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
A multiple exposure of a wooden gavel and a long row of columns from a courthouse.
  • Save to favorites
  • Print

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

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Managing AI in Schools: Practical Strategies for Districts
How should districts govern AI in schools? Learn practical strategies for policies, safety, transparency, as well as responsible adoption.
Content provided by Lightspeed Systems
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Unlocking Success for Struggling Adolescent Readers
The Science of Reading transformed K-3 literacy. Now it's time to extend that focus to students in grades 6 through 12.
Content provided by STARI
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts California Sues Ed. Dept. in Clash Over Gender Disclosures to Parents
California challenges U.S. Department of Education findings on state policies over gender disclosure.
4 min read
California Attorney General Rob Bonta speaks to reporters as Arizona Attorney General Kris Mayes, left, and Oregon Attorney General Dan Rayfield, right, listen outside the Supreme Court on Wednesday, Nov. 5, 2025, in Washington. (AP Photo/Mark Schiefelbein)
California Attorney General Rob Bonta speaks to reporters outside the U.S. Supreme Court in Washington on Nov. 5, 2025, with Arizona Attorney General Kris Mayes and Oregon Attorney General Dan Rayfield behind him. Bonta this week sued the U.S. Department of Education, asking a court to block the agency's finding that the state is violating FERPA by <ins data-user-label="Matt Stone" data-time="02/13/2026 4:22:45 PM" data-user-id="00000185-c5a3-d6ff-a38d-d7a32f6d0001" data-target-id="">not requiring schools to disclose</ins> students’ gender transitions <ins data-user-label="Matt Stone" data-time="02/13/2026 4:22:45 PM" data-user-id="00000185-c5a3-d6ff-a38d-d7a32f6d0001" data-target-id="">to</ins> parents.
Mark Schiefelbein/AP
Law & Courts Oklahoma Board Rejects Jewish Charter as Supreme Court Fight Looms
Oklahoma's charter school board rejected the Jewish school as members said their hands were tied.
4 min read
Ben Gamla Charter Schools founder and former U.S. Rep. Peter Deutsch, right, speaks with Brett Farley, executive director of the Catholic Conference of Oklahoma, left, before a Jan. 12 meeting of the Statewide Charter School Board in Oklahoma City. Both are founding board members of an Oklahoma Jewish Charter School.
Ben Gamla Charter Schools founder and former U.S. Rep. Peter Deutsch, right, speaks with Brett Farley, executive director of the Catholic Conference of Oklahoma, before a Jan. 12, 2026, meeting of the Statewide Charter School Board in Oklahoma City. The board rejected the proposed Jewish charter school on Feb. 9, 2026.
Nuria Martinez-Keel/Oklahoma Voice
Law & Courts Religious Charter Schools Push New Cases Toward Supreme Court
Advocates seeking to establish publicly funded religious schools in three states.
9 min read
The U.S. Supreme Court is seen, Wednesday, Jan. 14, 2026, in Washington.
The U.S. Supreme Court is seen on Wednesday, Jan. 14, 2026, in Washington. Religious charter advocates are betting a full Supreme Court will side with their efforts to establish religious charter schools.
Rahmat Gul/AP
Law & Courts Educators Sue Over ICE Activity on School Grounds and Nearby
The challenge targets the Trump administration's revocation of a policy that limited immigration enforcement at schools.
5 min read
A sign reading "Protect Neighbors" is posted near a bus stop as a school bus passes on Friday, Jan. 30, 2026, in Minneapolis.
A sign reading "Protect Neighbors" is posted near a bus stop in Minneapolis on Jan. 30, 2026. A lawsuit from two Minnesota school districts and the state's teachers' union says immigration agents have detained people and staged enforcement actions at or near schools, school bus stops, and daycare centers.
Kerem Yücel /Minnesota Public Radio via AP