Law & Courts

In Censure of School Board Member, U.S. Supreme Court Skeptical of First Amendment Claim

By Mark Walsh — November 02, 2021 7 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
  • Save to favorites
  • Print

The U.S. Supreme Court appeared inclined on Tuesday to rule that a school board’s censure of one of its members over speech that violates board rules does not give rise to a First Amendment case.

“Unless there’s something special about the word ‘censure,’ and maybe there is, this is a very easy case,” Justice Samuel A. Alito Jr. said during the arguments in Houston Community College System v. Wilson (Case No. 20-804). “One person says something derogatory about another person, and then the other person responds by saying something derogatory about the first person. … Nobody’s free speech rights are violated there.”

Chief Justice John G. Roberts Jr. said that a ruling for the Houston community college board member whose charged comments and divisive conduct prompted his censure in 2018 might prompt any school board member or local official across the nation who faced official sanctions to sue their governmental bodies.

“And it seems to me once that remedy becomes widely known and available, it would become automatic,” Roberts said. “And so the ... traditional legislative body debates would all end up in court, and then the court would have to decide an essentially political question that’s divided the members of the board. And that seems an unsatisfactory result.”

Censures are commonplace among local governments, a lawyer asserts

The case before the court involves David B. Wilson, who was elected to the nine-member Houston Community College board of trustees in 2013 and soon became a source of divisiveness and turmoil. But the nearly 90-minute argument made clear that censure has been a widely used tool of K-12 school boards and other local elected bodies for rogue conduct or offensive speech by board members.

“While it may be unusual in the U.S. Congress to censure, local bodies do it about once every other day in any given year, and they do it for all number of reasons, including for conduct that takes place outside the body,” Richard A. Morris, a Houston lawyer representing the community college board, told the justices.

As Education Week noted last month in previewing the Houston case, some school board censures of their members have been outgrowths of the bitter debates in recent years over COVID safety protocols or LGBTQ rights. Some have involved offensive comments made by board members, whether during official business or outside of board proceedings.

“Elected officials these days can be their own independent misinformation machines, and they can do great damage to institutions, all on social media,” Morris said during the arguments.

Wilson was censured in 2018 after a several years of speech and conduct that the board viewed as bringing turmoil. 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 sued under the First Amendment, claiming that the censure and its accompanying punishments violated his free speech rights. A federal district judge ruled for the district, but a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reversed and reinstated Wilson’s suit in 2020.

“A reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under” federal law, the appeals court said.

References to Joe McCarthy, and to racial slurs by a hypothetical board member

Significantly for Wilson’s appeal before the Supreme Court, the 5th Circuit court recognized a claim for First Amendment retaliation based solely on the censure. It held that the sanctions that accompanied the censure did not violate Wilson’s First Amendment rights.

Justice Sonia Sotomayor asked Morris about where the additional sanctions fit into the case and the high court’s analysis.

“How do we deal with those?” she asked the board’s lawyer. “You’ve got an easy case on censure historically, but how do we approach those?”

Morris said that elected officials had no entitlement to some of the trappings of office that would implicate the First Amendment.

Michael B. Kimberly, a Washington lawyer representing Wilson, disagreed on the relevance, saying the concrete penalties were “baked into the censure itself.”

Further, the Houston board’s censure resolution concluded with “an express command that Wilson must immediately cease and desist from further criticisms of the board, upon threat of further punishment that would have extended the period during which his privileges of office were denied to him,” Kimberly said. And the penalties were imposed pursuant to the board’s disciplinary authority, he said.

“Simply put, the censure resolution here was a serious penalty intended to chill and deter, and because it was adopted in response to concededly protected speech, it violated the First Amendment,” Kimberly said.

He did not seem to make much headway with the justices as he argued for a distinction between a board’s mere vote of disapproval of a member, which he said would not be a First Amendment case, and the formal censure that came with disciplinary measures in Wilson’s case.

“I think I’m still stuck on the distinction you’re drawing,” Justice Elena Kagan said to Kimberly.

Justice Stephen G. Breyer said that legislative bodies, from Congress to the local level, have traditionally had “the power of administration, power to control the kinds of things others say within the body, what’s appropriate, what isn’t. … So, if we get into the business of starting to really oversee this, then we’ve changed the government structure significantly.”

Breyer brought up the 1954 congressional censure of Sen. Joseph McCarthy over the Wisconsin Republican’s committee abuses.

“Senator McCarthy was censured, destroying his political career,” Breyer said. “Well, that was up to the Congress.”

Kagan asked Kimberly whether McCarthy’s censure had been improper. Kimberly said there were similarities to Wilson’s case in that the discipline was formal, but it was not a First Amendment violation because McCarthy had been censured for speech “within the legislative sphere.”

That prompted Justice Amy Coney Barrett to ask Kimberly about a legislator who “engages in really offensive speech full of racial slurs.”

“The member says all kinds of horrible racial slurs on the floor, that is censurable, and then walks out onto the steps and gives a press conference and repeats those exact same racial slurs, that is not subject to censure ever?” Barrett asked.

Kimberly said that was correct, but the legislative body would still be free to adopt a resolution “in opposition to the particular issues being raised.”

Censure in the U.S. goes way back, a federal government lawyer notes

The Biden administration participated in the argument in support of the Houston community college board, with Sopan Joshi, an assistant to the solicitor general, arguing that “elected bodies in our Anglo-American legal tradition have long entered disciplinary actions against their members, including for those members’ speech, with no suggestion that it violated principles of free speech.”

He said that Congress since 1791 has censured and even expelled members for their private speech. His discussion of the historical approach prompted Kagan to ask him whether it was “clear to you that a history that’s all about members of Congress applies equally to members of a local school board, part-time, unpaid?”

“You know, there are elected representatives and then there are elected representatives,” Kagan said. “Should we try to draw any distinctions?”

Joshi said there were reasons to think of members of Congress and the local school board member as similar for the purposes of the constitutional issues before the court.

“I think the idea is that the Constitution’s grant of the disciplinary power and the expulsion power reflects a well-understood, universal, long-established tradition of legislative bodies,” Joshi said.

A decision in the case is expected by next June.


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.
Curriculum Webinar
Strategies for Incorporating SEL into Curriculum
Empower students to thrive. Learn how to integrate powerful social-emotional learning (SEL) strategies into the classroom.
Content provided by Be GLAD
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.
School & District Management Webinar
Leadership in Education: Building Collaborative Teams and Driving Innovation
Learn strategies to build strong teams, foster innovation, & drive student success.
Content provided by Follett Learning
School & District Management K-12 Essentials Forum Principals, Lead Stronger in the New School Year
Join this free virtual event for a deep dive on the skills and motivation you need to put your best foot forward in the new year.

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 Title IX Rule to Protect LGBTQ+ Students Temporarily Blocked in 4 States
A federal judge in Louisiana delivered the first legal blow to the Biden administration's interpretation of Title IX.
4 min read
Demonstrators advocating for transgender rights and healthcare stand outside of the Ohio Statehouse on Jan. 24, 2024, in Columbus, Ohio. Republican states are filing a barrage of legal challenges against the Biden administration's newly expanded campus sexual assault rules, saying they overstep the president's authority and undermine the Title IX anti-discrimination law.
Demonstrators advocating for transgender rights and health care stand outside of the Ohio Statehouse on Jan. 24, 2024, in Columbus, Ohio. Republican states have filed a barrage of legal challenges against the Biden administration's new Title IX rule, and one of them has just resulted in a temporary order blocking the rule in four states.
Patrick Orsagos/AP
Law & Courts Judge Strikes Down Title IX Guidance on LGBTQ+ Students. Here's Why It Matters
In a June 11 ruling, Texas judge said the Education Department has no authority to expand protections under Title IX.
8 min read
Texas Attorney General Ken Paxton speaks at a news conference in Dallas on June 22, 2017.
Texas Attorney General Ken Paxton speaks at a news conference in Dallas on June 22, 2017. His office sued the Biden administration in an attempt to invalidate guidance it released in June 2021 stating it would interpret Title IX to prohibit discrimination based on sexual orientation and gender identity.
Tony Gutierrez/AP
Law & Courts Court Backs School That Barred Student's 'Two Genders' Shirt
The court said the shirt could be understood to demean transgender and gender-nonconforming students, and administrators could prohibit it.
5 min read
ADF Senior Counsel and Vice President of U.S. Litigation David Cortman, left, and Liam Morrison speak at a press conference following oral arguments before the U.S. Court of Appeals for the 1st Circuit on Feb. 8, 2024.
David Cortman, senior counsel and vice president of Alliance Defending Freedom, left, and middle school student Liam Morrison speak to reporters following oral arguments over Morrison's "There Are Only Two Genders" T-shirt before the U.S. Court of Appeals for the 1st Circuit in Boston on Feb. 8, 2024.
Courtesy of Alliance Defending Freedom
Law & Courts Federal Judge Overturns New Hampshire Law on Teaching 'Divisive Concepts'
The judge holds that the law is unconstitutionally vague because it does not make clear to educators what topics they may not teach.
4 min read
Students walk into the front doors at Hinsdale Middle High School, in Hinsdale, N.H., on the first day of school on Aug. 30, 2022.
Students walk into Hinsdale Middle High School, in Hinsdale, N.H., in August 2022. A federal judge has struck down a New Hampshire law that bars the teaching of "divisive concepts" to K-12 students.
Kristopher Radder/The Brattleboro Reformer via AP