Newark School District Agrees to Release Records to Parents Group

April 14, 2014
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Newark Public Schools shared interim reports on schools with outside organization but refused to give access to parents’ group and other members of public

NEWARK – The ACLU-NJ has reached a successful settlement on behalf of a Newark parents’ group whose request for records from the Newark Public Schools was denied by the district. The Secondary Parents Council (SPC) filed suit on Nov. 7, 2013, after Newark Public Schools denied them records that it had previously shared with a private education foundation, the Foundation for Newark’s Future. Under the agreement, SPC will receive the records it requested.

“Our open government laws guarantee access for the public, not just for members of the public who can pay for the privilege,” said Laura Baker, president emeritus of SPC. “Investing in your child’s future shouldn’t require actual payment, but the Foundation for Newark’s Future had special access to public records precisely because of its financial relationship to the schools. We’re pleased to finally be able to see these records, but it shouldn’t take a lawsuit to get Newark Public Schools to follow the state’s transparency laws.”

The settlement, signed on April 9, stipulates that SPC, and by extension the rest of the public, have access to the interim reports previously shared with the Foundation for Newark’s Future through email attachments.

The Newark Public Schools rejected SPC’s request for records, claiming the documents were deliberative. However, the ACLU-NJ contended that, under the state’s Open Public Records Act, the school district waived any right to conceal the documents from the public when it shared the documents with the Foundation for Newark’s Future.

“While the records at issue may have been confidential intra-agency records at some point, once a government agency willingly discloses records to an outside group, the agency waives any confidentiality to which they may have been entitled,” stated Lawrence Reicher of Dechert, LLP, who represented SPC on behalf of the ACLU-NJ.

The interim reports contained school performance data on testing and information related to the teachers’ contract with the district.

“When it comes to public records, officials don’t get to choose which members of the public can have access and which can’t,” said ACLU-NJ Legal Director Ed Barocas. “A document is either public or not. The administration cannot give favored groups access to records and then claim those records are confidential when groups outside the inner circle request the same documents.”

This lawsuit is one of many concerning transparency with regard to partnerships between the Newark Public Schools and private organizations, much of it stemming from the donation pledged by Facebook Chief Executive Mark Zuckerberg in 2010.

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ACLU-NJ Receives Librarians’ Open Government Watchdog Award

March 14, 2014
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American Library Association honors ACLU-NJ’s Open Governance Project with Eileen Cooke Award

WASHINGTON, D.C. -- The American Civil Liberties Union of New Jersey’s Open Governance Project today received the American Library Association’s Eileen Cooke Award in recognition of its commitment to the free flow of information. The Eileen Cooke Award, named for the former director of the ALA Washington Office, honors grassroots advocates fighting for the freedom of information with the passion of its namesake. The Cooke award, given on Freedom of Information Day, is the state and local version of the ALA’s James Madison Award, which honors the pursuit of transparency on a national level.

“The recognition of our open government work from the American Library Association, one of the most passionate, most effective defenders of the public’s right to know, comes as an enormous honor,” said ACLU-NJ Legal Director Edward Barocas. “The ALA and the ACLU have both worked not only to protect the public’s right to know, but also to fight against government surveillance and censorship. We at the ACLU-NJ hope that our future efforts to strengthen the role of public participation continue to uphold the ALA’s legacy of securing accountability and transparency.”

Since its 2009 inception, the ACLU-NJ’s Open Governance Project has distinguished itself as a leading government watchdog in New Jersey. In the five years since the program’s start, the organization has won scores of lawsuits and successfully fought for access to information when government officials took pains to shield records and access from the public. Most recently, the ACLU-NJ called for more transparency at the Port Authority and in the Christie administration in the wake of the Bridgegate scandal.

In 2012, the Open Governance Project wrested details from former Newark Mayor Cory Booker about the $100 million pledge Facebook Chief Executive Mark Zuckerberg made to Newark’s schools after a protracted tug-of-war. The project has compelled New Jersey Governor Chris Christie to share his calendar with the public to reveal details about meetings with Fox News Chief Roger Ailes, vindicated members of the public wrongly excluded from public meetings, ensured changes to regulations that had created broad exemptions to the Open Public Records Act, and aided in securing meaningful standards for public notice of government meetings, among dozens of other victories large and small.

"We thank the American Civil Liberties Union of New Jersey for their commitment to improving government transparency, and we are proud to recognize the organization with the prestigious Eileen Cooke Award," said Barbara Stripling, president of the American Library Association.

The awards ceremony takes place at the Newseum in Washington, D.C., as part of the ALA’s National Freedom of Information Day Conference. Past recipients of the Eileen Cooke Award for openness advocacy on the state and local level include Patricia Glass Schuman, founder of Neal-Schuman Publishers, and the Minnesota Coalition on Open Government. Recipients of the national version of the Eileen Cooke Award, the James Madison Award, include Internet freedom pioneer Aaron Swartz, the Center for Responsibility and Ethics in Washington, former Wisconsin Senator Russ Feingold and philanthropist George Soros.

ACLU-NJ Calls Upon State Officials to Address Transparency

January 13, 2014
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ACLU-NJ requests new Port Authority policies and questions the use of personal emails and texts to conduct public business

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) is asking the Christie administration (183k PDF) to take action to require public employees to use their government-issued email accounts to conduct public business and to maintain any emails or texts sent from personal accounts as government records in the event an employee leaves their position.

Additionally, the ACLU-NJ is calling for the New Jersey Legislature and Governor Chris Christie’s administration to work with New York officials to enact legislation subjecting the Port Authority of New York and New Jersey (PANYNJ) to the same open records and open meetings requirements by which all public governing bodies in New Jersey are bound.

The requests were made in a letter sent to the administration today in the wake of records released about the closure of several lanes connecting Fort Lee to the George Washington Bridge in September.

“We need to shine a strong light on public officials to ensure an open, transparent government that the public can trust,” said Ed Barocas, ACLU-NJ legal director. “An open, transparent government is a cornerstone of democracy. When public officials conduct business on private email accounts or via text messages, it lessens accountability and causes likely breaches of laws and regulations.”

The ACLU-NJ is calling on the state Attorney General to issue a formal opinion, as well as regulations, requiring that government employees use their government email addresses for all public business whenever possible, and clarifying that records custodians must have access to any private emails or text messages relating to public business. If any correspondence takes place on private accounts, it must be printed out or turned over to the records custodian immediately and retained as a government record. The ACLU-NJ is also raising concerns about access to personal emails and text messages once an employee leaves public office, such as the case with Gov. Chris Christie’s former deputy chief of staff, Bridget Anne Kelly. Documents released by the legislature indicate that Kelly and former Port Authority official David Wildstein traded correspondence about the lane closures from their personal email accounts. Both Kelly and Wildstein are no longer public employees.

“No matter where one stands on the George Washington Bridge lane closure controversy, we should all agree that we cannot allow a culture of secrecy to fester in our government,” said Udi Ofer, executive director of the ACLU-NJ. “It is time to make the Port Authority of New York and New Jersey more transparent and accountable to the public and to prohibit the use of private emails and texts when conducting government business.”

The ACLU-NJ addressed similar concerns about private emails when, in 2012, it discovered that then-Mayor Cory Booker, Commissioner of the Department of Education Christopher Cerf and others corresponded about public business using private accounts. The ACLU-NJ successfully sued to obtain emails that then-Mayor Booker sent from his private email account.

The ACLU-NJ also calls upon the legislature and Christie administration to work with other states to bring any bi-state agency in line with open records and meetings regulations that apply to New Jersey’s municipalities and school boards. This would give the public equal access to documents they can obtain from other boards and the opportunity to seek a court review of a rejection of a document request.

“New Jersey should work with its other relevant sister states to ensure that all bi-state agencies are subject to the same robust transparency requirements,” the ACLU-NJ letter states. “Failure to do so will almost guarantee that the PANYNJ and similar multistate agencies will be permitted to operate in a culture of secrecy that is harmful to democratic governance.”

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Civil Liberties Groups Challenge State Funding of Religious Ministries

June 24, 2013
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State’s actions violate the NJ Constitution and Law Against Discrimination

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ), the national ACLU and Americans United for Separation of Church and State filed a lawsuit today to stop the state of New Jersey from awarding more than $11 million in taxpayer funds to two higher education institutions dedicated solely to religious training and instruction.

The groups also filed a petition asking the court to immediately prevent the state from doling out grants to those two institutions, Beth Medrash Govoha and Princeton Theological Seminary.

“We support freedom of religion; however the government has no business funding religious ministries,” said Ed Barocas, legal director of the ACLU of New Jersey. “Taxpayers should not foot the bill to train clergy or provide religious instruction, but the state is attempting to do exactly that.”

Gloria Schor Andersen and Rev. Craig Hirshberg

Gloria Schor Andersen and Rev. Craig Hirshberg

On April 29, New Jersey Gov. Chris Christie’s administration released a list of 176 college construction projects it intends to aid with money from a voter-approved bond. The New Jersey Constitution forbids any such taxpayer funds from supporting ministries or places of worship.

Yet Beth Medrash Govoha, an orthodox Jewish rabbinical school in Lakewood, is slated to receive $10.6 million from the state to pay for the construction of a new library and academic center. All courses of study at Beth Medrash Govoha are classified as “Theology/Theological Studies” or “Talmudic Studies.” The school prepares students to become rabbis and religious educators.

Similarly, Princeton Theological Seminary, a Presbyterian Christian seminary located in Princeton, is slated to receive $645,323 from the state. All courses of study at the seminary either prepare students to serve as ministers or priests in Christian religious traditions or to serve as religious educators. The New Jersey Secretary of Higher Education’s website identifies the school as a “theological institution.”

“Taxpayers should not be forced to pay for the training of clergy,” said Alex J. Luchenitser, associate legal director of Americans United for Separation of Church and State. “These grants plainly violate the separation of church and state enshrined in the New Jersey Constitution.”

Giving public money to Beth Medrash Govoha also violates the New Jersey Law Against Discrimination. The school is identified in federal records as a single-sex school with only male students. According to state records, its entire student body of 6,538 students was all-male in 2012, and all 79 members of its faculty were male during 2011.

“The state of New Jersey has an important role to play in providing financial support for institutions of higher learning in our state, but public money should not be used to fund schools that are not open and welcoming to all students in New Jersey ,” said Udi Ofer, executive director of the ACLU of New Jersey. “State funding of higher education should not be done at the expense of the separation of church and state.”

The lawsuit was filed in Superior Court in Trenton. The plaintiffs in the case are the ACLU-NJ, the Unitarian Universalist Legislative Ministry of New Jersey (UULMNJ) and Gloria Schor Andersen, a Voorhees Township resident who has been a public-school and a Hebrew School teacher/tutor. Andersen is also Speaker-at-Large for the Delaware Valley Chapter of Americans United for Separation of Church and State.

“As a member of the clergy, I recognize the important responsibility that faith groups have in training their next generation of leaders,” said the Rev. Craig Hirshberg, executive director of UULMNJ. “However, their religious studies should not be funded by taxpayers. When the government financially supports religious groups, it provides privileges to particular religions over others and diverts designated public funds away from programs that should benefit all citizens.”

The Legislature has until June 28 to reject the grants. Some lawmakers have raised similar concerns about funding religious ministries and pressed the state for more information about its selection process.

In addition to the lawsuit, the ACLU-NJ has filed several open records requests with the state to learn more about the nature of the schools receiving funding and how the grants were awarded. The state failed to release scoring sheets and other records documenting how it determined who should receive the grants.

“These grants fly in the face of important state safeguards that protect the religious liberty of all New Jersey taxpayers,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.

Along with Barocas, Luchenitser, and Mach, the attorneys representing the plaintiffs include Frank Corrado of Barry, Corrado & Grassi, P.C.; Lenora Lapidus and Mie Lewis of the ACLU Women’s Rights Project; and Ayesha Khan, legal director of Americans United.

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State Denies ACLU-NJ Request for Information on Religious School Funding

June 6, 2013
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ACLU-NJ sought information on higher education institutions that applied for aid amid concerns that taxpayer dollars funded religious institutions

NEWARK – The state of New Jersey has denied a request (131k PDF) by the American Civil Liberties Union of New Jersey (ACLU-NJ) to release the applications of all higher education institutions that applied for public funding for construction projects, stating that if the information were made public, it would “give an advantage to competitors or bidders.” The ACLU-NJ filed the requests to learn more about the nature of the schools receiving funding, and in particular to determine whether Gov. Chris Christie’s administration violated the divide between church and state.

“New Jersey has an important interest in supporting higher education in the state, but it cannot be done at the expense of the separation of church and state,” said ACLU-NJ Executive Director Udi Ofer. “Public money should not be used to fund religious schools or institutions that may discriminate. Yet both appear to be happening under Gov. Christie’s proposal.”

“The state’s rationale for refusing to release the applications we requested makes no sense. The application process is already closed, so there would be no advantage or disadvantage in releasing these records,” Ofer added.

The state also failed to release scoring sheets and other records documenting how New Jersey Higher Education determined whether schools were eligible for funds and how much they should receive.

In May, the state released a list of 176 college building projects it selected to receive state grants from a voter-approved bond. The ACLU-NJ and state lawmakers have pressed New Jersey Higher Education to shed light on the criteria it used to select projects to fund. The ACLU-NJ is concerned that at least two of the institutions on the list, Beth Medrash Govoha and Princeton Theological Seminary, exist with the primary mission of training sectarian religious leaders and may be discriminatory in their polices or practices.

Beth Medrash Govoha, an Orthodox yeshiva in Lakewood, received $10.6 million. According to New Jersey Higher Education, Beth Medrash Govoha is a rabbinical school. Princeton Theological Seminary, which trains male and female Christian ministers, received $645,313.

The state legislature can reject the list within 60 days of its release.

On May 8, the ACLU-NJ filed a request under the Open Public Records Act (OPRA) for the applications of all private schools that received funding. It filed a separate request for the guidelines and parameters the state used in determining the grant amounts.

The state released to the ACLU-NJ only broad guidelines, which allow for great discretion in selecting how much each project receives.

On May 10, the ACLU-NJ filed a third OPRA request seeking all applications, scoring sheets and all correspondence between New Jersey Higher Education and representatives from each applicant. The state asked to extend the deadline for that request to June 24. The ACLU-NJ agreed to give the state more time to locate emails and other correspondence, but asked the state to release the scoring sheets by May 31. The state failed to meet that deadline.

“It’s extremely troubling that Gov. Christie’s administration expects the legislature to rubber stamp this list without answering any questions about how these schools were selected,” said ACLU-NJ Legal Director Edward Barocas. “The legislature should reject the funding until these serious public concerns are addressed.”

ACLU-NJ Seeks Information About Public Funds for Private Religious Schools

May 8, 2013
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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) filed a public records request today seeking the parameters and guidelines Gov. Chris Christie’s administration used in determining which school construction projects to fund using taxpayer dollars.

The Christie administration this week released a list of private and public universities it intends to help using money from a voter-approved bond. The list included private religious schools, such as Beth Medrash Govoha, an all-male, orthodox Jewish rabbinical school in Lakewood and Princeton Theological Seminary, which trains male and female Christian ministers.

“State funding of some of these projects raises constitutional concerns that must be addressed,” said ACLU-NJ Executive Director Udi Ofer. “The legislature should reject this funding proposal until Gov. Christie sheds more light on the criteria the state used in selecting which schools and projects to fund, and assures the public that government funding is not used to support programs that discriminate.”

Beth Medrash Govoha received $10.6 million to build a new library and academic center and Princeton Theological Seminary received $645,313 to improve the technology infrastructure of its library and other technological projects.

In addition to asking the state to provide the guidelines it used in making its funding decision, the ACLU-NJ is also seeking any applications the private institutions submitted to the state requesting the money.

ACLU-NJ Calls for More Public Input into Sandy Relief Plans and Equitable Allocation of Resources

March 20, 2013
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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) and the Rutgers Constitutional Litigation Clinic submitted a letter to the state Department of Community Affairs (DCA) yesterday, asking it to be more transparent and to include opportunities for public input in its plans to disburse federal funds for Hurricane Sandy relief.

They also called for a thorough assessment of the special needs of low and moderate income households and communities of color created by Sandy, as well as the effect of planning decisions on those communities, as required by the regulations governing disbursement of federal disaster relief funds.

The DCA released a draft of its plan to the public on March 13, but only gave the public seven days to review or submit comments on the plan. But the state did not schedule any public hearings on the plan, nor does it have a strategy to include public input in the future.

“This plan will have a long-lasting impact on New Jersey residents across the state, and across economic, racial and ethnic lines,” said Udi Ofer, executive director of the ACLU-NJ. “The public has a vested interest in reviewing the plan thoroughly and providing its input on decisions that will affect them. Any plan must also consider the disproportionate hardship imposed upon economically disadvantaged communities. We all share collective responsibility for the reconstruction and rehabilitation of communities affected by natural disasters.”

Ronald K. Chen of the Rutgers Constitutional Litigation Clinic, said he recognizes that time is critical in making sure that relief is distributed to help those in need.

“On balance, asking for additional time for the public to review the plan would not seriously impair the interest to help New Jersey residents and provide relief,” said Chen. “This is an enormous undertaking and we all share the goal of developing a plan that is sustainable and boosts the long-term viability of the state.

The ACLU-NJ and Fair Share Housing Center (FSHC), which also submitted a letter to the state, are also concerned that a disproportionate amount of the federal funds will go to homeowners, rather than renters. This includes relief funds to relocate renters and for any property they lost during the storm.

City of Newark Releases Emails about Facebook Donation

December 31, 2012
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NEWARK – In response to a lawsuit filed by the ACLU-NJ, the City of Newark has released emails exchanged between public officials about a $100 million donation to Newark Public Schools. The city released the emails after a judge ordered the city to release the correspondence.

"It is unfortunate that it took a lawsuit and ruling from the judge to force the City of Newark to turn over public documents," said Ed Barocas, legal director for the ACLU-NJ. "We and our clients will now review the documents. And if there are no bombshells in these emails, the public has a right to ask why the city was so adamant in its refusal to release them, costing the city significant legal fees."

The case is captioned Secondary Parent Council v. Newark

Case Documents

Email Correspondence Ordered Released

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Judge Orders Newark to Release Emails about Facebook Donation

December 20, 2012
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City refused to release public records sought by a local parents organization

NEWARK – A Superior Court judge has ordered the City of Newark to release emails that were exchanged about the $100 million pledge that Facebook founder Mark Zuckerberg made to Newark schools in September 2010.

The ruling was issued in response to a lawsuit filed by the American Civil Liberties Union of New Jersey (ACLU-NJ) on behalf of the Secondary Parent Council (SPC), a group of Newark parents and grandparents seeking more transparency about the donation.

"The City of Newark posed as many legal objections as it could to releasing these emails, which were exchanged by public officials," said Frank Corrado, an attorney with Barry, Corrado & Grassi, who represents SPC on the ACLU-NJ's behalf. "The judge's ruling repudiated all of their arguments."

The city originally stated it did not have any documents about the donation. It later admitted in a January court hearing that emails existed, but argued they did not have to release them because they were shielded by mayoral executive privilege, contain personal information and are deliberative in nature. The city also argued Newark Mayor Cory Booker was not acting in his official capacity as mayor when he accepted Zuckerberg's pledge on the Oprah Winfrey show.

Judge Rachel N. Davidson rejected all those arguments, noting for instance that a press release on the City of Newark's own website touts Booker's involvement in the donation as mayor and that all of the emails in dispute are maintained by Booker's executive assistant in Newark City Hall. The judge also noted that Booker's role as mayor is repeated in statements about the donation that are mentioned on his campaign website, as well as in some of the emails that are being sought.

"The fact that some of the emails were sent to the mayor using a personal, or perhaps, a campaign-related email address does not exempt them from being considered a public record," the judge stated in her ruling.

The judge also said it is not clear if executive privilege applies to mayors at all, but assuming that it does, "it does not apply here."

"The executive privilege would apply, for example, to deliberations within Newark about whether to accept the $100 million donation," Davidson said. "Such deliberations are completely absent from the emails."

Davidson also held that, with the exception of email addresses and a portion of one email, the contents of the emails do not contain any personal information that should be safeguarded from the public, nor were they deliberative in nature.

The judge did not set a deadline for the release of the 36 emails that were exchanged between public officials including Booker, Superintendent of Newark Public Schools Cami Anderson, Commissioner of the New Jersey Department of Education Christopher Cerf and other individuals or officials.

The emails that Newark identified in response to SPC's request were sent between Sept. 13, 2010 through June 27, 2011.

SPC is a group of parents and grandparents with children in Newark public schools. The organization filed its open records request after Zuckerberg's pledge because it wanted more insight on how the gift would affect public education.

The case is captioned Secondary Parent Council v. Newark.

Case Documents

State Settles ACLU-NJ Lawsuit by Agreeing to Drop TRU-ID Program

October 5, 2012
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The program was NJ’s version of the federal Real ID program

NEWARK – The New Jersey Motor Vehicle Commission (MVC) has agreed to drop its TRU-ID licensing program, bringing an end to a lawsuit filed by the American Civil Liberties Union of New Jersey (ACLU-NJ). The program has been suspended since May when the ACLU-NJ convinced a judge to bring the program to a halt because it ran afoul of legal requirements for the state to inform members of the public of changes in policy that could affect them.

“I am thrilled to see implementation of the REAL ID Act toppled in New Jersey,” said Deborah Jacobs, the former ACLU-NJ executive director who served as an individual plaintiff in the case. “I hope the state’s attempts to implement the REAL ID Act are now over, and we can join the majority of the states in our nation that have rejected the federal law as overly invasive and expensive.”

The state has agreed to maintain its existing 6-Point license system, which has been in place since 2003. If the MVC decides to pursue TRU-ID again, it has agreed to go through the formal regulatory process and elicit public input.

“New Jersey law demands a transparent, democratic process that would give the public a chance to weigh in on a program such as TRU-ID that would adversely affect our privacy,” said Ed Barocas, acting executive director of the ACLU-NJ. “It’s disturbing to think how close New Jersey got to having such an intrusive ID system pushed onto us by mere fiat rather than through proper legal channels.”

The state has also agreed to pay the ACLU-NJ’s attorney fees and the ACLU-NJ reserves the right to challenge any regulations the state adopts in the future.

The ACLU-NJ alleged the MVC violated New Jersey’s Administrative Procedure Act, which dictates any new rule or regulation requires, at minimum, public notice and the chance for citizen review. The state released minimal information about TRU-ID before the planned implementation and sought no input from the public, legislators or stakeholders.

State officials said TRU-ID was conceived in order to comply with the federal Real ID Act, a 2005 policy that sought to create a national identification card. But at least 25 states have opted out of Real ID, with many of them passing legislation making it illegal for their state governments to participate.

The New Jersey program would have required citizens to turn over sensitive personal documents to the government, such as birth certificates and Social Security cards without any assurances from the government that the documents would be safely housed from identity thieves or other threats. Now, the state will continue to accept a range of documents as proof of identity, rather than limiting the list to only the most sensitive, as TRU-ID would have done.

In addition to privacy concerns, the ACLU-NJ feared the potential impact of TRU-ID on some of New Jersey’s most vulnerable communities with regard to civil rights and personal safety. The MVC’s attempt to require all documents, including birth certificates, be in English imposed a burden on anyone born in a non-English speaking country. It was also initially uncertain whether the state would make any exceptions for victims of domestic violence, who are currently allowed to use an alternate address for all state and local government purposes, rather than their actual home addresses to protect their safety.

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