Teaneck man sues board of ed
Keith Kaplan alleges his rights were violated in board’s response to October 7 letter
Keith Kaplan of Teaneck is suing the township’s Board of Education. The complaint, which also names a number of former and current board members and the district superintendent, was filed last week in the United States District Court for the District of New Jersey.
It alleges that the board violated Mr. Kaplan’s First Amendment rights at its October 18, 2023, meeting, when members of the board interrupted him while he spoke during the public comment period and prevented him from using the entire three-minute period allocated to each speaker.
After the October 7 Hamas attack in Israel, the board of education’s superintendent, Andre Spencer, disseminated a public letter referring to it as “the latest incidents in the cycle of violence in the Middle East,” and recognizing “the fear, grief, and pain that our community is experiencing.” According to the complaint, many meeting attendees, including Mr. Kaplan, criticized the letter during the public comment period, while other attendees expressed support. The complaint alleges that the board interrupted Mr. Kaplan three times during his comment calling for a revised statement and that it “repeatedly cut off commenters who described Hamas’s actions to underscore why they found Superintendent Spencer’s statement an inadequate condemnation of the October 7th Attack, citing a purported decorum rule banning use of ‘graphic language.’” The filing further alleges that the board “refrained from cutting off speakers who used similar, if not identical, ‘graphic language’ while expressing” support for the letter or criticizing it for not sufficiently acknowledging the plight of Palestinians. The complaint goes on to characterize this as “selective enforcement of purported public comment rules against speakers based on their viewpoints” and to allege that the board “maintained an informal policy, practice, or custom of selectively enforcing ‘decorum,’ ‘graphic language,’ and similar vague and overbroad restrictions in a manner that disproportionately targeted speakers who criticize District officials and policies, while permitting similar language when used by speakers expressing favored viewpoints.”
The complaint also says that “Mr. Kaplan’s comments did not constitute true threats, incitement, obscenity, or otherwise unprotected speech” and “were relevant to matters before the board, were delivered during the allotted public-comment period, and within the three-minute assigned time limit.”
The filing further alleges that some of the board’s published policies relating to public comment at its meetings violate the First Amendment because they “include vague and subjective terms such as ‘decorum,’ ‘disruptive,’ ‘abusive,’ inflammatory,’ vulgar,’ and ‘graphic language,’” and therefore “fail to provide sufficient clarity to speakers” and “fail to meaningfully constrain enforcement discretion.”
Mr. Kaplan did not file the suit immediately after the meeting. “I tried working with the board,” he said. He alerted the board to the alleged constitutional issues during the public comment time at subsequent board meetings, he added. He also reached out to the Foundation for Individual Rights and Expression, a nonpartisan nonprofit dedicated to defending freedom of speech, according to its website, www.fire.org.
FIRE sent the board a series of letters explaining the constitutional issues with the board’s policies and enforcement practices and citing relevant case law. “The First Amendment protects Teaneck parents and citizens when they speak during public comment periods at Board meetings,” the first letter, dated November 27, 2023, says. “… [T]he Board may restrict the content of commenters’ speech only when those restrictions are viewpoint-neutral and reasonable in light of the forum’s purpose. For example, the Board has the authority to cap the amount of time reserved for each public comment and to limit public comment to ‘any school or school district issue that a member of the public feels may be of concern to the residents of the school district.’ But by enforcing vague ‘decorum’ rules, the Board inhibits the ‘free flow of ideas and opinions on matters of public interest and concern’ that lies at ‘the heart of the First Amendment,’ and in doing so exceeds constitutional limits on the Board’s authority.
“While the Teaneck Board of Education is authorized to stop disruptive conduct — such as speakers going over time or persistently speaking on issues wholly unrelated to the school district — it cannot lawfully stretch the meaning of ‘disruptive’ to censor or remove speakers based on subjective judgments that their remarks are inappropriate or disrespectful,” the letter concludes. It then “calls on the Teaneck Board of Education to bring its public comment policies in line with the First Amendment, and to ensure constituents are free to comment at Board meetings without facing unconstitutional censorship” and offers to “work with the Board to ensure its policies and practices meet these criteria.”
“I like to think that the board is doing its best to ensure that the rights of citizens and members of the community are being respected,” Mr. Kaplan said. But the board did not accept FIRE’s offer to help bring its policies and practices into constitutional compliance, he continued, and when the statute of limitations was approaching and he did not see “tangible improvements,” he filed the lawsuit. These types of actions and policies “have very chilling effects on speech,” he said. “And at the end of the day, there are real people affected by this. There are kids going to the schools who are scared. They don’t feel that people have their backs, and they see that even adults are being taken to task and being subject to a lot of these rules by the school board.”
Mark H. Zitomer, the board’s attorney, disagrees. “The lawsuit is meritless and the defendants intend to vigorously defend this matter,” Mr. Zitomer wrote in an email in response to an emailed request for comment. “The Teaneck Board of Education and its officials deeply value the First Amendment rights of residents and community members to participate in public meetings and to be heard on matters of public concern. At the same time, the Board, like all public bodies, has the right and the responsibility to maintain reasonable order and decorum at its meetings so that all members of the public may participate in an orderly and productive manner.”
Mr. Kaplan has been active in township affairs for a long time. He served on its town council from 2018 to 2022; attends most township council and board of education meetings, either in person or on Zoom; and often speaks during the public comment sessions, he said. He also reports on local issues in his online publication, www.TeaneckToday.com, and in the Teaneck Today Facebook group. Mr. Kaplan thinks it’s important for people to be involved. Residents can make “a huge impact,” he said. Each person can make the town “a little better.”
This is not the first time that Mr. Kaplan has taken the board to task. In 2024, he sued it, alleging that a vote at its December 21, 2023, meeting to transfer the principal of Teaneck High School to a different role was invalid. His argument was that the vote was not valid because the notice provided to the public about the meeting did not satisfy the requirements of the Open Public Meetings Act, the New Jersey law governing public entity meetings. Superior Court Judge Carol Novey Catuogno agreed with Mr. Kaplan that the board had not provided proper notice for the meeting and that the vote was therefore invalid. She also gave the board the opportunity to remedy the situation by holding a legal vote within 70 days. A few weeks later, the board voted again to make the same transfer, this time at a properly noticed meeting.
So while Mr. Kaplan won the case, the outcome of the personnel change remained the same. But Mr. Kaplan sees that case as a win. It incentivizes board members to ensure that future meetings comply with the law, he said.
He hopes that the complaint he just filed will result in “some actual progress in changing the way that they do business,” he said. That it will result in meetings complying with the Constitution and in all viewpoints having an equal opportunity to be heard.
And, he said, he hopes that the township is a little better off for his efforts.