In a hearing before Administrative Law Judge Joseph A. Ascione on Monday November 30, 2020, Piscataway School Board Vice President Nitang Patel invoked his Fifth Amendment right against self-incrimination, refusing to even take the stand in his own defense.

The hearing, attended by over thirty community members, stemmed from a complaint filed before the School Ethics Commission by Dr. Atif Nazir, also of Piscataway. The Complaint alleged that Mr. Patel had violated the School Board Member Code of Ethics by lending his name, photograph, and signature with “Board of Education” printed under it, to a partisan political flyer that was circulated during the 2019 Democratic Primary Elections.

The flyer, printed in English on one side and translated into Gujarati on the other, targeted residents of Indian origin, including those of Gujarati origin, in Piscataway. Among other things, it claimed that the Piscataway Democrats were “…being challenged by a radical group under the leadership of Atif Nazir that wants to take over our township government.” Dr. Nazir was not running for office in the 2019 Primary, nor did he hold a leadership position in any group that was involved in that campaign. Dr. Nazir objected to the characterization of him as a radical and said that he believed the inflammatory language of the flyer was Islamophobic and meant to spark divisiveness between the Hindu and Muslim communities of Piscataway.

The Complaint alleged violations of multiple sections of the School Ethics Act. While acknowledging that Mr. Patel did not surrender his rights to free speech as a member of the School Board, the Complaint noted previous Advisory Opinions and Decisions of the School Ethics Commission detailing how School Board members must include disclaimers that they are not speaking on behalf of the Board, so as to avoid running afoul of the provisions of the Ethics Act. The Act also states that School Board members have a responsibility to provide accurate information and not take actions that would undermine public confidence in the Board, nor take any private action that may compromise the Board, nor act on behalf of special or partisan political groups.

In refusing to take the stand in his own defense, Mr. Patel appeared to be persuaded by warnings given by Judge Ascione that anything he said could be used against him in future proceedings if the Plaintiff were to pursue action in criminal court under Hate Crime legislation. The Plaintiff’s attorneys made clear that they never used the terminology Hate Crime during today’s hearing, and simply tried to include testimony and evidence – which was ultimately not permitted to be included in today’s hearing – that would go to the severity of how the Board was compromised as a result of the divisive flier. Plaintiff’s counsel also prevailed upon the Court that Mr. Patel should raise his Fifth Amendment defense in response to each question, and not simply invoke a blanket defense to avoid taking the stand all together. There had been no prior mention of Mr. Patel’s taking the Fifth to avoid self-incrimination, including in his thin responses to discovery requests which mostly provided “do not recall” in response to questions about the origin, creation, signage, and distribution of the flyer.

Mr. Patel‘s pleading of the Fifth Amendment effectively brought to a close a hearing that spanned multiple hours, as the Plaintiff’s attorneys sought to introduce witnesses who could describe the impact the circulation of the flyer had on the community, in addition to calling New Jersey State Senator Bob Smith to testify regarding the origins of the flyer since the flyer contained language stating that it was “Paid for by the Election Fund of Senator Bob Smith.” Although Senator Smith had been served with a subpoena to testify, the subpoena was non-binding in an Administrative Law case, and Senator Smith declined to appear.

Only the Plaintiff’s witnesses ultimately took the stand: a young Gujarati woman who received the flyer at her home and discussed it with her parents and her peers at school, and a young Muslim man who testified that the flyer caused him and his family to be fearful and silent in light of the rise of Islamophobia in the nation. The witnesses’ testimony regarding the impact of the flier on their communities and among their student peers over whom the Board of Education presides was deemed not relevant, and their testimony was cut short as a result.

Both sides will now have time to submit written closing arguments to Judge Ascione prior to a final determination being made on the Complaint. Dr. Nazir’s legal action is being supported by Council on American-Islamic Relations, NJ (CAIR-NJ) and the Central Jersey Progressive Democrats. Counsel for Dr. Nazir are Nina Rossi, Esq. of CAIR-NJ and Yael Bromberg, Esq. of Bromberg Law LLC.

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