Law & Courts

A School Board Has the Right to Censure a Rogue Member, U.S. Supreme Court Says

By Mark Walsh — March 24, 2022 6 min read
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In a case relevant to K-12 school boards dealing with disruptive members, the U.S. Supreme Court ruled unanimously on Thursday that a community college board’s censure of one of its members over his speech did not violate the First Amendment.

“In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes,” Justice Neil M. Gorsuch wrote for the court in Houston Community College System v. Wilson (Case No. 20-804).

Briefs filed in the case touched on numerous examples of K-12 school boards censuring their members, and the court’s decision will not upset the authority of boards to carry out such formal reprimands. Recent examples show that school boards have censured their members over offensive outbursts or social media speech on hot-button issues such as COVID-19 protocols, teaching about race, and transgender student rights.

Gorsuch cast his opinion as “a narrow one” about “purely verbal censure.” He said the former community college board member, David B. Wilson, had not properly appealed a lower court’s decision upholding several tangible punishments that had accompanied his censure.

“We do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals,” Gorsuch said.

At oral argument of the case in November, Justice Clarence Thomas asked whether a government body would have the authority “to censure a private citizen who somehow is at odds with their rules.” The question was relevant to the recent wave of angry and disruptive demonstrations by audience members at school board meetings. (The lawyer for Houston community college system replied that the public board might have such authority.)

Gorsuch said in his opinion that the court does not “mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms.” But, he added, “those cases are not this one.”

Censure cited a ‘lack of respect for the board’s collective decisionmaking process’

Wilson was elected to the nine-member Houston Community College board of trustees in 2013. He was censured in 2018 after several years of speech and conduct that the board viewed as bringing turmoil.

Among the conflicts, Wilson had filed lawsuits against the board over some of its decisions, and encouraged others to sue it as well. He made anti-gay remarks and objected to the inclusion of sexual orientation in the community college’s nondiscrimination policies. And after the community college board voted to open a campus in Qatar, over Wilson’s opposition, he orchestrated robocalls to the constituents of other board members and hired private investigators to check a fellow board member’s residency, court papers say.

The board’s censure resolution said that Wilson had “demonstrated a lack of respect for the board’s collective decisionmaking process, a failure to encourage and engage in open and honest discussions in making board decisions, and a failure to respect differences of opinion among trustees.”

The censure made Wilson ineligible to serve as an officer of the board, and he could not access his $5,000 in discretionary funds without board approval or be reimbursed for college-related travel. (Wilson resigned his seat in 2019, and lost a runoff election for a different seat the same year.)

The U.S. Court of Appeals for the 5th Circuit had ruled that Wilson’s First Amendment claim could proceed based on the board’s censure, but that the accompanying punishments did not implicate his free speech rights because they involved matters that were not “entitlements.”

By the time the case got to the Supreme Court, the only issue before the justices was the board’s “purely verbal censure.”

Writing for the unanimous court, Gorsuch said that “elected bodies in this country have long exercised the power to censure their members.” The U.S. Senate issued its first censure of a member in 1811, and the House of Representatives did the same 10 years later, he said.

“In 1954, the Senate ‘condemned’ Senator Joseph McCarthy for bringing ‘the Senate into dishonor,’ citing his conduct and speech both within that body and before the press,” Gorsuch said. Referring to congressional censures through 2016, Gorsuch said, “Congress has censured members not only for objectionable speech directed at fellow members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the nation.”

And such censures are even more common by state and local elected bodies, he said, citing court papers documenting “no fewer than 20 censures in August 2020 alone.” That list, from the community college’s Supreme Court appeal, include several K-12 school board censures.

Besides historical practice, Gorsuch said, it was significant that Wilson was an elected official.

“When individuals consent to be a candidate for a public office conferred by the election of the people, they necessarily put their character in issue, so far as it may respect their fitness and qualifications for the office,” he said.

The First Amendment “surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy,” Gorsuch said, “But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

Contrary to Wilson’s contention that the board’s actions chilled and deterred his speech, Gorsuch said the board member “did not exactly cower silently” after an initial reprimand, and the formal censure did not deter him “from speaking his mind.”

School board groups had supported the Houston community college board.

The Houston community college board was supported in its appeal by the National School Boards Association and its state affiliate, the Texas Association of School Boards.

The school boards groups’ friend-of-the-court brief argued that censure is a necessary tool for boards to respond to members who fail to come to meetings, disclose confidential information, interfere with school district staff, or engage in sexually inappropriate behavior.

In many states, including Texas, censures or reprimands are “the only tool at an elected board’s disposal to publicly address a rogue board member’s continued improper conduct,” the associations’ brief said.

President Joe Biden’s administration had also filed a brief and argued in support of the college board.

Eugene Volokh, a professor and First Amendment specialist at the University of California, Los Angeles, law school, praised the opinion for sticking to elected officials.

“If you are a politician, you have to be open to criticism,” said Volokh, who wrote a friend-of-the-court brief on behalf of the Foundation for Individual Rights in Education, or FIRE.

The group promotes free speech on college campuses, and its brief, which did not take sides in the Houston community college case, argued that a government board’s reprimands of employees or students are much more problematic under the First Amendment.

“The real danger is when government bodies censure not their own elected officials, but those under their control,” he said.

Volokh said censures of outside parties, such as a private citizen speaking at a school board meeting, would likely pass muster under the First Amendment.

“That is less likely to have a chilling effect” than a censure of an employee or student under the board’s authority, he said.

A version of this article appeared in the April 06, 2022 edition of Education Week as A School Board Has the Right to Censure A Rogue Member, U.S. Supreme Court Says

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