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.

And they had to prepare for this: shutting down schools, reopening schools, shutting down and reopening schools again, social distancing, masking, vaccinations, distance learning, hybrid learning, in-person learning, remote learning and independent study.

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.

An illustrative representation of three individuals from the general public audience screaming/yelling at a county board member during a board meeting

Disruptions from the public

The unprecedented disruption of local agency meetings is currently being debated in the state Legislature. Approved by the Senate and being considered by the Assembly at the time of this writing, Senate Bill 1100 (Cortese, D-Silicon Valley) seeks to define in the Brown Act the level of “disruption” that may result in a person being removed from the meeting room by the presiding member of the governing body, without violating the person’s constitutional right to free speech and expression. Critically, speech or conduct that may be considered insolent, disrespectful, critical, boisterous, profane, false or even slanderous, unless it actually disrupts a public meeting, is constitutionally protected speech. (Acosta v. City of Costa Mesa 718 F 3d 800, 816 (9th Cir. 2013); Baca v. Moreno Valley USD 936 F. Supp. 719, 727-728 (C.D. Cal. 1996.).)

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

In addition to grappling with how to handle disruptive members of the public, boards have also been confronted with unruly board members. How a governing board may respond to the unprofessional conduct of board members was addressed by the United States Supreme Court in Houston Community College System v. Wilson (142 S. Ct. 1253 (2022.)). The Court ruled that the censure of a board member (David Wilson) was the board discharging its public duty and not an act of retaliation against Wilson for the exercise of his First Amendment rights. Wilson, besides filing four lawsuits against the community college and hiring a private investigator to surveil another board member, made comments to the press, on his website and in robocalls to the other member’s constituents about how his colleagues had violated the board’s bylaws and ethical rules.

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.

Justice Neil Gorsuch, writing for a unanimous court, cited examples supporting the use of censure by governing bodies since colonial times and opined that for an elected official to successfully challenge a censure motion, they must show that because of the censure, they suffered an “adverse action” that chilled the exercise of their First Amendment rights. (Id., p. 1260.) The Court found that board member Wilson’s speech was not protected by the Constitution because a) an elected official is expected to shoulder a degree of criticism from their constituents and their peers while serving the public; b) the censure motion was the exercise of his colleagues’ First Amendment speech rights; and c) the censure did not prevent him from representing his constituents or from continuing in office. (Id., p. 1261.) Importantly, the Court noted that Wilson could not use his speech rights “as a weapon to silence other representatives seeking to do the same.” (Ibid.)

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.

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