I concur in the judgment of reversal but I do not agree with the holding in the opinion prepared by the Chief Justice that the provisions of the so-called Dilworth Act here involved are constitutional. In Slochower v. Board of Higher Education, 350 U.S. 551 [76 S.Ct. 637, 100 L.Ed. 692], the Supreme Court of the United States squarely held that a law is unconstitutional which makes mandatory the dismissal of a government employee solely for relying on the privilege against self incrimination before a congressional committee, and that a discharge based on such a law violates the due process clause of the Fourteenth Amendment. The law involved in that case was section 903 of the New York City Charter. Such a law is involved here (Ed. Code, § 12604). In that case the court said: “As interpreted and applied by the state courts it (Section 903) operates to discharge every city employe who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. . . . The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive. Such action falls squarely within the prohibition of Wieman v. Updegraff [344 U.S. 183 (73 S.Ct. 215, 97 L.Ed. 216)].”
While it is true that in Steinmetz v. California State Board of Education, 44 Cal.2d 816 [285 P.2d 617], this court upheld the provisions of this act which require discharge of an employee who refuses to answer certain questions propounded to him by the board which employs him, there is a clear distinction between such provisions and those here involved. This distinction was pointed out by the court in the Slochower ease in the following language: “It is one thing for the city authorities themselves to inquire into Slochower’s fitness but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or government of the city, or . . . official conduct of city employees. ’ In this respect the present ease differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, *501and the questions which Professor Sloehower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.”
In this ease, likewise, the board of education had the information about appellant’s Communist Party membership in prior years. However, this case presents even a stronger factual situation than that presented in the Slochower case, because here the appellant had offered to answer the questions of the board of education with regard to his past Communist Party membership at the meeting of December 8, 1953, after appellant’s appearance before the House Un-American Activities Committee. It can be said here, just as the United States Supreme Court said in the Slochower case: “On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.”
The statute involved here (Ed. Code, § 12604) has even greater constitutional defects than the charter provision of the city of New York involved in the Slochower case (New York City Charter, § 903), because, under the Dilworth Act involved here, the employee must be discharged for refusing to answer any question relating to communism “on any ground whatsoever,” whereas, the New York charter provision involved in the Slochower case was restricted to cases only where the employee relied on the privilege against self incrimination. It should be apparent that even though our Education Code provides for the filing of charges, notice thereof and a hearing before the discharge becomes effective, such a hearing is a mere farce, since the end result is the foregone conclusion that the employee must be discharged because the statute here involved eliminates any defense whatsoever. Even though there is a hearing, there is nothing to be heard except whether the teacher did or did not refuse to answer a question for any reason whatsoever. No matter what his reason for refusing to answer may have been, the employee must be discharged under the Dilworth Act. The mere fact that in the Slochower case there was a summary dismissal, but here some procedural steps are required to be taken before the discharge is ordered, is a mere distinction without a difference.
With regard to the purpose of the Senate committee which the Supreme Court refers to in the Slochower case, the case at bar is also even a stronger one for the employee, as the court there stated: "The investigation, conducted on a national *502scale, related to subversive influences in the American educational system.”
Here, there was no reference made by the House Un-American Activities Committee that it was interested in education at all. At the beginning of the hearing in San Francisco on December 1, 1953, at which appellant was interrogated, the chairman of the committee stated: “. . . It is the purpose of this investigation to ascertain the nature, extent, character, and objects of Communist infiltration in the Bay area where there is a great concentration of defense industry and where the headquarters of District No. 13 of the Communist Party are maintained. This investigation, unlike those conducted in the Territory of Hawaii and southern California, is not concentrated upon a single industry or enterprise. For the time being the work of the committee will be of a more general character.” (Hearing Before the Committee on Un-American Activities of the House of Representatives, 83d Cong., 1st Sess., pt. 1, at 3056 [1953].)
The only other factual distinction between the two cases is the fact that Professor Slochower denied that he was presently a member of the Communist Party but refused to answer questions about his activities in 1940 and 1941; whereas, in the instant case, the appellant relied on the privilege against self-incrimination with respect to all questions relating to Communist Party membership irrespective of the date. However, this is completely immaterial in the light of the holding in the Slochower case, where the court said: “. . . the privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).”
The constitutional privilege against self incrimination has been the subject of many recent decisions by the Supreme Court of the United States. In the recent case of Quinn v. United States, 349 U.S. 155 [75 S.Ct. 668, at page 673, 99 L.Ed. 964], Mr. Chief Justice Warren speaking for the court declared: “The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution—and the necessities for its preservation—are to be found in the lessons of history. . . . *503To apply the privilege narrowly or begrudgingly—to treat it as an historical relic, at most merely to be tolerated—is to ignore its development and purpose.” And in Ullmann v. United States, 350 U.S. 422, 428, 429 [76 S.Ct. 497, 100 L.Ed. 511], Mr. Justice Frankfurter painted a somewhat graphic picture of the origin and objectives of this salutary constitutional provision: “No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.
“As no constitutional guarantee enjoys preference so none should suffer subordination or deletion. It is appropriate to read the conviction expressed in a memorable address by Senator Albert J. Beveridge to the American Bar Association in 1920, a time when there was also manifested impatience with some of the restrictions of the Constitution in the presumed interest of security. His appeal was to the Constitution —to the whole Constitution, not to a mutilating selection of those parts only which for the moment find favor. [Footnote 3:] ‘If liberty is worth keeping and free representative government worth saving, we must stand for all American fundamentals—not some, but all. All are woven into the great fabric of our national well-being. We cannot hold fast to some only, and abandon others that, for the moment, we find inconvenient. If one American fundamental is prostrated, others in the end will surely fall. The success or failure of the American theory of society and government, depends upon our fidelity to every one of those inter-dependent parts of that immortal charter of orderly freedom, the Constitution of the United States. ’ (Beveridge, The Assault upon American Fundamentals, 45 Reports of American Bar Assn., 188, 216 [1920].) To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.”
While the foregoing sufficiently disposes of this case on constitutional grounds, I want to again assert that I adhere to the views expressed in my dissenting opinion in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 825 [285 P.2d 617], and in the views expressed by Mr. Justice Black *504and Mr. Justice Douglas in their dissents in Adler v. Board of Education, 342 U.S. 485 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R. 2d 472], Garner v. Board of Public Works, 341 U.S. 716 [71 S.Ct. 909, 95 L.Ed. 1317], and in their concurrences in Wieman v. Updergraff, 344 U.S. 183 [73 S.Ct. 215, 97 L.Ed. 216].
While it is my view that a school board should be given broad powers to investigate the moral as well as the intellectual and educational backgrounds of those whom they employ to teach in our public schools, I do not believe that mere membership in a so-called proscribed organization should be a sufficient ground to justify the discharge of a teacher whose conduct during his period of employment has been exemplary.
I have no sympathy whatsoever with the philosophy which establishes guilt by association. Neither would I determine innocence on the same basis. Holy Writ tells us that a man known as Jesus of Nazareth was ostracized and condemned by religious and social leaders of His own race because He associated with “publicans and sinners” (Matthew 9 -.1111:19, Luke 5:30 15:2 19:7), yet half the world will unite this month in commemoration of the date of His birth and bow in reverence to His name. I am sufficiently naive to believe that there may be those who “can talk with crowds and keep their virtue, or walk with kings nor lose the common touch. ’ ’ It has been aptly said that, “It is not by deed alone can any eye the whole soul’s measure scan—the whole round life from the cradle to the grave must be the test of man.” About 20 years ago liberal minded people in this country were shocked by the disclosure that a man who had just been appointed an Associate Justice of the Supreme Court of the United States had, in his youth, been a member of the Ku Klux Klan, yet that man by an unbroken line of judicial opinions has indelibly written into the decisional law of this country a most liberal philosophy of civil liberties and racial and religious tolerance. Many other similar examples may be mentioned, all of which serve to demonstrate that mere membership in an organization or group does not necessarily classify anyone as an adherent -of its teachings. Of course, such membership or association may be, and often is, used in political campaigns to discredit candidates for public office when such - organizations are in popular disfavor and super patriots use them as whipping boys.
In the case at bar there is no suggestion that Professor Mass ever engaged in any subversive activities or disloyal conduct of any nature or character whatsoever or that his *505conduct as a teacher has not been at all times commensurate with the highest standards of the teaching profession. The sole and only charge against Professor Mass is that when interrogated by the Un-American Activities Committee of the House of Representatives with respect to membership in the Communist Party, he refused to answer on the ground that his answers might incriminate him and he took refuge under the Fifth Amendment to the Constitution of the United States, which, in my opinion he had both a moral and legal right to do.
While it is my opinion that the act here involved is unconstitutional and that no charge against the appellant can be sustained thereunder, I join in the judgment of reversal, which will set the case at large in the trial court for such disposition as that court may determine to be in accordance with the law.