(concurring). I agree with the opinion of the court that Zimmerman did not have tenure status when his teaching contract expired on June 30, 1955, and that the Board of Education was under no obligation to rehire him for the school year beginning September 1955.
In ordinary circumstances it is not the practice to comment on concurring opinions. They are not precedents and they are binding on no one. Frequently, however, they put forward constructive ideas or suggestions which merit sponsorship if and when the problem discussed is directly in issue. But when such an opinion criticizes a public agency unjustly, particularly when the criticism is not necessary to determination of the basic issue involved in the case, conventional considerations must be put aside. From my study of the record, I am convinced that the Superintendent of Schools and the Board of Education acted in the utmost good faith and did their conscientious best to follow the earlier opinions of this court. But more than this; I believe the decision of the Superintendent and the Board was warranted on the evidence. Also, having in mind the sensitive area in which public school teachers work and the malleable minds they are engaged to develop, I am satisfied that the final action of the Board was in accord with the public interest. See Adler v. Board of Education, 342 U. S. 485, 493, 72 S. Ct. 380, 96 L. Ed. 517, 524 (1952).
On May 19, 1955 Perry Zimmerman, Estelle Laba and Robert Lowenstein, teachers in the public school system in Newark, New Jersey, were called to testify before a subcommittee of the House Un-American Activities Committee. On being questioned as to present and past membership in *87the Communist Party they declined to answer, relying on the protection provided by the Fifth Amendment of the United States Constitution against possible self-incrimination. Four days later, they were dismissed by the Board of Education. This court sustained a reversal of the dismissal by the State Commissioner of Education, holding that resort to the constitutional guaranty to avoid such questioning could not of itself justify discharge of a teacher. It was declared, however, that such a plea warranted an inquiry into past and present affiliation with the Communist Party, or adherence to its ideologies and disciplines in order to determine “present” or “current” loyalty to the United States Government. Accordingly, a remand was ordered to the Board of Educatipn for that purpose. Laba v. Newark Board of Education, 23 N. J. 364 (1957).
Some observations in Laba should be recalled for purposes of reorientation. Speaking of the danger of Communist Party members as teachers in the public school system Justice Jacobs, speaking for the court, 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; * * 23 N. J., at p. 388.
That view is not peculiar to New Jersey. The United States Supreme Court referred to it as “the long and widely accepted view.” Barenblatt v. United States, 360 U. S. 109, 128, 79 S. Ct. 1081, 1093, 3 L. Ed. 2d 1115, 1129 (1959). Moreover, in our sister state, Pennsylvania, the Supreme Court took judicial notice that the Communist Party is a subversive organization which conspires to teach and advocate the overthrow of the government of the United States by force and violence. Appeal of Albert, 372 Pa. 13, 92 A. 2d 663 (1952).
*88The opinion in Laba continued:
“We have no doubt that in examining into their continued fitness to teach the Newark school authorities may interrogate the appellant school teachers with respect to their present and past associations with the Communist Party and affiliated organizations and are entitled to frank and full disclosures.” At page 388.
And:
“In the instant matter the teachers’ conduct before the Congressional subcommittee reasonably calls for a fitness inquiry during which the teachers have a duty of cooperation and an affirmative burden in the establishment of their fitness.” At page 392.
Laba quoted with apparent approval the opinion of the Association of American Universities that “invocation of the Eifth Amendment places upon a professor a heavy burden of proof of his fitness to hold a teaching position and lays upon his university an obligation to re-examine his qualifications for membership in its society.” It referred also to the report of the Association of American Law Schools’ Committee on Academic Freedom and Tenure, “composed of distinguished legal scholars,” to the effect that “a faculty member’s invocation of the Eifth Amendment would not fin and of itself’ constitute ground for dismissal but was sufficient to call for a general fitness inquiry by his educational institution.” At page 375.
On the remand, therefore, Zimmerman had a heavy duty of cooperation in the inquiry. Justification for interrogation did not rest alone on his use of the Eifth Amendment before the Congressional Committee. He was aware that 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. 8. A. 18:13-9.1, 9.2; 41:1-3; N. J. 8. 2A :81 — 17.1. He knew also that before entering the public service as a teacher in 1952 he had answered a loyalty *89questionnaire under oath which, among other things, asked if he had ever become "a member of any society or group of persons which teaches or taught or advocates or advocated that the government of the United States of America, or of any state or political subdivision thereof, should be overthrown, or overturned, or changed by force or violence, or any unlawful means?” His sworn answer to this was: "No,” although admittedly he had been a member of the Communist Party at least from 1946 until the latter part of 1948. See Laba, supra, at page 373.
Moreover, since, unlike Mrs. Laba and Lowenstein, he did not have tenure, as this court unanimously agrees, his hearing took on a twofold aspect. His contract of employment terminated on June 30, 1955. Therefore, for purposes of determining rights under that contract, the issue of "current” or “present” loyalty or membership in the Communist Party or adherence to its aims and disciplines, within the meaning of Laba, related to the period from May 19, 1955 to June 30, 1955. Secondly, although the matter was not expressly stated in such terms, both Zimmerman on the one hand and the Superintendent of Schools and the Board of Education on the other, were conscious that, in fairness, a decision should be made whether to continue or to re-engage him as a teacher in the system. On this latter phase of the matter obviously a much broader interrogation might justifiably be pursued.
The rehearing was held on May 16, 1957. I agree with the Board of Education that it was fairly and conscientiously conducted by the Superintendent. At its conclusion he found, among other things, that Zimmerman (1) had failed to fulfill his duty of cooperation in the inquiry, (2) had failed to give frank and full disclosures as to past association with the Communist Party, (3) had evidenced a conscious purpose to evade, equivocate and confuse, (4) had given many responses which were incredible, indirect and otherwise inadequate, and (5) that by his aggregate responses and his total conduct in the interview he had im*90peded a fair and conscientious inquiry to determine whether when he was suspended on May 19, 1955, he was or since that date had been or now is a member or subject to the ideologies and discipline of the Communist Party.
In response to the Superintendent’s questions and to those propounded later by the Board of Education, Zimmerman admitted that he joined the Communist Party in 1946, but asserted inability to recall whether the Party solicited his membership or whether he sought out the Party. He paid dues to the Party but could not recall whether by check or cash (“Hot the slightest recollection.”). He alleged inability to recall whether he carried a card as a member of the Party. During the 1946-1948 membership period he claimed to have very little idea of Communist Party theory, although at the subsequent hearing before the Board of Education he indicated that he had attended at least 50 Communist Party meetings while a member and that its program and purposes were discussed at them. On being asked if, when he joined the Party, he knew that one of its objectives was the overthrow of the government of this country by force, he said: “The answer is that I still do not believe that is part of the Communist Party program to do this which you state. The answer is no.” Further, he said his experience with the Party revealed nothing that would establish incompatibility between membership therein and teaching in the public schools.
Zimmerman testified also there was no incompatibility between his membership in the Party in 1946 through 1948, and his sworn answer in the loyalty questionnaire that he had never been a member of any society or group of persons “which teaches or taught or advocates or advocated that the government of the United States of America * * * should be overthrown, or overturned, or changed by force or violence, or by any other unlawful means.” He asserted that had he been asked if he had been a member of the Communist Party, he would have answered affirmatively. But since he did not know, on joining the Party or after *91attending more than 50 meetings at which its program was discussed, or at any time, that such was the purpose of the Party, he considered the negative answer under oath to be proper.
On leaving the Party he remembered that he gave no formal resignation. But he could not say “with the slightest degree of accuracy” when he last paid dues. In any event, he regarded the subject of so little consequence as not to warrant an effort to recall or find out. In passing, it may be noted that he characterized the Superintendent’s interview as “savage,” and with respect to the later hearing before the Board of Education he said he considered “this free wheeling inquisition itself an insult.” In its findings, the Board commented upon Zimmerman’s “low regard for his obligations at the Superintendent’s interview,” and that throughout his testimony before it “he evidenced resentment of and hostility to the entire inquiry, and a lack of forthrightness and candor.” The Board declared “the conclusion to be inescapable that both at the interview and at the Board’s hearing the whole truth as to Mr. Zimmerman’s past affiliation with and his reported withdrawal from the Communist Party was not disclosed by him, * * I agree with the Board that his entire testimony fairly breathes an attitude of insolence and supercilious contempt for the questions that were put to him.
Zimmerman had been a Communist and he had been untruthful about it under oath when he was appointed a Newark teacher. He said he had left the Party in the latter part of 1948. Since he did not plead the Eifth Amendment until 1955, the Board not only had the right but was under the duty to satisfy itself reasonably, through fair interrogation, that he had in fact resigned from the Party in 1948 and no longer adhered to its ideology and disciplines. Zimmerman’s duty, in view of his admitted history, was to cooperate fully and frankly in a reasonable endeavor by the Board to determine his loyalty at the time of suspension and thereafter until June 30, 1955.
*92“Present” loyalty or membership in the Communist Party or adherence to its principles, at the time of the reinter-view and back to the end of 1948, were proper subjects of inquiry. Questioning, at least to that extent, would enable the Board to reach a conclusion whether he had left the Party in 1948 and was loyal when suspended in May 1955. Further, since he did not have tenure, and indicated a desire to continue in the teaching profession, it was reasonable for the Board to delve into current loyalty, in the sense of loyalty at the time of the reinterview, so as to put itself in a position to give intelligent consideration to the question of reappointment to the system. In view of the restoration of Mrs. Laba after the reinterview with her, it cannot be said on the record that frank cooperation by Zimmerman would not have produced a similar result if the Board was satisfied that he had quit the Party and was no longer subject to its ideologies and disciplines.
But it would be blinding ourselves to reality to say that only by silence, i. e., refusal to answer the Superintendent’s questions, could Zimmerman improperly impede the loyalty inquiry. It is likewise unreal to suggest that because he answered every question put to him, he had cooperated to the extent called for by Laba,. Obviously, the content of the answer and the honesty of the person giving it are of the essence.
Under the cases throughout the country, a former Communist Party member is not forever subject to discharge from a teaching post in the public school system in which he has tenure because of such membership alone. An honest mea culpa, in the sense of an actual withdrawal from the Party and abandonment of its program of overthrowal of our Government by force or violence, prior to the Board’s inquiry, would remove the bar presented by the policy of our Legislature. Assuming that Zimmerman had done so, the history of these cases in Newark does not support the view that his suspension from May to June 30, 1955, would not have been withdrawn by the Board, or that the Board *93would not have given favorable consideration to reappointing him prospectively. But the Board was convinced, as I am, in view of his past history, that he did not meet the obligation imposed by his record, of cooperation with the inquiry, that he did not act in good faith during it, and that by his attitude and demeanor, as well as by his incredible answers, he willfully prevented and frustrated the Superintendent’s and the Board’s attempt to ascertain his loyalty in 1955 and at the time of the reinterview.
In my judgment, therefore, analysis of all the facts revealed by the record fully supports the conclusion reached by the Superintendent and the Board of Education.
I am authorized to say that Justices Schettino and Haneman join in this opinion.