Escalated tension, dissention, disagreement have been the new normal for school district and community college boards throughout the country. Censures and reprimands, once a little used arrow in the quiver of boards, have recently emerged as means of responding to and attempting to wrangle, and at times, stifle, board members that are more vocal. But, do censures for speech uttered outside of the board room offend the First Amendment of the Constitution? The U.S. Supreme Court recently waded into this fray to rule on a case related to a community college board’s decision to censure one of its more vocal, litigious, and controversial members and the Court rejected his claim that the censure violated his First Amendment right to free speech. However, while censure in these circumstances may not violate the First Amendment, elected boards are still advised to use censure judiciously.
David Wilson was an elected member of the Board of Trustees of the Houston Community College (“HCC”). Wilson, a conservative Republican, ran and served as a self-proclaimed reformer, hoping to shed “sunlight” onto the HCC Board where (he believed) there was corruption and a need for reform. He filed claims against HCC, criticized policy decisions (including a decision to fund a Community College of Qatar that allowed HCC Board members to make all-expense paid trips to Qatar via Paris), and courted the media to expose the challenges he felt needed to be remedied. The reformer Wilson was not without controversy himself as a known anti-gay activist who was suspected of intentionally deceiving voters in his largely Black district into believing he was Black. Clearly frustrated with his vocalness and bothered by the rising fees for HCC’s legal costs to defend claims he brought, HCC verbally censured Wilson for violating the Board’s bylaws for a variety of reasons including failing to “act in HCC’s best interest.”
In a unanimous ruling, the Supreme Court found that the verbal censure was not an “adverse action” and did not have a “retaliatory motive”; therefore, Wilson did not have standing to bring a claim. The Court emphasized Wilson’s status as an elected official and, therefore, one who was properly susceptible to criticism. Moreover, it found the verbal censure was itself a form of speech concerning the conduct of public office. Although Wilson had a right to speak freely himself, he could not turn around and bring a claim against the Board for similarly exercising its own right to free speech. Wilson’s right to speak did not mandate the Board’s silence.
The Supreme Court was careful to point out that its ruling was narrow, and while this verbal censure did not give rise to a claim for retaliation, there may be other reprimands or censures that do impair the right of free speech. In particular, when there is a form of punishment attached and the elected member’s ability to complete the tasks of the job are compromised or if the official’s speech is chilled, the result could be different. In this case, however, Wilson’s own response that the Board action would never stop him makes it clear that Wilson’s First Amendment rights were not curtailed.
While—with this ruling—the Supreme Court has confirmed the long-standing parliamentary tradition that a Board may censure one of its elected members, should a Board accept this invitation to make ready use of this tool? There are some practical considerations:
- There is value to using censures sparingly. In the U.S. House and Senate, where the U.S. Constitution implicitly permits censures, both branches have exhibited restraint in voting to censure members. Moreover, when used, they are often by an overwhelming majority and not along party lines. Since ratification of the Constitution, only 9 senators and 24 Members of the House have been censured. Censures were not designed to foster political infighting. When infrequently used, a censure will carry more heft.
- If a censure is proposed, care should be taken in drafting. A censure should not affect the ability of the member to do the tasks associated with the position. A statement that expresses the body’s disagreement with an individual’s actions should be constitutionally protected, but once the censure attaches more tangible consequences, a court might find differently. Similarly, a censure should not have the effect of limiting a member’s free speech. Boards should consult with legal counsel in the drafting of the censure to help ensure it does not create legal risk.
- While censure is allowable, exclusion or expulsion from committees or other assignments may be different. The Supreme Court only looked at the narrow issues of a censure, and not accompanying consequences (for example, the ability to run for a leadership position in the chamber or reimbursement of travel expenses related to the position). Boards should exercise caution when the censure moves from speech to penalty.
- Consider alternatives to a censure. When there is disagreement or displeasure with the actions of a fellow elected official, other elected members can speak out individually on their own or campaign in favor of an opponent at an election. All elected officials are open to criticism; the First Amendment guarantees it. For an elected official, the ultimate censure can be found at the ballot box.
- Check a Board’s governing documents and follow the process. While censure is part of the parliamentary tradition of boards, each board should look to see if its policies are up to date on the process of censure and defining conduct subject to censure. The increasing use of social media as the public square for debate should be considered with board policies. When pursing a censure, the process should be closely followed and whether a board proceeds under a disciplinary provision or merely makes a statement of disapproval can be a factor a court may consider in determining whether an action is retaliatory.
Western states’ school boards from Malheur County, Oregon to Sequim, Washington to Sonoma, California, have wandered down the road of censures, some stopping short of passage, but others embracing this option. The Supreme Court noted that while the House and Senate have shown restraint, the use of censures and reprimands are on the rise at the local and state level. Our team will continue to monitor these First Amendment issues. If you have questions about how to ensure your board’s policies comply or apply in certain circumstances, please contact a member of our team.
Finally, school board and community college board members who give their time free of charge may be mindful to take head of the caution of Judge James C. Ho from the Fifth Circuit who cautioned, “Holding office in America is not for the faint of heart.”