Can Your Board Legally Censure a Rogue Board Member Without Violating the First Amendment?  Absolutely Says Unanimous U.S. Supreme Court
First Amendment

Last week was a win for boards of education and other public bodies in Connecticut and across the country.  On March 24, 2022, the United States Supreme Court unanimously held in Houston Community College System v. Wilson, (Case No. 20-804) that the Board of Trustees of the Houston Community College System did not violate the First Amendment rights of one of its trustees when it voted to formally censure the trustee for conduct that was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” 

The Houston Community College System case has familiar overtones.  Before the formal censure, the trustee in question had gone “rogue” by among other things, alleging that his fellow trustees had violated the board’s bylaws and ethical rules in various media outlets, arranging robocalls of the constituents of fellow trustees for political purposes and hiring a private investigator to surveil another trustee in an effort to prove she did not really live within the district that elected her.  In addition, the rogue trustee also filed numerous lawsuits against the Community College System itself challenging various Board of Trustees’ actions.  In total, these lawsuits cost the Community College System over $250,000 in legal fees to defend.

The Supreme Court’s unanimous opinion holds that a verbal reprimand against an elected official for speech addressing a matter of public concern is not actionable under the First Amendment.  The opinion, authored by Justice Neil Gorsuch, includes an extensive historical examination of the use of formal censures by public bodies in the United States and ultimately finds that:

The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak.

Houston Community College System, at 9.

What’s the takeaway for Connecticut boards of education?  Dealing with a rogue board member is no picnic.  For better or worse, Connecticut boards of education only have limited tools at their disposal to deal with “rogue” board members.  While board bylaws may allow for a member to be stripped of their position as an officer or removed from a board committee, other options are limited.  What the Houston Community College System case makes clear, however, is that censure resolutions are a viable legal tool in the tool kit.  While a rouge board member may have the First Amendment right to speak his or her peace, as undermining, corrosive or counterproductive as it may be, other board members also have their own First Amendment rights, and they can legally exercise their collective First Amendment rights through passing a censure resolution that publicly rebukes the rogue member.

Please contact one of Pullman & Comley's School Law attorneys if you have any questions or concerns.  

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