A judge has blocked a New Jersey school board’s attempt to subpoena Google for the identity of an anonymous online critic suspected of making public proprietary standardized test materials.
Essex County Superior Court Judge Thomas Vena temporarily restrained the Montclair Board of Education on Thursday at the behest of the American Civil Liberties Union-New Jersey.
The poster—a Montclair parent known only as “assessmentgate”—has been a detractor of the district’s testing program but denies involvement with publication of the materials.
According to court documents and other sources, Montclair educators were set to administer quarterly assessments this year to measure students’ progress in light of new curriculum requirements.
The first round of tests was canceled on Oct. 27, the day before they were to take place, and parents were notified that 14 test documents—stored on a district database and purportedly secured—had been posted on an outside website.
That same day, the anonymous parent created an account on Google’s Gmail (firstname.lastname@example.org), opened Facebook and Twitter accounts, and launched a blog to spark discussion and criticize district officials.
On Nov. 1, the board passed a resolution authorizing its attorney, Mark Tabakin of Weiner Lesniak in Parsippany, to issue subpoenas to locate the breach.
The board said that the culprit was likely a district employee and contended that it needed to gather information in advance of expected disciplinary actions.
Board officials relied on N.J.S.A. 18A:6-19 and -20, which provide that a board of education may “administer oaths to witnesses,” and any party to a dispute may “by subpoena…compel the attendance of witnesses[.]”
On Nov. 7, Tabakin issued a subpoena to Google, demanding the name, address and other identifying information belonging to the registrant of the assessmentgate account “in anticipation of the investigatory hearing[.]”
Google notified the ACLU-NJ that it might comply with the subpoena if no legal action were taken.
The ACLU-NJ asked Tabakin to withdraw the subpoena, but to no avail, and on Wednesday filed a complaint on behalf of assessmentgate—who purportedly has a child in the Montclair schools and claims no past or current employment with the district.
The plaintiff claims that the subpoena flouts free speech rights, which protect anonymous speech, and that the board has alternative ways to identify the person who published the test materials.
The plaintiff also claims violation of privacy rights and illegal search and seizure protections, and contends that identifying information was shared with Google confidentially.
In addition, the plaintiff claims, board subpoena power “only takes effect when there is an actual hearing to take place, and is not for the purpose of gathering information about individuals who make negative comments about” the district.
After a 20-minute hearing Thursday, Vena said the board’s investigation may continue, but he temporarily quashed the subpoena and enjoined issuance of any others that seek to identify the plaintiff.
The judge found there would be significant harm to the plaintiff’s interests if the subpoena were not quashed, and limited harm to the board’s investigation.
Another hearing, on an order to show cause why the permanent relief sought should not be granted, is scheduled for Jan. 9.
The plaintiff seeks to continue to use the pseudonym going forward, which New Jersey courts have allowed litigants to do, the ACLU-NJ argued in a brief.
The board also must answer the complaint, which seeks attorney fees.
ACLU-NJ deputy legal director Jeanne LoCicero appeared for the plaintiff. She says, “My client is an unabashed critic of the Board of Education’s current strategy, but after a close look at all of the posts…there’s no evidence that my client engaged in any wrongful conduct online. We’re confident that when there’s a full hearing on the merits…these subpoenas will be permanently quashed.”
Someone using the email@example.com account responded to a reporter’s email Thursday, saying, “The reason why I chose to post my comments and ideas anonymously was because I was going to be taking a highly critical approach of the Montclair BOE and superintendent, and I was concerned about the possibility of a vindictive response. Given the barrage of subpoenas that their attorney has recently launched against the town’s citizens who have criticized the BOE’s actions…my fears have turned out to be very well founded.”
Weiner Lesniak partners Richard Rudin and Roy Locke Jr. appeared for the board.
Rudin says failure to grant the quash in the early stages would’ve mooted the suit. “I think that’s why the judge felt he was compelled to issue a temporary restraint,” he says, adding the board contends that the tests are administered in compliance with state requirements.
Tabakin issued a written statement saying, “The Montclair Board of Education unequivocally respects individuals’ right to free speech as provided in the First Amendment and has no interest in diminishing any individual’s right to comment anonymously.’
District superintendent Penny MacCormack didn’t return a call, while board president Robin Kulwin did not respond to an email.