In a written ruling released on Friday, the New Jersey Appellate Division gave a major letdown to a Jewish woman fighting to put an end to School Board members taking advantage of their publicly funded microphones to air their personal inflammatory anti-Israel and antisemitic rhetoric.
The Clifton Board of Education has a practice at Board meetings of reserving time for "commissioner comments" during which each Board member is permitted time to speak on any issue the member desires.
The Board has a policy, that provides "Board members are entitled to express themselves publicly on any matter," but "cannot, however, express the position of the Board except as expressly authorized." The policy further provides that "a Board member shall not represent his/her personal opinion as the position of the Board and shall include in all formal expressions in which his/her Board affiliation is likely to be recognized, . . . a statement that the opinions expressed do not necessarily represent those of the Board."
During the "commissioner comments" at the Board's May 20, 2021 public meeting which was conducted virtually, members Feras Awwad, Fahim Abedrabbo dedicated the bulk of their remarks to making anti-Israel comments and criticizing Israel over its treatment of the Palestinians.
The two members of the Board made a series of remarks attacking the State of Israel as a creation of “colonialism;" as practicing “apartheid” and guilty of “ethnic cleansing;" as responsible for teaching American police forces how to attack people of color; and as “murdering” Arabs as a matter of official Israeli policy.
Awwad said that American police forces are regularly sent to Israel “to learn and be taught abusive tactics that are brought back to the urban communities. When George Floyd died it was because a police officer decided to put a knee to his neck. He knew to put a knee to his neck and suffocate him. That is an Israeli tactic used on Palestinian people being suffocated to death.”
Abedrabbo spoke of the atrocities occurring all over the world, particularly in the Middle East, and said children should be able to attend school without worrying about whether their homes will be destroyed “or their neighborhoods being ethnically cleansed,” and said he had been humiliated by being detained and strip-searched and having guns pointed at him by Israeli authorities while visiting relatives.
Awwad closed his statement with, ”Free Palestine. Free my people.”
Both Awwad and Abedrabbo stated their remarks were their own. Additionally, the Board's counsel asked each at the end of his statement to reiterate that their comments were their "own personal comments, not comments made on behalf of the Board," which each did.
These statements sparked two-and-a-half hours of heated public comment largely on the Middle East situation at the August 5 meeting by members of the public on both sides of the matter.
Elisabeth Schwartz, a former member of the Englewood Board of Education, filed a Complaint with the New Jersey Department of Education School Ethics Commission, alleging that the Board members comments were antisemitic, dangerous and untruthful, and that these sentiments could be turned against Jewish students.
Ms. Schwartz is the aunt of Ezra Schwartz, an 18-year-old Jewish American yeshiva student who was murdered in a Palestinian terrorist attack in 2015. At the time he was returning with classmates after beautifying a nature preserve dedicated to three Israeli teens killed by terrorists the year before.
This tragedy renders Ms. Schwartz uniquely positioned to convey how school board members’ inflammatory anti-Israel and antisemitic rhetoric against Jews and Israelis in general can lead to inciting hatred within the district.
The Complaint, which sought to have Awwad and Abedrabbo removed from the board, named as respondents Abedrabbo, Awwad, Clifton Board of Education and Passaic County.
Schwartz admitted that at the end of their remarks "they both made it crystal clear that they were not speaking on the Board's behalf." She contended, however, that "by then, the damage was done."
N.J.S.A. 18A:12-24.1 sets forth the "Code of Ethics for School Board Members." Section (e) states that every board member "will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board." Schwartz contended that by their remarks, Awwad and Abedrabbo took "private action that may compromise" the Clifton Board of Education.
Additionally, Schwartz contended that their statements were false and intimidating to people that believe in freedom of women, free speech, judicial due process, LGBTQ rights and religions other than the Muslim religion."
The School Ethics Commission let her down.
While acknowledging Awwad and Abedrabbo's comments were "highly controversial" and "likely perceived as offensive, and hurtful to members of the District's Jewish Community," could not find they violated N.J.S.A. 18A:12-24(e) "because the comments did not result in any action that could compromise the Board."
The Commission stressed the District's policy that "permits Board members to make personal comments on any matter a member sees fit, so long as the member makes clear the opinion does not represent that of the Board," which Awwad and Abedrabbo did.
The Board found Awwad and Abedrabbo's comments "give rise to questions concerning District governance . . . specifically questions concerning the policy itself," a matter outside the Commission's jurisdiction. But the Commission found Awwad's and Abedrabbo's "(controversial and likely offensive) comments, standing alone, do not give rise to a violation of the School Ethics Act."
Let down but unwilling to waiver, Schwartz, represented pro bono by attorneys Jeffrey Schreiber of Meister Seelig & Fein, LLP and Susan B. Tuchman of Zionist Organization of America Center for Law and Justice, appealed to the New Jersey Appellate Division, charging that the pair tried to “hijack” a board meeting to spread “misleading” statements and “lies” about Israel.
The appeal contended principally that the Commission's decision "flouts the objectives of the School Ethics Act to maintain the peoples' confidence and trust," the "Commission erred in effectively endorsing an 'anything goes' policy for Board Members at Board Meetings," and that the premature dismissal of the complaint prevented Schwartz from showing Awwad and Abedrabbo's comments "were false, misleading" and "antisemitic, potentially compromising public trust in the Board" and "cannot be reconciled with its decision censuring a school board member for conduct that posed far less risk to the public trust."
Judges Accurso, Vernoia and Natali have now issued a major let down, writing, "our review of the record convinces us that none of these issues has any merit."
Our role in reviewing the decision of an administrative agency is limited. We are bound to sustain the "agency's final quasi-judicial decision . . . unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Russo v. Bd. of Trs., Police and Firemen's Ret. Sys.
We agree with the Commission that whether it is a wise policy that allows Board Members to stand up at Board meetings and comment on any issue, even those unrelated to the mission of the Board, especially as it may entice members to air their political views on unrelated and controversial topics about which many people have understandably strong - and divergent - feelings, is not before us.
But when an official Board policy allows members to do just that at a public Board Meeting, so long as they make clear they are expressing their own views and not speaking on behalf of the Board, as Awwad and Abedrabbo did, we agree with the Commission's analysis that their statements simply can't be characterized as private action that could compromise the Board in violation of the School Ethics Law.
Attorneys Stephen R. Fogarty and Jaime F. Demjanick Esq. of Fogarty & Hara represented Abedrabbo, Feras Awwad, Clifton Board of Education and Passaic County.
Deputy Attorney General Erin Herlihy represented the School Ethics Commission.
Several organizations filed briefs in the case as amicus curiae (friends of the court).
Attorney Jane J. Felton Esq. of Skoloff & Wolfe, PC, represented The Lawfare Project.
Attorneys Ronald D. Coleman, Lori Lowenthal Marcus, and Jerome M. Marcus Esq. of Dhillon Law Group, Inc. represented The Deborah Project.
"These two speakers utilized the publicly funded microphone available to them as School Board members to convey their own views on these issues under a School Board policy that allows Board Members to use their board member status to speak publicly at board meetings on any issue they wish, even if - as in this case - it is completely unrelated to any School Board business, so long as all actual School Board business has been completed. This Court should hold that, as applied, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 5 of the New Jersey Constitution, are breached by the School Board policy of allowing School Board members to use the publicly funded microphone and podium of a School Board meeting to speak on views that have nothing to do with School Board issues," the attorneys wrote in their briefs.
"When they delivered these remarks, the speakers did not initially identify them as their own personal views. A School Board staff member prompted them to do so, and they then invoked this claim," the attorneys additionally highlighted.
Moreover, the attorneys cited an earlier decision made by the Commission regarding remarks made by a school board member who, on his own private Facebook page, criticized two Muslim members of Congress, Rashida Tlaib and Ilhan Omar, calling them “terrorists.” No statement was made about Muslims generally. Still, the Commission found these statements violative of Section 18A:12-24.1(e), concluding that the school board member’s conduct in making such comments constitutes conduct that undermined the public’s trust in the Board and compromised the Board’s ability to engage with the public. As ALJ Pelios discussed, “Respondent’s post had the potential to discourage members of the public, namely members of the Muslim community¨ to engage with the Board “given what may seem to be an apparent bias.”
"For these comments about two individual Muslims, no requirement was imposed that the comments result in formal action by the school board. Instead, a violation of the law was established by the mere “potential” that the post might “discourage members of the public, namely members of the Muslim community,” from being able to fully and freely “engage with the board ‘given what may seem to be an apparent bias.”
"Here, by sharp contrast, the bias against Jews is not only indisputable: it is undisputed on this record. And we are not talking about the mere “potential” that someone might be hurt or fearful: the Commission found as a fact that the remarks at issue in this case are “likely perceived as offensive and hurtful to members of the District’s Jewish community," the attorneys argued.
Attorney Steven W. Rabitz Esq. of Dechert LLP represented StandWithUs.
Attorney Abed Awad Esq. of Awad & Khoury represented The American-Arab Anti-Discrimination Committee.
Eighteen months later, in November 2022, Abedrabbo sought a seat on the City Council. Residents did not forget his earlier critical comments. He lost the election.
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