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September 30, 1975

Fred J. HOFFMAN et al., Plaintiffs,
R. Thomas JANNARONE et al., Defendants, and Fred G. Burke, Commissioner of Education of New Jersey, Defendant-Intervenor

Per Curiam

This action was instituted by a tenured teacher employed by the Asbury Park Board of Education, Fred J. Hoffman, two officers and a special consultant of the Asbury Park Teachers' Association, and a field representative of the New Jersey Education Association. Defendants are the Superintendent of Schools in the City of Asbury Park, the Secretary to the Board of Education, the Board attorney, and the members of the Board of Education of the Asbury Park school district.

 The original complaint challenged the procedures employed by the defendants directing the plaintiff Hoffman to submit to a psychiatric examination following what they deemed to be erratic behavior. Jurisdiction was invoked under the Fourteenth Amendment and by virtue of 28 U.S.C.A. § 1343(3) and (4) et seq., and 42 U.S.C.A. §§ 1983 and 1988. A single judge granted partial summary judgment to the defendants holding that the procedures followed were consistent "with the requirements of N.J.S.A. 18A:16-2 and the guidelines imposed for its application in Kochman v. Keansburg Bd. of Education, 124 N.J.Super. 203 [305 A.2d 807] (Ch.Div.1973)." The court, however, permitted an amendment to the complaint permitting plaintiffs' attack upon the constitutionality of N.J.S.A. 18A:16-2. Thereafter this three-judge court was convened. The Commissioner of Education of New Jersey represented by the Attorney General of New Jersey, was permitted to intervene to defend the constitutionality of the legislation under consideration.

 This matter was precipitated by the notification of January 14, 1975 to the plaintiff Hoffman by the Asbury Park Board of Education that he should submit to a psychiatric examination, in accordance with the provisions of N.J.S.A. 18A:16-2 (Exhibit A of Verified Complaint). The letter expressed concern regarding Hoffman's general health and his performance as a teacher in view of the fact that plaintiff is "an elementary school teacher in constant close contact with a classroom of young children." *fn2" Following this, on January 21, 1975 plaintiff John Malloy, a field representative of the New Jersey Education Association, wrote on Hoffman's behalf to the Board Secretary lodging an objection to the directive on the basis that it was issued without sufficient justification and specificity. He further requested that a meeting be scheduled which would more fully apprise Hoffman of the reasons why he was to submit to an examination.

 The statute here under consideration, N.J.S.A. 18A:16-2 provides as follows:

18A:16-2. Physical examinations; requirement
Every board of education shall require all of its employees, and may require any candidate for employment, to undergo a physical examination, the scope whereof shall be determined under rules of the state board, at least once in every year and may require additional individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health.
Any such examination may, if the board so requires, include laboratory tests or fluoroscopic or X-ray procedures for the obtaining of additional diagnostic data.

 The phrase "deviation from normal, . . . mental health." has been construed to mean "harmful, significant deviation from normal mental health affecting the teacher's ability to teach, discipline or associate with children of the age of the children subject to the teacher's control in the school district." Kochman v. Keansburg Board of Education, supra, at 211-212, 305 A.2d at 812.

 In February, 1972 all county superintendents in New Jersey were advised by the State Department of Education to inform local school boards that any individual of whom an examination is required pursuant to N.J.S.A. 18A:16-2 ". . . should be given the reason or reasons therefor . . . and also the right to be heard by the Board before the statute is applied." This directive was made mandatory as a matter of state law in Kochman v. Keansburg Board of Education, supra, wherein the court held that when a Board of Education intends to resort to the provisions of N.J.S.A. 18A:16-2, it must give to the teacher a statement of its reasons and must afford the teacher a hearing, if requested. 124 N.J.Super. at 213, 305 A.2d 807. At the hearing, plaintiff is entitled to be represented by a person of his choosing.

 Plaintiff Hoffman, in urging that the statute is unconstitutional contends that he should have been afforded a full adversary hearing before the Board of Education prior to an adjudication by the Board that he should report for a psychiatric examination. He argues that it is at this preliminary stage in the proceedings that his rights to procedural due process are inhibited. In support of this position, plaintiff places reliance upon Snead v. Department of Social Services, City of New York, 355 F.Supp 764 (S.D.N.Y.1973) and Lombard v. Board of Education of the City of New York, 502 F.2d 631 (2d Cir. 1974). The Snead case held that the defendants must conduct an adversary hearing prior to placing a permanent status civil service employee on involuntary leave of absence. However, the three-judge panel did not prescribe the precise form such hearings are to take, leaving several options available. The court there recognized that it was constitutionally proper for the state to retain the current psychiatric examination and hold an adversary hearing after its completion, allowing its introduction as evidence at that proceeding. 355 F. Supp. at 773, n. 38. (Emphasis added).

 In Lombard, supra, plaintiff was a non-tenured teacher who was directed by his principal to submit to a medical examination to determine his fitness to teach. Upon examination by two staff physicians of the Board of Education that he was suffering from an "emotional upset", Lombard was given an involuntary leave of absence. His assertion of a denial of due process challenged the action of the Board in terminating him without first having given him written reasons supporting that termination and an evidentiary hearing thereon. The Second Circuit Court of Appeals held that "it is not consistent with constitutional due process to permit to stand a 'finding' that appellant is, in effect, mentally incompetent or inadequate without giving him an opportunity in any tribunal to confront his accusers in an evidentiary type of hearing." Id. at 637. The court recognized the heavy burden which a charge of mental illness carries through life to find the need for an opportunity to meet the charge by confrontation in an adversary proceeding.

 We do not disagree with the principles enunciated in the foregoing cases. We too recognize the stigma which may attach to a label of mental incompetence and the concomitant importance of the right to refute such an allegation. The key issue, then, as posed by plaintiffs here, is the question of the timing of the adversary hearing. It was apparent to the court in Snead, supra, that the hearing could be conducted subsequent to the mental examination and although plaintiffs rely heavily on that case, they fail to note this point in their desire to urge a full hearing at the earliest juncture available. Let us, then, examine the rights which are available to plaintiff Hoffman under Title 18A and in particular N.J.S.A. 18A:16-2. As heretofore stated, the Commissioner of the New Jersey State Board of Education requires a local Board of Education to give the reasons for the requested physical and mental ...

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