Law & Courts

Is Censuring a ‘Rogue’ School Board Member a Free Speech Violation? High Court to Decide

By Mark Walsh — October 20, 2021 8 min read
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Amid a backdrop of K-12 school boards nationwide besieged by controversies over pandemic measures, teaching about race, and LGBTQ rights, the U.S. Supreme Court will soon take up a case involving situations where a member of a board is the one at the center of the storm.

The justices on Nov. 2 will hear arguments in Houston Community College System v. Wilson (No. 20-804), about whether a school board censure of a member for speech or conduct that violates board rules may be challenged on First Amendment free speech grounds.

While much of the recent discord at school board meetings involves angry parents and other citizens, some boards have recently censured members over their own controversial comments or actions on those subjects.

Such official rebukes are “about maintaining decorum, which is particularly important right now,” said Meredith Prykryl Walker, an Irving, Texas, lawyer who wrote a friend-of-the-court brief for the Texas Association of School Boards in support of the Houston Community College System. “It’s like admonishing a child. You hope they realize they’re out of line, and they adopt a people-pleasing attitude.”

K-12 boards are no stranger to issuing censures

Recent examples of censure, or attempts to censure, K-12 school board members include:

● In the Round Rock Independent School district in Texas, a controversy over an audience capacity limit for a September school board meeting in which extending a school mask mandate was on the agenda led to an effort to censure two board members. The censure resolution cited “disruptive actions” by the two members, who questioned the need for the capacity limit in light of changes in state pandemic guidance. A state court has blocked the censure pending a Nov. 29 court hearing.
● Also in September, the Utah state board of education issued a letter of reprimand to board member Natalie Cline, citing a Facebook post in which Cline criticized an effort to make LGBTQ public school students feel more included at external religious lessons affiliated with the Church of Jesus Christ of Latter-Day Saints. Cline has also drawn criticism for accusing public schools of teaching critical race theory and for referring to the Black Lives Matter movement as “indoctrination.”
● In 2020, the Menomonie Area School District in Wisconsin censured a board member who had an expletive-laden outburst as the board debated back-to-school COVID-19 safety protocols. Board member Jim Swanson, who apparently favored stronger protocols, pounded a table, used the F-word, and waved his middle finger at the board chairman, according to a local TV station’s news report. Swanson later apologized for his outburst, but the board voted 5-4 in favor of the rebuke.

Censure of Houston board member included tangible restrictions

The case before the Supreme Court involves David B. Wilson, who was elected to the nine-member Houston Community College board of trustees in 2013 and brought “immediate and constant turmoil,” the board says in court papers.

Wilson filed a legal complaint alleging that the community college district overpaid for a vacant building. He also helped a group of disgruntled nursing students sue the community college, and made anti-gay remarks and objected to the inclusion of sexual orientation in the community college’s nondiscrimination policies. His lawsuits cost the board some $300,000 in legal fees, the college says.

In 2016, the board voted to reprimand Wilson (a less formal action than censure) over his lawsuits and for breaking board rules. He responded by saying that “a reprimand is never going to stop me,” court papers say.

In 2017, 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, the college says.

In January 2018, after Wilson’s actions drew the scrutiny of the college’s accrediting agency, the board voted to formally censure Wilson, citing actions that “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 discretionary board bank account without board approval or be reimbursed for college-related travel.

Wilson responded by amending one of his pending lawsuits against the board to include a claim that the censure violated his First Amendment free speech rights. It is that claim that has made its way to the Supreme Court.

A federal district judge ruled for the district on Wilson’s First Amendment claim for damages, but a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reversed and reinstated the claim 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.

The full 5th Circuit court split 8-8 on rehearing the case, leaving the panel decision in place. Writing in dissent, Judge Edith H. Jones said the panel’s ruling “weaponizes any gadfly in a legislative body and inflicts an immediate pocketbook injury on the censuring institution.” Judge James C. Ho, also dissenting, said, “Holding office in America is not for the faint of heart. … Leaders don’t fear being booed. And they certainly don’t sue when they are.”

The Houston Community College System argues that the tradition of “legislative censure” goes back hundreds of years in the British Parliament and that school boards and other government agencies have their own free speech right to issue them.

“It’s not HCC’s position that Mr. Wilson does not have a free speech right,” said Richard A. Morris, a Houston lawyer who represents the community college system. “It is HCC’s position that Mr. Wilson’s free speech rights don’t extend to prohibiting the government’s counter-speech.”

The First Amendment does not require school boards and other governmental bodies to “hold their tongue” when one member makes repugnant remarks or violates the rules, he said. Allowing such members to sue for retaliation shuts down the government’s own speech, Morris said.

“An individual board member can do great damage to an institution and can compromise public trust,” he said. These days, that increasingly includes offensive comments on social media as well as other activity that violates norms, he said.

As Morris and other lawyers put it in their main brief for the college, “The First Amendment protects the speech of the gadfly, but it does not prevent the majority from responding with speech of its own. After hearing both, the voters can decide.”

Ideologically diverse groups support board member’s right to sue

The voters of the Houston community college district eventually decided against Wilson. He had resigned his seat in August 2019 and ran for a different seat that November, finally losing a runoff election. His suit still seeks $10,000 in damages for mental anguish and $10,000 in punitive damages.

Wilson declined to comment through his lawyers. They argue in court filings that Wilson was censured—and punished—for speech of his that was outside the “legislative,” or official, sphere.

“The censure … did more than stake out an institutional position concerning Wilson’s speech,” his lawyers say in a brief. “It disciplined him, revoked his privileges of office, and commanded his silence.”

Wilson was shining a light on mismanagement and a culture of corruption in the community college system and on its board. (One trustee pleaded guilty to federal bribery charges in 2017 stemming from an investigation into contracting practices.)

“A ruling in Wilson’s favor would protect, not stifle, free speech,” his brief says. “If the censure here is permitted to stand, it would empower elective assemblies to use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”

Wilson has drawn the support of a friend-of-the-court brief signed jointly by three ideologically diverse groups: The American Civil Liberties Union, based in New York City; the Rutherford Institute, a Charlottesville, Va., religious liberty organization that often supports student religious speech; and the Institute for Free Speech, a Washington group that recently organized a federal lawsuit against a Pennsylvania school board alleging that the board censors and limits public comments at board meetings in violation of the First Amendment.

The brief argues that Wilson was not subject to a “pure censure” because his rebuke came with the tangible restrictions on his office.

“The board’s censure resolution was expressly designed not just to express disapproval, but also to impose ‘disciplinary action’ and to quash Wilson’s public criticism going forward,” the groups’ brief says. And Wilson’s public comments were “indisputably protected,” it says.

“Members of legislative bodies, no less than anyone else, enjoy basic First Amendment freedoms, and cannot be penalized for protected speech that takes place outside the chamber,” the brief says.

Some school board censures target misbehavior

The community college system counters Wilson and his supporters by arguing that this is a case of pure censure because the 5th Circuit court recognized a claim for First Amendment retaliation based solely on the censure.

The Houston system has the support of the Biden administration, 16 states and the District of Columbia, one higher education group, and the National School Boards Association, which signed onto the brief of its Texas affiliate, the TASB.

The school boards groups stress the role of censure in boards’ efforts to “manage” members who fall short in their duties by failing to come to meetings, disclosing information from confidential executive sessions, interfering with school district staff, or even engaging 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 says.

Walker, the lawyer who wrote the TASB/NSBA brief, said that censures are not guaranteed to turn around such a rogue member’s conduct, but school boards need to have that tool available to them without facing First Amendment lawsuits.

“The reality is the board member can continue engaging in that bad conduct,” she said. “Censure is just a check on their behavior to remind them we have rules and guidelines.”

A version of this article appeared in the October 27, 2021 edition of Education Week as Is Censuring a ‘Rogue’ School Board Member A Free Speech Violation? High Court to Decide

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