In Censure of School Board Member

The U.S. Supreme Court appeared inclined on Tuesday to rule that a school
board’s censure of one of its members over speech that violates board rules
does not give rise to a First Amendment case.

“Unless there’s something special about the word ‘censure,’ and maybe there
is, this is a very easy case,” Justice Samuel A. Alito Jr. said during the
arguments in Houston Community College System v. Wilson (Case No. 20-804).
“One person says something derogatory about another person, and then the
other person responds by saying something derogatory about the first person.
… Nobody’s free speech rights are violated there.”

Chief Justice John G. Roberts Jr. said that a ruling for the Houston
community college board member whose charged comments and divisive conduct
prompted his censure in 2018 might prompt any school board member or local
official across the nation who faced official sanctions to sue their
governmental bodies.

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“And it seems to me once that remedy becomes widely known and available, it
would become automatic,” Roberts said. “And so the … traditional
legislative body debates would all end up in court, and then the court would
have to decide an essentially political question that’s divided the members
of the board. And that seems an unsatisfactory result.”

Censures are commonplace among local governments, a lawyer asserts

The case before the court involves David B. Wilson, who was elected to the
nine-member Houston Community College board of trustees in 2013 and soon
became a source of divisiveness and turmoil. But the nearly 90-minute
argument made clear that censure has been a widely used tool of K-12 school
boards and other local elected bodies for rogue conduct or offensive speech
by board members.

“While it may be unusual in the U.S. Congress to censure, local bodies do it
about once every other day in any given year, and they do it for all number
of reasons, including for conduct that takes place outside the body,”
Richard A. Morris, a Houston lawyer representing the community college
board, told the justices.

As Education Week noted last month in previewing the Houston case, some
school board censures of their members have been outgrowths of the bitter
debates in recent years over COVID safety protocols or LGBTQ rights. Some
have involved offensive comments made by board members, whether during
official business or outside of board proceedings.

“Elected officials these days can be their own independent misinformation
machines, and they can do great damage to institutions, all on social
media,” Morris said during the arguments.

Wilson was censured in 2018 after a several years of speech and conduct that
the board viewed as bringing turmoil. Wilson had filed lawsuits against the
board over some of its decisions, and encouraged others to sue it as well.
He made anti-gay remarks and objected to the inclusion of sexual orientation
in the community college’s nondiscrimination policies. And after the
community college board voted to open a campus in Qatar, over Wilson’s
opposition, he orchestrated robocalls to the constituents of other board
members and hired private investigators to check a fellow board member’s
residency, court papers say.

The board’s censure resolution said that Wilson had “demonstrated a lack of
respect for the board’s 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.”

The censure made Wilson ineligible to serve as an officer of the board, and
he could not access his $5,000 in discretionary funds without board approval
or be reimbursed for college-related travel.

Wilson sued under the First Amendment, claiming that the censure and its
accompanying punishments violated his free speech rights. 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 suit in
2020.

“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.

References to Joe McCarthy, and to racial slurs by a hypothetical board
member

Significantly for Wilson’s appeal before the Supreme Court, the 5th Circuit
court recognized a claim for First Amendment retaliation based solely on the
censure. It held that the sanctions that accompanied the censure did not
violate Wilson’s First Amendment rights.

Justice Sonia Sotomayor asked Morris about where the additional sanctions
fit into the case and the high court’s analysis.

“How do we deal with those?” she asked the board’s lawyer. “You’ve got an
easy case on censure historically, but how do we approach those?”

Morris said that elected officials had no entitlement to some of the
trappings of office that would implicate the First Amendment.

Michael B. Kimberly, a Washington lawyer representing Wilson, disagreed on
the relevance, saying the concrete penalties were “baked into the censure
itself.”

Further, the Houston board’s censure resolution concluded with “an express
command that Wilson must immediately cease and desist from further
criticisms of the board, upon threat of further punishment that would have
extended the period during which his privileges of office were denied to
him,” Kimberly said. And the penalties were imposed pursuant to the board’s
disciplinary authority, he said.

“Simply put, the censure resolution here was a serious penalty intended to
chill and deter, and because it was adopted in response to concededly
protected speech, it violated the First Amendment,” Kimberly said.

He did not seem to make much headway with the justices as he argued for a
distinction between a board’s mere vote of disapproval of a member, which he
said would not be a First Amendment case, and the formal censure that came
with disciplinary measures in Wilson’s case.

“I think I’m still stuck on the distinction you’re drawing,” Justice Elena
Kagan said to Kimberly.

Justice Stephen G. Breyer said that legislative bodies, from Congress to the
local level, have traditionally had “the power of administration, power to
control the kinds of things others say within the body, what’s appropriate,
what isn’t. … So, if we get into the business of starting to really oversee
this, then we’ve changed the government structure significantly.”

Breyer brought up the 1954 congressional censure of Sen. Joseph McCarthy
over the Wisconsin Republican’s committee abuses.

“Senator McCarthy was censured, destroying his political career,” Breyer
said. “Well, that was up to the Congress.”

Kagan asked Kimberly whether McCarthy’s censure had been improper. Kimberly
said there were similarities to Wilson’s case in that the discipline was
formal, but it was not a First Amendment violation because McCarthy had been
censured for speech “within the legislative sphere.”

That prompted Justice Amy Coney Barrett to ask Kimberly about a legislator
who “engages in really offensive speech full of racial slurs.”

“The member says all kinds of horrible racial slurs on the floor, that is
censurable, and then walks out onto the steps and gives a press conference
and repeats those exact same racial slurs, that is not subject to censure
ever?” Barrett asked.

Kimberly said that was correct, but the legislative body would still be free
to adopt a resolution “in opposition to the particular issues being raised.”

Censure in the U.S. goes way back, a federal government lawyer notes

The Biden administration participated in the argument in support of the
Houston community college board, with Sopan Joshi, an assistant to the
solicitor general, arguing that “elected bodies in our Anglo-American legal
tradition have long entered disciplinary actions against their members,
including for those members’ speech, with no suggestion that it violated
principles of free speech.”

He said that Congress since 1791 has censured and even expelled members for
their private speech. His discussion of the historical approach prompted
Kagan to ask him whether it was “clear to you that a history that’s all
about members of Congress applies equally to members of a local school
board, part-time, unpaid?”

“You know, there are elected representatives and then there are elected
representatives,” Kagan said. “Should we try to draw any distinctions?”

Joshi said there were reasons to think of members of Congress and the local
school board member as similar for the purposes of the constitutional issues
before the court.

“I think the idea is that the Constitution’s grant of the disciplinary power
and the expulsion power reflects a well-understood, universal,
long-established tradition of legislative bodies,” Joshi said.