(dissenting). In Laba v. Newark Board of Education, 23 N. J. 364 (1957), Justice Jacobs, speaking for this court, noted that Dr. Lowenstein had pleaded the Fifth Amendment on being interrogated by a Congressional committee with respect to present or past membership in *125or association with the Communist Party, and that his reliance thereon had resulted in dismissal by the Newark Board of Education from his teaching position in the public school system. The opinion, representing the unanimous view of the court (on this phase of the problem) agreed with the State Commissioner of Education that a plea of that nature could not of itself provide a basis for the action taken by the local board. In approving the Commissioner’s remand for a further hearing, certain observations were made with respect to the course and scope that the inquiry might properly take.
The court said that assertion of the constitutional privilege against self-incrimination does not justify automatic dismissal, but it “does call for a full and conscientious inquiry as to whether [such a person] is qualified to continue in the discharge of his teaching responsibilities at a place dedicated to the advancement of democratic ideals.” 23 N. J., at pp. 393, 394. In an inquiry of that character Lowenstein had a “duty of cooperation and an affirmative burden in the establishment of [his] fitness.” Id., at p. 392; and in examining him the school authorities could with propriety interrogate “with respect to [his] present and past association with the Communist Party and affiliated organizations” and they were “entitled to frank and full disclosures.” Id., at p. 388.
At the rehearing on May 16, 1957, before Dr. Edward F. Kennedy, Superintendent of Schools, the information justifying the inquiry was not limited to the assertion of the Fifth Amendment privilege before the Congressional committee. The record shows additional material of varying degrees of probative force (for purposes of this type of interview) concerning Lowenstein’s alleged Communist connections and activities. The information came largely from statements of one Dr. Bella Dodd, a former Communist, apparently given in her testimony before the Congressional committee. For example, at the interview of June 21, 1955, *126counsel for Lowenstein placed in the record the following excerpt from her testimony:
“Q. The Committee’s purpose in calling you at this time is to ask you whether or not you knew, as a member of the Communist Party, an individual by the name of Dr. Lowenstein?
A. Yes, I did.”
Moreover, in the appendix of Lowenstein’s brief on the second appeal in this court further questions and answers of Dr. Dodd were included:
“Q. Will you tell the committee whether or not Mr. Robert Lowenstein was in frequent attendance at the fraction meetings of the Communist Party in New York, which you have just described?
Dr. Dodd: Mr. Lowenstein was the individual who came to any meeting held by the top committee of the Communists in the American Federation of Teachers, when held in New York.
Q. Will you tell the committee whether or not Mr. Robert Lowenstein played any part in the accomplishment of that objective?
Dr. Dodd: Mr. Lowenstein was regarded as the most important member of the Communist group in this activity, although the technical leadership was given to the Communist Party member who became the State Chairman of the American Federation of Teachers. * * * She was the official person, although Mr. Robert Lowenstein was the effective instrument, the person who did the organizing.”
At the outset of the rehearing Kennelly informed Lowenstein that he was interested in “only one thing, and that is getting at the truth of this situation”; since the testimony was to be given under oath by consent he anticipated that “we will get at that truthfully and fully.”
The interrogation which began on a friendly, informal basis soon reached an impasse. Lowenstein denied present membership in the Communist Party and denied that he subscribed to the aims or disciplines of the Party, but he refused to say (1) whether he had been a member within the past ten years or five years, (2) whether during the same period he had been a member of the “Ralph Pox Branch of the Communist Party either in Newark or in Essex *127County,” or (3) •whether during the same period he was active in “recruiting teachers in the American Federation of Teachers for communist membership.” His reason for the refusal was that the questions were too remote and were not relevant to the issue of present fitness to teach in the school system. In this connection he selected and sought to impose upon the Superintendent a time boundary, July 1, 1953, back of which he announced he would not answer questions as to Communist membership or activities. That date, it may be noted, is less than two years prior to the Congressional committee proceeding, three weeks more than two years prior to the first Board of Education hearing and slightly less than four years before the 1957 rehearing. His position was put in this fashion:
“Dr. Kennelly, I am prepared to tell you that from the summer of 1953 on I have not been and I am not a member of the Communist Party
“I will say, Dr. Kennelly, that at no time since the summer of 1953 have I been a member of the Communist Party.”
Other illustrations of the nature of his stand are:
“Q. Were you ever a member of the Ralph Pox Branch of the Communist Party either in Newark or in Essex County? A. That is too broad a question for me to answer.”
“Q. That ‘at any time’ would include the period after the summer of 1954, wouldn’t it? A. Well, sir, after the summer of 1954 on I have not been a member of nor affiliated with, nor whatever phraseology—
Q. Let me repeat it. The Ralph Pox Branch of the Communist Party. A. The answer would be no, sir, as far as anything subsequent to the summer of 1954 is concerned.
Q. Subsequent to the summer of 1954 you had been aware of the existence of it?
A. No, sir.
Q. I will ask you the same question with respect to 1954.
(Dr. Lowenstein consults with counsel.)
A. I will answer that question, sir, and in the negative.
Q. That is with respect to 1953?
A. Yes, sir. And in the negative. But I will not be pushed back year by year.”
*128Although Dr. Lowenstein submitted to some interrogation relating to matters more remote than 1953, he remained adamant in his refusal to answer as to the subjects and times referred to above.
The court’s opinion on appeal from the subsequent dismissal recognized that the questions covering the ten-year and the five-year periods would have been proper if the Superintendent in good faith felt that they were necessary in order to satisfy or to remove doubts in his mind as to the truthfulness of the witness’ disavowal of present membership in or adherence to the ideology of the Communist Party, and so advised the witness. My impression at that time from the record was that a person of Dr. Lowenstein’s education and seeming intelligence would have gathered that such was Dr. Kennelly’s motive.
Some of the factors which gave rise to that view should be mentioned. I have already referred to Dr. Kennelly’s statement at the inception of the hearing that his purpose was to get at the truth of the situation. In the course of the questioning, when the witness was asked about membership in the Communist Party in the previous ten years and declined to answer, he was then asked:
“Q. Do you mean that a question, the purpose of which is to determine membership or non-membership in the Communist Party, is not relevant to the purpose of this conference?
(Dr. Lowenstein consults with counsel.)
A. I have already answered for the present time, sir, and I think membership or non-membersliip ten years ago is irrelevant.
Q. All right, then I ask you this: Have you boon a member of the Communist Party within the past five years?
A. I give the same answer to that, sir.”
And at another point he said:
“* * * I think anything beyond that [summer of 1954] is rather remote, and in any case I have never felt that anything beyond or this side of that really is relevant to my fitness to teach. But I would be willing to talk about anything from the summer of 1954 on.”
*129At the conclusion of the questioning but before closing the hearing, Dr. Kennelly made this observation to the witness:
“Q. Bob, I would like to advise you, and also for the record, that none of these questions that I have asked you are meant to relate to any particular portion of the period of your career prior to the summer of 1953. As I have already said, there is nothing magic to me about the summer of 1953, nor would there be anything particularly magic to me about the fall of 1949 itself. The whole purpose of the questions so framed with respect to the time element was my attempt to get information that would be helpful to me in terms of the progressive steps and an attempt on my part to judge, therefore, your fitness as of May 1955 and as of now, to continue to be a teacher in the Newark Pubiic Schools. So with that thought in mind I have not been able to share with you the distinctions and the reasons you have used as to any particular magic date determining remoteness on one hand or lack of remoteness on the other hand, and I wish to point out to you that your reluctance to answer all questions prior to the date which you selected, the summer of 1953, does not give me information that I hoped would be helpful in determining what I have the responsibility to determine.
I am saying that to you so that you will understand from my point of view that I was placing no special emphasis on any particular date or season of the year, and it was within that framework that I was exploring those questions. Therefore, I will ask you once more if, in the light of this statement or explanation of mine, you wish to change any of your responses to those of my questions that had to do with that broad period prior to the summer of 1953.
(Dr. Lowenstein consults with counsel.)
A. I thank you for the opportunity you have given me, but I will not change my answers.’'
Thereafter, following the filing by the Superintendent of the transcript of testimony and his charges against Dr. Lowenstein based upon the refusal to answer the questions, a hearing was had before the Board of Education. In my judgment, this proceeding was marred by an unprecedented action, that is, the calling of Dr. Kennelly to the witness stand for the purpose of permitting Dr. Lowenstein’s counsel to cross-examine him as to the support he found in the testimony taken before him for the charges filed with the Board which were then being heard. The record showed *130that as an accommodation counsel for the Board consented to this step. All that can be said for such unique procedure is that it was not unfair to Dr. Lowenstein.
Prom the discussions of counsel and the additional questioning which took place at that hearing in Dr. Lowenstein’s presence, it seemed to have become plain (assuming there was doubt prior thereto) that at least one basis on which the questions were put to Lowenstein by the Superintendent was that of credibility. Por example, during an argument as to the propriety of a question asked Dr. Kennelly, counsel for the Board said:
“* * * I say when you are trying to find out whether a man today is a Communist * * *, when you are conducting an inquiry to determine whether there was a basis for believing whether a man to-day is a Communist, and you are asking him about his past association to weigh his present protestations that he is not to-day, a legitimate question is any question that could throw some light on the veracity of his present bald denial, ‘I am not now a Communist; I have not been since 1954.’ * * *”
Later, Lowenstein resumed his capacity as a witness and made a long statement as to his present loyalty to the United States. At that time he was specifically given the opportunity to add anything he wished to the record. The particular questions which he refused to answer before Dr. Kennelly were again called to his attention and he remained steadfast in his position that anything prior to July 1, 1953 was too remote and not relevant as to his capacity to teach. In fact, he said he was “ashamed” of having answered any questions as to pre-1953 subjects, and that he was “sorry” he had not refused to answer them; that the answers constituted “a permanent blight” against him, and because he had answered he described the record as an “ignominious” one. And when he was asked if he conceived that “it is impossible that any inquiry into affiliations prior to that date, July 1, 1953, could under any circumstances cast light on [his] present employment, as far as communist affiliation is concerned,” he replied that under the Constitution “no inquiry to give that kind of light is authorized.”
*131The state of the record at that time gave me the impression that it would have made no difference in Lowenstein’s attitude if the Superintendent had specifically proffered the information that the questions as to the past were being prat on the issue of veracity. But, thinking that I might be mistaken in view of the majority opinion and because we were acting in such a sensitive area, I joined in the remand in order to remove any doubts. My colleagues felt that Dr. Kennelly might have misinterpreted the sense of the Laba opinion and concluded that the reference to present and past affiliation provided a sanction for interrogation without limit into the past. Such misinterpretation, they reasoned, might have been responsible for his failure to advise the witness as to the nature of the light he was seeking. My feeling was that the language of this court in context was perhaps construed too broadly by Dr. Uennelly; that it was properly construed by Dr. Lowenstein, but was misapplied by him in refusing to furnish answers to some of the questions.
As I read Laba it authorized an inquiry into present affiliation (as well as affiliation as of the date of the Congressional Committee hearing) with or adherence to the principles and purposes of the Communist Party. It also approved an excursion into such past connection to the point of remoteness. Examination into the past to the point of remoteness would serve two ends: (1) assist in forming a judgment as to the truthfulness of a denial of such existing affiliation or beliefs; and, (2) if membership and disassociation in the reasonably recent past did appear, provide information as to the nature and extent of Lowenstein’s activities while a member, e. g., whether he taught Party Communism in his classes, or enlisted others to join the Party and teach Communism (in the Party sense) to their students. It must be kept in mind that disposition of the charges, if any were made after such an interview, might not result in dismissal in all cases. The Board might not dismiss on a finding involving only past membership in the *132Communist Party. Mrs. Laba was not dismissed after she admitted membership. Dismissal would rest in the discretion of the Board. It might depend upon the nature and extent of the party discipline the teacher had subjected himself to, whether he had taught the party line in his classrooms or whether he had solicited other teachers to join the Communist Party.
In the first interview by the Superintendent the refusal to answer was based on the ground that the questions were too remote. “Remoteness” in a ease of this kind is not susceptible of fixed definition. As my colleagues said, a question whether a teacher was ever a Communist is improper. Manifestly, as some case histories reveal, there is a substantial difference between persons who listened to the siren song of Communism in the depression days of the early 1930’s and who withdrew on learning of its treasonous motives, and others who joined the Party and subscribed to its disciplines after the Korean conflict. Accordingly, it seemed to me that the Superintendent in that interview incorrectly assumed that unlimited interrogation into the past was approved. On the other hand, Dr. Lowenstein, who said he had made a deep study of the Laba opinion, correctly concluded that he was obliged to answer questions as to present connection with the Communist Party and past connection to the point of remoteness. The impropriety of the position he took at the interview and in the testimony before the Board arose from his decision to set July 1, 1953 as the terminal point of relevancy, and the beginning point of remoteness. On the record then before us that arbitrary limitation could not be justified. On the other hand, the paucity of information which resulted from the abortive questioning made it impossible for us to establish a fixed point at which remoteness began.
In part explanation of his refusal to answer, Dr. Lowenstein had stated that he had studied the Laba decision under the guidance of counsel and felt that in selecting July 1, 1953 as the date back of which he would not permit ques*133tioning, he was making a consistent, sensible explanation of what the court indicated was his legal obligation. He said also that when the Supreme Court says “This is the law,” he abides by the law. Eor that reason he answered questions which he felt obliged to answer as a law-abiding citizen. Accepting these statements as sincere, I assumed that he would make fair and responsive answers at the reinterview to all questions put by the Superintendent which would be proper and relevant.
Eor the reasons stated and with some misgivings, I concurred in the remand of the matter for the third interview.
The second opinion of this court did not depart from the principles enunciated in Laba. Lowenstein’s reliance upon the Fifth Amendment before the Congressional Committee, of itself, would not justify his dismissal. But it imposed upon Dr. Kennelly the duty of conducting a full inquiry to determine if Lowenstein is qualified to remain as a teacher at a place dedicated to the furtherance of democratic ideals. Questioning as to his present and past association with the Communist Party and affiliated organizations was approved and the basis for it made more explicit. The opinion said:
“If he answers all questions relating- to current status (i. e., association with the Communist Party or subjection to its disciplines) in the negative and the employer has no reason whatever, either because of other information in his possession or of skepticism as to whether the answer should be believed from the general standpoint of credibility, to doubt the full truth and sincerity of the denials and does not feel the need to test them, the inquiry must * * * end. But if the inquirer has honest doubts, or other information at hand seems inconsistent with the present disavowal so as to indicate the need for test and further query, he is privileged to probe backward from the date of the interview, for past conduct then becomes relevant to the present.” Lowenstein I, 33 N. J., at p. 286. (Emphasis and insertion added)
Lowenstein’s role in the inquiry continued to be as suggested by Laba. He had a “duty of cooperation and an affirmative burden in the establishment of [his] fitness”; *134and the Superintendent was “entitled to frank and full disclosures.” In Lowenstein I, however, a ruling was made with respect to a basic controversial position which he had assumed at the previous interview and in his argument in this court. He was told that there is no
"* * * legal justification for a teacher under inquiry to set an arbitrary date beyond which he will not speak on the ground of conclusive irrelevancy.” At p. 288.
At this point I must digress momentarily to express sympathy with the difficulty apparently experienced by the parties, the Superintendent and the Board of Education, in understanding and reaching common ground as to the significance of the words “now” and “present” as used by this court. The opinion said that “present” membership in or affiliation with the Communist Party or “present” subjection to its ideology was the test of fitness to teach in the public school system. But it did not elaborate as to just what was meant by “present” membership, affiliation or subjection. Obviously, it did not signify such association by Lowenstein on the date of the interview alone. Naturally that day was to be included but it could not be said to be exclusive. Strictly speaking, today is the present and yesterday is the past, but in a context such as this the period constituting the present must be of broader coverage. Would anyone say that if a teacher withdrew from the Communist Party today he could not be dismissed as unfit or otherwise disciplined by the Board of Education, even though for years up to yesterday he had been teaching his students the party principles and inciting them to overthrow the government by force? So, under ordinary circumstances, “present” must denote at or about the time of the teacher’s suspension from active duty in the school system.
Thus, for purposes of this case (except for a circumstance to be mentioned), membership in the Party or adherence to its program at or about the date of Lowenstein’s suspension should be the test applied, i. e., May 19, 1955. That date *135must be the beginning of the “present” and therefore the focal point of the inquiry. The period covered by the “present” would be from May 19, 1955 to the date of any reinterview. Otherwise, if such a controversy went through the courts for ten years and then was sent back to the Superintendent because of some error in the proceeding, the date of the reinterview would be the test date. The strongest partisan of a teacher’s cause could not reasonably adopt such a rule.
In the last appearance of the ease in this court, the matter in contention centered about the right of the Superintendent to inquire into past connections with Communism, particularly with respect to a time prior to July 1953. It did not seem necessary then to elaborate about the precise connotation of “present” or the date or period which was within its limits. But actually in the factual framework the question of what was meant by “present” association, i. e., whether it meant the date of the reinterview or some earlier date or period, played an unnecessary part and exerted a diversionary influence in the treatment of the ease. Lowenstein had testified previously that “from the summer of 1953 on” he had not been a member of the Communist Party “and that after the summer of 1953 on” he had not been a member of the Ralph Fox Branch of the Communist Party. As a consequence Lowenstein himself made the primary issue clear: Was he a member of the Communist Party or subject to its ideology in the summer (or in July, as he also put it) of 1953 or thereafter? If at the forthcoming interview Dr. Kennelly believed the statement of nonassociation or connection on that day or back to July 1953, it was incumbent on him to end the inquiry. But if with the entire record of the case to date in mind he had an honest and reasonable doubt as to the veracity of Lowenstein’s denial, he was justified, in his quest for the truth in pursuing his interrogation backward from July 1953 to the point where reasonable persons would not disagree that remoteness had been reached.
*136Returning now to the main stream of the case, it seems necessary to refer to some deep-rooted principles by which the mental attitude and conduct of all the actors involved in the reinterview should have been guided. The public policy of this State as established by the Legislature is opposed to appointment or retention of teachers in the public school system, who believe in or advocate the overthrow of the State or Federal Government by force or violence. N. J. S. A. 18:13 — 9.1, 9.2; 41:1-3; Laba, supra, at pp. 392, 393. So emphatic is the policy that if Dr. Kennedy, in a situation like the present one, asked a teacher if, within the previous five years, he had been a member of a group which believed in or advocated that type of overthrow of our government and he refused to answer relying on the Fifth Amendment, immediate discharge would be proper. N. J. S. 2A:81-17.1. In fact, the statute says that such refusal shall forfeit his employment, tenure or pension.
This court in Lowenstein I agreed with the remarks of Justice Heher in Thorp v. Board of Trustees of Schools for Industrial Education, 6 N. J. 498, 513 (1951), that “loyalty to government and its free democratic institutions is a first requisite for the exercise of the teaching function. Freedom from belief in force or violence as a justifiable weapon for the destruction of government is of the very essence of a teacher’s qualification.” The United States Supreme Court in Adler v. Board of Education, 342 U. S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952), in discussing the matter of teacher loyalty, indicated plainly that “past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.” It said also:
“A teacher works in a sensitive area in a school room. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part *137of ordered society, cannot be doubted.” 342 U. S., at p. 493, 72 S. Ct., at p. 385.
Another factor to be recalled in the process of orientation for the reinterview, and which the record demonstrates was actually in the minds of the parties throughout the questioning, was the significance of the terms “Communism” and “Communist Party.” Laba left no doubt on that score. The opinion said:
“The matter may no longer be viewed simply as one of academic freedom of thought and expression, for it has actually become one of self-preservation; we are convinced that Communism is an alien concept which is dedicated to the overthrowal of our form of government, by force if necessary, and seeks to deprive us of the very basic constitutional liberties which we all hold so dear; recent world happenings furnish further evidence of the futility of its solemn promises and the barbarism of its deliberate actions.” 23 N. J., at p. 388.
That view is not peculiar to this court. Both the United States Supreme Court and Congress have given expression to it; the former referred to it as “the long and widely accepted view.” See Barenblatt v. United States, 360 U. S. 109, 128, 79 S. Ct. 1081, 3 L. Ed. 2d 1115, 1129 (1959).
Finally, and of equal importance to an understanding of the nature of the conference about to be held, it was necessary to be mindful that it was not a loyalty hearing. There was no charge by the Superintendent that Dr. Lowenstein was a Communist in 1955 or at the time of the interviews. (This vital circumstance quite obviously was not comprehended by at least one member of the Board of Education who voted to reinstate Lowenstein because the record made at the reinterview failed to sustain the charge that he was then a Communist.) The interviews were precipitated by his plea of the Fifth Amendment before the Congressional Committee which this court had said warranted an inquiry into his present fitness to teach. Their purpose was to find out if he was currently (in the sense explained) a member of the Communist Party or a believer in its disciplines.
*138In view of the background of the case, however, there must be some realistic approach to the Superintendent’s problem. If such an interview began with questions as to present Communist Party membership or adherence to the disciplines and purposes of the Party, and a negative answer were received, I do not see how any reasonable judgment could be formed on the issue of the credibility of the denial without some further exploration. A “no” answer can be turned upside down and inside out and it remains the same bare word. Only when it is set up in a pertinent factual perspective, which will reasonably permit the formation of a value judgment of the “no,” can the interview become meaningful.
At the outset of the reinterview now under consideration, Dr. Lowenstein asserted his loyalty to the principles underlying the government of the United States, and his opposition to Communism. Almost immediately, however, he again laid down the time barrier that ran through the 1957 conference, i. e., July 1953. Upon being asked how long prior to 1953 he held those views, he declined to answer.
As the questioning progressed, he said he did not know if the Communist Party was an international conspiracy, one of whose aims was to overthrow the government of the United States by force. He thought the United States Supreme Court had said that such was the purpose of the American Communist Party, and if the Court did so declare, he accepted it. Then he expressed the belief that in 1955 he probably thought that some members of the Communist Party could be loyal Americans; but he felt that because of changes in international relations in the past five years, fewer of such Party members could be loyal Americans in 1960. He knew nothing about any obligation on the part of Communists to deceive and cheat and generally break the rules of the game, and he wondered “what element of truth there may be in that.” He indicated his belief that a Communist could be a fit person to teach in the Newark *139public schools; that he could have the scholarship, teaching methodology and respect for the individual requisite for the position. He declined to answer whether he believed in 1955 that a Communist could possess and display the ethical standards that fit a person to teach in the public school system.
At this juncture, Dr. Kennelly, who had participated in all previous proceedings and so was thoroughly familiar with them, expressed doubt and skepticism as to Lowenstein’s denial of current membership or subjection to its ideology. I repeat that such “current” connection with Communism in the framework of the case covers the period back to July 1953. The majority opinion does not attempt to define its use of “present” or “current” association; or to express any view as to whether the date fulcrum is May 19, 1955 or July 1953, or whether the date has moved progressively forward with each interview so that membership or subjection on the precise date of the last interview, September 2, 1960, would be the decisive point. In any event, whether Dr. Kennelly’s doubt related to party membership or affiliation as of September 2, 1960, or as of any previous time back to 1953, plainly the doubt was engendered by Lowenstein’s answers at the reinterview considered in the light of the previous history and background of the case. Whether the doubt was a reasonable one in that context now emerges as the crucial issue in the case. No one suggests that Dr. Kennelly’s skepticism was motivated by bad faith or by anything other than a desire to discharge his responsibility as Superintendent of the Newark public school system. Moreover, neither the Board of Education, nor the State Commissioner of Education, nor this court would be justified in disregarding the statement of doubt as a matter of law, unless it can be said that the minds of reasonable, intelligent and conscientious officials would not differ as to whether the doubt was unreasonable. If that unqualified conclusion cannot fairly be reached, then Dr. Kennelly was justified (in fact obliged, see Laba, 23 N. J., at p. 375; Lowenstein I, 33 N. J., at p. 283) in pursuing the inquiry progressively back*140ward to the point of remoteness in an effort to resolve his doubt.
The statements of some members of the Board of Education at the close of the argument before them make it advisable to clarify the significance of the retrospective questioning and the possible end results of it. There were three possibilities. The further questions would (1) resolve Dr. Kennelly’s doubt as to current (in the sense above indicated) Communist connection and produce a state of belief in Dr. Lowenstein’s disavowal, (2) result in á charge of insubordination upon refusal to answer pertinent questions reasonably related to the resolution of the doubt, or (3), if the answers revealed sufficient evidence of current membership in the Party or advocacy of its ideology, justify a charge of unfitness to teach on that ground.
After giving voice to his doubt and to his desire to probe further, Dr. Kennelly inquired if Lowenstein had been a Communist, or subject to its ideology or believed in the Communist ideology, or had been a member of any Communist-front organization since 1950. All of these questions were met with a refusal to answer. Lowenstein’s position was that the “cut off” period was July 1953; his counsel’s objection was that such questioning was “out of bounds” under the decision of this court. The refusal resulted in a finding by Dr. Kennelly that Lowenstein was guilty of insubordination, conduct unbecoming a teacher, and that he had substantially impaired his usefulness as a teacher in the Newark school system.
When the matter came before the Board of Education those findings constituted the charge to be decided. It is again emphasized that there was neither charge nor finding that Lowenstein was currently a Communist; further, that to sustain Dr. Kennelly’s findings the Board was not called upon to make any determination in that respect. The simple issue was: On the basis of the history and record of the case and the interrogation, was there a reasonable basis for Dr. Kennelly’s feeling of doubt as to Dr. Lowenstein’s dis*141avowal of current membership in or subjection to the principles of the Communist Party.
After lengthy argument and a second improper calling of Dr. Kennelly as a witness before the reviewing Board for cross-examination by Lowenstein’s counsel, and some oral expression of views by some members of the Board, the charge was sustained by a 5 to 4 vote. Whatever may have been the oral utterances of the various members, which, except in the case of one member, plainly appeared to be extemporaneous, seven days elapsed before the final and detailed formal order of discharge was entered. And we were advised at the oral argument in this court that in the meantime counsel for the Board consulted with the members thereof with respect to the form and findings set forth therein and that the order represented their final action. The order says:
“It is the opinion and decision of this Board that the answers given in response to the Superintendent’s questions, abstracted in the Schedule annexed, reasonably justified the doubts asserted by the Superintendent and the additional inquiry which he believed to be necessary by reason thereof.”
On the basis of that conclusion, it adjudged Lowenstein guilty of unduly obstructing the Superintendent’s inquiry by refusing to answer the questions relating to Communist connections between 1950 and July 1953.
The State Commissioner of Education was of the same view. He said:
“Considered against the background of the climate and environment of this case, the answers given by appellant to the Superintendent’s inquiries fell short of achieving the purpose of the interview and were such as to raise a reasonable doubt as to appellant’s fitness to teach, in the Commissioner’s judgment. The need for further testing was thereby adequately established.”
The majority of this court have now disagreed with the Superintendent, the Board of Education and the Commissioner of Education. To me the unfathomable aspect of *142their opinion is the holding as a matter of law that the record is barren of any facts or inferences from facts which provide a reasonable basis for Dr. Kennelly’s doubt about Lowenstein’s current adherence to Communism. In effect, they say that on all the revealed material and the fair inferences therefrom there is no reasonable ground for difference of opinion among intelligent and conscientious officials as to the rationality of Dr. Kennelly’s doubt. If the proceeding were a jury trial, the viewpoint of the majority would mean that the issue of whether a doubt was justified could not be submitted to the jury for determination; the question would have to be decided by the trial judge as a matter of law adversely to the assertion of reasonable doubt. Familiarity with past decisions of this court leaves me without doubt that less formidable factual settings have been held to require determination by a jury of the particular problem presented.
Let us look at the record to see if there is any reasonable basis to justify Dr. Kennelly’s doubt about the veracity of Lowenstein’s disavowal of current Communist Party membership or subjection to its disciplines.
At the September 2, 1960 reinterview, Lowenstein denied current membership in the Communist Party or belief in its ideologies or disciplines. (In this connection, an obvious fact must be kept in mind. In speaking of Communism, both Dr. Kennelly and Dr. Lowenstein meant the Communist Party belief in and advocacy of the overthrow of our government by force.) Likewise, he reaffirmed the position he had taken in that respect at the 1957 interview. He said that in 1955 he probably believed a Communist could be a loyal American and he expressed the view also that at the present time some of them could be such Americans. Further and more germane to the present inquiry, he indicated plainly that a Communist can be a fit person to teach in the public schools.
After hearing these answers the Superintendent, being conscious of the background of the case, expressed doubt as *143to the credibility of the disavowal of Communism. He was uncertain in his own mind as to whether to accept it at face value and felt the need to probe further to resolve the uncertainty. The majority opinion seems to accept the Board's characterization of the answers referred to above as “unorthodox,” but suggests that their very unorthodoxy makes “crystal clear” the truthfulness of his current rejection of Communism. My colleagues of the majority contrast what they cal! “stock” answers, i. negative ones to the questions whether a Communist can be a loyal American or a fit teacher in a public school system, with Lowenstein's “unorthodox” ones, and find the latter more indicative of his truthfulness on the main issue. That conclusion in my judgment disregards certain fundamentals as well as the background of the case. The public policy of this State as promulgated by the Legislature and as enunciated by this court, denies a teaching post in the public school system to a Communist Party member. Moreover, Lowenstein's view that such a person can be a fit teacher brings to mind the comment of the United States Supreme Court in Barenblatt, supra, in connection with the right of a Congressional Committee to investigate Communism in the public school system and to interrogate teachers in that connection:
“To suggest that because the Communist Party may also sponsor peaceable political reforms the constitutional issues before us should now be judged as if that Party were just an ordinary political party from the standpoint of national security, is to ask this Court to blind itself to world affairs which have determined the whole course of our national policy since the close of World War II, * * *." 360 U. S., at p. 128, 129, 79 S. Ct., at p. 1094, 3 L. Ed. 2d, at p. 1130.
Further, in discussing Barenblatt's claim that the questioning violated the First Amendment of the Federal Constitution, the court said:
“Justification for its exercise in turn rests on the long and widely accepted view that the tenets of the Communist Party include the *144ultimate overthrow of the Government of the United States by force and violence * * * .” Id., 360 U. S., at p. 128, 79 S. Ct., at p. 1093.
What is there in the background which, in association with these “unorthodox” answers of Lowenstein, might reasonably stimulate a doubt as his denial of Party membership between July 1953 and September 1960? The beginning point is his reliance upon the Fifth Amendment before the Congressional Committee. Such plea is not proof of party membership but, as Laba taught, it reasonably called for a fitness inquiry in which he had a duty of cooperation and “an affirmative burden in the establishment of [his] fitness.” Dr. Bella Dodd, a former Communist, had told the Committee under oath that she knew him as a Party member, who came to the meetings held in New York by the top committee of the Communists in the American Federation of Teachers. She said also that he was the most important member of the Communist group in the organization of teachers in the Party interest. Lowenstein denied the latter two portions of Dr. Dodd’s testimony in the 1957 and 1960 interviews. He declined, however, to deny membership in the Party back of 1953.
It is not our function to make a final evaluation of the credibility of those conflicting declarations. They are simply a circumstance which plays a part in the justification for the Superintendent’s inquiry. I do not agree, however, with the contention that in an inquiry of this type the passage of time since the early 1940’s has emptied the circumstance of all significance. The bridging facts and inferences, even though not in great quantity, preserve Dr. Dodd’s testimony as a factor in the total picture open to consideration by the Superintendent. In an investigation of Communist affiliation there must be some awareness that facts are hard to come by.
The phraseology employed by Lowenstein at the 1957 interview in denying membership after 1953 cannot be overlooked: “From the summer of 1953 on I have not been *145a member of the Communist Party”; “at no time since the summer of 1953 have I been a member * * *”; “after the summer of 1954 [and 1953] on I have not been a member or affiliated with the Ralph Fox Branch of the Communist Party.” These statements did not come from the mouth of an uneducated, unintelligent man. The majority opinion describes him as a person of “acknowledged academic and pedagogical competence”; “obviously a person of independent mind, not given to forming or expressing opinions without being conscientiously convinced of the soundness and accuracy of the underlying facts.” For purposes of our present problem, the significance of his disavowal of Party membership, “from the summer of 1953 on I have not been a member,” etc., must be evaluated in the light of that appraisal of his mental acuteness and competence. On that basis and against the backdrop of Dr. Dodd’s testimony, it seems plain that his statements are reasonably susceptible of the inference that he was a Communist Party member some time prior to, and perhaps even until, the summer of 1953. The majority deprecate Dr. Dodd’s testimony, saying that it would never be received in a court of law. But we are concerned with an administrative proceeding, not a trial according to the common law. No declaration is made that her sworn assertions as to Lowenstein’s active Communism do not supply a proper and competent basis for inquiry by the Superintendent as to present Party connection or belief in forceful overthrow of our government. In fact, the propriety of using information of this and of even less formal type is recognized in Lowenstein I. 33 N. J., at pp. 286, 287. Such material is not used, nor could it be used, to prove the fact asserted; its function is limited, as it was here, to providing justification for interrogation of the teacher.
The suggested inference does not have to be drawn and the purpose of this dissent is not to say that it should be drawn. Nor is my purpose to assert that the inference represents the fact. But the inference is one which may *146reasonably be drawn from the testimony and it was open to the Superintendent to accept it, if in the conscientious discharge of his public responsibility he felt that it was warranted.
It seems quite obvious that when the Superintendent became aware that Lowenstein presently feels that a Communist can be a loyal American citizen and that some of them can be fit teachers for the public school system, a doubt arose in his mind — an uncertainty — as to whether he should accept as truthful Lowenstein’s disavowal of present allegiance to the Communist Party or its objective of overthrow of our government. The doubt found its generative force in the totality of the facts and the inferences that were available to him. The investigatory record was in a state akin to that which the United States Supreme Court, in Konigsberg v. State Bar of California, 81 S. Ct. 997 (1961), regarded as of “sufficient uncertainty” to justify questioning with respect to past Communist affiliations. At this point, it was not his burden to prove that Lowenstein is a Communist. The duty he owed to the public school sjcstem was to engage in a sincere effort to resolve his doubt as to Lowenstein’s credibility. If in his discretion further interrogation was needed to aid him in that purpose, Lowenstein was under the obligation to cooperate in good faith in the endeavor.
In my opinion, the total record provides reasonable basis for Dr. Kennedy’s assertion of doubt. Moreover, there is nothing to suggest that his doubt was not the product of good faith. Under the circumstances he was justified in propounding the additional questions as to membership in and activity for the Communist Party in 1950, and Lowenstein was properly subjected to the charge of insubordination and of impeding the investigation as a consequence of his refusal to answer. In the factual setting I cannot escape the conviction that the world would be a much better place to live in if those who assert their rights so vigorously would be equally responsive to their obligations.
*147The majority opinion does not limit its reversal of the discharge to a finding of absence of any basis for reasonable doubt as to the truthfulness of Lowenstein’s disavowal of connection with the Communist Party or belief in its purpose to overthrow the government by force. It holds also that the decision of the Board of Education cannot stand because the oral statements given by two of its members at the close of the argument of counsel show that their votes were cast on grounds which were not within the scope of the charge against Lowenstein.
The criticized utterances came after a lengthy and confusing argument as to what was meant in our previous opinion by “present” Communist membership in the framework of the case. It was in that atmosphere that the first member, who is criticized by the majority of this court, remarked that he was “not making any decision so far as what the Supreme Court has said or hasn’t said.” Then he expressed his grave doubts as a father of school children that Lowenstein was “a normal American teacher.” But those doubts came from this record. They have to mean that he too had doubts about the truthfulness of Lowenstein’s disavowal of present Communism.
The second member whose vote to discharge is regarded as invalid said it was difficult for a layman to understand the legal technicalities discussed, and that he was going to base his decision on the moral issue involved. Then he proceeded to ask why, since “our courts have been so lenient as they should be * * * in defending a person, * * * Lowenstein should not be willing to bend backwards to give some information to help us decide some of these issues for the years preceding 1953.” Does not that language reveal the mind of a layman who has doubt about Lowenstein’s disavowal and who therefore wished to probe into the past?
In analyzing the two votes for dismissal, the majority refrained from commenting on the motivation for the votes for reinstatement as indicated by the oral comment. For example: One such member, who quite obviously came to *148the meeting with a lengthy prepared statement, said it was the Superintendent’s duty to substantiate the charge that Lowenstein was an active militant Communist "beyond any doubt in the minds of this tribunal.” Such view can hardly be described as a product of the Laba or Lowenstein I opinions of this court. Another member who voted the same way obviously felt that Dr. Kennelly was charging Lowenstein with Communism rather than insubordination for refusing to cooperate in answering questions designed to find out if he was currently a Communist. She referred to the portion of our opinion in Lowenstein I which, in passing, said that dismissal of a teacher for disloyalty is not deserved unless the proof thereof is “abundant.” Then she declared that the “burden of producing abundant proof had not been adequately discharged.” She said also:
“I must say, frankly, that I feel Dr. Lowenstein has done irreparable damage to his value and usefulness in this system. While he cannot be judged for demanding his Constitutional rights, still one would rather wish that he had placed his responsibilities to his community and profession before those rights. As Dr. Lowenstein’s own attorney stated to us — and I fear our school system will not be better for this display of legal fencing — I believe that such a victory for ‘rights’ is truly a hollow victory; almost a caricature of the Constitution [sic] right.”
In the light of the quoted statement and of her misconception of the problem she was being called upon to decide, is it not plain that she too had doubts like those of Dr. Kennelly ?
As I have already indicated, after these oral expressions had been voiced, counsel for the Board met with its members to prepare and put in proper form their findings of fact and order of dismissal. That document sustains Dr. Kennelly’s finding of reasonable doubt about Lowenstein’s credibility. Frequently a trial judge, in ruling on a motion or in deciding a case from the bench in summary fashion, will make statements that do not seem to dovetail with his subsequent written opinion or formal judgment. Yet absent *149some most unusual circumstance, the written opinion or the final judgment would be treated as decisive on appeal. So, too, in the present situation, should not that course be followed, particularly since the oral statements criticized by the majority opinion on analysis can reasonably be regarded as consistent with and as supporting the basis for Dr. Kennelly’s desire to move his interrogation of Lowenstein back to 1950? The oral comments of the two Board members I have spoken about, who voted to reinstate Lowenstein, apparently because they misconceived the issue to be resolved, should not provide any obstacle to the acceptance of the formal findings and order as the judgment to be reviewed by this court. These two members voted against dismissal either because they adhered to their orally announced impressions or because they did not agree with the formal expression of the views and findings of the majority of the Board.
But since such an appraisal of the final order may be regarded as legalistic, I do not rest my dissent upon the refusal of the majority of my colleagues to treat it as the repository of the Board’s action. In my judgment, the question as to whether the order represents the final and understanding resolution of the precise issue to be decided ought to be remanded to the Board and not decided by this court. This is particularly so where reinstatement may expose the City of Newark to a liability of between $45,000 and $50,000. See, N. J. S. A. 18:3-28; 18:5-49.1. In 1957 when Laba was written, the contention was made that the remand for further interview ought to be to the State Commissioner of Education and not to the Newark Superintendent and Board of Education. On that occasion the court said:
“There is no substantial reason to believe that the local personnel is not sufficiently equipped to conduct a fair and impartial inquiry, or that it will fail to do so in compliance with the principles expressed by the State Commissioner and this court. The School Laws contemplate that where the general issue of fitness is presented the *150original determination should be made locally with ample safeguards on review before the state school authorities and the courts.” 23 N. J., at p. 384.
That attitude was sound then and it is sound now. And it should represent the limit of this court’s interference with the present Board of Education’s order dismissing Lowenstein from the Newark public school system. True, the case has taken a long time and has reached this court three times, but there are important public and private rights involved and much as the delay is to be regretted, we should not allow impatience to interfere with proper original determination of the matter at the local level.
Remand need not be to the Superintendent; no further, interview is necessary. The existing record should be sent back to the Board with directions to answer two questions:
1. On the basis of the entire record, was there a reasonable basis for Dr. Kennelly’s doubt as to the truthfulness of Dr. Lowenstein’s disavowal of membership in the Communist Party or subjection to its disciplines subsequent to July 1953?
2. If so, was Dr. Lowenstein guilty of insubordination and improper obstruction of the investigation in refusing to answer questions relating to that subject for the period back to 1950?
If both questions produce affirmative answers, the Superintendent’s charge was warranted and the dismissal of Dr. Lowenstein from the teaching staff would be proper.
For the reasons stated, I cannot agree with the majority opinion. Moreover, we must live beyond this case. If, on a record such as it brings to us, a Superintendent of a public school system has no right to press his interrogation beyond the limit now established, the interview formula so forthrightly announced in Laba has been emptied of all significant content.
Justice Pkoctok and Justice Haneman authorize me to say that they join in this dissent.
*151For reversal — Chief Justice Weintraub, and Justices Jacobs, Hall and Schettino — 4.
For reversal and remandment — Justices Ftancis, Proctor and Hangman — 3.