Petition for a Writ of Certiorari — Griewski v. Wisconsin

- eh i > ee ee ne

| Y ers Office-Supreme Coust, W.S.

eee, ae ed

° NOV 13

E- JOHN F. DAVIS, “elem

IN THE

_Bapreng Court of the Awited £ States

" OcTopeR TERM, 1962.

"5 PERRY. ZIMMERMAN; * BS

: < Petitioner, ©

vs. i Pee

“BOARD OF EDUCATION OF THE CITY OF NEWARK

and EDWARD F. KENNELLY, SUPERINTENDENT

OF SCHOOLS, .

Respondents. |

eat.

a ~

PETITION FOR A WRIT: OF CERTIORARI

TO THE NEW JERSEY SUPREME COURT.

- . WARREN J. KAPS,

26 Journal Square, Pi

’ ’ Jersey City 6, New Jersey, —

DANIEL H. POLLITT, ey

‘ Chape) Hill, North Carolina, op

SEYMOUR MARGULIES, 4

921 Bergen -Avenue.,

Jersey City, New Jersey,

NICHOLAS J. LaROCCA,

: ; _ »26 Journal Square, :

STEIN & KRIPKF; ma Jersey @ty 6,.New Jersey,

‘Of Counsel. . Attorneys for Petitioner..

WARREN J. KAPS,

GEORGE L. GARRISON,

-On the Brief.

Arthur W. Cross, Inc., Law Printers, 71-73 Clinton Street, Newark 5, N. J.—MArket 3-4994

ete

* s :

rea PAGE

Petition ror a Writ or Cr RTIORARI TO THE New Jer-

SEY Suparme Court”. .... - 0.5.2.0. iA ep a Sew aces

2. Oprytos EE eee poorer 6 Peat chon eae

UII oa 5 ans nc uke cacueenar ae ines cane 2

? Dinehe Sd se a : , a

a ar pect’ I RESENTED Pee ee ey SOS Bree SA ni rea 2

STATUTES AND CoxstittTiosat AMENDMENTS IN-

VOONMR 5.5.5. Sig. ROP PRE AOL ET ee

Un tep States, CONSTITUTION .....:.. Pere yrer sr. 3

~- NEw JERSEY Sratt _ Ee Ore r ey) eer eer, +

F 3 2 * ~

Sratemenr OF THE CASE... 0.0... ves Pete raas va : &

Reasoys FOR GRraNTING THE Ww RT igus he eeae Cae es - <9

s _I The questions presented: are > substantial. oO:

II. ‘The New Jersey decision is not in “accord WV

* with prior rulings of this Court ......... a 11° \

CONCLUSION .3.....00505 Upees eNaraen Pree 15

* - * ‘ : . ,

’ Appendix- A—; Decision of the State Board of Eduea-

ere pee PEP eae eC Pee Pee eT weet es 16

nhac ee

Appendix b-teedain of _C ‘ommissioner: oF Eduea-

, b—Vecisi

__— tion November 9, 1960 badae waetee ne euk ede Wave N 19.

‘ ; ;

2% . ‘

Cases Cire,

: Adams v. Maryland, 347 U.S. 179-(1954)...0...52.. «12

® Beilan v. Board of Education, 357 U. S..399 (1958)... 10, 14

-.

ee PAGE’ *

Laba v. The 2 Newark Board . Education, 23_N. ig

364, 129 A. Od 2 WORE Sian uc encatiewss ere 4 ee

Lerner v. Casey, 357 U.S. 468 oe LES REE ere 13,14

_-Nelson v. Los Angeles County, 362 US. 1 (1960). : 13, 14.

Slochower v. Board* of Higher Education of City of

New York, 350 U. 8. 551 (1956). .. 5.0 5.....5... 6, 12, 13

os v. Seaton, 3 399 Uy, S. 935 (1959) . ag wards wae : 13, 14

Usitep STATES Constitution CIreD.

First Amendment ... was hc aeiee e's i pabeev et we 8 es

Fifth Amendment ....... Se Oe ey er ee 3, 9, 12,13

Fourteenth NR Gia cee . 2,3, 4,9

: _ Fep#ran STATUTE. Crrep.- ‘ae CET

28.U. S. C. Av See. 1257. (3) arse ee ae Cee

. . en ’ 4 ry

New J ERSEY Srancais Cire. ore,

Laws of 1940, e. 43, p. 125, § 1 MERE ATeD S a eign Beh 5°

Laws of 1952, c. 286, p. 796, Ree viwaveaswas we veges a

Pe ees SOR n Cm a |

&

IN THE ; : °

Supreme Court of the United States

Gc TOBER Ter M, “1962. | i

No ‘ aes - - :

‘ = pee i _ & .

oP emey ZIMMERMAN, > F Vi ee

; | Podtioner,

ie {es :

Boarp or Epvcation or tite Crry or NyAvark and lpwarp

I. KENNELLY, cc eta ha ries nt

es . ‘ ' ie & . ‘ N

ee Respondents.

\ Shs a

\ A

By -y FOR A-WRIT OF CERTIORARI . _

Ms NEW JERSEY SUPREME COURT.

To the. Honorable, Hie C hief Justic é and Associate Justic es

"ts of the Supreme Court of the U sand States:

Petitioners Perry ‘Gisicmes, petitions for a-AVrit: of -

raring review the tial judgment ofthe New Jersey:

Supremé Court which affirmed the previously rendered

isions of the ‘State Commissioner of Education and

State Board of:Education which granted-to the: petitioner

Mack. pay for a one- fnonth period but failed to reinstate

_ the petitioner to his position as a teacher in the Public

‘School system of ‘thé City _of Newark.

a

8

‘Opinions Below. - ee on

" The majority and concurring opinions of the New Jersey |

Stpreme Court are reported at 38 N. J. 65, 183 A, 2d 25

( 1962 ). A previous decision of the” New. Jersey Supreme |

Court in which petitioner’ was an appellant is reported in

the matter of Laba.v..The Newark Board of Educatian, 23

ON. dL. 364, 129 A. 2d 273 (1957). The opinion. of the State

Board of Education and. the State Commissioner of duea-.

tion are not officially reported. (Appeydisy.intra, Bp. 16

to 29),

Jurisdiction.

The final judgmetit of th? New Jersey Supreme Court

was entered.on June 29; 1962. The time within: which a’

petition for a writ of certiorari may ‘be filed with this

Court .was extended by Order of this Court to. November

11, eng The jurfsdiction of this, Court is invoked under

28 U. S. COA, pom (3).

Questions Presented.

I. Is it ‘a ‘violation of the: due process clause of the

; . Fourteenth Amendment and an abrogation of peti--

tioner’s rights under the First Amendment of the United

States Constitution for a state to dismiss a public school

teacher and deprive him from obtaining tenure simply

and as a direct result of his refusal*io answer questiogs

asked by a Congressional Sub-Committee abgut his

membership i in the Communist Party w where such asso-

to

3;

Pe a

’ ~

ciation ‘was: lawful at the. time it was alleged to exist

and where no hearing on the question. of the teac her’ 8

loy alty is accorded to him,

Whether the State of, New Jersey. Uncohstitutionally,

arbitrarily, unreasonably and i inv olation of the rulings

of this Court, unduly deprived petitioner ‘of his rights

to invoke the privileges of the Fifth: Amendment, to,

associational privacy, to aci demic freedom, and to F irst

Amendment freedoms, all in violation of the due process

clause of the Fourteenth Amendment.

Did the petitioner obtain academic tenure by virtue and

as a result of the actions undertaken by the State und -

did the State arbitrarily and unreasonably dismiss the ,

petitioner: without a hearing: in violation .of the due

process clause of thes Fourteenth Amendment -to the

United States: Constitution’. ; |

~ Statutes and Conititution al Amendments Involved.

United States Constitutifn.

‘ . Amendment (1)

ae

Congress shall make no Taw respecting an establishment

- of religion, or prohibiting the free exercise thereof; or

‘ abridging the freedom: of speech, or of the press; or the

_ right of the people peaceably to assemble, and to petition

. the Government for a redress of grievances.»

©

a

Anaidinett (V)

. No person shall be held to answer fora capital, or other-

wise infamous érime, unless on a presentment or indict

ment of a Grand Jury, except in cases arising in the tana

J

at Ses eet, RD RE

or naval forces, or in the Militia, when in- actual service in’

‘time of War or public danger; nor. shall ‘any person be.

subject-for the same offense to be twice put in jeopardy of

life or-limb; nor, shall Ge compelled i in ahy criminal case to

be a witness against himself, nor be deprived of-lifé, liberty,

or property, without due -process ef law; nor shall private | —

property be taken for pyplic use, without just compensa-

tion, =

.

buen’ (XIV) - ", °

Section 1." All persons. born or naturalized i in the t nited ‘|

States; and subject to the jurisdiction thereof, are citizens °

of the United States and of the State Wherein they reside,

| No State shall make or. enforce any law which shall abridge

the privileges or immunities ‘of citizens of the United States: :

‘nor shall any State deprive any .person of life, liberty, or .

- property, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the laws,

’- °

: 2

New Jerse ey Statutes. oe

18s: 13-16. Tenure of seiele rs, principals and: superintend-

ents and assistants.

The services of all unihniee: principals, superintendents ;

‘and assistant ‘superintendents, of the publie schools, except-

ing. those who are not the holders of proper teachers’ cer-

tificates in full force and effect, shall be during goad be-

havior and efficiency, (a) after the éxpiration’of a period of

employment of three consecutive calendar years in that dis-

-trict unless shorter period is fixed by the employing board,

next sugCecding academic year, or (c) after émployment,

within a period of any four consecutive academic yedrs,

for the equivalent of more than three academic years, some

HON ae

ee for (b) after employment for three consecutive academic :

years together with employment at the beginning of the

ee 0

-)

. -

July first, one thousand nite hundred «and forty; ; provided,

)

that the -time any teacher, principal or supervising. prini-

cipal had taught in the istrict;in which he was employed

at the end of the academié year: immediately preeedii.

July -first,,one thousand nine hundred, and forty, shall be

counted in determining ‘such period or p periogs of employ-

ment in , that district. :

An academic year, for the pur pase of this section, means

the period between the: time school opéns in the district

after the general summer vacation until the next ae

summer vacatioft. As Amended L? 1940, ¢. -43, p: 125, $1;

L., 1952, e/ 236, p. ii 2: Gi

° . . oh Sty

‘ . . ‘Statement of the Case. Be cays

/ ’ . , -

-.The petitioner isa ares lene ‘her. He was emplayed by

the Board of Education cof the itv of Newark, New Jer

sey; on, July 30, 1952. Ie commenced his teaching duties

“on September: 1,° 1952) and his contract was -renewed. i

Committee sitting-in Newark, New Jer

tioner Was. a member Of, the Communist Party. When te

petitioner commenced his. employme nt. with the © ity: of.

.< Newark, he had been an ex- communist for four years, Om.

May 19, 1955, this te: icher was subpoenaed: to appear before

a Buk-colinittes ‘of the Horse U n- American: A tivities

8 pon ‘advi ee of

counsel, petitioner ‘refused to answer questions asked by

the. Sub-committee pertaining -to his membership in “the ’

Communist Party. Tlis refusal was based upon the. Fifth

Amendment’ s protectioti against incrimination. As a re-

sult. of. the exercise of - -his constitutional rights before the

Sub-committee on Mav 19, 1955, the next alay, on “May 20),

1955, this teacher was Summarily SUSpe mee by the Ne wark

‘ ; >.

« & . . : : : °

ye

jane ah > ,

‘ in ie yéar after

part of which mugt be served in ‘an academic

1@.

- 1953 and. 1954. During the peried 1946 to 1948, thé cal

-

7

m: . q - 6 ’ ° J Fa’ 2 S

~~, ’

Supenntendent of Schools. On May 23, 1905, the Super;

‘intendent of Schools of the City of Newark filed charges

-“against petitioner with the Newark Board of Education

Which in substance alleged. that -petitioner’s conduct and .

testimony at. the Sub-c committee hearing rendered him

- guilty of couduef wale oming a teacher, affected his ca-

pacity to perform his duties and constituted just cause for

dismissal. After. his appearance before the Newark Board

of Educatiop on June A, 1955, the Board on Jime 28, 1955

dismissed petitioner sidine as of May 19, 1955.--The

Board sustained the charges as submitted by the Super-

‘inte ‘dent. The sole reason for the discharge of petitioner

“was the fact that he invoked his rights under the Fifth

Amendment ‘in response to questions presented to him-by _

the Sub-committee of the House: Un-American Activities

Committee. : a.

Upon: ape “al tiie the decision of the Board to the Su-

preme Court of New Jersey, the, actions of tlie Board were,

condemned and the matter was +yemanded: on February 4,

1957, for hearings in ‘ace ordane e with -the court? s mandates.

fs aba vy. New ark Boar d of Education, 23 NJ. 364, 129 A. 2d

73 (1957). The basis’ for the reversal was this cdurt’s de-

cision in Sloc hower v. Board of Higher Education of C oy

of New Fork, 390 U. 8.551 (1956). On March 20, 1957, the”

Newark Board pf E Kiakating directed the Superintendent

of. Schools to conduct an inquiry An d report to the Newark

_ Boavd’ of Education the results: of such inquiry, ‘‘to the

eud that the Board may then make. such further inquiry .

and wea such further action as the facts and circumstance es

: warrant.’

On May. 16, 1957, petitioner appeared with couttsel: be-

‘fore the Superintendent of Schools in-Newark. Petitioner

Ma , Tees

<3 , ” = . .

‘

answered all questions as fully as possible. The Super-

intendent duritig the inquiry manifested general satisfac.

tion with. his responses. Nevertheless; on Ottober 22, 1957,

the Superintendent filed-.supplementary charges against”

petitioner with the Newark Board of Education charging,

_ for the first ‘time, that Perry Zimmerman failed to ¢o-

operate at the interview conducted on May 16, 1957, and

failed to giv e frank and full answers,

The interview, which took place on May ‘16,1957, lasted

two hours and twenty-five minutes. Petitioner actually did

answer each and every question iat length. He admitted

membership i in the Communist Party from 1946 to late in

1948 and testified as to his reasons for joining and leaving

the Party. “Chiet Justice"Weintraub, in his concurring opin-

ion rendered in? this cause, sted: “He (petitioner) an-

swered. erery question put to him. Nonethetess, the Super-

intendent made no finding upoy,the target issuc-of present

loyalty. ‘Nor. did the Superintendetit find (and he could not)

that Zimmerman refused to answer any question * °°"

(88.N, Jvat 82). ee

A further hearing | w as condueted by the Newark Board

of Edueation from November 4, 1957, to Decomger IS, 1957,

This hearing was based, not upon the original charyes hut

Solely upon the Supplemental Charges filed by the Supe rin-

tendent. In support of these charges, the transer ipt of the

_Superintende nt’s interview, dated’ May 16, 1957, was intro.

“dnc ‘ed in evidence, At ‘this Board hearing, the petitioner’ s

principal testified: that he had rated pelitiower ig “atts

factory’ and that tenure would follow from said rating as”

a matter ofcourse, Tenure arises wherein, a probationary

teacher signs a-fourth contract with the same ‘sehoot svstem

i

°

5, dea ae | 7

and teaches one » day under said fourth contract. On June

24, 1958, the Newark Board of Education adopted a resolu-

tion dismissing petitioner effective’as of May 20, 1990, tor:

his: failure to cooperate with the Superintendent and with

| the Board. As to the allegation ‘of his failure to cooperate

with the Board no charges were ever made, presented and

heard charging petitioner with such failure to cooperate.

An appeal was taken by the petitioner to the State Com-

missioner of Education. On November 9, 1960, the Commis-

‘sioner held that the dismissal by the Board of Edueation

of petitioner effective as of May 20, 1955, was invalid be-

eause the Board’s dismissal reverted to a.time priorsto the

acts justifying it. Petitioner was awarded back pay, from

May .20, 1955, to June 30, 1955. However, as to Zimmer-

_ man’s s continued employment, the Commissioner refused to

reinstate him because he had, not acquired tenure.’ The deci-

sion states: ake

¢

‘oy injustice oceurs to a‘teacher beeatuse litiga-

tion interrupts the: continuity of the employment

essenfial to the acquixition - of tenure, the remedy

Jnust lie with the legislature?”

The Commissioner expressed no opinion as to the merits of

the case but stated that he could net grant the relief re-

quested to wit, reinstatement and reemployment, because

he had not aequired tenure. The State Board of Edueation.

affirmed the decision of ‘the State Commissioner of Educa-

tion. Upoa farther appeal, the matter came’ before the New

“Jersey Supreme Court, which affirmed the decisions of the

State Commissioner of Education and the-State Board of

Education. Three cone urring opinions were filed by jus-

tices of. the New Jersey Suprence¢ ‘ourt,

oO

Reasons for Granting the Writ.

I. The questions presented are substantial.

This ‘case presents important questions ‘involving the:

protection of an individual's rights sto personal, assovia-

tional and academic. freedom and liberty as®protected by

the Due Process ¢lause of the F ‘ourteenth Amendment and

the right of every citizen to exercise those constitutional

protections encompassed inthe Fifth Amendment. As the

constitutional guardian of these liberties, this Court is re-

quested to review the petitionet’s despairing pursuit of

these gouls. Despite continyous litigation during the past

six years, the - petitioner has been unsuccessful in his at-

tempt to remove the stigma of this sus spension and ultimate

. discharge, The petitioner Was summarily discharged from

his position as a teacher as of May 20, 1955, as the. direct

and sole result of his having ‘‘pleaded the Fifth Amend-

ment’? before a Congressional Sub-committee,

7

\

The petitioner's work and ‘performance as a teacher was

Satisfactory and, but for his exercise of his:coustitutional

rights unler the Fitth Amendnient before a Sub-committee

of the House Un-American Aetivities Gommittee on Vay.

19, 1955, petitioner would have attained academic tenurc in

“accordance with the laws of New Jersey, This tact cannot

be ignored ner wevered from the proceedings whieh fal

lowed. The State Commissioner of Education's opinion

clearly reflects the- dental of petitioner’s constitutional

rights. The Staite € ommission: rot due ‘ation Was seckiiw

an easy Way out, and in deine so, his decision retidered,

~ proceeding on the basis of lack of tenure, clearly reflects

the denial of petitioner's constitutional rights. But the

7

10 .

reas6n, and the only -reason, why petitioner was suspended

‘ was his exercige of his constitutional rights, and the failure

‘of the school board to renew. petitioner’s contract is at-.

-tributable solely. to his suspension. This suspension was

- declared invalid in Lal v. Newark Board of Education,

supra,

Th€ecord explicitly rev eals that petitjoner’ Ss suspen-

sion was a direct result of his exercise of his constitutional

rights. There never has been a determination whether his --

contract should orshould not have been renewed and there-

. fore sone constitutional-rights will continue in thes future

to be impaired. The foregoing is evident ‘by virtuegye the

decision of the Newark Board of Education rendered on:

June 24, 1958, which dismissed petitioner retroactively as

of May 20, 1955, for subsequent acts allegedly committed

on May 16, 1957, and November 14, 1957. The fact that the

Newark Board of Education made petitioner’s discharge

retroactive to the day after petitioner-exercised his con- —

stitutional rights is mute evidence of the. reasoning and

intent of that body. In Beilan vy. Board of Education, 3 307 |

U. S. 399 (1958), the petitioner was suspended five days

after his refusal to answer questions before the House

Sub-committee. This was thirteen months after he had

_Tefused-te-answer the game questions before the School |

‘Superintendent _but was permitted to’ teach during this

thirteen-month interim period. Mr.’ Chief Justice Warr en,

commented that the: actions of the petitioner before the

House Sub-conimittee were ‘‘inextricably involved in the

-Board’s decision to discharge him’? and-‘‘that. the validity

of the Board’s action cannot be sustained without consider-

ation of this ground.’’ If the conclusion of guilt may ‘rest

on a constitutionally impermissible basis, the adjudication

9 11 * 6

must be set aside, notwith-tanding a state court’s conclu-

sion that permissible bases — ‘on which the decision

might have rested. (397 ULS. at 412).

The foregoing issues are important in the development —

going e

of the law pertaining to the constitutional limitations upon

“the rights of states to discharge their employees,

‘The questions are important to teacher’s tenure, an

essential part. of ilemocratic education and the continued

existence of epee freedom.

This case is important bee ‘ause it presents ‘the problem

of whether the State may extinguish these rights by a suv-

terfuge as blatait as this one. ;

The importance e of flisce: issues to-our democrati¢ society

and its system of public éducation is highlighted by the

ee oe ie sf ater Dele

necessity of the Supreme Court-of 2 Fersey to render

three concurring opinions in this case,

For these reasons, and additionally the’ facet that tis

House Sub-committee centinues to subpoena. teache rs be-.

fore it and State Boards of Education continue to discharge

teachers for exercising their constitutional rights before

such House Sub-committee, the review wot this case is, im-.

por tant.

rulings of this Court. ‘ a

The opinion of the Ne WwW. Jersey Supreme (¢ ‘ourt together

with its three concurring opinions and the Opinions of the

‘State Commissioner and the: State Board of Education re-

rveal that this school teacher was dismissed because he was

| Il. The New Jersey decision is not in accord with the prior

a former member of the Communist Party, the ‘protesta-_

12

tions of the Board of Edueation to the contrary notwith-

standing.

The actions by the School Board and the State Com-

missioner were an obvious attempt. to bypass this Court’s

opinion in Slochower v. Board of Higher Edycation of City

of New York, 350 U.S. 551 (1956). The petitioner was

. sever afforded a hearing on-the original charges’ as dyafted

by the Superintendent. of Schools in 1955; nor was the

- petitioner afforded a a hrearing-wighin the terms of the man-

date of the New Jersey Supreme Court issued on Feb-

ruary 4, 1957, as rendered in Laba v. Newark Board of Ed-

ucation, 23 N. J. 364, 129 A. 2d 273 (1957), in which peti-

tioner was an appellant; nor was the petitioner ever af-

forded a heariig as to tenuré; nor a hearing’ as to his al-

leged non-cooperation with the Newark Board of Educa-

tidn.’"Phe right ta refuse, when interrogated by a.Con-

gressional Committee, to answer self-incriminating ques-

tions is guaranteed by the Fifth Amendment to the United

States Constitution. Adams. v. Maryland, 347 U. 8,179 ~

(1954). The decision by this Cotirt in Slochower requires

that a teacher be given and is entitléd to receive a fair

hearing ‘by the educational institution concerning his tes-

timony before the Congressional Conimittee. Further-

more, the State cannot require, as a condition of exercising

~ that rik ght, Ahat he surrender his means of liv ‘elihood. Such -

a course faction by the State is a denial of the right. The

‘important questions here. presented’ are an attempt to

erode the foregoing doctrines, The petitioner was never

granted such a hearing. | ha pss

e) |

Despite this Court’s decision in Slochower and the man-

“date in Laba by the New Jersey Supreme Court, the State

Commissioner utilized a not ‘too subtle t technique to avoid

13

the consequences of Slochower, This conclusion is sub-

stantiated by the concurring opinion of the Chief-Justice of

the New Jersey Supreme Court wherein he agrees that the | *

purported proceedings. did not conform with the mandate |

of that Court, did not afford petitioner a fair hearing, and

that no findings were made as to the petitioner’s loyalty ie

or his willful refusal to testify.“ A governmental agency ~~~ -——

~should. not be: allowed to cut coters to. reach-t desired =

result. ae ee we ; ’ | :

The Newark: Board cof Kduéation, ‘did not render any

. findiffgs as to petitioner's lovalty not did petitioner refuse

to answer any question ‘propounded by the Superinte indent * oa

of Schools or the Newark Boatd of Education. The Chief

Justice ‘af the New Jersey Supreme Court said in this” re-

egard: | ey ‘

»

‘*T betieve the Board, taking into aceount the

climate of the times and the fears; however un-

warranted, of the parents of students, could con-

clude it is the course of prudent management to em-

~ ploy someone else. That, it seems to me, was the

decision the Board made.’? (38 N. J. at 81).

: 2

This climate. permeated the entire procedure followed

throughout tris case, This court has consistently held that .

a public employee cannot be arbitrarily discharged or re-*‘s.

fused continued employment because the public employee —

exercised his constitutional rights. under the Fifth Amend. — -

ment.

The proceedings and decisions in this case are also in.

derogation of this court's opinions in Vitarelli v. Seaton,

359 U.S. 535 (1959): Nelson \. Los Angeles eum. 362

U.S. 1 (1960) and ‘Lerner v. Casey, 307 U: S. 468 (1958).

14.

?

Vitarelii involved the employment rights of a governmental

employee who could have been summarily discharged at >

any time without the giving of a reasott. This Court con-

cluded that where. the S Secretary “gratuitously ’ decided to

’ vive a reason and that reason was national : security, he was

obligated to coiform to certain procedural standards prior:

to-dismissal. This Court: ordered reinstatement despite an

‘attempt by the Secretary, during the course of the pro-

~ ceedings, ‘to. discharge the employee wighout setting forth

reasons, In Nelson, this @purt granted review to consider

whether a temporary employee, who could be summari iy ora

discharged, should be re instated ‘where his discharge was

arbitrary and unreasonable by virtue of his invocation of

his rights before a Congressional Sub-committee. These

decisions are a clear recognition of the doctrine that even a

‘ probationary. employee has constitutional rights which this

Court will protect. If a state or one of its agencies dis-

charges or refuses to reinstate a non-tenure employ ee and

gives a reason for such ‘actions, the reasons given must be

within the framework of the United States ‘Constitution.

For example, if a probationary employee is discharged be- -

eause of his race ‘or religion, such action could riot be

: squared with the United States Constitution. The refusal

by the New. Jersey Supreme Court, as indicated in the

opinion of the- court by Justice Schettino, to give any

credence to petitioner’s constitutional rights is in complete

opposition to this court’ s decision in Vitarelti, Nelson and

Lerner. ey : ’

' be granted.

16

Conclusion. |

For the réasons hereinabove stated, this Petition for a

Writ of Certiorari to the Néw Jersey — Court should

°

iar is Respectfully submitted,

Warren J. Kaps,

26 Jgurnal Square,

Jersey City 6, New Jersey.

) Seymour MarGuLIEs, .

3 | Pee * 921 Bergen Avenue,

Jersey City, New Jersey.

-Nicuotas J. LaRocca, |.

26 Journal Square,

Jersey City 6, New Jersey.

- Dantev H. Pouigr, -

Chapel Hill, North Carolina,

. Attorneys for Petitioner.

| Stem & Kripke,

~ Of Counsel.

Warren J. Kars,

Georae _L. G ARRISON,

On the Brief.

16 . C

APPENDIX A,

Decision of the State Board ication:

~W hile we agree with the C ‘aabiataddantt™ disposition of

this appeal, we prefer to base our affirmance somewhat

more narrowly. In our view, the problems presented here

are rooted in the fact that this petitioner, a nontenure—

teacher at the time of his original dismissal in 1955, foiind

.common legal cause with two teyure teachers for purposes ~

of the litigation culminating in Laba v. Newark Board of

Education, 23 N. J..364. (1957). -An appreciation of the

precise reason therefor dispels all confusion.

When the petitioner was discharged by order. of the

local board on. June 23, 1955, he did not have tenure, but

only a one-year contract due to expire on June 30, 1955. The-

order. rendered his: dismissal effective as of May 20, 1955.

-At the time of his —T. as now, N, J. S. AL 18: 13- 1

provided: — ee :

‘*When the dismissal of any teac her. before: the

expiration of a contract entered into between the

teacher and-a board of education shall, upon appeal, »

-be decided to have heen without good cause, the

teacher’ shall beentitled to. compensation for the full

term for which the contract was made; but it shall

be optional with the board of education whether ‘the

“teacher shall or shall not teach for the unexpired

term.’’ (Emphasis added.)

Although the statute appears primarily designed to pro-

tect the coytractual rights of nontenure teachers, it correla-

‘ tively ein. ten local beards to dismiss such feachers for

any reason whatever, whether with or without cause, pro-

vided. only that teachers dis¢harged “without good cause.’

‘must be ‘compensated for the full terms of their contracts.

-Thus the cause of this petitioner's dismissal in 1955 was

17.

Appendix A—Decision of the State Board of Education.

then significant only to the issue of whether he was entitled

to compensation for the period commencing on May 20,

- 1955, the effective date of his dismissal, and June 30, 1955,

the expiration date of his’ contract of employment. Under

the elear. terms of the statute, he had no. other grievance

on appeal. We have no doubt that if petitioner's appen!

from. his 1955 disinissal had. been heard ‘individually,

would have been decided in that context.

In fact, however, this appeal was heard in conjunction

~. with those of Dr. Lowenstein and’Mrs. Laba, teachers who

weré dismissed at the same time and on the same grounds.

Unlike this petitioner, his comprnions then enjoyed tenure,

and therefore could not have been dismissed without ‘* just

— eauise’*=, N. JOS. AL 18:13-17. Notwithstanding this basie

distinction in status, all three appeals pronation the iden-.

tical issue of ‘just canse’’, or ‘good cause’? and they were

therefore heard and decided together. The objective of

Zimmerman’s appeal, however, necessarily differed from

that of his co-appeilants. A tenure teacher is entitled to

‘reinstatement upon a shoWing that his discharge was with-

out “just cause’) N. J. S.A. 18:13-17, while a nontenure

teacher, upon the same showing, is entitled only to com-

pensation for the unexpired term of-his contract of employ-

sment, NJ. S.A, 18:13-11, Tt is elear*that both the Com-

missioner and the Supreme Court were well aware that

Although the ultimate legal issue raised by’ Zimmerman’s

appeal was identical with the question raised by the ap-

peals of his. colleagues, Zimmerman was at best entitled to

different and limited relief: rey

“Both Dr. Lowenstein and Mrs, Laha duly ae-

quired tenure protection under the: New. Jersey

School Laws. See R.S. 18:13-16;-R. S. 18:13-17. Mr.

Zimmerman * * * had not acquired ‘tenure protec.

~ tion when he was dismissed by the board. However;

‘in view of the terms of R.. S, 18:13-11, all-of the

Be fc

Appendix A Derteiea of the State Board a Education.

parties and the State Comsiiediands hav gr pres:

rom “thé

ent purposes, not differentiated, his case

. others.’’ (Emphasis added.)

- Laba vy. Newark Board. of Edivcution, bs 23

N. J. at 370.°

. On this basis, the Supreme Court in Laba. affirmed the

Commissioner’s remand of all three proceedings for fur-.

ther inquiry in consonance with the ‘principles established |

in the appellate litigation. Notwithstanding the fact. that.

Zimmerman’s 1954-1955 contract had’ long since expired,

and of course had: not been renewed, the local board in 1957:

chose to conduct further investigation and hearings with »

respect, to his fitness to-teach in the public school system.

Whether such further proceedings were worthwhile in rela~

tion to the stakes involved, i.e., five or six. weeks’ salary,

is a matter of local wisdom beyond the range of effective

comment on our part. In any event, a preliminary i inquiry

led to the filing of ‘supplementary charges’? against Zim-

merman, which’ charges in fact ‘constituted entirely new |

ones pertaining ‘to. his conduct after the expiration ofehis’

contract of employment, Hearings on these new charges

- led to an order of the board entered June 24, 1958, which

_ dismissed" petitioner effective May 20,:1955. The matter

. is before us on. appeal from tye Commissioner’ s affirmance

‘of this order,

We have said that when petitioner was originally dis-

missed in 1955, he was not entitled to challenge the dismis-

sal as to cause for the purpose of winning reinstatement.

N. J. S. A. 18:13-11, We now’ find that.nothing has since

occurred to enlarge his rights in this respect. On. this ap-

peal, he argues in effect that the local board, by. electing

to pursue the inquiry as to him after the Laba decision,

has conferred some sort ‘of dé facto, tenure upon him. We

find the contention specious for the reasons set forth by the?

Ne Commissioner, . .

eee,

‘Dated :* December 6, 1961.

t Me 9

batts : .

Appendix B—Decision of C ommissioner of Education

; November 9, 1960. ror ae 6.)

Minally, we agree with: the Conimissioner » that since the |

; rife wa's im fact dismissed on the basis of entirely new |

. charges relating to his conduct after the termination of his | *

contract et employment, he ts entitled to the anfount of)

compensation that. would have been due hin: from the etfee-

‘tive date of his discharge, May 20, 1955, to the expiration

date of ‘his contract of employment, June 30, 1! 1),

The judgment of the Commissioner is affirmed 1 in-all re-

spects. .

‘2 APPENDIX! B.-

Pn".

Decision of Commissioner of. eration

~~ November. % 1960.

‘For the Appellant, ;? EVY, LEMKEN & Manav BIES

(Seymour Marae Liks, ot ¢ ‘ounsel),

*. For the Respondent, Jacos Fox,

This is an appeal by a teacher from an oder of “the

Board of Education of the City of Newark, dated June 24,

1958, which dismissed him from its employ as of May 29,

1955;° The applicant prays that the Commissioner direct

his reinstatement to his former position, as teacher with,

the~Xewark: Board of Education with back pay from the

date of his dismissal, :

This case originally came before the Camaikeitonce of

Education on an appeal-from a dismissal ordered by the

- Board of Education on June. 23, 1955, which was: Iisa

‘solely on the PeAgeeriny that in a. Congr essignal ingfwiry

26

Appe ndix B—Decision of C ommissioner cas Education

November 9, 1960. “3

‘into Communism. and subversion ‘gererally, the applicant:

had invoked the privilege against -self-incrimination in re-

fusing to answer certain questions as to. his affiliations and

‘associatjons, and that such conduct was just cause Yor his

~ dismissal. Because appellant had not acquired tenure, any

dismissal of him would be according to R.-S. 18:15-11.

However, because two other tenure feav hers appealed con-

currently to the Commissioner under R. S. 1813-17, ail the

parties and the Commissioner at that time did not differen-

tiate appellant's petition from the others. On tliat appeal

the Commissiener. reversed the decisign of the, Newark

‘Board of Education and remanded the case to.the Board for :

further proceedings not inconsistent with the opinion of the

- Unifed States Supreme Court in Slochower v. Board of

Educatign, 350 U. S. 551. Subsequently, on an appeal to

the New Jersey Supreme Court, the decision of the Com-

‘missioner was affirmed. Laba v. Newark Board of Educa-

tion, 23 N. J. 364, 394. Ke

On the remand.to the local Board, the ceutles was re-

ferred to its. Superintendent of Schools for further inquiry

consonant with the «decisign of the Supreme Court. U nder’

date of May 10, 1957, the Superintende nt, by letter, re-

uested appellant to appear in his office on May 16, 1957,

fn an interview relating to his fitness to teach in. the public

schoals. The following is an excerpt from the letter: 9

**At the interview you will be afforded the oppor-

tunity to respond frankly and full to questions perti-

~ nent to the.matters discussed in‘a recent decision of

the New Jersey Supreme Court in connection with

‘ the remand of. appeal relating to your previous dis-

missal by the Newark Board of Mducation, The sole

purpose | of the interview is to determine the truth

in terms of frank And full disclosures without equiv

,

ocation or mental reservation.” Pa

1

Appendix B—Decision of Commisstoner of Education

Nove Me he r9, 1960,

“The interview was held on May 16,. 1957. After appel-

lant explaine d that he had invoked his privilege against

self-incriniination before the House subcommittee under the

Fifth Amendme nt on. the advice of counsel, the Superin-

tendent did not pursue this subject any further. He was,

however, not satisfied with appellant's ore sponses to other

questions. As a result the Superintendent, on October 22,

1957, filed supplementary charges with the Board relating

‘to appellant's continued fitnbss to teach. T he charges were

based on appellant’s alleged failure to fulfill his duty of

cooperation with the Superintendent with r&spect. to the

inquiry into his fitness to teach in fhat he failed to give

frank and full disclosures as to past association with the

Communist Party and affiliated organizations and that-

many of his responses were incredible, indirect,-or’ other- *

wise inadequate from the standpoint of fortlirightness.

The Board of Education held hearings on these charges

in November and December, 1957. It decided that the yhole

truth as to thé appellant’s past affiliation with and his re-

ported withdrawal from the Communist Party was not dis-

closed by him; that facts called for by pertinent questions

were withheld by him;-and that ‘the Superintendent and

the Board were not accorded the cooperation they were en-

titled to have from him in their i inquiry. The Board drew

no inference as to present affiliation with or subservience to

the Communist Party but held that the record amply re-

vealed that appelfant, at the Superintendent's interview,‘

obstructed a bona, fide: inquiry into the truth of hether-or

; not he i is.now a member of the Communist Party or sub-

ject to its ideologies and disé ‘ipline. Accordingly, his dismis-

sal was ordered as of May, 20, 1955, the effective date of the

original dismissal :

‘The adoption of this resolution’ is not intended

to constitute an acknowledgment that Mr, Zipimer-

ase \.

* ae . 4 ast

..

*e

a

‘Appendix B—Decision of Commissioner of Education

November 9, 1960.

man had any , mapherent or tenure status with the

| Board, ‘and shall nat-be deemed_to extend to, him any

status, for any period beyond the 1954-1955: school

. year, when the period of -his probationary. employ-

ment expired. x .

* It should also be ‘pointed out that a similar statement was

contained in the resolution of September 24; 1957, order-

ing further proceedings against. appellant. © ,

The Commissioner will decide first whether the dismis-

sal may be sustamed as of May 20, 1955. The ‘Supreme:

Court, in the case of Lowenstein v. Board of Education of

Newark, 33 N. J. 277, said that after the teacher told the

Superintendent he had claimed the privilege against self-

_incrimination before the subcommittee on the advice of *

counsel and that subject was quite properly not pursued

further, the matter of contumacious or frivolous refusal to

answer as a basis-for disciplinary action was thereby. per-

manently removed from the case and nothing remained —

_with respect to the original charges. While no special point

was mad of: it before the Court, it was said in the deci-

sion that the motion should have been granted since no

basis remained to support a claim of any improper conduct.

before the subcommittee.

- The Caurt also said that the ‘‘supplementary: pm scharges

preferred by the Superintendent after the interview. were

* actually new ones. The Commissioner took a similar view

_ in his decision on the same case (Loutnstein v. Board of

Education of the City of New ark, decided June 1,:1959). Tn’

this decision: the Commissioner said:

“The proceedings by the suiinidiileliclians oad the -

¢ board of education on the remand were not addressed

to his eonduct ‘before the House Sub-Committee, but

rather to his past activities and associations as these |

is a 23

Appendia’ B-—Decision of Commissioner of Education

November 9, 1960.

might bear upon subjection to the ideologies and dis-

ciplines of the Communist Party, It was in an in-

quiry on the latter subject that the: appellant ex- »

hibited his lack of candor which led the respondent

-board to conclude that he was unfit to remain a

teacher in its schools. Our Supreme Court has al-

‘ready held that petitioner’s conduct before the House

- Sab-Committee was mot per se just cause for dismis-

. sal and no further -evidenceshas been. presented to

prove that his conduct before the House Sub-Com-

mittee was unbecoming that of a teacher.’’

; y

~The Commissioner held that the dismissal should not re-

vert to a time prior to the acts justifying it, that the. ap-

g plicant, theréfore, should be dismissed effective May. 16,

1957, and, furthermore, that the appellant should be paid

by the respondent board of education the salary*which be- |

came due him between May 20, 1955. and May 16, 1957.

More recently, the Commissioner, on October 24, 1960, in

the latest appeal of Dr. Lowenstein, reaffirmed this deci-

sion as to the effective date of dismissal. Lowenstein v.

Newark Board-of Education, decided October 24; 1960.

‘The factual situation in the instant case is similar and,

therefore, the Commissioner’s decision in the Lowenstein

case, that the dismissal should not| revert to a time prior

to the acts justifying it, is controlling here, The Commis-—

sioner holds that the Board erred dismissing appellant

as of May 20, 1955,-and that he is entitled to salary which

came due between’ May 20, 1955, and the end of his em-

ployment: in June, 1959:

With regard to appellant? Ss: prayer that he be .rein- °

. Stated in his position as teacher, the Commissioner is with-

out power to give the relief requested. Appellant had not

acquired tenure of position in the Newark schools. His em-

24

Appendix B--Decision of Commissioner of Education

November 9, 1960. : .

¢

ployment, dating from September 1, 1952, was on academic

year basis. He needed employ ment in the academic year

1955-1956 in order to acquire tenure. Fhe Board did not

re-employ him after the expiration of his three-year period

of probationary employment on June 30, 1995, and he,

therefore, failed’to acquire tenure and his employment

_ rights ceased as of. that date. At the expiration of his

probationary | _employment, appellant lost the protection

atforded by ‘N. J. S. A. 18:13-11 and had not acquired the

protection of N. J. S. A..18:13-17.. The courts have refused

~-. to review the dismissal of non- tenured teachers and have:

limited their determination to the sole question of whether

. or not the teacher in fact had tenure status. Chalmers v.

' State Board, 11 N. J. Mise. 781; Gordon v. State Board of -

Education, 132 'N. J. L. 356; Schultz v. State Board of Ed-

ucation, 132 “ J. L. 345; Moresh v. Board of Education of

Bayonne, 52 N. J: Super. 105. The statutes (N. J. S. A..

18 :6-20, 18:13-5) clearly place the responsibility with the

. board of education to determine whether or not teachers

should be employed or re-employed during the probation-

Ary period provided by law. The Commissioner has never

attempted to substitute his ‘staal aye that of the board -

of education in determining whether a non-tenure teacher

should be re-employed. For this reason and for the fur- —

- ther reason ‘that he is without power to order the re-em-

,ployment of appellant, the Commissioner will express no”

‘opinion on the merits of the case. _

Appellant contends that POnnertee e the fact that

-tenure had not accrued, justice would require that he be

reinstated to his position if the charges of. the Board were

not sustained on this appeal. The testimony of appellarit’s

principal discloses that he had rated him ‘*satisfactory’’.

Usually tenure would have come automatically following.

such a rating. The principal appended the following state-

ment to his rating: | |

on °

as ~)

+r

App ndir | De CISION uf (' ORLAISSTIONE r of Education

Novenber 9. 1960.

. “This record concerns work at Dayton.” Perma-.

nent appointment shoul 1 be deferred until results of

trial on June 21st.’

< : . . _—

In oral argument, ied for appeHant tenia’ that

the Commissioner has the power to reinstate him because

the statutes give him complete superintendene e over the

school system. Appellant also, in his brief, argues that the

proceedings before the Superintendent ogeurring after the —

expiration of his probationary employment,’ imply a rela-

tionship of teacher and superintendent. Absent the

teacher-superintendent relationship ‘on May 16, 1957; the

reasons, it would be impossible to predicate charges on

supplement the original charges because if appellant was

not a teacher as of May 16, 1957, he was under no-obliga*

tion to appear to speak. If there had been- no_ teacher

board of education- superititendent relationship existing,

‘the whole matter, in so far as appellant_is concerned, would

have been moot and the time of the court wasted. -Having

proseeutéd appellant on the basis of a teacher relationship,

the Roard is now Seti from denying the ‘existence of

that relationship, he claims.

Respondent argues that ‘if. the suspension. of a non-

tenure employee. causes his employment .to continue after

the period .of employment under his appointment ends,

then an emplovee might acquite..during litigation, a right

to permanent status which he did not have when the litiga-

tion began. Appellant never had any appointment from

‘the Board for anv period after the end of the 1954-1955

academic vear. Resnondent further points ont that charges -

were preferred avainst appellant in the ‘first instanee and

‘formal hearings held thereon, not hécanse appellant was °

under tenure, but because he had been appointed for ‘the

1954-1955 academic, year and therefore. could not be dis-

- 26 ‘*

a

Appendix B—Decision of Commissioner of Education

mi

__ November-9, 1960. - a ..

a | before J une 30, 1955 ‘without good cause”’ (N. .

-S. A. 18:13-11). The procedure for charges and as is

. not defined by statute in the case of teachers under con-

tract and the Board, therefore, employed the procedures |

defined in N. J. S. A. 18:13-17 and 18 for tenure teachers.

This, -respondent contends, was the only proper course to

pursue as there could be no justitication for according less

‘procedural safeguards for a teacher under contract than

those prescribed for a teacher under tenure.

Respondent further argues that the principle of es--

-toppel is nowhere present because appellant had no. tenure

which*the Board could be estopped-to deny. Reference is

made to the statements:in.the brief filed by the Board with

the Supreme Court, the resolution for further proceedings,

and thé resolution: of dismissal i in each of which the Board

| specifically disclaimed any tenure rights of appellant. Re-

spondent also cites the decision of the Supreme Court, in

the Laba case, supra, where it was said:

_lows:

‘sr. Zimmerman began teaching in the public

‘St hool*eystem m 1952 and had not-acquired tenure

protection when he was dismissed by the Board.

However, in view of the terms of R. S. 18:13-11, all

of the parties and the State: Commissioner have, for

present purposés, not differentiated this case from

the others.”

New Jersey Statutes Annotated, 18:3-7 reads as fol-

“The Commissioner shall be the secretary of the

state board. He shall enforce all rules-and regula-

tions prescribed by the state board. He shall have

supervision of all schools of the state receiv ing anv

part of the state appropriation. ees

ee te

-

Zi

be

.

“Appendix B—Decision of Commissioner of Education

‘ . November 9.1960,

2 eee

eek Sot

Appellant oaciders the power-of -+the.Commissioner unter

this statute adequate to redress any alleged injustice which

might be done to him by reason of the fact that his suspen.

-sion preyented. his fulfilling the conditions prerequisite to -

the acynisition of tenure pursuant to N. J. S.A. 18:13-16,

The Commissioner does not agree. The power. granted to

him under N. J. S. A. 183-7 is ‘general, The conditions for

acquiring tenure under N. J. S.A. 18:15-16 are specific.

It was held in the case of -Ahrensfield wv. State Board of

Education, 126 N. J. 1. 548, that one does not gain the pro-

tection of tenure procedures upon dismissal until he has

fulfilled the precise conditions of ‘the tenure statute. The

- rule is that where there is any conflict between a general

and specific statute! covering a subject in a more minate

and definite way, the latter will prevail over the former

and will be considered an exception to the general statute.

—e4 v. Norcross; et al., 122 N. J. L. 569, affirmed 123°

N. J. L. 19383. Even if ‘a very broad interpretation were

to be given to the Commissioner’s powers under: 18:3-7,

they could not be extended to the area of tenure because

there is specific legislation on this subject. If injustieé

occurs to a teacher’ because litigation interrupts the con-

tinuity of the employment essential to the acquisition of

tenure, the remedy must lie with the Legislature.

The Commissioner does not subscribe to tlie theory that

there was an implied teacher-school board- superintendent

relationship beeause of the litigation after the expiration

of the academic year 1954-1955, N. J. S. A. 18:6-20 provides

that no teacher shall be appointed except by a majority

vote of the whole number of members of the Board. N. J.

S. A. 18:13-5.7 makes further provisions concerning ‘the °*

employment of teachers. In McCurdy v.. Matawan, 1938 .

$. L. D. 298, the question was whether employment was

valid if the appointee did not receive a majority of. the

. - c . . ° ‘

age al

28

tp omdix B—Decision of Commiesione r of Educ ation

——November 9, 1960. : —

‘ve uGusborship of the, Board of: Education as required

by Iaw. ‘The Commissioner held at p. 299 that full com-

pliance with the statutory requirements as to the formali-

ties of employment is essential to the validity of such em.

ployment. In LaRose v. Board of Education of Eqqg Harbor

, G ity, 1938 S, L. D. 377 1, at p. 388, the Commissioner said: |

“Tt is probable that the Legislature, in making

conditions essential to legal contracts between boards

—

\

of education and teachers, had in mind many boards —

of education whose contractual experience might be

limited and it desired to protect such boards from

incurring legal obligations except in formal contracts

or under rules of employment which they definitely

—_ " .

_There is no record nor claim that appellant was ap-

pointed by a majority vote.of the whole number of mem-

bers of the Board or that any other formalities of employ-

. ment oceurred for any period of employment after June,

1955. Hence, appellant did not fulfill the conditions -for

tenure according to N. J. S. A. 18:13-16 and, therefore, he

has no claim to tenure. The Commissioner has: already

decided that he cannot confer tenure by his general powers

_ of supervision and he has also explained that he makes no

determinations concerning the employment. or.re-employ-

ment: of teachers not protected .by ¢enure. Therefore, the

Commissioner can give no relief to appellant beyond order-

ing the payment of the salary due him between May 20,

1955, and the end of the’academic year in June 1955. Hav-

ing reached this conclusion, there is no necessity for con-

sidering and deciding other i issues raised-in this appeal.

@he Board of Education of the City of Newark is

directed to pay Perry Zimmerman, appellant hefein, the

amount of salary which would haye been due to him from

: 2 ae

Appendix B--Decision of Commissioner of Education

November 9, 1900, ae

the date of his suspension, May’ 20, 1955, to, the termination

of his employment, June 30, 195. The petition is in ‘alb

“other respects dismissed.,. : WHER :

Pow _ COMMISSIONER OF EDucation.

November 9, 1960.