蜜桃影视

Get stories like this delivered straight to your inbox. Sign up for 蜜桃影视 Newsletter

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鈥檚 First Amendment rights and has 鈥渟ignificant chilling effects,鈥� 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 鈥� and for hundreds of school boards in Texas 鈥� said he didn鈥檛 think incarcerating a member for something they said was 鈥渨ithin the history and tradition of this country.鈥�

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

鈥淚f 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,鈥� he said.

While the case pertains to a community college, it鈥檚 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 over their positions, disputes among members 鈥� sometimes 鈥� are happening as well. The court鈥檚 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 , argue that a ruling for Wilson could bring the actions of elected boards 鈥渟quarely within the purview of federal district courts, crippling a public body鈥檚 ability to self-govern.鈥� But free speech advocates argue elected boards can go too far.

鈥淪ometimes when the government speaks, it can violate First Amendment rights,鈥� 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 鈥渃ould impact decision-making both in higher ed, K-12 and beyond.鈥�

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鈥檚 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 , the college system said its rebuke 鈥渄oes not suppress or impermissibly chill the member鈥檚 own speech, compel him to espouse the majority鈥檚 views, or prevent him from doing his legislative job. The circumstances here thus provide no basis for a First Amendment claim.鈥� 

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

The board of trustees 鈥渧iewed him as a gadfly, but that doesn鈥檛 mean gadflies aren鈥檛 right about some things,鈥� Keating said.

Wilson鈥檚 brief argued that the board made unwise decisions regarding its partnership with Qatar and had a 鈥渉istory of corruption鈥� that resulted in pleading guilty to bribery and serving time in federal prison.

鈥楾he criticisms of government鈥�

Keating added it wasn鈥檛 just the trustees鈥� censure resolution that infringed on Wilson鈥檚 rights 鈥� 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鈥檚 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 鈥減ublic concern鈥� 鈥� not because it included penalties. But the justices wanted to know why they shouldn鈥檛 also consider those sanctions.

Morris argued that prohibiting a body from using censure would have a 鈥渄estabilizing鈥� impact and that even private citizens 鈥渉ave to be able to endure the criticisms of government.鈥�

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

鈥淎s with all political speech, the ultimate audience is the people,鈥� their brief said. 鈥淒isputes like the one between respondent Wilson and his legislative colleagues must be resolved by the voters.鈥�

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

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

鈥淭heoretically, I may not be losing tangible benefits, but the free speech issue remains,鈥� he said.

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

Church, a conservative who opposes what he labels 鈥渙utrageous so-called social justice education,鈥� the district鈥檚 policies are 鈥渟o vague that you can censure a ham sandwich.鈥� 

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

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

But it鈥檚 important for board members to be able to 鈥渧oice their own opinions in order to hold the system accountable, especially if the needs of their constituents have been perpetually minimized,鈥� 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.

鈥淭his case has enough variables and moving parts that it’s really hard to predict what sort of guidance might come out of this,鈥� he said.

Did you use this article in your work?

We鈥檇 love to hear how 蜜桃影视鈥檚 reporting is helping educators, researchers, and policymakers.