ACLU-NJ Civil Liberties Reporter n 4th Quarter 2011

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State agency cites parent’s immigration status in rejection notice to student

W ith her high school career coming to a close, A.Z., a hardworking senior ranked at the top of

her class, had her sights on her next step: college. As part of the application process, A.Z., who was born in the United States, applied for a Tuition Aid Grant from the state’s Higher Education Student Assistance Authority (HESAA).

The authority, established in 1959, provides financial aid for residents wishing to pursue their education beyond high school at a state college or university. In 2009, HESAA doled out $262 million in need-based Tuition Aid Grants to New Jersey students.

On March 19, the state rejected A.Z.’s application, stating she was ineligible for a tuition aid grant because “[her] parents are not legal New Jersey residents.” The student’s mother is an undocumented resident. In addition to being born in the U.S., A.Z. has lived in New Jersey since 1997 and has attended public schools in the state for 13 years.

The ACLU-NJ, which is not releasing her identity to protect her privacy, appealed on her behalf.

“Our client is a hardworking high school student at the top of her class, a native-born U.S. citizen and lifelong New Jersey resident with a promising

future ahead of her,” said Ronald K. Chen of Rutgers Constitutional Litigation Clinic, who is serving as the ACLU-NJ’s cooperating attorney on this appeal. “The state cannot deny her access to higher education simply because of her parents’ immigration status.”

In order to qualify for the funds, the state requires students to demonstrate financial need and be U.S. citizens. The legislation that created the tuition program does not make any stipulations about the immigration status of the parents of student applicants.

HESAA filed a motion to dismiss the appeal, which was denied. On Oct. 24, the ACLU-NJ submitted a brief to the state Appellate Division, asking the court to reverse HESAA’s decision and grant her the assistance she applied for.

“As has been the case with all too many New Jersey children other than A.Z., who have also been denied eligibility by HESAA, they do not dare assert their rights to which they are clearly entitled, for fear of putting their parents at risk” the ACLU-NJ brief states. “Citizen children of undocumented immigrants are therefore becoming one of the ‘groups disfavored by virtue of circumstances beyond their control’ and subject to the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”

State Denies Financial Aid to American Student Jackson Township Agrees to Release Some Crime Records and Meeting MinutesOfficials initially rejected concerned citizen’s request for crime stats

In March, when the Jackson Township police chief presented his budget to the

council, he stated that crime had increased in the Ocean County municipality. Raymond Cattonar, a member of the township’s staffing and budget committee who was present at the meeting, wanted more details about which crimes had increased.

Cattonar filed what he thought would be a routine open records request for the township’s uniform crime reports. The records, which some towns post on their website, tally the number of crimes by category and are used by State Police to document crime statewide.

Instead of getting the records, Cattonar got four months of roadblocks. Cattonar reached out to the ACLU-NJ’s Open Governance Project (OGP), which then contacted the township. After negotiating with the ACLU-NJ, the township still refused to release its uniform crime reports based on conflicting language Jackson’s officials found in the law that made them believe the records are not public.

The township did agree, however, to release other crime statistics for 2011 and post them on its website. The ACLU-NJ is currently working with the state Attorney General’s office to eliminate inconsistencies between the state administrative code and its authorizing statute. The ACLU-NJ is also representing Cattonar before the Government Records Council to force Jackson to release crime statistics for the years 2008 through 2010.

“The town is not what I’d call an open government even though they claim they want to be,” said Cattonar, who became an ACLU-NJ member because of the help he received. “I probably wouldn’t have been able to get the information without (OGP attorney) Bobby Conner’s help.”

As the ACLU-NJ negotiated with township officials, Conner noticed the township’s meeting minutes were not available online. Conner’s open records request for those minutes, submitted in August, revealed that the township had not maintained meeting minutes since December 2010. Conner advised the township that the state Sunshine Law requires municipalities to make meeting minutes available “promptly” after meetings. The township agreed to update and release its meeting minutes.

To learn more about the ACLU-NJ’s Open Governance Project, visit www. aclu-nj.org/opengov

“ the town is not what I’d call an open government even though they claim they want to be.”

ACLU-NJ Releases Report on NJ Police Departments’ Use of Confidential InformantsReport reveals weaknesses and inconsistencies in New Jersey police practices

K athryn Johnston, 92, was home alone in Atlanta one evening when she heard a loud commotion

outside of her door. Alarmed, Johnston grabbed an old pistol she kept handy after living alone for 17 years in a crime-ridden neighborhood. When a group of men barged through her front door, she opened fire.

The men who entered through her door returned fire, firing 39 shots. Her bullet missed. Theirs didn’t. Johnston was struck several times and killed. The men on the other side of the door were police officers, who claimed they were looking for drugs based on a tip from a confidential informant (CI).

Johnston’s tragic death, along with others that were linked to misinformation from police informants, inspired the ACLU-NJ to examine the issue more closely by commissioning two professors at John Jay College of Criminal Justice to explore the use of CIs by police. In June, the ACLU-NJ released its report.

the report concluded:• Without proper regulation, the relationships between

CIs and law enforcement agencies can lead to ethical violations, botched prosecutions, civil liberties violations and loss of life.

• Some departments throughout New Jersey failed to put agreements in writing, circumvented search warrant requirements and used juveniles improperly.

• Many departments’ employees were confused about whether policies about the use of CIs existed, including mandatory protocols issued by the Attorney General.The study’s authors recommended the creation

of uniform policies, written and signed agreements between CIs and police, and approvals from prosecutors before using registered CIs for investigations. In response to reading early drafts of the report, at least three counties — Morris, Salem and Cumberland — have already begun to reform their policies.

The report was the ACLU-NJ’s latest examination of law enforcement’s conduct in the state. In May, the state Attorney General announced changes to the state’s internal affairs policy based on the ACLU-NJ’s recommendations. In September, the ACLU-NJ released a toolkit to guide residents seeking to investigate their local police departments. The toolkit encompasses many of the same steps the ACLU-NJ took in compiling its petition asking the Department of Justice (DOJ) to open an investigation into the Newark Police Department. The DOJ began its investigation in May.

To read the CI report, view the kit and learn more information about the ACLU-NJ’s work in police practices, visit www.aclu-nj.org/policepractices

2 For ACLU-NJ News Updates & Case Reports: www.aclu-nj.org

ACLU-NJ Civil Liberties Reporter n 4th Quarter 2011

ACLU-NJ Board of Trustees 2012 Elections

Jay Gartman I’ve cherished my six years

working on the New Jersey Board of Trustees and would be honored if you’d elect me to provide our affiliate with another three years of tireless support and leadership.

I am a businessman with strong experience in communications, management and finance. I have used these strengths successfully while serving on the following ACLU-NJ committees: Budget & Finance, Development, and Public Relations. My goals on the first two committees have been to provide the professional staff and legal volunteers with the strong financial and organizational foundations they need to perform their jobs. And as a member of the PR Committee, I have worked hard to explain the affiliate’s goals and accomplishments to the public, via our newsletter, speakers bureau and community events. The assault on our civil liberties has never been more threatening, and I want to be a part of that fight.

Deb GustonI am honored to be nominated

for a second term on the Board and to lend my voice to our affiliate’s continued excellence and vigilance in the protection of civil liberties. I am currently a member of the ACLU-

NJ’s Executive Committee and Legal Committee. As a lawyer in Bergen County, I serve a diverse client base and have developed a general practice to meet the needs of New Jersey’s GLBT community, especially in the areas of family law, adoption, estate planning and family protection. I have served as chair of the NJ State Bar Association’s GLBT Rights Section and a member of the Family Law Section’s Executive Committee. I am a former president of the Lesbian & Gay Law Association of Greater NY and a member of the State Bar and ABA’s Individual Rights Sections. I grew up in New Jersey and now reside in Edgewater with my partner of 25 years, Pat.

Gary D. NissenbaumIt has been an honor to serve on the

Board of Trustees of the ACLU-NJ, and I am eager to continue that work. I am convinced that we are living in a period that will be known someday as

having been a particularly dangerous time for civil liberties. As the managing attorney of a commercial law firm with an emphasis in Internet and Intellectual Property law, I constantly advise people about the limits of their First Amendment rights. I am troubled by the general sense in our country that the First Amendment is nothing more than a vehicle for gadflies and contrarians. One of the reasons I am so passionate about the mission of the ACLU-NJ is that our constitutional rights are far more fragile than most of us realize. This organization is the bulwark protecting those rights, and I intend to do whatever I can to support it.

John o’ConnorI enjoy working on the Board and

would welcome the chance to serve again. I have represented ACLU-NJ clients in their successful challenges to discriminatory police practices

and have served on several Board committees, most recently chairing a committee formulating a policy on government surveillance cameras. All too often, on important civic issues it is only the ACLU that presents a rational, principled, and fact-based policy position — one reason that I have been a member since 1971. As a former Assistant U.S. Attorney, I am also especially supportive of the ACLU-NJ’s monitoring of police professionalism and its extensive marshalling of facts to persuade the Justice Department to investigate the practices of the Newark Police. The ACLU guards the rights of all, whether politically left or right, and it can bring that message to all Americans. Of course, framing the message is always crucial, and I would like to help.

Afsheen ShamsiI am honored to be nominated to serve

on the ACLU-NJ Board of Trustees. I am a longtime admirer of the ACLU and have a deep commitment to civil rights issues. Professionally, I worked for a

number of years for the largest Muslim civil liberties organization in the United States. As an advocate, I worked on a number of issues including biased-based bullying and immigrants’ rights. Recently, I started my own business which assists non-profits with fundraising and board development. I have been elected to the Princeton School Board and was also asked to serve on the Princeton Human Services Commission. I have been elected to the Board of the Princeton Community Democratic Organization and serve as the current vice president of the New Jersey chapter of the Council for the Advancement of Muslim Professionals. It would be my great honor and privilege to serve on the Board of Trustees of the ACLU-NJ.

heather taylorI am honored to be nominated to the

ACLU-NJ Board. It would be a privilege to serve. Since graduating from Rutgers University in 2002, my work has focused largely on citizen empowerment in

local government. Over the last nine years I have had the pleasure of working with the ACLU-NJ staff and board members on the New Jersey Foundation for Open Government Board. Together we have worked on protecting access to government records and expanding the “rights to know” about government decision-making. I have always admired the work of the ACLU to preserve and safeguard each individual’s civil rights, no matter their sex, color, religion, or status. As a board member of ACLU-NJ, I hope to bring my experience in grassroots organizing, municipal/state lobbying, social media, and public outreach to make the ACLU an even more powerful voice for the disenfranchised and underrepresented.

barbara VilkomersonWe supporters of the ACLU share a

common commitment to the organization and passion for its mission and goals. I have now served on the Board for almost six years, and feel both privileged and

proud to be part of this wonderful organization. I currently serve on the Executive and Personnel Committees, and chair the Committee on Trustees.

Prior to leaving corporate life, I worked at Educational Testing Service as an Executive Director in the Higher Education Division. My work focus was on strategic planning, business, product development, and program management. Prior board experience has included two elected terms to the South Brunswick Board of Education, Planned Parenthood Association of Mercer County, and the Princeton Adult School.

This coming year ACLU-NJ develops the next three-year cycle of its strategic plan. This is an area of particular interest to me, and one in which I hope to make a substantial contribution.

Lisa WitkowskiIn my role as the Director of Human

Resources for one of New Jersey’s leading social service agencies, I have the unique opportunity to put my commitment to equal rights to the test every day. I am a recognized leader in practice and

policy development affecting employees’ rights to equal treatment in the workplace and community.

Appointed to the ACLU-NJ Board in 2008, I served on the Development Committee, volunteered at the Hudson County Correctional Center registering eligible inmates to be able to vote by absentee ballot if they were detained at the jail on Election Day, and participated in the ACLU Membership Conference in Washington, DC.

As a dedicated supporter of the Major Gifts Campaign to protect civil liberties and individual rights in the future, I welcome the privilege and opportunity to continue and expand my contributions in advancing the important work of the ACLU-NJ as a member of the Board of Trustees.

boARD oF tRUStee CANDIDAteSThe ACLU-NJ Committee on Trustees

presents a slate of eight candidates to fill 10 open positions for three-year terms on the organization’s Board of Trustees. Because this year’s election is uncontested, we are not asking members to submit a ballot. The ACLU-NJ depends on strong, quality leadership and encourages its members to serve on its Board of Trustees. Interested members may contact the ACLU-NJ at 973-642-2086 or email: nominations@aclu-nj.org.

In addition to the official nomination process, any member of the ACLU-NJ can appear on next year’s ballot by gathering signatures of 50 ACLU-NJ members on a petition. Those petitions must be submitted by Sept. 30, 2012.

on march 26, 2012, the ACLU-NJ will host the 10th Annual U.S. Supreme Court briefing, featuring National ACLU Legal Director Steven R. Shapiro.

We will also be unveiling our forthcoming book: On the Frontlines of Freedom: A Chronicle of the First 50 Years of the ACLU of New Jersey

Please save the date and join us at this popular and highly anticipated annual event. On the Frontlines of Freedom examines the first 50 years of the organization’s history and its crucial role in shaping the legal landscape of New Jersey and the nation.

Please contact Jennifer Buurma at 973-854-1735 for book and event sponsorship options.

Save the Date!

Former ACLU-NJ Executive Director Hank di Suvero and then-wife Ramona Ripston allowed reporters to camp out at the ACLU’s offices in Newark during the 1967 rebellion.

Emil Oxfeld, one of the founders of the ACLU-NJ, served as president for 25 years.

ACLU-NJ Civil Liberties Reporter n 4th Quarter 2011

Find the ACLU-NJ on Facebook and twitter: www.facebook.com/aclunj and www.twitter.com/aclunj 3

ACLU-NJ represents organization seeking transparency in the donation

I t’s the $100 million question — where are the records with details about the donation Facebook Chief Executive Mark Zuckerberg made to Newark public

schools last year?In 2010, Zuckerberg, Newark Mayor Cory Booker and New Jersey Gov.

Chris Christie announced with great fanfare on the Oprah Winfrey Show a $100 million donation to Newark’s school system. But in the year that’s followed, the transparency surrounding the gift has not come close to matching its visibility.

On Aug. 23, the Secondary Parent Council (SPC), a group of parents and grandparents of Newark schoolchildren, filed suit against the City after it failed to provide a lawful basis for denying its open records request. SPC had requested correspondence, memos, schedules and any other documentation among a variety of people involved in the gift, to clarify the details of the donation. The request to Newark asked for city officials’ correspondence with Facebook officials, the governor’s office, and the New Jersey Department of Education (DOE).

“As parents, as taxpayers and as citizens, we have a need and right to know how the money pledged to Newark’s public schools will ultimately serve Newark’s public school students,” said Laura Baker, who filed the open records request as a representative of the SPC and has a granddaughter in a Newark public school.

The city stalled, asking for more time to find the documents. But on July 19, three months after Baker filed the request, the city rejected the request, stating

that the communications between Booker and Zuckerberg “were not made in the course of the mayor’s official duties.” The letter also stated, to the extent Booker was exercising his official duties, the documents were subject to executive and deliberative privileges. The state has never recognized executive privilege at the mayoral level.

Booker and a city spokeswoman also stated repeatedly that there were no documents to turn over, but later reversed themselves in several interviews with the media.

“General details of the gift have been revealed in broad strokes, but the overall lack of transparency surrounding a donation this complex is remarkable,” said ACLU-NJ Cooperating Attorney Frank Corrado, of the firm Barry, Corrado, Grassi and Gibson and president of the ACLU-NJ Board of Trustees. “It’s a $100 million deal between a billion-dollar company and the state-run school system in New Jersey’s largest city and according to their responses, no one is keeping any records.”

On Oct. 21, the city filed a motion to dismiss the lawsuit. In its brief, the city refused to release the documents, claiming they are exempt from OPRA because they are deliberative, that the mayor was not acting in his official capacity as mayor in accepting the gift and that the records are shielded by mayoral executive privilege.

In addition to the SPC lawsuit, another ACLU-NJ client the Education Law Center filed an open records request with the state DOE seeking any emails, documents or other correspondence between the agency and the Foundation for Newark’s Future, a nonprofit established to raise matching funds to administer the money. The DOE turned over documents and emails, which included email exchanges between DOE Commissioner Christopher Cerf and Booker on their personal accounts.

The ACLU-NJ emailed the DOE asking that it search the personal email accounts of Cerf and Assistant Commissioner Andrew Smarick for public records. By law, public business conducted on a personal email account is a public record.

For more information about the lawsuit and to read the complaint, visit www.aclu-nj.org/facebook.

Newark Parents to Mayor Booker: Show Us the Documents

mayor Cory booker with Facebook Chief executive mark Zuckerberg.

the investigation of Viki Knox — the Union County high school teacher whose homophobic posts on

her personal Facebook page created a national frenzy — demonstrates just how far we’ve come in the area of civil rights for gays and lesbians. Twenty years ago we were far more likely to see a large protest against a gay history display at school rather than a national outcry condemning a teacher’s prejudice against gays and lesbians.

The school district has acted appropriately by investigating whether Knox’s strongly expressed religious beliefs have seeped into her classroom, as her online comments suggest, or whether her prejudices prevent her from complying with New Jersey’s laws against discrimination and bullying.

The school district also acted appropriately by resisting intense public pressure to fire Knox for airing personal opinions, albeit offensive ones, that she did not expect would go viral. Knox may voice a biased position, but that does not justify the suspension of due process.

It’s a teachable moment from the mistakes of a school teacher, with enough lessons to go around.• Lesson one: teachers have a right to express personal

views, offensive or not, at home, on their own time, without losing their jobs.

• Lesson two: expressing controversial views in public comes with risks.

• Lesson three: teachers have a right to due process if accused of misconduct.

• Lesson four: teachers do not have a right to express discriminatory beliefs or impose their religious views in the classroom.

If Knox has taught discrimination or preached her religious views in the classroom, she will have to face the consequences.

However, those trying to teach Knox a lesson by punishing her for her prejudices rather than helping her shed them could benefit from another lesson, this one

from Dr. Martin Luther King Jr.: When the opportunity presents itself for you to defeat your enemy, that is the time which you must not do it.

Pouring on outrage draws stark battle lines, thwarting any chance of helping Knox open and change her mind. Publicly shaming her and demanding her termination without due process only serves to alienate and delineate sides, teaching a harmful lesson to people who hold beliefs like Knox’s that they should suppress their beliefs, pushing them underground, where they will only intensify.

We lost a prime opportunity to open a dialogue and introduce people who still fear their LGBT neighbors to some of New Jersey’s warm, wonderful, amazing lesbian and gay families. We missed a chance to show Knox and others like her that we have more in common with one another than not.

While it feels unfair to extend an olive branch to someone who unjustly rejects you, you can’t gain new ground in any struggle without building bridges. If anyone would know, it’s Oscar Wilde, a man whose life was destroyed by persecution over his sexual orientation. As he said: Always forgive your enemies — nothing annoys them so much.

Investigation of Teacher Who Made Anti-gay Facebook Comments Yields Lessons for Both Sides

FRom the exeCUtIVe DIReCtoR oF the ACLU-NJ

by DeboRAh JACobSACLU-NJ Executive Director

“ When the opportunity presents itself for you to defeat your enemy, that is the time which you must not do it.”

— Dr. Martin Luther King Jr.

ACLU-NJ Civil Liberties Reporter n 4th Quarter 2011N

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Help the ACLU of New Jersey build a safe and free future by investing in its mission. Defend liberty annually, quarterly, monthly. Make a special 50th anniversary tax deductible gift to the ACLU-NJ Foundation. For more information on how you can give monthly, call us at 973-642-2086. Visit our website to make a gift today: www.aclu-nj.org/donate

Tributes

Tributes are contributions made to honor or remember special friends, family, colleagues and occasions.

To have your tribute appear in the Civil Liberties Reporter, please contact the ACLU-NJ office at: 973-642-2086 or P.O. Box 32159, Newark, NJ 07102.

Civil Liberties ReporterThe ACLU-NJ and the following volunteers contributed to this issue of the Civil Liberties Reporter: Peggy Brooks, Jay Gartman, Sylvia Stengle

Photo credits: Photo of Mark Zuckerberg and Mayor Cory Booker used with permission from Facebook

Published Winter, Spring, Summer and Fall by the American Civil Liberties Union of New Jersey, P.O. Box 32159, Newark, NJ 07102 973-642-2084 n info@aclu-nj.org n www.aclu-nj.orgISSN: 0009-7934

LIGHT THE TORCH OF LIBERTY: For the Next 50 Years

Faces of Liberty:Justin Birdsong, 29, and Chris Perry, 32, Cherry Hill, NJ

A fter dating for two years, Justin Birdsong and Chris Perry decided

they were ready for a more serious commitment. But it was 2008 and the number of states recognizing marriages between same-sex couples was sparse, including their home state of Georgia.

So Birdsong and Perry packed their bags and moved to New Jersey, because it was one of the few states that granted civil unions. The two celebrated a civil union surrounded by friends and family in October 2009.

Around that same time, Birdsong was working as a contractor in the technology department at the national ACLU office in New York. Although Birdsong had heard of the ACLU, he was not aware of the range of the organization’s work. He and Perry became members and donors and have been so ever since.

“While we know the ACLU’s work is sometimes controversial, their institutional values and consistency in using constitutional law as the basis for all litigation and advocacy ensures that they are looking out for the rights of all Americans, not just those whose causes are popular,” said Birdsong.

In September, they entered and won the ACLU-NJ’s “I’m a member of the ACLU, why aren’t you?” photo contest on the ACLU-NJ’s Facebook page.

“We are among those Americans the ACLU serves in New Jersey and across the country and we are proud to be members and donors,” Birdsong said. “We understand that our civil liberties are sacred and that they’re not always safe.”

The two have discovered this firsthand. More than two years ago, Perry was diagnosed with a rare liver disease and is awaiting a liver transplant. In the meantime, as they prepare for the future and medical care for Perry, they have run into hurdles directly resulting from the federal government’s refusal to recognize marriages between same-sex couples. Birdsong is not eligible to take time off to care for Perry under the Family and Medical Leave Act, nor will he be allowed to collect Perry’s Social Security benefits.

“Chris and I have a civil union in New Jersey which on some days feels like a great legal protection and on others, it’s painfully clear the burden of inequality we’re beneath,” said Birdsong. “In some of the most important ways, we remain second-class citizens. It’s something unfortunately that is in our face every day.”

In memory of margarete meyersJoan L. Field

Roger Lee Kenvin

In memory of Sandy LugerEd & Nicki Kessler

Barbara & Bert LenobleArthur & Lynn Miller

Lisa Witkowski Lynn Greenberg & Michael Rothschild

Carol Menza

In memory of Joan ConnerAnonymous

In honor of James KleinNaomi A. & Avi Decter

In memory of Rose A. & Alexander J. borowiczAlexander P. Borowicz

In honor of ellen Samuel and Grayson barber, with gratitude for their many contributions as

ACLU-NJ board membersLisa Witkowski

In memory of Puneet bhandariNarendra C. Bhandari

In memory of Lisa CziffraACLU-NJ Staff and Board

In honor of the ACLU-NJ’s youngest member beckett beebe

ACLU-NJ Staff

Put your IRA to work for the ACLU.2011 is the last year you may take advantage of a “charitable IRA rollover” to support the ACLU Foundation.

If you are 70 ½ or older, you can make a tax free gift of up to $100,000 directly from your individual retirement account to the ACLU Foundation.

Your IRA withdrawal will be free from federal income tax and can count toward your required minimum distribution.

To qualify before this benefit expires, your gift must be completed by December 31, 2011.

to Get Started

visit: www.aclu.org/irarollover

toll-free: 877-422-5888

email: legacy@aclu.org