“I’ve Been Censured…Now Let’s Go to Court!” The First Amendment and Board Self-Governance

John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC

Part eight of the series, Ripp’d from the Headlines

Does being a Board Member mean that I don’t have the same free speech rights as other community members? How do I comply with Board Bylaws regarding ethics if I disagree with what the Board is doing? Do I get summers off?

Two of the above questions will be answered by the US Supreme Court within a year.

In the meantime, test your knowledge: In only one of the cases below did the Court rule in favor of the censured board member. Which one is it?

  1. An elected board member constantly criticizes the superintendent and the majority board that hired him. The board eventually censures him and removes him from his position as vice president of the Board.
  2. An elected board member is censured for violating an ethics policy by placing a newspaper ad encouraging the public to vote against a pending measure.
  3. A board passes a resolution questioning whether a “thorn-in-the-side” board member is qualified to hold office.
  4. An outspoken board member routinely criticizes his fellow board members and the board’s actions. The board publicly censures the board member for acting in a manner “not consistent with the best interests of the … Board and in violation of the Board Bylaws Code of Conduct.”

Each of these scenarios involves the rough and tumble world of politics. In the first three scenarios above, the court sided with the board – a board could censure a member for speech without violating the First Amendment. If you picked scenario 4, you win! Scenario 4 was the subject of a decision by 5th Circuit Court of Appeals which in July of 2020 ruled that the censured board member could sue the board for violation of his First Amendment rights. See, Houston Community College (HCC) System v. Wilson.

Here are the facts of the HCC case. David Wilson was elected to the HCC Board in 2013. In 2017, Wilson began criticizing other board members for violating the Board’s bylaws and not acting in the best interests of HCC. After disagreeing with a budget item, Wilson made his complaints public by arranging robocalls regarding the Board’s actions and going on a local radio station with his complaints. When the Board allowed a board member to vote via videoconference, Wilson contended that the bylaws prohibited such voting. Then the Board voted in public session to censure Mr. Wilson. The censure included that Wilson had acted 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.” The censure directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Mr. Wilson sued the Board claiming that the censure violated his First Amendment rights because he had engaged in constitutionally protected activity (speech), had been subjected to adverse action (the censure) by the government (the board), and that there was a substantial causal relationship between the speech and the adverse action. He sought damages for the alleged constitutional violation.

Prior Circuit Court cases (including Scenarios 1-3 above) have dismissed these types of claims by elected officials. For instance, in a 2010 case before the 9th Circuit Court of Appeals, a school board member was both censured and removed from his position of vice president of the board. The court held that while the First Amendment forbids the government from retaliating against individuals for speaking out, that right must be balanced against the free speech rights of other individuals (the other board members) to vote and express their individual and collective views on the conduct of another member. As noted by another judge: “Holding office in America is not for the faint of heart. With leadership comes criticism—whether from citizens of public spirit or personal malice, colleagues with conflicting visions or competing ambitions, or all of the above.”

In HCC, the 5th Circuit came to the opposite conclusion, holding that Wilson was entitled to free speech and the government (the Board) could not violate that right by censuring his speech. The Court stated in part “[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”

HCC objected to the decision of the Court and asked for an en banc rehearing. (Circuit Court decisions are generally issued by a three-judge panel. If an en banc rehearing motion is granted, the whole Circuit Court – about 17 judges – would hear the case). The request was denied. But in a passionate dissent, one judge noted that “The First Amendment guarantees freedom of speech, not freedom from speech. It secures the right to criticize, not the right not to be criticized.”

The United States Supreme Court has agreed to hear HCC’s appeal from the 5th Circuit decision and will issue a decision in the coming months.

We will follow “Mr. Wilson (and his censure) Goes to Washington” closely. The balance between Board Member free speech and the ability of school boards to enforce conduct/ethical standards and express their collective will about the speech of one of their members hangs in the balance. In the meantime, have a wonderful summer!

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