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ACLU-NJ: Subpoenas Issued by Montclair BOE Violate Freedom of Speech

Subpoenas issued as part of investigation into leaked assessments.

The Montclair Board of Education appointed attorney Mark Tabakin to conduct the investigation into leaked assessments. Photo credit: Teresa Akersten
The Montclair Board of Education appointed attorney Mark Tabakin to conduct the investigation into leaked assessments. Photo credit: Teresa Akersten

The American Civil Liberties Union of New Jersey (ACLU-NJ) has filed a complaint and will appear before an Essex County Superior Court judge Thursday seeking a temporary order to quash a subpoena the Montclair Board of Education issued to Google to learn the identity of an online poster who has been critical of the district.

The subpoena to Google was issued on Nov. 7 as part of an investigation into a security breach that led to more than a dozen student assessments appearing on a public website in October days before they were to be administered. 

The ACLU-NJ is representing the anonymous poster, who goes by the username “Assessmentgate” and has a gmail address which was used to create Facebook and Twitter accounts under that moniker. The ACLU-NJ’s client created a blog on this website and has posted multiple critical blogs about the district.

“Assessmentgate” claims no connection to the leaked assessments and says the gmail address was created before learning about the security breach.

“They have no justification for believing our client is responsible for the security breach, other than the fact that our client has been vocally critical of assessment exams,” said Jeanne LoCicero, deputy legal director for the ACLU-NJ. “Speculation and unsubstantiated beliefs can’t outweigh a person’s right to speak anonymously. Regardless of where you stand on the assessment exams, we should all respect the constitutional right to free speech.”

The board of education also issued a subpoena to the editor-in-chief of the community website BaristaKids, seeking the identity of and contact information for its client and three other anonymous critics, according to the ACLU-NJ.

The ACLU-NJ is asking the Essex County Superior Court to block the Google subpoena and to stop the district from issuing subpoenas that seek to uncover the identity of “Assessmentgate.”

The organization, which advocates for individual’s rights, argues the subpoenas are unconstitutional because the board of education does not have the legal authority to issue subpoenas unless it is conducting a hearing regarding a school law dispute. It further argues that the subpoenas violate the well-established right to anonymous speech and to privacy.

“The Board of Education and Superintendent have shown they will stop at nothing to silence dissent by any means necessary, including ignoring citizens’ rights to free speech,” said “Assessmentgate,” the ACLU-NJ client. “If we can’t trust them to operate honestly and to abide by the law, how can we trust them to do what’s best for our district and our children’s education?”

Udi Ofer, executive director of the ACLU-NJ, said the Montclair BOE has overstepped its boundaries. 

“The board cannot legally issue subpoenas as part of a fishing expedition and target people who have simply been critical of its policies," Ofer said. "The use of a pseudonym to engage in political debate is part of a rich historical tradition, and the Constitution protects the rights of our client in this case.”

The 14 exams were available to teachers and administrators from a password-protected portal and were discovered on GoBookee.org days before they were to be administered.


Brian Ford December 04, 2013 at 08:00 PM
I'm appalled and ashamed to work for this BOE.
Mara Novak December 04, 2013 at 08:38 PM
This is outrageous.
QBY33 December 04, 2013 at 09:56 PM
When is this town and our mayor going to hold this BOE responsible for the mayhem ? I just don't get it. I hope the next BOE meeting (Dec. 16 th) is packed with tax payers demanding answers as to exactly how their tax dollars are being spent on this lawyer hired by the BOE.
Rachael Egan December 04, 2013 at 10:42 PM
Shocking. We need to elect our BOE people in future, and then hold them to better standards than this. Why is Penny MacCormack still employed in Montclair NJ?
Melinda December 04, 2013 at 11:21 PM
Horrendous. Last time I checked, we still had a Bill of Rights in this country. This is a witch hunt. But it's also a teachable moment when we show our kids we will stand up against those who try to curtail our civil liberties.
Montclair Public December 05, 2013 at 12:31 AM
Mayor Jackson, is this a standard of behavior you approve of?
Laurie Orosz December 05, 2013 at 01:09 AM
Perhaps Montclair resident and Christie's Education Commisioner Chris Cerf can explain why MacCormack is still employed in Montclair. If you are unaware of their prior connection and mutual affiliation with the Broad Academy I recommend you do some research.
Assessment Gate December 05, 2013 at 05:41 AM
A few points here: 1. It will be interesting to see where the community (especially the BOE's supporters) lines up on this issue, and also if the Mayor finally realizes that his BOE needs to be both supervised, reprimanded, and possibly replaced. 2. Though the BOE’s unlawful and Nixonian actions are likely being dictated by a few, and all of the board members may not have been aware of these actions, THEY ARE NOW. If they choose to be silent on the matter, then they’re complicit as well. 3. Something that seems to escape the BOE and MacCormack: if they were transparent, honest, and truly sought to include valuable community/teacher feedback in their implementation of the “strategic plan”, I (and all of our community's commenters/bloggers) would have NOTHING TO WRITE ABOUT!!!
Montclair Public December 05, 2013 at 07:25 AM
Spoton, you miss the point but only by a few miles. does merely being a critic make one a suspect?. sounds a little McCarthyist to me. also sounds as if the big investigation -- with your taxpayer $ (how much? for how long) is essentially going nowhere. so now they want to out people who merely anonymously bitch on these boards? oh, and by the way, they are also going after Mr. Cummings, the one board member with the courage to question their tactics publicly. the 60s may be over but when did you wake up with the idea that dissent is not allowed? if that's progressive, then i'm the hacker/leaker
Spotontarget December 05, 2013 at 07:28 AM
Why do some liberals always go off the deep end and make the rest of us progressives look like whiners and wimps? This is not a free speech issue. There are multiple, possibly criminal impacts here. Just because you don't agree with a government policy -- even a bad one - doesn't mean you have the right to ruin hundreds of thousands of dollars in public tax expenditures allocated for the policy. The testing came through a system that we supported. We elected representatives who then appointed people (our neighbors) who then hired this Superintendent. So the way to address a bad policy is politically and legally. Demand the Mayor get rid of the BOE appointees who support the superintendent's policies; threaten to recall the mayor if he backs it...tell the press and the superintendent she's totally wrong....handled it wrong and that unless the policy changes - she will be gone politically at the end of her contract. File a formal suit because she apparently doesn't live in NJ. as she is supposed to under the law. Whatever... But posting the tests as was done is outright theft of services (or whatever technical charge is designated). It's immoral behavior. The Mayor was right to call it as such. We can not have chaos and mayhem in a democracy. This is not the way our kids should see how to handle political disagreements. And those who intentionally ruined the tests should be prosecuted - whoever they are. The only thing wrong here is that perhaps technically - the ACLU is correct. Maybe the BOE does not have legal authority to subpoena and conduct an investigation. Instead, that should be done by the district attorney in conjunction with a special prosecutor. Grow up Montclair. The 60's are over. Use your 60's freedom mindset with a 21st century -- been there done that sensibility
Melinda December 05, 2013 at 07:35 AM
No, spotontarget, the BOE does not have the right to persecute people who post their opinions on a public forum. Their opinions have NOTHING to do with whoever posted the assessments online. This is an attempt to quash dissent and it is not going to work because it is infuriating many of us. Our children will learn from this about how to stand up to those who would take away our rights. And, yes, petitioning the Mayor to remove these people or get removed himself, should and will be pursued.
Clark son December 05, 2013 at 07:46 AM
My goodness. I don't think I want my daughter going to a school district with a Board that operates like this. I just don't understand who they think they are. Wow.
Spotontarget December 05, 2013 at 07:52 AM
Read my comments carefully. I agree the BOE is the not the party who should be conducting the investigation and should not have subpoena authority. That should be the district attorney looking for the poster of the assessments. Will they also find out who are the main "dissenters" - yes. But that's not their charge and the D.A. is prevented by law from revealing that information. So to be clear - the investigation is correct. The wrong party is conducting it.
Laurie Orosz December 05, 2013 at 08:03 AM
What we actually need to do is write to the Essex County State School Board Association and the State sSchool Boards Association to express our concerns. They are the ones who oversee the BOE. And of course the Mayor.
Montclair Public December 05, 2013 at 10:14 AM
How about if the super/BOE just admits it didn't properly secure the tests, we move on and save a few hundred thousand dollars that might be better used on, you know, education and they get it right next time? just the way the board moved on without investigating the super after she improperly promoted principals, etc...
I'd-Rather-Be-at-63 December 05, 2013 at 10:24 AM
@Spotontarget Again you miss the broad side of the barn spraying a shotgun full of confusion. In fact, what you say that "some liberals" should do if they object to the pestiferous and even apparently illegal behavior of Superintendent Penny Elizabeth MacCormack, Robin Kulwin and the gang she leads on the Board of Education, and Mark A. Tabakin. Not all of the aggressive actions you recommend have yet been undertaken, but these things take time. Where you are wrong is that the "fear investigation" being carried out by the Board of Education and its two-bit lawyer is wholly unlawful. This was pointed out on Baristakids immediately after the investigation was announced. Robin Kulwin and gang then, with the help of a comical lawyer, sent a rebuttal to say it was legal pointing to the article that indeed shows it is illegal. Again they were told it was wrong, and again they persisted. Whatever problems you may have with liberals or right-wingers or radicals or treehuggers has little to nothing to do with what is at stake here. Everyone in Montclair has been violated by the illegal actions of this BoE regarding an abuse of public office and the violation of constitutional rights. Beyond this (though it is hard to know which is worse), the education of Montclair's children has been so radically corrupted in one year's time that it is difficult to see, even if it is stopped now, how it can be corrected in five years time. The longer this school district leadership persists, the more grave the damage will be to the children's education. And let's be clear: From the very beginning of assessmentgate, those who were critical of Superintendent MacCormack and the Board of Education have been calling for a legitimate and full investigation. We need to be aware that the the Montclair School District contains highly sensitive and personal information regarding children and families as well as employees and other parties. As long as we do not know where the failure was in Superintendent MacCormack's data security systems, we can have no confidence that further sensitive and confidential information has not been leaked or will not be leaked tomorrow or next week. The cover-up and personal reprisal "investigation" of the BoE only blocks the possibility of finding out the real manner in which the assessments came to be posted on the Internet. This fake investigation needs to be halted immediately, the cowboy lawyer fired, the School Superintendent fired, and the BoE resign. And then a full independent investigation should be pursued that includes the former Superintendent MacCormack, the former BoE members and anyone else believed who may have been involved, beginning with the obvious GoBookee.org
I'd-Rather-Be-at-63 December 05, 2013 at 11:39 AM
@Montclair Public So you are proposing "business as usual." No one takes responsibility, no one is accountable, and breaking the law is just fine if it is done by those who hold public office? Wonderful. This is what we teach our children. This is education in Montclair. The entire town can get in an uproar if a child tags a derelict building with a spray can. Fine, we agree, that is wrong. But if a group of politically appointed adults misuse their public office, together with a lawyer who misuses his privilege of being an officer of the court, to attack constitutional rights and civil liberties . . . well, let's all put our heads in the sand and go back to being above the law. It is a shame. The same people who are breaking the law are also deciding education policy for the children. Think about it.
tryintosurvive December 05, 2013 at 12:36 PM
So there we have it. In case you missed it. Those who support the BOE and the superintendent are against free speech, the Bill of Rights and the American way of life. We are still checking on mom, apple pie and baseball. Stay tuned.
Spotontarget December 05, 2013 at 12:48 PM
How does that appointed School Board system look to you now? By majority, the town agreed to this system. The Mayor appoints the school board members - now up to 4 of the total group; the board members hire and fire the Superintendent, and the hired Super makes and implements policy decisions with the board's fiscal sign-off - this one for a wider testing process following a 6 month listening tour. That's democracy. So stop whining that the "system" is failed. It's what everyone voted for even if you don't like the immediate results. The problem is someone didn't like it enough to waste hundreds of thousands of dollars of public monies and trashed the work undertaken to date. And that is what's really wrong and what's important. This is the act which should be investigated, not worry about dissenters and opposition to the BOE policies. The person who broke the law should be identified and punished. So this free speech issue is now a sideshow, and should not be used to cover up the need to find out who committed a crime. What's off is that the incorrect agency is conducting the investigation. It should be the District Attorney, not the BOE. A district attorney is not concerned about public dissent. Only illegality. They won't care who posts on blogs or writes dissents about the policy when issuing subpoenas. It's the criminal act which is of issue and they are obligated legally to keep innocent names out of the public eye, as part of any investigation - even if they do review on-line posts in the process to isolate the criminal act. So if handled legally and correctly, you have nothing to worry about. You can keep your alter ego posting and trash your neighbor who happens to be on the Board. No one will ever know. It is correct to conduct an investigation. But the wrong party is now doing the work. The fix: get the DA involved right now. Appoint the same board attorney as special prosecutor or hired investigator; make sure they don't reveal names of individuals writing posts who didn't like Board members or the Superintendent -- and find out who broke the law. Conduct a real criminal investigation. Let's put the free speech issue to the side where it belongs and find out who wasted hundreds of thousands of dollars of your tax dollars - even if you don't like the way it was being used.
I'd-Rather-Be-at-63 December 05, 2013 at 12:50 PM
@tryintosurvive You so often miss the point. While you supported Superintendent MacCormack and the BoE, others opposed what they were doing to education in Montclair. No one ever suggested that those who supported the School District's leadership should have their fundamental rights violated. What you do not understand is that the unlawful actions of these people is as much an attack on you and others that supported the School Superintendent and the BoE. Whether you post anonymously (as you do) or not, this was an attack on free speech and democracy in Montclair. One can understand that you might fail to understand the Common Core and assessments, but do you really fail to understand when unlawful people attack your fundamental rights? You happen to be lucky now to be on the side of those in power (and abusing power). Suppose that these same people opposed the Common Core and assessments, then you would have found yourself in the same position as Assessmentgate and others who voiced criticism. Not everything in the world is about us and them; there are some common causes. Perhaps reflect a bit more then next time before posting comments intended to ridicule others but only in the end ridicule yourself.
Phil Elberg December 05, 2013 at 02:33 PM
This back and forth raises a troubling issue, at least to me, which is the extent to which debate about significant public issues is driven by anonymous posters. The court will decide the law with respect to whether the subpoena was legally issued and whether Google etc. had to comply. That is a separate question as is the question of who posted the disputed tests. My concern is the habit of citizens of expressing strong opinions in a variety of forums including this one without providing their names so that the value of their opinions can be considered in the context of their interest in the issue. It matters whether a poster on an issue like this one is associated with a particular corporate interest, a union or otherwise has a stake in the outcome of a debate. It seems to me that a "fear of retaliation" in this society and this town is not real and certainly not a good enough reason to post anonymously and it seems to me that insulting people and demanding that they be fired or forced out of positions while insisting on anonymity is both cowardly and immature.
Pete Mock December 05, 2013 at 03:29 PM
OMG, I can't believe what I'm reading here. This is shameful. Whatever you might think of the Common Core, the assessments, or any of the educational issues of substance we've been debating, people have the right to speak their minds openly. This has zero to do with getting to the truth about leaked assessments and everything to do with silencing criticism. What arrogance! Did they not realize the crap storm this would create? Did they not think this would outrage people? This is the kind of thing that gets people on their feet, like with protest signs and t-shirts. They should expect a full house and a late night at the next BOE meeting. Anyone taking odds for the Super's resignation date?
Spotontarget December 05, 2013 at 03:45 PM
While the above position is morally on point, in a small town, it doesn't really work. Better to follow this edict: The truth shall set them free.... -BIBLICAL PARAPHRASE. Where it comes from, is not as important.
Pete Mock December 05, 2013 at 05:05 PM
Phil, I use my real name on the patch, but I use a pseudonym when I post in other venues. It allows a level of honesty and candor that I find essential for a meaningful discussion. I'm glad you don't fear retribution in this local setting, but for some of us that fear is very real, not only for ourselves, but for family and friends. You may not know it until you experience it, but it is real. I don't post insults or accusations, and I think those types of comments should not be allowed and should be deleted by the moderator. Since I post on a regular basis on those forums I am a known quantity and people know where I'm coming from, so the fear of me being a shill or representing hidden interests is not an issue. I guess what I'm saying is that I respect your view, but many of us have our reasons to post anonymously and I hope you can understand where we're coming from and appreciate what we have to say regardless of the signature.
I'd-Rather-Be-at-63 December 05, 2013 at 05:20 PM
The subpoena's have been temporarily stayed and quashed. Next hearing January 9th. Assessmentgate is winning for the good of Montclair's education and for the good of freedom of speech in this country. The struggle for what is right and good is not over. It promises to cost the Montclair taxpayer an enormous amount of money to be on the losing side. I do not know if "Phil Elberg" is a real person's name or not. Supposing it is, I know nothing about who that person is. It does not matter. Indeed, not knowing improves our ability to focus on what "Phil Elberg" says and not who he is. What "Phil Elberg" seems to have missed is that "fear of retaliation" is alive and well in Montclair, promoted by unlawful acts of the BoE, its lawyer, and statements by Superintendent MacCormack and Mayor Jackson. According to the attorney who brought (and won today) the case in Superior Court, the actions of the BoE would mean that Assessmentgate would be "irreparably harmed by the release of his identity." Indeed the entire community is harmed by unlawful activity. Perhaps "Phil Elberg" is not well acquainted with what happens in current and past regimes where fear and suspicion are used to control people. Even the Montclair Board of Education has admitted that its own meetings lead to "fear of retaliation" among those who speak. They have now extended this fear into the community beyond their meetings. Whether or not "Phil Elberg" is him/herself "cowardly and immature" or not has no bearing on the fact that his/her argument is weak and plainly out of touch with reality. It certainly does not lead to the moral high ground.
I'd-Rather-Be-at-63 December 05, 2013 at 05:28 PM
@spotontarget Again, missing the broad side of the barn. The fact is it was the Montclair Board of Education and their cowboy lawyer, Mark A Tabakin that have made free speech in this an issue. And they have done so by violating the law. Again, everyone has been crying for a correct investigation from the start, and many have been objecting to this witch hunt and cover up. A correct investigation is not how you describe it, and certainly not one where a rogue lawyer is appointed as special prosecutor. You seem only to want to move from corruption to more corruption. They have broken the law, and they now need to answer for it and take their proper responsibility. They don't even have today the dignity to resign. And again you don't even understand really what happened with the assessments or how GoBookee.org works: "The problem is someone didn't like it enough to waste hundreds of thousands of dollars of public monies and trashed the work undertaken to date." The only someone needing to be investigated is Superintendent MacCormack who is responsible for the security of the school district's data and sensitive information. Since we know that BoE members had access to the documents, they should also be part of the investigation. The investigation would work more smoothly, efficiently and independently if these people were no longer in office. So, yes, let's solve the problem and hold those who broke the law, regarding the assessments and regarding the witch hunt, accountable.


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