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

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.