We’ve all been in heated meetings in which board members vehemently disagree with one another. What happens if the heat doesn’t dissipate when the meeting ends? Does a school board violate the First Amendment if it censures an unruly member? Last week, the Supreme Court answered no. Under this new case, federal law allows such censure of a board member when he engages in conduct that disrupts the efficient operation of the board.
Don’t Be This Guy. . .
David Wilson served on the Houston Community College System Board of Trustees. In 2017, the board adopted a censure motion chastising Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” Prior to the censure motion, Wilson voiced his concerns about the board through:
Publicizing funding complaints;
Robocalls;
A radio interview;
Lawsuits;
Hiring a private investigator to confirm another board member resided in the district; and
Maintaining a website stating his concerns that the board was not acting in the best interest of HCC.
The censure resolution called for Wilson to “immediately cease and desist from all inappropriate conduct” and stated, “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”
Wilson sued on the ground that the censure violated his First Amendment rights. On March 24, 2022, the Supreme Court unanimously held that the First Amendment does not restrict the authority of an elected body to issue a censure resolution in response to a member’s speech.
What Does This Mean For You?
In determining that Wilson lacked a cognizable First Amendment claim, the Supreme Court focused on two main considerations.
First, the Court noted that elected bodies from the local level all the way up to Congress have long exercised the power to censure their members.
Second, for Wilson’s First Amendment retaliation claim to succeed, he would have had to show materially adverse action that would not have been taken absent retaliatory motive.
Translation: Censure is a common way for boards to deal with member misbehavior. Instead of being a materially adverse retaliatory action, the HCC Board’s verbal censure was an exercise of its own freedom of speech.
“Our Case is a Narrow One”
The Supreme Court’s ruling only applies to the censure of one member of an elected body by the other members. Censure alone, without expulsion, exclusion, or any other punishment, does not violate the First Amendment. However, if a board were to include additional punishments along with the censure, or were to censure someone outside of the board, it may be subject to a First Amendment retaliation claim. To that end, the Court noted that boards should not feel free to similarly censure students or employees without risking a First Amendment violation. The ruling only applies to board members.
Conclusion
With the Supreme Court taking an interest in closely scrutinizing the First Amendment doctrines most relevant to schools, we understand that these issues have only gotten more pressing and confusing. If your board or district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.