Stephanie Siegel v. Sahar Aziz

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1445-23

STEPHANIE SIEGEL,

Complainant-Appellant,

v.

SAHAR AZIZ, WESTFIELD

BOARD OF EDUCATION,

UNION COUNTY,

Respondent-Respondent.

___________________________

Submitted March 4, 2025 – Decided July 7, 2025

Before Judges Susswein and Perez Friscia.

On appeal from the School Ethics Commission, New

Jersey Department of Education, Docket No. C18-23.

Johanna E. Markind (The Deborah Project) and Jerome

M. Marcus (The Deborah Project) of the Pennsylvania

bar, admitted pro hac vice, attorneys for appellant

(Johanna E. Markind and Jerome M. Marcus, on the

briefs).

Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for

respondent Sahar Aziz (Matthew J. Giacobbe, of

counsel and on the brief; Janice V. Arellano, on the

brief).

Matthew J. Platkin, Attorney General, attorney for

respondent School Ethics Commission (Colin Klika,

Deputy Attorney General, on the statement in lieu of

brief).

PER CURIAM

Plaintiff Stephanie Siegel appeals from the December 19, 2023 final

decision by the School Ethics Commission (SEC), granting defendant Sahar

Aziz's motion to dismiss plaintiff's five-count complaint alleging violations of

the School Ethics Act (Act), N.J.S.A. 18A:12-21 to -34. Defendant is a former

member of the Westfield Board of Education. Plaintiff claimed that defendant

made statements on social media that criticized Israel and Zionism. The SEC

found that the statements "did not relate to the business of the [school] Board."

The SEC concluded that plaintiff failed to plead sufficient credible facts to

support a finding that defendant violated N.J.S.A. 18A:12-24.1(e). After

reviewing the record in light of the parties' arguments and governing legal

principles, we affirm.

I.

We presume the parties are familiar with the pertinent facts and procedural

history, which need only be briefly summarized. Defendant was elected and

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sworn in as a member on the Westfield Board of Education in January 2021.

Her term ended in April 2024. Defendant is also a law professor at Rutgers Law

School and her scholarship includes topics such as "Islam, Secularism [and]

Human Rights, religion and race, Critical Race Theory, and Middle Eastern law

and politics."

Plaintiff's allegations focus on a published letter defendant cosigned and

"tweets" attributed to defendant.

On an unknown date, defendant and various professors throughout the

country signed a letter titled "Palestine and Praxis: Scholars for Palestinian

Freedom" (Letter). 1 Plaintiff alleged in her complaint that the Letter advocates,

inter alia, boycotting and imposing sanctions against Israel for its treatment of

Palestinians as well as supporting student activism on university campuses.

On March 15, 2023, defendant "retweeted" a social media post stating,

"Israeli protestors take to streets to safeguard master-race democracy[.] 'The

protestors seek to beautify an Isreal that has always been nothing more than a

predatory settler-colony that grants privileges to Jewish colonists[.]' [-]Joseph

Massad" and included a link to an article from "middleeasteye.net" titled "Israeli

protestors take to streets to safeguard master-race democracy."

1

Neither party provided a copy of the Letter in their appendices.

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On November 30, 2022, defendant retweeted a social media post stating:

Today, @alhaq_org and a coalition of Palestinian

human rights organizations are launching a new

landmark report that reclaims the current discourse on

Israeli apartheid and examines its reality and origin as

an integral part of Israel's settler-colonial regime.

Israeli #apartheid is a tool of Zionist settler

#colonialism. What does this mean & what are the

origins, logic & institutions of Israeli oppression of the

Palestine people as a whole? All of this & more are

discussed in our new report for @alhaq_org [website

link][.]

On February 27, 2023, defendant retweeted a social media message and

website link from the "Center For Security, Race and Rights" which stated

"'[StandWithUs'] interest isn't in student well-being but rather to

slander…Galvanizing racist, anti-#Arab and anti-#Palestinian tropes is not

difficult in a post-911 era. StandWithUs just had to redact every name but mine

and let racism/sexism do its job[.]'" Defendant added her own text, stating

"Vilifying #Arab and/or #Muslim women has become the new strategy of

#Zionist groups. #Islamophobia and #Orientalism is pervasive. For more, read

The #RacialMuslim @BernieSanders @AOD @IlhanMN @RepRashia[.]"

On August 23, 2022, defendant tweeted a website link to an article titled

"She was fired for being publicly pro-Palestine. One year later, no one is

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hirin[g]." Defendant added the text: "[a]thletic trainer was fired from

Philadelphia's Agnes Irwin School for her pro-#Palestine stance."

Based on this alleged conduct, plaintiff filed an ethics complaint with the

SEC against defendant on February 6, 2023, which she amended on March 30.

Plaintiff requested "the [SEC] find and determine that [defendant] has violated

the School Ethics Act and that she be subject to such penalty as provided by the

Act."

On April 26, defendant filed a motion to dismiss in lieu of an answer. On

December 19, the SEC granted defendant's motion to dismiss. The SEC found:

[Defendant's] statements, while controversial and

likely perceived as offensive and hurtful to members of

the [d]istrict's Jewish community as well as to the

Jewish community as a whole, did not relate to the

business of the [b]oard and/or its operations, nor was

there a nexus between the social media page and/or

academic publication to her [b]oard membership.

[Defendant's] social media posts were made from her

personal professional social media account that did not

reference her [b]oard membership. In this

circumstance, where the content of the speech lacks a

connection to the [b]oard, and the posts were from a

private social media account that does not mention or

advertise [defendant's] position on the [b]oard, the lack

of a disclaimer does not render [defendant's] conduct as

being offered in an official capacity and pursuant to her

official duties. Similarly, her participation in [the

Letter] stemmed from her position as a law school

professor, and did not otherwise relate to her [b]oard

membership.

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This appeal followed. To summarize the issues plaintiff raises on appeal,

we reproduce verbatim the point headings from her appeal brief:

POINT I

The agency erroneously interpreted and applied

N.J.S.A. . . . 18:12-24.1(e) in the present case, because:

A. The [SEC decision], distinguishing [IMO]

Leonard 2 by holding that N.J.S.A. . . . 18:12-

24.1(e) is not violated unless a statement

unrelated to an official's legal duties is facially

discriminatory and is targeted at an individual

rather than a group, is a misreading of Leonard

and discriminates against the Israeli and Jewish

communities as targets of discrimination.

B. SEC cases interpreting N.J.S.A. . . . 18A:12-

24.1(e)—on which the [SEC decision] relies—

were decided after Leonard, do not follow

Leonard, do not overrule Leonard, and are

inconsistent with each other and with the

statutory subsection they purport to apply.

1. Aziz v. Nikitinsky 3 wrongly holds that

the content of speech cannot violate

subsection (e) unless it relates to board

business; nevertheless, the Amended

Complaint satisfies this standard.

2

No. EEC C56-19, C57-19, final decision (Nov. 23, 2021).

3

No. EEC C56-22, final decision (Oct. 17, 2022).

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2. The SEC's effort in the Donnerstag

cases4 to impose a "nexus" requirement—

imported from statutory analysis of a

different subsection—on social media

posts before finding a violation of

N.J.S.A. . . . 18A:12-24.1(e) is

inconsistent with the statute as well as with

its own decisions in Aziz v. Nikitinsky and

[IMO] Leonard. It is also inapplicable to

[defendant's] signing of the [Letter].

3. The SEC's decision in Schwartz,5 on

which it also relied below and which

required board action following

[defendant's] biased comments, applied yet

another standard to N.J.S.A. . . . 18A:12-

24.1(e) violations. It too seems designed

for N.J.S.A. . . . 18A:12-24.1(b)

violations, but not subsection (e).

4. SEC decisions under

N.J.S.A. . . . 18A:12-24.1(e) are so

inconsistent that no deference is warranted.

Rather, the SEC should have found that

[plaintiff] had stated a claim under the facts

alleged as well as [defendant's] failure to

use a disclaimer.

C. The SEC erred in holding that [defendant's]

offensive and distasteful comments criticizing

Israel’s existence and policies do not qualify as

private action that may compromise the [b]oard,

4

Donnerstag v. Borawski, No. EEC C20-22, final decision (Aug. 22, 2023);

Donnerstag v. Koenig, No. EEC C19-22, final decision (Aug. 22, 2023).

5

Schwartz v. Abedrabbo, No. EEC C40-21, final decision (Jan. 25, 2022). See

also Schwartz v. Abedrabbo, No. A-2006-21 (App. Div. Oct. 6, 2023).

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especially given the holding of In re Randolph,

101 N.J. 425 (1986), that government has the

right and need to ensure its officials act in a way

that does not interfere with the government’s

ability to provide the services it is supposed to

deliver, even if that requires limiting speech

rights.

In her reply brief, plaintiff further argues:

POINT I

Despite [defendant's] claims to the contrary, the

applicable standard of review here is de novo.

POINT II

Contrary to [defendant's] argument, neither

relationship nor nexus is required to establish a

subsection (e) violation.

POINT III

Even if a relationship to the [s]chool [b]oard were

required, [plaintiff's] complaint must be sustained

because a relationship is clearly present here.

POINT IV

[Defendant] errs in claiming First Amendment insulates

her while failing to explain how her argument is

consistent with the state Supreme Court decision in In

re Randolph.

II.

We begin our analysis by acknowledging the legal principles governing

this appeal. "Judicial review of agency determinations is limited." Allstars Auto

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Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citing Russo

v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). An agency

decision will be upheld unless "there is a clear showing that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in the record." Russo,

206 N.J. at 27 (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "The burden

of demonstrating that the agency's action is arbitrary, capricious, or

unreasonable rests upon the [party] challenging the administrative action."

Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting In re J.S., 431 N.J. Super.

321, 329 (App. Div. 2013)).

Our role in reviewing administrative action is limited to three inquires:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

follow the law;

(2) whether the record contains substantial evidence to

support the findings on which the agency based its

action; and

(3) whether in applying the legislative policies to the

facts, the agency clearly erred in reaching a conclusion

that could not reasonably have been made on a showing

of the relevant factors.

[Allstars Auto Grp., Inc., 234 N.J. at 157 (quoting In re

Stallworth, 208 N.J. 182, 194 (2011)).]

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It bears emphasis that we owe substantial deference to the agency's

decision, even if we would have come to a different decision. In re Herrmann,

192 N.J. at 28-29. However, reviewing courts are not bound by an agency's

interpretation of statute or law. Allstars Auto Grp., Inc., 234 N.J. at 158; see

Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (finding that,

"[a]gencies . . . have no superior ability to resolve purely legal questions, and

that a court is not bound by an agency's determination of a legal issue is well

established"). "Statutory and regulatory construction is a purely legal issue

subject to de novo review." A.B. v. Div. of Med. Assistance & Health Servs.,

407 N.J. Super. 330, 340 (App. Div. 2009).

Turning to the substantive legal principles raised in this appeal, the

Legislature created the School Ethics Act, to "'ensure and preserve public

confidence . . .' in the integrity of elected and appointed members of a district

board of education." N.J.S.A. 6A:28-1.1(a) (quoting N.J.S.A. 18A:12-22(b)).

The Act declares that school board members must "avoid conduct which is in

violation of their public trust or which creates a justifiable impression among

the public that such trust is being violated." N.J.S.A. 18A:12-22(a). The Act

further states that public confidence in school board members is preserved

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through "specific standards to guide [members'] conduct[,]" including the code

of ethics embodied in N.J.S.A. 18A:12-24.1. Ibid.

When a complaint is filed against a school board member for violating the

Act, "the burden of proof shall be on the accusing party to establish factually a

violation of the code." N.J.S.A. 18A:12-29(b). The SEC "shall determine

whether the conduct complained of constitutes a violation of . . . this [A]ct or

the code of ethics, or whether the complaint should be dismissed." N.J.S.A.

18A:12-29(c). If the SEC determines that the board member violated the Act,

they can be subject to "reprimand, censure, suspension, or removal." Ibid.

Subsection (e) of the Code of Ethics provides that: "[the school 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." N.J.S.A. 18A:12-24.1(e). A violation of subsection (e) is shown by

"[f]actual evidence . . . that the [school board member] made personal promises

or took action beyond the scope of [their] duties such that, by its nature, had the

potential to compromise the district board of education or the board of trustees."

N.J.S.A. 6A:28-6.4(a)(5).

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III.

We first address plaintiff's contention that the SEC incorrectly interpreted

N.J.S.A. 18A:12-24.1(e) because the SEC erroneously distinguished Leonard

"by holding that [subsection (e)] is not violated unless a statement unrelated to

an official's legal duties is facially discriminatory and is targeted at an individual

rather than a group." Defendant responds that the SEC was correct in

distinguishing Leonard because that case concerned "facially discriminatory,

hateful, and violent personal attacks" while, here, defendant's statements "were

never personal attacks towards individuals or groups" and instead constitute

"academic discourse."

The SEC reasoned, "[t]he statements at issue in Leonard are not factually

similar to the alleged statements in the present matter. Political speech

criticizing Israel's policies and/or existence, while it may be offensive and

distasteful, is not the same as a personal attack with calls for death." We agree

with the SEC's analysis and conclusion. Leonard is distinguishable from the

present matter. Defendant's posts do not contain threats to the lives of

individuals like the posts in Leonard. Relatedly, defendant's Letter called for

pressuring academic institutions by calling for "[b]oycott, [d]ivestment and

[s]anctions of Israel" as well as "[h]ighlighting Palestinian scholarship."

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Nothing in the Letter contain threats to individuals. We see no basis to disturb

the SEC's determination.

IV.

We next address plaintiff's contention that the SEC erred in finding there

was a nexus requirement and that there was an insufficient connection between

defendant's conduct and her school board position. We see no basis to overturn

the SEC's conclusion that defendant's Letter and social media posts "did not

relate to the business of the [b]oard."

In Aziz v. Nikitinsky, No. EEC C56-22, the SEC provided guidance for

analyzing social media-related ethics violations, stating "the [SEC] would like

to explain the circumstances under which a school official may violate the Act

when utilizing social media." Id. at 7. The SEC specified:

Although social media activity by a school

official can be regarded as action . . . , it is only when

certain competent and credible factual evidence is

proffered therewith that a violation can be

substantiated.

As a general matter, a school official does not

violate the Act merely because [they] engage[] in social

media activity. Instead, the [SEC]'s analysis is guided

by whether a reasonable member of the public could

perceive that the school official is speaking in [their]

official capacity or pursuant to [their] official

duties . . . [which] turns, in large part, on the content of

the speech. If the speech in question has absolutely no

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correlation or relationship to the business of the [b]oard

and/or its operations and, therefore, could not possibly

be regarded as a statement or position on behalf of the

[b]oard (as a body), a school official will not violate the

Act.

[Id. at 7-8 (citations omitted) (emphasis added).]

In August 2023, the SEC issued another final decision building on the

foundation laid in Aziz. In Donnerstag v. Borawski, No. EEC C20-22,6 the

complainant alleged, inter alia, that the school board member violated N.J.S.A.

18A:12-24.1(e) in several posts on her personal Facebook. The posts included

encouraging teaching staff who are part of the local union to form new unions

and labor organizations, equating the treatment of unvaccinated individuals to

the discrimination experienced by Jewish people, opposing the mandatory

COVID vaccines and masking mandates, and referring to gender identity

education as "a sick war on our children" that "we have the power to stop." Id.

at 2-4. Though the Administrative Law Judge found these actions violated

subsection (e), the SEC disagreed and dismissed the complaint. Id. at 2-5.

Substantially relying on Aziz, the SEC determined that there was an

"insufficient nexus between the [board member's social media posts] and her

membership on the [b]oard, such that a reasonable member of the public would

6

The companion case is Donnerstag v. Koenig, No. EEC C19-22.

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not perceive that [the board member] is speaking pursuant to her official duties."

Id. at 4. The SEC explained:

The posts at issue here do not mention [the school board

member]'s membership on the [b]oard nor does she

advertise or rely upon her [b]oard membership when

publishing material on her social media page. In short,

there is no factual evidence that the statements/posts on

her [social media] account were made in her capacity

as a member of the [b]oard, or had the appearance of

being representative of, or attributable to the [b]oard.

The fact that some people may be aware that [the board

member] is a [b]oard member, as they know who she is,

does not result in her private posts becoming in her

official capacity. [The board member] may have used

her [social media] page to reach constituents in her

campaign, but her [social media] page did not make any

reference to the [b]oard nor her membership on the

same and her posts reflect the same positions on which

she previously campaigned and ultimately resulted in

her election onto the [b]oard.

[Ibid. (emphasis added).]

The SEC added that "how school officials conduct themselves outside the scope

of their duties as school officials is best addressed at the time of election. It is

the public, not the [SEC], who ultimately decides which individuals in their

community are best suited to serve their students." Id. at 5.

Turning to the matter before us, the SEC determined that defendant's

posts, "while controversial and likely perceived as offensive and hurtful to

members of the [d]istrict's Jewish community as well as to the Jewish

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community as a whole, did not relate to the business of the [b]oard and/or its

operations, nor was there a nexus between the social media page and/or [the

Letter] to her [b]oard membership." The SEC emphasized that defendant's posts

were made from her personal professional social media account and did not

mention her board membership. Further, the Letter stemmed from defendant's

position as a law professor and "did not otherwise relate to her [b]oard

membership." We see no basis upon which to disturb that conclusion.

V.

Plaintiff next argues the SEC erred in dismissing her complaint because

defendant, as an elected school board member, must be held to a higher standard

of impartiality and fairness than the general public. While we do not dispute

that school board members are held to a higher standard than members of the

general public, we are unpersuaded this principle requires us to overturn the

SEC's decision in this case. As the SEC stated in Aziz, "disagreement with how

a school official conducts [themselves] outside the scope of [their] duties as a

school official is best addressed at the time of election. It is the public, not the

[SEC], who ultimately decides which individual in their community is best

suited to serve their students." No. EEC C56-22 at 9.

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To the extent we have not specifically addressed them, any remaining

arguments raised by plaintiff lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

Affirmed.

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