Why I chose to settle rather than battle with the Montclair BOE

There have been questions from a number of online commenters about why I decided to reach a settlement with the Montclair Board of Education instead of moving forward with our scheduled hearing, in which both sides were to discuss the merits of their positions on January 9 in New Jersey Superior Court. 

Given that the BOE has not a shred of evidence connecting me with the breach of their computer system or the upload of district assessment tests to a rogue website, a positive outcome in the hearing could have been a slam dunk. 

If we were to go to court, I believe that Judge Thomas R. Vena would have quickly seen that the BOE had a very weak case.  The Board has been claiming recently that their barrage of subpoenas weren’t meant to expose any anonymous critics, they simply wanted information that could help their computer breach investigation – but their previous statements in the Montclair media contradict this dubious assertion.  The truth is (and Judge Vena would have recognized this) that they subpoenaed me and others with the sole intent of silencing our negative posts/comments about their non-transparent, dishonest, and harmful actions, as well as our criticisms about superintendent Penny MacCormack’s inept implementation of Common Core State Standards in our schools.

If successful, the case would have been a huge victory for those in Montclair who are vehemently opposed to the Board’s shady antics, but it would also have been a massive loss for the town’s taxpayers, teachers, and students because of the astronomical cost involved.

The BOE’s retained law firm has been billing them up to $240 per hour/attorney for their services, which since the breach occurred in late October, have included:

• costs for serving my subpoena (authorized by Robin Kulwin, BOE president) as well as the BOE-authorized subpoenas of online commenters who have been critical of the actions of the Board and MacCormack
• costs for their (unspecified and so far results-free) IT investigation
• fees for court appearances
• payment for the participation and presence of the Board’s retained attorney at all BOE meetings

Multiply that per-hour rate times an assortment of attorneys (at last count, it was three) times the number of hours that each of these various attorneys have been working on the case, and the price tag is colossal.  If I had allowed the case to go forward, the billing would have continued through and beyond January 9, and the final invoice for the Board’s baseless extralegal mission would have been gargantuan.

I don’t know what the sum total of these frivolous legal expenses will be for 2013, but whatever the tally is, I’m sure that it could have paid for a slew of much needed textbooks.  It would also have covered the cost of reams of copy paper for teachers to use when attempting to process the endless mountain of paperwork that they need to fill out in order to adhere to the stringent guidelines of MacCormack’s “strategic plan”.

The sad part of this entire affair is that barely any of the Board’s legal expenditures were necessary:  if they had simply emailed me in a civil and respectful way when the breach occurred in late October with questions about my knowledge of the incident, I would have answered them.  Also, if the Board had responded to the letter that the ACLU sent to them in November requesting that they withdraw their subpoena from Google because of the fact that I had no involvement with or knowledge of the computer breach, the legal wrangling would have ended quickly.

But our Board was undeterred.  They arrogantly chose to ignore the ACLU’s letter, and - while they may try to spin it otherwise – they did so because they were intent on harassing me until my criticism was crushed.

Interestingly, while Kulwin and the Board have had no problem paying their lawyers to pursue anyone who they’ve deemed suspicious/dangerous, they initially refused to reimburse the ACLU for $230 in court filing fees.  These fees came about because of the BOE’s refusal to respond to the ACLU’s November letter, and were necessary in order for the ACLU to defend my constitutional right of anonymous free speech.  When I told the ACLU that such refusal would be a deal breaker, the Board reluctantly agreed to pay the fees.

The Board’s twisted ethics in this matter is jaw dropping:  paying up to $240 per-lawyer/per-hour times an open-ended number of hours billed from late October through January 9 to harass their critics is just fine, but paying $230 to reimburse the ACLU’s court filing fees – which were forced upon the ACLU in order for them to properly respond to the BOE’s subpoena - was unacceptable.  When the dollars are being provided by the Montclair taxpayers, the Board’s fiscal responsibility and self-restraint are non-issues - and the sky’s the limit for their extralegal obsessions.

Since MacCormack joined the district in November 2012, the BOE hadn’t been told “no” when pursuing their divisive agenda, but December 2013 was a bad month for them:

• Judge Vena told the BOE “no” when they wanted their subpoena against me to be upheld
• the Montclair City Council told them “no” when the BOE requested access to their shared server
• the ACLU told them “no” when the BOE initially refused to pay the ACLU’s filing fees and also when the BOE demanded that all details of our settlement agreement be kept confidential and hidden from the public

With their history of bad behavior, would it have been warranted for Judge Vena to call the Board out on January 9?  Absolutely.  But I didn’t want the taxpayers of Montclair to foot the bill for my very satisfying day in court.

While Robin Kulwin and the BOE may be unbothered by recklessly running up their legal expenses and having the Montclair taxpayers pick up the tab, I am.  And that’s the reason why I chose to settle my case rather than keep the clash raging to a gratifying – yet prohibitively expensive - end.

P.S.  When mentioning the BOE above, I wasn’t referring to Board members David Cummings and Anne Mernin, both of whom have had the strength, integrity, and courage to speak out against the underhanded and destructive actions of their co-members and president.

P.P.S.  I’ve just learned that the BOE has come up with a new way of boosting their legal bill and badgering their critics in the community:  contacting their “Enemies List” directly and asking them what they know about the computer breach.  This is disingenuous and sneaky, since the BOE is well aware that the people who they’re harassing have none of the information that they’re looking for.  Are Kulwin and the BOE frustrated that their legal confrontation with me resolved too quickly?  Or do they have a secret fetish to be taken back to court and verbally spanked by another judge?