In Partnership with The 74

Supreme Court weighs limits of censure in case with implications for divisive school boards

Linda Jacobson | November 4, 2021



The Supreme Court Tuesday heard the case of a former Houston Community College System trustee who argues a formal censure violated his right to free speech.
(Houston Community College)

Legislative bodies, including K-12 school boards, should be able to police their own members and censure is the historical mechanism for doing that, attorneys representing the Houston Community College System argued Tuesday in a hearing before the U.S. Supreme Court.

But censuring a board member for criticism of the board violates that person’s First Amendment rights and has “significant chilling effects,” responded Michael Kimberly, attorney for former trustee David Buren Wilson, who sued the system after he was censured.

During their questioning in Houston Community College System v. Wilson, the justices asked whether there should be limits to censure. Justices Clarence Thomas and Elena Kagan asked if censure can include fines or even imprisonment. But Richard Morris, attorney for the community college system — and for hundreds of school boards in Texas — said he didn’t think incarcerating a member for something they said was “within the history and tradition of this country.”

Chief Justice John Roberts asked Kimberly whether agreeing with Wilson would open the door to lawsuits.

“If you prevail, then whenever there’s a censure resolution, the response is going to be a lawsuit against the board for defamation, libel, and that would then go to the courts and they would have to resolve that,” he said.

While the case pertains to a community college, it’s impact is likely to be far broader. It is playing out as school board members across the country confront multiple divisive issues, from requiring masks to teaching students about racial discrimination. While boards this year have faced public protests and sometimes verbal and physical attacks over their positions, disputes among members — sometimes outside the boardroom — are happening as well. The court’s decision could limit efforts to rein in members who use social media or other platforms to air complaints against the board. Supporters of the community college board, including the National School Boards Association, argue that a ruling for Wilson could bring the actions of elected boards “squarely within the purview of federal district courts, crippling a public body’s ability to self-govern.” But free speech advocates argue elected boards can go too far.

“Sometimes when the government speaks, it can violate First Amendment rights,” said Will Creeley, legal director at the Foundation for Individual Rights in Education. He said a broad ruling by the court in favor of the college system “could impact decision-making both in higher ed, K-12 and beyond.”

Wilson, who has long been at odds with his fellow board members, served from 2013 to 2019, and could return to the board if he is victorious in a Nov. 2 election. In 2017, he disagreed with the board’s decision to fund a campus in Qatar. In protest, he programmed robocalls to constituents of other trustees, went on local radio stations to discredit them and hired a private agency to investigate their actions, according to court documents. He also launched a website to publicize his concerns.

In its brief, the college system said its rebuke “does not suppress or impermissibly chill the member’s own speech, compel him to espouse the majority’s views, or prevent him from doing his legislative job. The circumstances here thus provide no basis for a First Amendment claim.”

But David Keating, president of the Institute for Free Speech, which co-authored a “friend of the court” brief in support of Wilson, said even if his behavior was “extremely obnoxious,” the censure crossed the line because it tried to control what he was saying outside of his official duties.

The board of trustees “viewed him as a gadfly, but that doesn’t mean gadflies aren’t right about some things,” Keating said.

Wilson’s brief argued that the board made unwise decisions regarding its partnership with Qatar and had a “history of corruption” that resulted in one member pleading guilty to bribery and serving time in federal prison.

‘The criticisms of government’

Keating added it wasn’t just the trustees’ censure resolution that infringed on Wilson’s rights — it was the additional penalties attached to it. The censure made Wilson ineligible for board officer positions, cut off reimbursements for college-related travel and required him to seek approval before accessing funds in his faculty account.

Those penalties received considerable attention at Tuesday’s hearing. In its ruling, the 5th Circuit Court of Appeals found that Wilson had a First Amendment claim because the censure itself reprimanded him for speaking out on an issue of “public concern” — not because it included penalties. But the justices wanted to know why they shouldn’t also consider those sanctions.

Morris argued that prohibiting a body from using censure would have a “destabilizing” impact and that even private citizens “have to be able to endure the criticisms of government.”

The college system holds that the public — not the courts — should weigh in on disputes between elected officials at the ballot box.

“As with all political speech, the ultimate audience is the people,” their brief said. “Disputes like the one between respondent Wilson and his legislative colleagues must be resolved by the voters.”

 Some recent conflicts between board members involve the same COVID-related issues or racial equity initiatives — linked to the umbrella of critical race theory — that are prompting public demonstrations and shouting matches. In a Texas district, for example, there is an effort to censure two members who left a September meeting because of social distancing rules that limited the number of people who could attend.

In Washoe County, Nevada, board member Jeff Church, who is facing censure, sees parallels between the Houston case and his criticism of the board and the district.

“Theoretically, I may not be losing tangible benefits, but the free speech issue remains,” he said.

According to board President Angela Taylor, Church has violated 27 policies, including spreading misleading information and communicating with constituents by email without copying her.

Church, a conservative who opposes what he labels “outrageous so-called social justice education,” argues the district’s policies are “so vague that you can censure a ham sandwich.”

But Joy Baskin, director of legal services for the Texas Association of School Boards, said censure protects the rest of the board’s free speech rights. If the 5th Circuit court’s ruling stands, “boards will be so afraid of litigation that they will stay away from what should be course correction,” she said.

Some experts anticipate the court will issue a limited ruling. Ethan Ashley, co-CEO of School Board Partners, which trains and supports “equity-minded” board members, said he expects the justices to be “sensitive to the concerns of speech that can impede a board’s ability to operate,” such as leaking confidential information discussed in an executive session.

But it’s important for board members to be able to “voice their own opinions in order to hold the system accountable, especially if the needs of their constituents have been perpetually minimized,” he said.

Keating said a legislative body is akin to a workplace, where there are expectations for behavior. But he added that whether members should be censured for what they say or do outside of official proceedings is a more difficult question.

“This case has enough variables and moving parts that it’s really hard to predict what sort of guidance might come out of this,” he said.


This article was published in partnership with The 74. Sign up for The 74’s newsletter here.

Read Next