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 (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 鈥渁bout maintaining decorum, which is particularly important right now,鈥� 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. 鈥淚t鈥檚 like admonishing a child. You hope they realize they鈥檙e out of line, and they adopt a people-pleasing attitude.鈥�
K-12 boards are no stranger to issuing censures
Recent examples of censure, or attempts to censure, K-12 school board members include:
鈼� 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 鈥渄isruptive actions鈥� 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.
鈼� 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 鈥渋ndoctrination.鈥�
鈼� 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鈥檚 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 鈥渋mmediate and constant turmoil,鈥� 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鈥檚 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 鈥渁 reprimand is never going to stop me,鈥� court papers say.
In 2017, after the community college board voted to open a campus in Qatar, over Wilson鈥檚 opposition, he orchestrated robocalls to the constituents of other board members and hired private investigators to check a fellow board member鈥檚 residency, the college says.
In January 2018, after Wilson鈥檚 actions drew the scrutiny of the college鈥檚 accrediting agency, the board voted to formally censure Wilson, citing actions that 鈥渄emonstrated a lack of respect for the board鈥檚 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.鈥�
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鈥檚 First Amendment claim for damages, but a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, .
鈥淎 reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under鈥� federal law, the appeals court said.
The full 5th Circuit court , leaving the panel decision in place. Writing in dissent, Judge Edith H. Jones said the panel鈥檚 ruling 鈥渨eaponizes any gadfly in a legislative body and inflicts an immediate pocketbook injury on the censuring institution.鈥� Judge James C. Ho, also dissenting, said, 鈥淗olding office in America is not for the faint of heart. 鈥� Leaders don鈥檛 fear being booed. And they certainly don鈥檛 sue when they are.鈥�
The Houston Community College System argues that the tradition of 鈥渓egislative censure鈥� 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.
鈥淚t鈥檚 not HCC鈥檚 position that Mr. Wilson does not have a free speech right,鈥� said Richard A. Morris, a Houston lawyer who represents the community college system. 鈥淚t is HCC鈥檚 position that Mr. Wilson鈥檚 free speech rights don鈥檛 extend to prohibiting the government鈥檚 counter-speech.鈥�
The First Amendment does not require school boards and other governmental bodies to 鈥渉old their tongue鈥� when one member makes repugnant remarks or violates the rules, he said. Allowing such members to sue for retaliation shuts down the government鈥檚 own speech, Morris said.
鈥淎n individual board member can do great damage to an institution and can compromise public trust,鈥� 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 for the college, 鈥淭he 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.鈥�
Ideologically diverse groups support board member鈥檚 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鈥攁nd punished鈥攆or speech of his that was outside the 鈥渓egislative,鈥� or official, sphere.
鈥淭he censure 鈥� did more than stake out an institutional position concerning Wilson鈥檚 speech,鈥� his lawyers . 鈥淚t disciplined him, revoked his privileges of office, and commanded his silence.鈥�
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.)
鈥淎 ruling in Wilson鈥檚 favor would protect, not stifle, free speech,鈥� his brief says. 鈥淚f 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.鈥�
Wilson has drawn the support of a 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 鈥減ure censure鈥� because his rebuke came with the tangible restrictions on his office.
鈥淭he board鈥檚 censure resolution was expressly designed not just to express disapproval, but also to impose 鈥榙isciplinary action鈥� and to quash Wilson鈥檚 public criticism going forward,鈥� the groups鈥� brief says. And Wilson鈥檚 public comments were 鈥渋ndisputably protected,鈥� it says.
鈥淢embers 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,鈥� 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鈥� efforts to 鈥渕anage鈥� 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 鈥渢he only tool at an elected board鈥檚 disposal to publicly address a rogue board member鈥檚 continued improper conduct,鈥� the .
Walker, the lawyer who wrote the TASB/NSBA brief, said that censures are not guaranteed to turn around such a rogue member鈥檚 conduct, but school boards need to have that tool available to them without facing First Amendment lawsuits.
鈥淭he reality is the board member can continue engaging in that bad conduct,鈥� she said. 鈥淐ensure is just a check on their behavior to remind them we have rules and guidelines.鈥�
