legal insights
Addressing disruptive behavior at board meetings and beyond
chool and county board members have experienced a sudden surge in interest in their meetings during the pandemic. Issues that have brought parents, students, hellraisers and members of the general public to the board room, many Zooming in from around the state and the nation, resulted in board presidents having to brush up on their parliamentary skills and everyone taking just a little more personal time to prepare.
The pressure on governing boards and school staff to create a safe learning environment during constant uncertainty and ever-changing guidance was enormous. Most members stood up and met the challenge head-on, no matter if the changes they just made at the previous meeting had to be changed yet again, sometimes amidst a storm of unyielding protest. The fallout from this constant rate of change has affected everyone involved in the delivery of public education. It will take years for some students to recover academically and for children and young adults to recover emotionally and mentally. And for some adults who were involved with creating a safe and productive TK-12 learning environment, like the students they serve, their wounds may never heal.
During this period of social and institutional change, school board members throughout the state have had to respond to confrontational and sometimes disruptive behavior by the public and by members of their own board who acted more in step with those protesting the decisions made by the board. Board members who play to the audience, discuss confidential information, or who are openly hostile to the superintendent or to other board members during meetings can make it very difficult for the president to run the meeting and for members to work together as a governing board.
Disruptions from the public
Consistent with Acosta and several federal and state court decisions, SB 1100 defines disrupting a meeting as “engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes or renders infeasible the orderly conduct of the meeting…” (Emphasis added.) Examples given of conduct that may rise to the level of an “actual” disruption are “engaging in behavior that includes the use of force or true threats of force” and “failure to comply with reasonable and lawful regulations” adopted by the legislative body to manage their public meetings. The Legislature, like the courts, is walking a fine line of balancing a speaker’s right to free speech and expression with the right of others in attendance to listen and/or participate, and the right of school boards and other local legislative bodies to effectively do the public’s business in public without actual disruption. In recognition of this balancing act, the Supreme Court has concluded that “[I]f the First Amendment means anything, it means that regulating speech must be a last — not first — resort.” (Thompson v. W. States Med. Ctr. 122 S. Ct. 1497, 1507 (2002).)
Disruptive behavior from other board members
The Court’s decision supports what governing bodies have been doing for centuries: when a colleague’s behavior creates an untenable and unstable environment in which to effectively govern, censure is a tool in the toolbox that may be used to help bring a wayward colleague back in line. The Court’s ruling only covered censure, but other tools that may be used to respond in open session to a board member’s objectionable behavior include public reprovals and reprimands, removal from board committees or as an officer of the board, and not reimbursing a member for agency-related travel or attendance at events and activities. In sum, censure and other actions taken by boards against a colleague serve to publicly address a member’s misconduct but does not remove the member from the dais.
The shift to increased public engagement with local governing bodies has led to an array of new questions about how to balance First Amendment rights with effective governance. SB 1100 and Wilson are two responses to those questions. As school boards continue to face head-on the issues of the day, more will certainly follow.
Keith Bray is CSBA general counsel and chief of staff.
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.