U.S. Supreme Court to rule on case regarding censure of elected board members
Does the First Amendment restrict the authority of an elected body to censure a member?
Little Justice Statue
The United States Supreme Court has agreed to hear a case, Houston Community College System v. Wilson, to determine whether the First Amendment restricts the authority of a school board or other elected body to censure speech by one of its members. Argument before the Supreme Court is set for Nov. 2, 2021.

School and county boards of education, like other elected bodies, can make political statements as a collective entity, and can take actions to dissociate themselves from the statements of an individual member, at times using the legislative mechanism of censure to do so. Many boards in California have a policy explicitly allowing the board to censure individual members under certain circumstances, and the often-used Robert’s Rules of Order authorizes the practice.

Could the Supreme Court upend this common practice?
This case involves a Houston Community College (HCC) trustee, David Wilson, who has accused the board of the college of violating his constitutional rights by voting to censure him. According to HCC’s brief petitioning the court, “Wilson’s tenure was marked by immediate and constant turmoil. In a span of three years, he filed multiple lawsuits against HCC, helped others to file additional lawsuits, was accused of leaking confidential information, publicly denigrated HCC’s antidiscrimination policy, and sparked media attention for a laundry list of other controversies.” Wilson also “orchestrated a wave of negative robocalls to other members’ constituents,” filed multiple lawsuits that “cost HCC almost $300,000 in legal fees,” and had apparently caused HCC’s accrediting agency to express concern that the governing board must “act with authority only as a collective entity” and “not [be] controlled by a minority.”

The board voted to censure Wilson, and Wilson subsequently filed a First Amendment claim and requested damages for “mental anguish” caused by the board. A federal district court judge ruled for the community college board and dismissed Wilson’s complaint, but the Fifth Circuit Court of Appeals reversed and reinstated Wilson’s claim for damages, writing that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.” HCC appealed to the Supreme Court.

In petitioning the Supreme Court, HCC wrote that “[c]ensure is an essential, time-honored tool for self-governance by elected bodies.” HCC noted that the Fifth Circuit’s ruling created a split among the circuit courts, and creates uncertainty about longstanding censure practices that are common among elected bodies. HCC argued in its brief that “allowing elected legislators to use First Amendment retaliation claims to block censures by their peers would be fundamentally inconsistent with both respect for the legislature’s own right to speak and the proper functioning of the democratic process, especially at the local level.”

An amicus brief filed by the Texas Association of School Boards and the National School Boards Association in support of HCC argued that school boards must be able to establish local policies and operating procedures without fear that individual members will seek intervention from federal courts under the guise of First Amendment violations. It further argued that the Fifth Circuit’s decision distracts school boards from their educational missions and silences the important voice of the board itself, potentially allowing the First Amendment to be used as a tool by one disruptive board member to prevent elected boards from speaking and doing their jobs.

While the case before the Supreme Court may be the most important case impacting the ability of boards to censure a member, it is not the first lawsuit to claim that a board’s act of censure was an unconstitutional retaliation against an exercise of free speech rights. In a 2008 case in which the California Court of Appeal held in favor of the school district, Californians Aware v. Orange Unified School District, CSBA’s Education Legal Alliance made similar arguments in support of a school board’s ability to censure an individual member, writing in an amicus brief that “board-adopted censure resolutions clearly constitute protected speech. A censure resolution allows the board majority to communicate to its constituents that the actions by one board member do not reflect the opinion of the board majority.”

If the Supreme Court upholds the Fifth Circuit’s decision, it could open up school boards and other elected bodies here in California and across the nation to greater risk of First Amendment litigation by censured individual board members in federal courts, and chill the important voice of the board itself.

CSBA’s Legal Department will update members on the outcome and impact of the Supreme Court’s decision.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.