Law & Courts

Supreme Court to Weigh When School Board Censure of a Member Violates the First Amendment

By Mark Walsh — April 26, 2021 5 min read
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The U.S. Supreme Court on Monday agreed to decide whether school boards and other local government bodies may censure speech by one of their members without running afoul of the First Amendment.

The case of Houston Community College System v. Wilson (No. 20-804), stems from the 2017 reprimand by a Texas community college board of a member who had filed multiple lawsuits against the college he was helping to supervise and who was accused of leaking confidential information and making an anti-LGBTQ rant.

But the issue has also come up with some frequency for K-12 school boards, leading to First Amendment cases over censures of board members who had criticized the superintendent or had been disruptive and difficult to work with. And more recent examples involve official reprimands of school board members who had posted racist rants or other inappropriate material on social media.

“Censure is an essential, time-honored tool for self-governance by elected bodies,” says the Supreme Court petition filed by the Houston college board.

The case involves David 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. The brief cites a list that includes Wilson filing a complaint alleging that the community college district overpaid for a vacant building, helping some disgruntled nursing students sue the community college, and making anti-gay remarks and objecting to the inclusion of sexual orientation in the community college’s nondiscrimination policies.

In 2017, Wilson orchestrated robocalls to the constituents of other board members and hired private investigators to check a fellow board member’s residency, the college says. His lawsuits cost the board some $300,000 in legal fees, the college says.

The board voted to censure Wilson, and he filed a First Amendment claim over that. 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 claim for damages.

“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 declined to reconsider the case, with one judge writing in dissent that the panel’s decision “threatens to destabilize legislative debate” and “invites federal courts to adjudicate free speech claims for which there are no manageable legal standards.”

The censured board member lost access to a bank account and travel reimbursements

The community college appealed to the Supreme Court, saying the 5th Circuit panel’s ruling conflicts with several other federal appeals court and one state supreme court that have upheld censure against First Amendment challenges.

One of those was a federal appeals court decision upholding the Bethel, Wash., school board’s censure and removal as board vice president of a member who had publicly undermined the superintendent. The court said the board member had no First Amendment claim.

Censure resolutions have their roots in the British Parliament going back centuries, and even Robert’s Rules of Order, which many school boards operate under, authorize the practice, the college points out.
The college also cited recent examples of school board members censured for allegedly racist posts on social media.

“It is an unfortunate reality that some members of local elected boards make statements denigrating members of the public because of race, sex, or religion,” the college says. “Censure provides an elected body with a well-understood tool for repudiating those remarks.”

The Texas Association of School Boards Legal Assistance Fund, which is supported by some 750 school boards and community college boards in the state, filed a friend-of-the-court brief in support of the Houston college.

“School boards across Texas have been challenged with individual board member misbehavior,” the brief says. Besides social media rants, such misbehavior includes seeking special treatment because of their office, independently investigating employees, demanding district administrators forbid employees from speaking Spanish in schools, openly criticizing or yelling at fellow board members, and inappropriately criticizing teachers, the brief adds.

“A censure does not prevent a board member from speaking out,” the brief says. “Rather, a censure acts as an attempted check on board member conduct in an effort to curtail future unprofessional acts and ensure compliance with board bylaws, rules, and codes of conduct.”

Lawyers for Wilson, who lost re-election to the community college board in 2019, urged the high court not to take up the case. They said censures of governing body members “are not a proper response for core political speech,” which is what Wilson was engaged in when he raised questions about mismanagement of the community college and actions of his fellow board members.

The practical effects of being censured included that Wilson could not serve as an officer of the board, could not access his discretionary board bank account, and he was not reimbursed for board-related travel, his brief says.

“These are plainly adverse actions taken in retaliation for speech and petitioning protected by the First Amendment,” the brief says.

The Supreme Court will likely hear arguments in the case sometime next fall.

The court denies review of a case related to California curriculum standards

Separately on Monday, the court declined to hear the appeal of a Hindu parents’ group that said California’s history and social science curricular materials disparage Hinduism while favoring Christianity, Judaism, and Islam.

The group appealed a ruling last year by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, which said that the none of the parents’ “characterizations of the Hinduism materials as disparaging is supported by an objective reading of those materials.”

The appeal to the Supreme Court in California Parents for the Equalization of Educational Materials v. Torlakson (No. 20-1137) said the case would be a good one for the justices to decide whether the First Amendment’s free exercise of religion clause permits the government to single out a religion for disfavored treatment so long as it does not substantially burden religious exercise.

The court declined without comment to hear the case, with Justice Stephen G. Breyer recusing himself. His brother, Judge Charles R. Breyer, presided over the case in U.S. District Court in San Francisco.

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