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Judge Blocks School Board Subpoena Seeking Identity of Anonymous Blogger

Montclair Board of Education sought identity of "Assessmentgate" as part of investigation into leaked tests.

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

Update: Montclair School Board response.

Correction: This article originally stated that Montclair School Board Member Shelley Lombard was issued a subpoena. While information was requested of her as part of the investigation, she had not been subpoenaed. 

An Essex County Superior Court Judge on Thursday temporarily quashed subpoenas issued by the Montclair Board of Education which would uncover the identity of "Assessmentgate," the pseudonym of an online poster who has been critical of the school board and the school district's administration. 

The American Civil Liberties Union of New Jersey representing “Assessmentgate” filed a complaint against the school board earlier this week claiming exposing the identity of their client would cause irreparable harm and violate free speech rights.

The ACLU-NJ also argues the subpoenas are unconstitutional saying the school board does not have the legal authority to issue subpoenas unless it is conducting a hearing regarding a school law dispute. 

Jeanne LoCicero, an attorney for the ACLU-NJ, said the board of education has limited authority and does not have a right to seek this information. But even if they did, LoCicero said, it is still a matter of freedom of speech.

“The New Jersey constitution protects the rights of everyone to engage in anonymous speech,” Jeanne LoCicero, an attorney for the ACLU-NJ said. “We have the right to speak on matters of public concern and to do so anonymously.”

The subpoenas were issued as part of an investigation into a security breach of a password-protected teacher portal in October. The breach led to more than a dozen student assessments appearing on a public website just days before they were to be administered. 

The assessments created to comply with new Common Core State Standards have been the subject of tension between the school board and superintendent and a contingent of teachers, parents and local residents. 

ACLU-NJ claims their client played no role in the leaking of the assessments.

Requests for comment to the Montclair Board Education were not returned by Thursday afternoon. (Update: Montclair School Board response.)

One subpoena was issued to Google because “Assessmentgate” uses a gmail account to blog anonymously on this website, as well as to post on Facebook and Twitter. Another was issued to the editor-in-chief of the community website BaristaKids, where “Assessmentgate” has left negative comments about both the school board and the administration.

In his order Thursday, Superior Court Judge Thomas R. Vena asked both sides to return to court on Jan. 9 to make their cases.

"We believe they should come forward with sufficient evidence justifying the need for the information," LoCicero said.

Montclair Board of Education member Shelly Lombard said while she was not issued a subpoena she supplied the information that was requested of her, including emails.

"There are some people who think this is a witch hunt and it’s a waste time," Lombard said. "I get the sense that some people are unhappy that we are investigating."

Lombard said while she didn't know exactly who has been issued subpoenas, she said she supported the investigation because of the nature of the security breach.

“It’s our responsibility to investigate this because this is a theft — just as if somebody broke into our schools and stole hundreds of thousands of dollars worth of computer equipment.”

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Brian Ford December 05, 2013 at 05:11 PM
"I get the sense that some people are unhappy that we are investigating." ??? has she lost her mind?? does she really think that is what the opposition is about?? i mean the BOE policies sure show they are out of touch with reality and what sound education is, but this comment reflects an unmooring of one's tether to this planet...
Spotontarget December 05, 2013 at 05:26 PM
A sideshow as I've said before. Let's do this right. Let the D.A. investigate - not the BOE. Posting the tests was potentially a criminal act that wasted hundreds of thousands of dollars of public tax dollars. The issue is not about anonymous criticism of the BOE - it's about who broke the law. Let the right people investigate and do it correctly. As to the issue of the testing policy itself, again let's not mix our metaphors. Use the political channels available given the appointed board system which the majority of Montclair voted to maintain. You can't have your cake and eat it too. An appointed BOE generated this policy path and that's the system the majority of residents supported. Demand different appointments and policies from the Mayor and Board if you are unhappy. Substantiating the theft of the tests in any way is a very bad "civil disobedience" example for our kids.
Latifah December 05, 2013 at 05:37 PM
It is a witch hunt, Shelly, to see if the anonymous posters are teachers or other staff. This has nothing to do with posted assessments, but to stop dissent and criticism in the district. Why are you and your BOE cronies so focused on a district employee, and not a hacker or technology breakdown? Your school staffs, administrators, parents, and representatives are tired of you and BOE's attempts to desteoy a well functioning school system. It is time for you to move on to your next assignment.
Glenfield Dad December 05, 2013 at 05:41 PM
If Shelly really believes that this is a theft, similar to stealing school computers, then let the police handle the matter instead of paying legal fees with money that should be used to buy text books.
dherron December 05, 2013 at 06:10 PM
Let me see if I have this straight. First of all, I was there in the courtroom this morning. No one from the BOE appeared. So, let me see if I understand Shelly’s comments. She now claims that she also “was issued a subpoena and supplied the information that was requested of her, including emails.” Subpoenas are issued to compel one to answer questions and provide information. If Shelly was issued a subpoena, why was subpoena not included in the court documents? No such subpoenas were listed in this mornings hearing. Justice Vena asked that specific question, “were there any other subpoenas,” to which the attorney for the BOE answered no, there weren’t. In the TRO issued by Justice Vena, he ordered that the Defendant (MBOE) provide within 24 hours all subpoenas authorized by MBOE’s resolution dated November 1, 2013 that have been issued. My question, if Shelly was issued a subpoena, why was it not included with all the other subpoenas? When was Shelly issued a subpoena, and when did she supply the requested information, including emails? It sure wasn’t included in any of the court documents this morning. We'll see. Did I mention I was in court this morning?
CAMeyer December 05, 2013 at 06:11 PM
It's not as if law enforcement authorities have been kept in the dark about this episode. If the posting of the tests as alleged is in fact possibly a criminal act, then law enforcement can investigate, identify suspects, and arrest them. However, as it stands this is a personnel matter, and the BOE is racking up God knows how much in legal and other charges in hopes of identifying and firing the bad actor or actors. Whether or not it was wrong or harmful for someone to purposely release those tests, if that's what happened, this investigation is an enormous waste of money that could be spent more wisely on any number of things. If the standardized tests are so damned sacrosanct, next time the central office can take the effort to better secure them.
Montclair's Own December 05, 2013 at 06:43 PM
I'd love for someone to ask Mrs. Lombard her opinion on how Dr. McCormack and Gail Clarke's information got online too. What's the explanation for that? Where's the Patch asking any of these questions? Where is ANYONE asking the question of how they can point the finger at anonymous bloggers and supposed theft when their own documents are also on the phising website.
I'd-Rather-Be-at-63 December 05, 2013 at 07:24 PM
So if what dherron says is true, either Shelly Lombard is lying about having been issued a subpoena or the attorneys for the Montclair Board of Education have lied to a Superior Court judge. Spotontarget is wrong: the illegal investigation and witch hunting of the Board of Education and their attorneys is not a sideshow, and neither is the abuse of power and attempt to damage others. These are serious, extremely serious examples of bad if not criminal behavior and they need to be fully addressed. They will be. As Assessmentgate pointed out previously in a blog here, we have no way to know if sensitive and/or personal information from the school district does not continue to leak out of the districts computers. Superintendent Penny Elizabeth MacCormack is responsible.

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