144 N.J. Super. 109 (1976) 364 A.2d 1080

PATRICIA H. ENDRESS AND BROOKDALE COMMUNITY COLLEGE FACULTY ASSOCIATION, PLAINTIFFS-RESPONDENTS,
v.
BROOKDALE COMMUNITY COLLEGE, A PUBLIC INSTITUTION OF HIGHER EDUCATION OF NEW JERSEY, W. PRESTON CORDERMAN, AS CHAIRMAN OF THE BOARD OF TRUSTEES OF BROOKDALE COMMUNITY COLLEGE, AND INDIVIDUALLY, DONALD H. SMITH, AS PRESIDENT OF BROOKDALE COMMUNITY COLLEGE, AND INDIVIDUALLY, AND MARVIN A. CLARK, JOSEPH E. CLAYTON, MRS. T. PETER DOREMUS, WILLIAM O. FLECKENSTEIN, EARL B. GARRISON, ELLEN HANNAH, WALTER S. McAFEE, AND LEON ZUCKERMAN, AS MEMBERS OF THE BOARD OF TRUSTEES OF BROOKDALE COMMUNITY COLLEGE, AND INDIVIDUALLY, DEFENDANTS-APPELLANTS.

Superior Court of New Jersey, Appellate Division.

Argued April 5, 1976. Decided August 27, 1976.

*117 Before Judges FRITZ, SEIDMAN and MILMED.

Mr. Charles L. Morgan argued the cause for appellant Brookdale Community College (Messrs. Morgan & Falvo, attorneys).

Mr. John Warren, Jr., argued the cause for appellant Donald H. Smith (Messrs. Parsons, Canzona, Blair & Warren, attorneys).

Mr. James D. Carton, III, argued the cause for appellants Marvin A. Clark et al. (Messrs. Carton, Nary, Witt & Arvanitis, attorneys; Mr. Robert V. Carton, of counsel and on the brief).

Mr. Richard H. Mills, Deputy Attorney General, argued the cause for amici curiae Departments of Education and Higher Education, State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).

Mr. Garrett M. Heher argued the cause for amici curiae Atlantic Community College et al. (Messrs. Smith, Stratton, Wise & Heher, attorneys; Ms. Ann Reichelderfer on the brief).

*118 Mr. William S. Greenberg argued the cause for respondents (Messrs. Sterns & Greenberg, attorneys; Mr. William Bigham and Mr. Frank J. Petrino on the brief).

Mr. Cassel R. Ruhlman, Jr., filed a brief on behalf of amicus curiae National Education Association (Mr. Jerry D. Anker, Mr. Robert E. Nagle and Mr. David Rubin, all of the Washington, D.C., bar, on the brief).

The opinion of the court was delivered by SEIDMAN, J.A.D.

These consolidated appeals are from a judgment in favor of plaintiff reinstating her as a member of the faculty of defendant college with back pay and other benefits, and awarding her damages, both compensatory and punitive, plus counsel fees and costs.

I

On June 27, 1974 plaintiff Patricia H. Endress, an Assistant Professor of Journalism at Brookdale Community College, a public institution of higher learning located in Lincroft, Monmouth County, was discharged from her employment and her contract for the next academic year was rescinded^[1] by resolution adopted by the college board of trustees upon the recommendation of the president.

The controversy which led to Professor Endress' dismissal and this litigation had its origin in an editorial written by her which appeared in the April 26, 1974 edition of The Stall, the student newspaper of which she was the faculty advisor. In substance, it accused the chairman of the board of trustees of a conflict of interest in allegedly making "a deal" whereby his nephew's company received a contract from the college for the furnishing of audio-visual equipment. *119 An accompanying article on the same subject was written by her assistant, a "journalism intern."

In recommending the dismissal to the board of trustees the president of the college asserted as the alleged causes for such action plaintiff's violation of "both the tradition established under Board policy, and the philosophical platform and goals of the College as the same pertain to freedom of the press and student responsibility for the college newspapers," and of the "editorial prerogatives of the student editor and the student staff," in ordering and directing the editor of the newspaper "to publish certain material without his approval," and in causing the publication of "libelous matter contrary to accepted journalistic standards."

Professor Endress thereupon filed a multi-count complaint, in which the Brookdale Community College Faculty Association joined as plaintiff,^[2] against the college; and also, in both their official and individual capacities, against W.P. Corderman, chairman of the board of trustees; Donald H. Smith, president of the college, and the other members of the board of trustees. The complaint charged, among other things, that her employment had been wrongfully terminated, that Corderman and Smith had wrongfully and maliciously interfered with her existing contractual relationship, and that they had conspired among themselves and the other board members to breach that contract; that Smith and the members of the board of trustees had libeled her by the publication of a letter charging her with violating her duties and responsibilities,^[3] and that she was *120 discharged solely by reason of her exercise of her constitutional right of "freedom of the press, association and speech."

Defendants contended generally that the discharge of Professor Endress and the rescission of her new contract were (we quote from the oral decision of the trial judge) "all due and proper actions incumbent upon them in the exercise of their duties in their respective capacities, were in no way arbitrary, capricious or conspiratorial, and that the action did not breach any of their respective contractual obligations [with plaintiff]." President Smith asserted, additionally, that he had determined that Professor Endress had violated her duties and obligations as a member of the faculty and as advisor to the college newspaper, and, in accord with his duties and responsibilities, had recommended to the board of trustees the termination of her employment. He denied the existence of any conspiracy, as did Corderman, who also contended that he was not present at the June meeting of the board of trustees and did not participate in the action taken. Leon Zuckerman, one of the trustees, also disclaimed individual responsibility for the action of the board, in that he was absent at the time. Another board member, Joseph E. Clayton, contended that although he attended the board meeting he did not vote affirmatively for the termination and therefore could not be held liable therefor.

At the conclusion of the trial, the judge below, sitting without a jury, entered the following judgment:

1. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith pay to the plaintiff, PATRICIA H. ENDRESS, the sum *121 of $14,121.00 as back pay for the period of July 1, 1974 through June 30, 1975.

2. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith pay to the appropriate trustee or agency all pension or retirement contributions, in such amount as would have been paid on behalf of plaintiff, PATRICIA H. ENDRESS, had she been employed at BROOKDALE COMMUNITY COLLEGE between July 1, 1974 and June 30, 1975 at an annual salary of $19,121.00.

3. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith issue plaintiff, PATRICIA H. ENDRESS, an employment contract for the period July 1, 1975 through June 30, 1976, as an Assistant Professor of Journalism in the faculty of BROOKDALE COMMUNITY COLLEGE, which contract shall have the same force and effect as though issued for the period July 1, 1974 through June 30, 1975.

4. The aforesaid employment contract for 1975-1976 shall contain compensation for plaintiff, PATRICIA H. ENDRESS, in the amount she would normally have received had she been continuously employed from and after June 27, 1974, including all normal increments, fringe benefits, and contributions to pension or retirement funds.

5. By reason of the violation of the constitutional rights of plaintiff, PATRICIA H. ENDRESS, and in accordance with the provisions of Section 1983 of Title 42 of the United States Code, damages are awarded as follows:

(A) $10,000.00 compensatory damages in favor of plaintiff, PATRICIA H. ENDRESS, against individual defendants, Smith, Clark, Doremus, Fleckenstein, Garrison, Hannah and McAfee, jointly and severally; and

(B) $10,000.00 punitive damages in favor of plaintiff, PATRICIA H. ENDRESS, against each of the defendants, DONALD H. SMITH, MARVIN A. CLARK, MRS. T. PETER DOREMUS, WILLIAM O. FLECKENSTEIN, EARL B. GARRISON, ELLEN HANNAH and WALTER S. McAFEE, individually, for a total of $70,000.00.

6. By reason of the violation of the constitutional rights of plaintiff, PATRICIA H. ENDRESS, and in accordance with the provisions of Section 1983 of Title 42 of the United States Code, attorneys' fees are awarded to WILLIAM S. GREENBERG, ESQ. in the amount of $10,000.00, and shall be paid by all individual defendants named in the preceding paragraph, jointly and severally.

7. Costs are awarded to plaintiff Endress against defendants except Corderman, Clayton and Zuckerman.

8. By reason of the interference with the contractual relationship of plaintiff, PATRICIA H. ENDRESS, and the prospective professional and economic advantage of plaintiff, PATRICIA H. ENDRESS with BROOKDALE COMMUNITY COLLEGE by defendant, DONALD H. SMITH, there shall be judgment for plaintiff, PATRICIA H. ENDRESS, against defendant, DONALD H. *122 SMITH, with no additional money damages; provided, however, in the event the award of damages under Paragraph Five hereof is reversed on appeal, then there shall be an award of $10,000.00 compensatory damages and $10,000.00 punitive damages in favor of plaintiff, PATRICIA H. ENDRESS, against defendant, DONALD H. SMITH, individually.

9. With respect to the claims of BROOKDALE COMMUNITY COLLEGE FACULTY ASSOCIATION there shall be judgment for defendants.

10. With respect to the claims against defendants, W. PRESTON CORDERMAN and DONALD H. SMITH, as to allegations of conspiracy, there shall be judgment for said defendants.

11. Judgment is entered in favor of defendants Corderman, Clayton and Zuckerman, individually.

The grounds of appeal asserted by Brookdale Community College are that (1) the "termination of the plaintiff, Patricia H. Endress, did not violate any constitutionally protected right," (2) just cause existed for the termination, and (3) specific performance of plaintiff's contract of employment cannot be adjudged. President Smith contends that (1) there was no "legal issue resolved by the court imposing any responsibility" upon him, (2) the assessment against him of additional damages in the event of appellate reversal was without validity, and (3) he "acted in good faith upon facts he believed to be true in the exercise of his discretion and judgment" in recommending the dismissal of plaintiff. He also poses the question, "Is an agent responsible for the actions of his principal?" He asserts, additionally, that "facts revealed after June 27 solidify [his] recommendation to terminate."^[4] Appellant trustees raise as issues alleged error on the part of the trial judge in awarding (1) "compensatory relief" against them, (2) damages "for a violation of plaintiff's right of due process," (3) punitive damages, and (4) "attorney's fees in an action brought under 42 U.S.C. § 1983"; and also in not *123 giving credit for the amount of the settlement. (See footnote 3).

The awarding of punitive damages against the individual trustees is also assailed in the brief filed on behalf of amici curiae Atlantic Community College et al.^[5] The argument advanced is that such damages should not be awarded under 42 U.S.C.A. § 1983 unless "a positive element of conscious wrongdoing has been proven."

The Departments of Education and Higher Education of the State of New Jersey, in an amici curiae brief filed on their behalf by the Attorney General, complain of the failure of the trial judge "adequately to explain the reasons for the awarding of substantial damages against the trustees of a public educational institution." They argue that because such awards "will necessarily have a powerful and undesirable impact upon the State educational system," it is important that they "clearly reflect the application of established legal principles to specific articulated findings of fact." It is contended further that plaintiff should have been required to exhaust her administrative remedies within the Department of Higher Education before bringing her reinstatement action in the courts.^[6]

*124 The National Education Association also submitted an amicus curiae brief in which it argued the correctness of the holding below that the termination of plaintiff's employment violated both her right of free speech and her right to procedural due process, and of the relief granted.

II

Professor Endress had been advisor to the school newspaper, which was also utilized as a training program for journalism students, from the time she came to work for the college in September 1971. She testified at the trial that she sought to have her students pursue an investigative reporting approach to journalism. While student copy was submitted to her, she had no censorship role and exercised no editorial veto. The student editors were fully responsible for that which was published. Explaining that they were always short staffed, she said that she had written an earlier editorial, as well as two articles, but, she added, she never wrote anything over the objections of the editor and, further, she had never been specifically forbidden by the college administration to write editorials or articles for the newspaper.

It appears that in August 1973, as the result of rumors circulating about the campus concerning several contracts awarded by the college, including the one involving Corderman's nephew, Professor Endress and her assistant thought that an investigation of the matter would be good experience for the students. Accordingly, the project was undertaken in consultation with the editorial staff. Several students were assigned to the investigation and articles on the subject were published.

Professor Endress said that because the student editor-in-chief and other members of the staff were either too busy to write an editorial on the subject, which she considered appropriate, or "did not know what to say," she undertook to prepare the one in question and submitted it, together *125 with the article, to the editor-in-chief, who expressed no opposition to either. However, several days after publication the editor indicated to her that he was worried and upset because "Duncan Circle [Dean of Student Development] was after him, meaning he wanted to know the things about the paper," and the college administration had issued a statement in which libel was mentioned.

Thereafter, except for the semi-annual faculty evaluation report issued by her superior early in June, which was generally favorable except for the comment that "as advisor of the student newspaper, [she] must resist dominating the editorial policy of the paper * * *," and to which she responded that she would address herself to the comment upon her return for the summer session, she had no other contact with the administration concerning the matter until she learned of her dismissal when she came back from her vacation.

A former student managing editor of the newspaper, who had approved both the article and the editorial in question, testified that she had never been ordered to publish them or subjected to any pressure or coercion.

The student editor-in-chief, one William McGee, gave controversial testimony. Acknowledging that he had read and approved the material before publication, he said that he had not been ordered to do anything with respect to it, but he also revealed that he expressed to Dr. Circle his dissatisfaction with the secrecy with which the matter had been handled in advance of publication and with the failure of those working on the story to tell him about it. In a signed statement he gave to the administration he said that when the editorial and article were presented to him "it represented a loss of my power and function as an editor and I wanted immediately to resign as editor." He also related in it that although he could not be certain who wrote the article and the editorial, "I knew that I was compelled to include both * * * without question * * * "by Professor Endress and her assistant. He said he deemed her *126 action to be "the unwarranted interference with my function as an editor as well as the violation of what has been the administrative policy toward the Stall." However, in his testimony below, McGee stated that, so far as he knew, "we had no Stall policy." He said further that "I didn't really feel that I had lost any power because I did approve [the article]." Plaintiff's assurance that there was no chance of his being sued for libel "quelled his desire to resign." And, as for being "compelled" to print the story, he said that he had not realized when he gave the statement that the word meant "forced to do so"; rather, it meant to him that "I should run this article" because it seemed to be a good one and he was told the information was correct.

Plaintiff produced as an expert witness a professor emeritus of journalism at Northwestern University in Illinois. He opined that the writing of the editorial was a valid exercise of First Amendment rights and that there was nothing unprofessional in plaintiff's conduct. It was immaterial who wrote these articles and editorials, he said, so long as the editor "had the handling of them."

Defendant's expert, a professor of journalism at Columbia University, was of the view that plaintiff's actions, even if approved by the editorial staff, were not consistent with her functions and duties as a faculty advisor to the newspaper, and constituted a "serious breach of professional ethics."

President Smith's version of the events was that after he read the April 26 edition of the newspaper he asked Dr. Circle and Dr. John F. Gallagher, vice-president for academic affairs, to conduct an investigation. Their reports convinced him that the article and editorial had not been written by students, as the initial inquiries had indicated, but by "Miss Endress or Mr. Karey [her assistant] or both," and he "asked for verification of the statement made to Dr. Circle by the editor-in-chief, Mr. McGee," and a written statement was obtained from him. He reported to the board of trustees at their May meeting the results of the investigation *127 and reviewed "the implication of the fact that it seemed to be clear that the article and editorial had been written not by students but by staff," but he made no recommendation at that time.

On June 7, following additional discussions with board members, President Smith attempted to make contact with plaintiff but was unable to do so because of her absence on vacation.

Decisive action was taken on June 27. President Smith formally recommended to the board the dismissal of plaintiff and the rescission of the new contract for the reasons summarized earlier herein. The board accepted the recommendation and adopted an accordant resolution.

III

In his oral opinion issued at the close of the evidence, the trial judge addressed himself first to the issue of whether the board of trustees had just cause to terminate plaintiff's employment under the contract expiring June 30, 1974, and to rescind the new contract.

The trial judge found that the student editors had approved the use of the article and editorial and that neither plaintiff nor her assistant had ordered their publication. He gave credit to McGee's testimony in court and not to the signed statement, which, he found, "was prepared by somebody who had not talked personally to McGee." He rejected the first reason given for plaintiff's discharge, namely, that she had violated her duties and responsibilities as a journalism teacher and advisor to the newspaper by ordering the publication of the article and editorial. Further, he said, even if plaintiff had caused the material to be published without the editor's permission, she would have been subject to severe reprimand, but not to dismissal.

As for the second reason given for dismissal, that the material was allegedly libelous, the trial judge found that the "[d]efendants have failed to establish that the editorial *128 was written with malice or with reckless disregard to its truth," and that, essentially, it was based on the article. Cf. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The trial judge found, further, that the real reason for plaintiff's dismissal was not dissatisfaction with her services but, rather, "the incorrect feeling that she had libeled Corderman." He said that the written recommendation President Smith had received from Dr. Gallagher for termination "was gotten merely for show — to build the case against Endress." Smith, he said, "had already made up his mind." He added that, with the exception of Corderman, "I was strictly unimpressed with the testimony of the Brookdale employees. None of it holds up. It is all tailored to support the termination." He put "little stock in any of Smith's testimony."

The conclusions reached were that just cause did not exist for the board's action, and that the dismissal and the termination of the 1974-1975 contract were illegal.

Counsel for Brookdale Community College takes issue with these findings and conclusions and argues that

* * * the evidence upon the whole case, given proper Contextual consideration, affords a sufficient base for a conclusion that the plaintiff was terminated because of her own failure to observe the duties and obligations of her position as advisor and not for the exercise of her right of free expression.

But the scope of our review is clear. It is, of course, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the one who heard the witnesses to judge of their credibility. Close v. Kordulak Bros., 44 N.J. 589, 598-599 (1965); State v. Johnson, 42 N.J. 146, 162 (1964). Our thorough canvass of the record satisfies us that the findings here meet this criterion, and that there was a rational basis for the conclusions stated by the trial judge. Cf. In re Tenure *129 Hearing of Grossman, 127 N.J. Super. 13, 23 (App. Div. 1974), certif. den. 65 N.J. 292 (1974).

It is particularly noteworthy that on the same day that the editorial appeared the president mailed to Professor Endress her new contract and congratulated her on attaining tenure. Moreover, all previous evaluation reports spoke well of her work, especially as advisor to the newspaper. She received praise for achieving "notable success" in "rais[ing] the quality of the college paper." In December 1973 she was called "a dedicated member of the faculty" and was again commended for "[c]ontinuing the quality of the Stall." The tenure recommendation prepared by her dean noted that she "has brought a solid professional background, academically and experientially, to the development of the Journalism program," and that her work as advisor had resulted in the paper's receiving its first award from The Associated Collegiate Press "with marks of distinction in coverage and content."

We discern no sound basis for disturbing the holding below that just cause did not exist for dismissing plaintiff from her employment or for rescinding the 1974-1975 contract.

IV

It is evident that at the time of plaintiff's dismissal only three days remained before the existing contract would have expired. Consequently, the substantial relief adjudged below was that plaintiff was entitled to specific performance of the new contract. Additionally, since plaintiff would thereby have acquired tenure, the trial judge also ordered the college to give plaintiff a contract for the year July 1, 1975 to June 30, 1976, with any concomitant salary increment. He ruled, further, that she was entitled to the sum of $14,141, representing her full salary under the 1974-1975 contract, less the sum of $5,000 earned in outside employment, and also to the payment by the college of all pension or retirement *130 contributions that would have been paid on her behalf during that period.

The college contends that as the employment contract was one which called for the rendering of personal services by plaintiff, specific performance could not be adjudged. It is settled law, of course, as the trial judge here readily acknowledged, that personal service contracts are generally not specifically enforceable affirmatively. Sarokhan v. Fair Lawn Memorial Hospital, Inc., 83 N.J. Super. 127, 133 (App. Div. 1964). See also, Fiedler, Inc. v. Coast Finance Co., Inc., 129 N.J. Eq. 161, 166-167 (E. & A. 1941).

But we held in Katz v. Gloucester Cty. College Bd. of Trustees, 125 N.J. Super. 248, 250 (App. Div. 1973), that it was no longer open to question that a public agency may neither dismiss from employment nor withhold renewal of a contract from a nontenured public employee for a reason or reasons founded upon the exercise of a constitutionally protected right. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Pickering v. Board of Education, supra; Donaldson v. No. Wildwood Bd. of Ed., 65 N.J. 236, 242 (1974); Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579, 583 (1970). Although not clearly articulated below by the trial judge on the dismissal and reinstatement issue, it is thoroughly clear from a reading of the entire opinion that he was of the view, with support in the record, that plaintiff's employment was terminated improperly because of her exercise of First Amendment rights of free speech and press. In such case, the remedy of specific performance is appropriate. In American Ass'n of Univ. Prof. v. Bloomfield College, 136 N.J. Super. 442 (App. Div. 1975), in which we affirmed the trial court's determination that financial exigency was not the bona fide cause for the decision to terminate tenured faculty members, appellants asserted, as they had below, that the remedy of specific performance ran counter to the line of legal precedents *131 denying such relief in cases involving personal service contracts. We found no merit in the argument:

We agree with the trial judge that the general rule is not inflexible and that the power of a court of equity to grant such a remedy depends upon the factual situation involved and the need for that type of remedy in a particular case. See 11 Williston, Contracts, § 1424 at 786. A lack of precedent, or mere novelty, is no obstacle to equitable relief which may be appropriate in a particular fact complex. Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 198 (1961). In view of the uncertainty in admeasuring damages because of the indefinite duration of the contract and the importance of the status of plaintiffs in the milieu of the college teaching profession, it is evident that the remedy of damages at law would not be complete or adequate. See opinion below, 129 N.J. Super. [249], 273 et seq.; Fleischer v. James Drug Stores, 1 N.J. 138 (1948); Mantell v. International Plastic Harmonica Corp., 141 N.J. Eq. 379 (E. & A. 1947); Pomeroy's Equity Jurisprudence (5 ed. 1941), § 1401. The relief granted herein is appropriate to achieve equity and justice. [136 N.J. Super. at 448]

We are entirely satisfied that the trial judge here correctly accorded plaintiff the relief contained in paragraphs one through four of the judgment.

V

We turn to the determination below that the individual defendants (excluding the three who were exonerated) had deprived plaintiff of her constitutional rights in violation of 42 U.S.C.A. § 1983 (Act Apr. 20, 1871, c. 22, § 1), and the assessment of compensatory damages against them jointly and severally in the sum of $10,000, and of punitive damages against each in the sum of $10,000, plus a counsel fee of $10,000.

The cited section of the Federal Code is derived from the Civil Rights Act of 1871 and provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

*132 Although neither the pleadings nor the pretrial order specifically refers to this statute, the 12th count of the complaint clearly invokes it by charging these defendants, "[a]cting under color of the authority conferred upon them by the law of the State of New Jersey, specifically N.J.S.A. 18A:64A-1 et seq.," with adopting and enforcing a policy "which constitutes a violation of the specific civil and property rights of the plaintiff, without due process of law," and with stripping plaintiff of "her academic rank and academic title, and of the status of tenure" pursuant to "this policy of suppressing free speech." These allegations satisfy the requirement that to state a claim under § 1983 a plaintiff must allege deprivation of a constitutional right done under color of state law. Williams v. Gorton, 529 F.2d 668, 670 (9 Cir.1976); Nottelson v. A.O. Smith Corp., 397 F. Supp. 928, 930 (E.D. Wis. 1975).

It is not a matter of dispute that the individual defendants here were acting under color of state law, since the college is a public educational institution established by authority of N.J.S.A. 18A:64-1 through 29. See N.J.A.C. 9:4-1.1. And it is also to be noted that state courts have concurrent jurisdiction with federal courts over civil rights actions. Long v. District of Columbia, 152 U.S. App. D.C. 187, 469 F.2d 927, 937 (D.C. Cir.1972); cf. Gray v. Serruto Builders, Inc., 110 N.J. Super. 297, 301 (Ch. Div. 1970). See also, Travel Agts. Malpractice v. Regal Cultur. Soc., Inc., 118 N.J. Super. 184, 195 (App. Div. 1972), certif. den. 60 N.J. 353 (1972).

In order for us intelligently and fairly to appraise the trial judge's disposition of the civil rights phase of the case, a review of the applicable principles of law is in order.

A

As was said in Laverne v. Corning, 522 F.2d 1144, 1147 (2 Cir.1975), any discussion of qualified immunity, also referred to as the "good-faith defense," must start with the *133 case of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The court there held that in a § 1983 action against police officers for making an unconstitutional arrest, the defense of good faith and probable cause was available to them. Pierson was followed by Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), which involved a § 1983 suit against the governor and National Guard personnel of Ohio stemming from the Kent State shootings in May 1970. The court said that in dealing with higher officers of the executive branch the inquiry is "far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions — is virtually infinite." 416 U.S. at 246, 94 S.Ct. at 1691. Thus,

* * * [t]hese considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. [at 247-248, 94 S.Ct. at 1692]

More in point is the recent case of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), which considered the matter of good-faith immunity as it applied to school administrators and school board members and sought to resolve differing concepts in the lower federal courts of the nature of the immunity in such cases. Observing that liability for every action found subsequently to have been violative of a student's constitutional rights and to have caused compensable injury would unfairly impose upon the school decision maker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties, the court explained:

*134 We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that actions taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity. [at 321, 95 S.Ct. at 1000]

The court said further that the applicable standard of good faith involves both "objective" and "subjective" elements. Thus, while the official must act sincerely and with a belief that he is doing right, ignorance or disregard of settled, indisputable law resulting in a violation of a student's constitutional rights cannot be justified. Id. at 321, 95 S.Ct. 992.

Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. This is not to say that school board members are "charged with predicting the future course of constitutional law." Pierson v. Ray, supra, 386 U.S., at 557, 87 S.Ct. [1213], 1219. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith. [at 322, 95 S.Ct. at 1001]

Although Wood v. Strickland dealt with the individual responsibility of school board members for disciplinary proceedings against students, the immunity standards there discussed are equally applicable to situations, such as the one under review, involving the conduct of administrators and trustees of public institutions of higher learning affecting the rights of faculty members. See Hostrop v. Bd. of Jr. College Dist. No. 515, 523 F.2d 569, 577 (7 Cir.1975), cert. den. 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976); and cf. Shirley v. Chagrin Falls Exempted V.I. *135 Schs. Bd. of Ed., 521 F.2d 1329, 1332 (6 Cir.1975), cert. den. 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317 (1976).

B

With the foregoing principles and standards in mind, we proceed to a scrutiny of the trial judge's resolution of the issues, a task made more onerous by a regrettable absence of meaningful findings of fact in several critical areas. As we said in Reiser v. Simon, 63 N.J. Super. 297, 300-301 (App. Div. 1960), a trial judge must be explicit in his recital of the evidence and in his factual findings and must so correlate them to his legal conclusions that the judgment entered manifestly appears to be undergirded by legal proof of substantial probative value and by specific factual findings thereon. Despite the shortcomings in the trial judge's opinion, we intend, to the fullest extent possible, to make a complete determination of the matter, exercising such original jurisdiction as may be necessary to achieve that end. R. 2:10-5.

The burden was on plaintiff to prove that her discharge from employment was predicated at least in part on her exercise of First Amendment rights. See Roseman v. Indiana, 520 F.2d 1364, 1367 (3 Cir.1975), cert. den. 424 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 329 (1976); Connealy v. Walsh, 412 F. Supp. 146, 154 (W.D. Mo. 1976). She carried that burden. The trial judge here correctly held that plaintiff's comments in the editorial were protected by the First Amendment. And we are also satisfied of the soundness of his conclusion that the decision "not to rehire her was precipitated by the exercise of her First Amendment rights." But while these holdings, quite apart from the due process issue, which pertained to plaintiff's co