Laba v. Newark Board of Education

Weintraub, J.

(concurring in part). I regret I cannot join completely in the able opinion of Mr. Justice Jacobs. The part of the opinion with which I disagree probably could not influence the outcome of further proceedings in this matter under the facts of the case. Yet it states an important proposition, the consequences of which can hardly be estimated now, and since I cannot agree with it, I feel compelled to state my reasons.

The authorities cited by Mr. Justice Jacobs fully demonstrate that under present circumstances the right to employment as a teacher in a public school system may be denied because of advocacy of the overthrow of our government by unlawful means or membership in an organization known by the teacher to have that aim, and further that a refusal to answer inquiries of the school authorities pertinent to that subject may be the basis of dismissal. Hence I agree the school authorities may interrogate each teacher here concerned with respect to this subject and may conclude, upon a finding of such advocacy or membership or refusal to answer pertinent questions, that a teacher is unfit for continued employment.

I am troubled by so much of the opinion as holds that a teacher may also be dismissed upon a distinctly different basis, namely, a finding that reliance upon the Fifth Amendment before the Subcommittee of the House Un-American Activities Committee was patently contumacious. In short, *395 although the inquiry into disloyalty in relation to fitness should be resolved in a teacher’s favor upon a full examination before the school authorities, yet there may be a dismissal if it be concluded that the exercise of a right in a forum in which it was constitutionally assured was unfounded and contumacious.

I am sure every member of the court regrets as much as I do any limitation upon personal freedoms. Yet the Constitution is intended to be the fabric of government and not its burial shroud. The right of self-defense must be paramount and hence, like it or not, some portion of our liberty may be suspended when the danger is so great as to require it. I say “our” liberty because liberty is truly indivisible, and when it is suspended in any area the finest citizen feels a curtailment of his right to say what he thinks, lest he be enveloped in a smog of suspicion. But it seems to me that just as necessity constitutes the basis for impingement upon freedom, so also necessity marks the limit beyond which we should not go, for to go beyond what the occasion demands is just a waste of liberty.

The necessity here is to protect the school system against subversive infiltration. To that end an inquiry by school authorities into the loyalty of a teacher with power to dismiss for disloyalty or for a refusal to answer fully in that inquiry, is completely sufficient to safeguard the public interest. Should we go further and permit school authorities to pass upon the difficult question whether a constitutional right was contumaciously asserted before a congressional committee ?

The majority finds that Slochower v. Board of Education of the City of New York, 350 U. S. 551 , 76 S. Ct. 637 , 100 L. Ed. 692 (1956) permits that further inquiry. I have grave doubt that it does, and I suppose that if it does we would still have the troublesome problem whether as a matter of local law we ought to permit it. The pertinent text of the majority opinion in Slochower reads ( 350 U. S., at page 558 , 76 S. Ct., at page 641 ):

*396 “With this in mind, we consider the application of § 903 [the New York statute]. As interpreted and applied by the state courts, it operates to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the question, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive. Such action falls squarely within the prohibition of Wieman v. Updegraff, [ 344 U. S. 183 , 73 S. Ct. 215 , 97 L. Ed. 216 ] supra.

It is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to he based entirely on events occurring' before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or government of the city, or * * official conduct of city employees.’ In this respect the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. * *

It is not clear whether the first paragraph in the quotation above was intended merely to explain why in principle it is unjust to base a dismissal upon the assertion of the Fifth Amendment, or whether it was intended to suggest that state authorities may conduct an inquiry with respect to the several elements there stated and conclude that there was a contempt of the Congress.

We do not have before us a conviction for contempt. A conviction would present a different situation. And I suppose it must be abstractly conceded that in an administrative inquiry into fitness criminal conduct may be considered even though not reduced to a judgment of conviction. But we are dealing with liberty, the exercise of an important constitutional right, and hence the answer must be found by weighing all the factors and not in a mere mechanical application of a rule which may be indisputable in another setting.

I find it difficult to visualize the course of an inquiry of the kind which the majority authorize. All of the teachers here concerned were represented by reputable counsel. The *397 record is studded with notations of consultations between the teachers and their attorneys. If it should appear, as now seems evident, that counsel’s advice was followed, may the school authorities go further and seek disclosure of what transpired between attorney and client and perhaps then evaluate counsel’s application of the difficult rules controlling the availability of the privilege and the loss of it by waiver ? Shall school boards pass upon the question of pertinency to the congressional inquiry, or “the remoteness of the period to which the questions were directed” or make their appraisal of whether the answers to the questions would have incriminated or been a link in the chain? What “reasons or justifications for exercising their constitutional privileges” will suffice? I intend no reflection upon the capacity of school authorities as such. My point is that inquiries of this kind would tax the talents of the ablest lawyers and divide them sharply. If there were any necessity for all of this, it would be another matter. But I see no necessity, because the direct inquiry into fitness by the school authorities gives all the protection which the public interest requires.

It is an inescapable fact that the other fellow’s liberty is not always popular. The right against self-incrimination is particularly vulnerable today in the hands of the many who do not understand its history and its worth in our way of life. The danger is real that in the fuzzy kind of inquiry of which we are now speaking, the decision will be controlled by an unrevealed dislike for the constitutional right. The views of Mr. Chief Justice Warren in Quinn v. United States, 349 U. S. 155 , at page 164, 75 S. Ct. 668 , at page 674, 99 L. Ed. 964 (1955), expressed with respect to this right in another context, are appropriate here:

“* * * It is -precisely at suck times — when the privilege is under attack by those who wrongly conceive of it as merely a shield for the guilty — that governmental bodies must be most scrupulous in protecting its exercise.”

It is one thing for the federal government to vindicate the authority of the Congress by prosecuting a charge of *398 criminal contempt. It is quite another for a state or local agency to probe beneath what on the face of things is simply the assertion of a constitutional right — an assertion which in and of itself imports no impropriety whatever — to determine, on the elusive basis of the factors mentioned, whether the dignity of the Federal Legislature has been offended. It seems to me that a constitutional right should not thus be burdened in the absence of a compelling need, and there is none.

We could well wait for a clarification of the quoted portion of Slochower , or at least until we are confronted with a case which imperatively requires a decision by us, and as I see this case, it does not. I say this because in the light of Quinn v. United States, supra, it seems inconceivable that the school authorities could find that any of the teachers was guilty of a patent contempt. In that case it was held that the criminal offense is not shown unless the committee informed the witness that his claim of privilege was overruled and directed him to answer. Let us look at the testimony before the subcommittee.

As to Dr. Lowenstein, the record discloses that not a single claim of privilege was overruled and at no point was he ordered to answer. Quinn is squarely applicable.

As to Mr. Zimmerman, the chairman (I will assume for present purposes that his action represented the action of the entire subcommittee of two) directed answers to three questions, namely, whether he was a member of a union during the period 1942 to 1948 when he was employed in industry, whether he was a member of the Teachers Union, and whether in the week before the hearing a meeting of school teachers in the area was held at which a lawyer instructed all who were subpoenaed to refuse to answer before the subcommittee. Mrs. Laba was directed by the chairman to answer but two questions, to wit, whether she was ever a member of the American Federation of Teachers during the period she actively engaged in teaching, and whether she is now a member of any teachers’ union! But as to the meaty questions relating to past and present *399 membership in the Communist Party and the like, the subcommittee did not overrule the claim of privilege or order an answer. The charges before the board of education and the findings of the board in the ease of each teacher specified only the assertion of the privilege as to questions concerning membership in the Communist Party, and no reference was made to the refusal to answer the questions which the chairman had ordered to be answered. Although the board’s charges may now be amended to specify the refusal of Mr. Zimmerman and Mrs. Laba to answer the questions directed to be answered by the chairman, the resulting trial would be so distant from the heart of the matter of fitness as not to be worthwhile.

The majority opinion authorizes an inquiry to ascertain “whether the refusals to answer were patently contumacious or frivolous.” Thus far I have construed this to mean only patently “contumacious.” If it is intended to suggest there may be a dismissal upon a finding that the refusal was patently “frivolous,” meaning thereby something less than a criminal contempt, my disagreement is all the more pronounced. The fuzzy nature of the inquiry would then be even fuzzier. In practical operation, an inquiry into the propriety (non-criminal) of the exercise of a constitutional right can lead only to an unnecessary dilution of that right.

I would modify the State Commissioner’s order accordingly.

For affirmance — Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs — 6.

For modification — Justice "Weintraub — 1.