent disclosure. Counsel for the board apparently advised it that the failure to renew the plaintiff's contract precluded her from obtaining tenure and that "on tenure matters it is best not to give reasons."
In due course the plaintiff filed a verified petition with the State Commissioner of Education charging that the action of the Superintendent and the board was arbitrary, capricious
and unreasonable, and seeking review by the Commissioner under N.J.S.A. 18A:6-9. The respondent moved to dismiss the petition, and argument centering largely on whether the plaintiff was entitled to a statement of the reason or reasons for the refusal to renew her contract, was heard by the Acting Assistant Commissioner in charge of the Division of Controversies and Disputes. He reported to the Commissioner who granted the motion to dismiss on the basis of his finding that the plaintiff "has no right to a statement of reasons for respondent's non-renewal of her contract." The State Board of Education affirmed on the basis of the Commissioner's opinion and the Appellate Division, in turn, affirmed the decision of the State Board. 115 N.J. Super. 228.
The plaintiff's petition for certification was expressly confined to the issue of "whether a non-tenure school teacher is entitled to a statement of reasons for her non-retention by a school board." We granted certification for the sole purpose of reexamining the validity of the Commissioner's administrative position that a board of education which refuses to renew the contract of a nontenured teacher is under no obligation whatever to honor the teacher's request for a statement of the reason or reasons for her nonretention. In his formal opinion the Commissioner relied almost entirely on People v. City of Chicago, 278 Ill. 318, 116 N.E. 158 (1917) and this Court's reference to that case in Zimmerman v. Board of Education of Newark, 38 N.J. 65, 70 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2 d 502 (1963). But the Illinois case clearly has no current viability. There the Illinois Supreme Court sustained a board of education rule which prohibited membership by teachers in labor unions. In the course of its opinion it expressed the view that the board had an absolute right to decline to employ or reemploy any applicant for any reason whatever or for no reason at all and that "it is immaterial whether the reason for the refusal to employ him is because the applicant is married or unmarried, is of fair complexion
or dark, is or is not a member of a trades union, or whether no reason is given for such refusal." 116 N.E. at 160. We need hardly point out that the sweep of the quoted language is no longer law anywhere and that this was expressly recognized in Zimmerman (38 N.J. at 70-71) which, incidentally, did not pass on the issue of whether a nontenured teacher who is not rehired is entitled to have a simple request for a statement of reasons fairly honored. See Weintraub, C.J. concurring in Zimmerman, supra, 38 N.J. at 79-80; cf. Katz v. Bd. of Trustees of Gloucester County Col., 118 N.J. Super. 398, 404 (Ch. Div. 1972).
It must be borne in mind that our Legislature has not at any time said that no reasons need be given when a nontenured teacher is not rehired. Bills bearing generally on the subject have been introduced periodically but thus far no pertinent legislation has been enacted; in the circumstances it is clear that no controlling inference as to intent may be drawn from the legislative silence. See Boys Markets v. Retail Clerks Union, 398 U.S. 235, 241-242, 90 S. Ct. 1583, 1587-1588, 26 L. Ed. 2 d 199, 205 (1970); Girouard v. United States, 328 U.S. 61, 69-70, 66 S. Ct. 826, 829-830, 90 L. Ed. 1084, 1090-1091 (1946); cf. J.C. Chap. Prop. Owner's &c. Assoc. v. City Council, 55 N.J. 86, 95 (1969); Schmoll v. Creecy, 54 N.J. 194, 203 (1969); Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486 (1965); Walls v. Horbach, 189 Neb. 479, 203 N.W. 2 d 490, 492 (1973); State v. Gorham, Iowa , 206 N.W. 2 d 908, 913 (1973).*fn* The Legislature has established a tenure system [65 NJ Page 241] which contemplates that the local board shall have broad discretionary authority in the granting of tenure and that once tenure is granted there shall be no dismissal except for inefficiency, incapacity, unbecoming conduct or "other just cause." N.J.S.A. 18A:28-5. The board's determination not to grant tenure need not be grounded on unsatisfactory classroom or professional performance for there are many unrelated but nonetheless equally valid reasons why a board, having had the benefits of observation during the probationary period, may conclude that tenure should not be granted. See Association of New Jersey State College Faculties v. Dungan, 64 N.J. 338, 351-352 (1973); cf. Cammarata v. Essex County Park Commission, 26 N.J. 404, 412 (1958). Surely the tenure system would not be adversely affected or at all impaired if the board were called upon to respond to the teacher's inquiry as to why she was not reengaged for the forthcoming school year. See Drown v. Portsmouth School
District, 435 F.2d 1182, 1185 (1 Cir. 1970), cert. denied, 402 U.S. 972, 91 S. Ct. 1659, 29 L. Ed. 2 d 137 (1971); cf. Monks v. N.J. State Parole Board, 58 N.J. 238, 245-249 (1971); 73 Colum. L. Rev. 882, 886 (1973); 85 Harv. L. Rev. 1327, 1331 (1972); 1 J. Law & Ed. 469, 482 (1972). See also Note, 29 Wash. & Lee L. Rev. 100 (1972):
When the effects of a required statement of reasons are examined, it seems clear that little harm will be done to the system by this addition. The purpose of the scheme -- the maintenance of a competent faculty -- will not be affected, for the school board's freedom not to renew a teacher's contract will be unaffected. The only adverse effect is the slight administrative problem of processing the statement of reasons, and this is little different from the statement of notice that most systems currently require. That a statement of reasons will not harm the tenure system is evidenced by those states which currently afford such a right to probationary employees, with no apparent adverse effect. 29 Wash. & Lee L. Rev. at 109.
The federal courts have, as a matter of federal law, placed various restraints on local boards in their dealings with nontenured as well as tenured teachers. Thus a local board may not refuse to rehire a teacher because of his membership in a labor union or his exercise of constitutional rights. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Perry v. Sindermann, 408 U.S. 593, 598, 92 S. Ct. 2694, 2698, 33 L. Ed. 2 d 570, 578 (1972); Van Alstyne, "The Constitutional Rights of Teachers and Professors," 1970 Duke L.J. 841, 847; cf. Winston v. Board of Education, 125 N.J. Super. 131, 144 (App. Div. 1973), aff'd 64 N.J. 582 (1974). However, for present purposes we may assume (see Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2 d 548 (1972)) that if he is not a tenured teacher he ordinarily has no federal constitutional right to a statement of reasons, though it ...