The U.S. Supreme Court appeared inclined on Tuesday to rule that a school board’s censure of one of its members over speech that violates board rules does not give rise to a First Amendment case.
“Unless there’s something special about the word ‘censure,’ and maybe there is, this is a very easy case,” Justice Samuel A. Alito Jr. said during the arguments in (Case No. 20-804). “One person says something derogatory about another person, and then the other person responds by saying something derogatory about the first person. … Nobody’s free speech rights are violated there.”
Chief Justice John G. Roberts Jr. said that a ruling for the Houston community college board member whose charged comments and divisive conduct prompted his censure in 2018 might prompt any school board member or local official across the nation who faced official sanctions to sue their governmental bodies.
“And it seems to me once that remedy becomes widely known and available, it would become automatic,” Roberts said. “And so the ... traditional legislative body debates would all end up in court, and then the court would have to decide an essentially political question that’s divided the members of the board. And that seems an unsatisfactory result.”
Censures are commonplace among local governments, a lawyer asserts
The case before the court involves David B. Wilson, who was elected to the nine-member Houston Community College board of trustees in 2013 and soon became a source of divisiveness and turmoil. But the nearly 90-minute argument made clear that censure has been a widely used tool of K-12 school boards and other local elected bodies for rogue conduct or offensive speech by board members.
“While it may be unusual in the U.S. Congress to censure, local bodies do it about once every other day in any given year, and they do it for all number of reasons, including for conduct that takes place outside the body,” Richard A. Morris, a Houston lawyer representing the community college board, told the justices.
As Education Week noted last month in previewing the Houston case, some school board censures of their members have been outgrowths of the bitter debates in recent years over COVID safety protocols or LGBTQ rights. Some have involved offensive comments made by board members, whether during official business or outside of board proceedings.
“Elected officials these days can be their own independent misinformation machines, and they can do great damage to institutions, all on social media,” Morris said during the arguments.
Wilson was censured in 2018 after a several years of speech and conduct that the board viewed as bringing turmoil. Wilson had filed lawsuits against the board over some of its decisions, and encouraged others to sue it as well. He made anti-gay remarks and objected to the inclusion of sexual orientation in the community college’s nondiscrimination policies. And after the community college board voted to open a campus in Qatar, over Wilson’s opposition, he orchestrated robocalls to the constituents of other board members and hired private investigators to check a fellow board member’s residency, court papers say.
The board’s censure resolution said that Wilson had “demonstrated a lack of respect for the board’s collective decisionmaking process, a failure to encourage and engage in open and honest discussions in making board decisions, and a failure to respect differences of opinion among trustees.”
The censure made Wilson ineligible to serve as an officer of the board, and he could not access his $5,000 in discretionary funds without board approval or be reimbursed for college-related travel.
Wilson sued under the First Amendment, claiming that the censure and its accompanying punishments violated his free speech rights. A federal district judge ruled for the district, but a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, .
“A reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under” federal law, the appeals court said.
References to Joe McCarthy, and to racial slurs by a hypothetical board member
Significantly for Wilson’s appeal before the Supreme Court, the 5th Circuit court recognized a claim for First Amendment retaliation based solely on the censure. It held that the sanctions that accompanied the censure did not violate Wilson’s First Amendment rights.
Justice Sonia Sotomayor asked Morris about where the additional sanctions fit into the case and the high court’s analysis.
“How do we deal with those?” she asked the board’s lawyer. “You’ve got an easy case on censure historically, but how do we approach those?”
Morris said that elected officials had no entitlement to some of the trappings of office that would implicate the First Amendment.
Michael B. Kimberly, a Washington lawyer representing Wilson, disagreed on the relevance, saying the concrete penalties were “baked into the censure itself.”
Further, the Houston board’s censure resolution concluded with “an express command that Wilson must immediately cease and desist from further criticisms of the board, upon threat of further punishment that would have extended the period during which his privileges of office were denied to him,” Kimberly said. And the penalties were imposed pursuant to the board’s disciplinary authority, he said.
“Simply put, the censure resolution here was a serious penalty intended to chill and deter, and because it was adopted in response to concededly protected speech, it violated the First Amendment,” Kimberly said.
He did not seem to make much headway with the justices as he argued for a distinction between a board’s mere vote of disapproval of a member, which he said would not be a First Amendment case, and the formal censure that came with disciplinary measures in Wilson’s case.
“I think I’m still stuck on the distinction you’re drawing,” Justice Elena Kagan said to Kimberly.
Justice Stephen G. Breyer said that legislative bodies, from Congress to the local level, have traditionally had “the power of administration, power to control the kinds of things others say within the body, what’s appropriate, what isn’t. … So, if we get into the business of starting to really oversee this, then we’ve changed the government structure significantly.”
Breyer brought up the 1954 congressional censure of Sen. Joseph McCarthy over the Wisconsin Republican’s committee abuses.
“Senator McCarthy was censured, destroying his political career,” Breyer said. “Well, that was up to the Congress.”
Kagan asked Kimberly whether McCarthy’s censure had been improper. Kimberly said there were similarities to Wilson’s case in that the discipline was formal, but it was not a First Amendment violation because McCarthy had been censured for speech “within the legislative sphere.”
That prompted Justice Amy Coney Barrett to ask Kimberly about a legislator who “engages in really offensive speech full of racial slurs.”
“The member says all kinds of horrible racial slurs on the floor, that is censurable, and then walks out onto the steps and gives a press conference and repeats those exact same racial slurs, that is not subject to censure ever?” Barrett asked.
Kimberly said that was correct, but the legislative body would still be free to adopt a resolution “in opposition to the particular issues being raised.”
Censure in the U.S. goes way back, a federal government lawyer notes
The Biden administration participated in the argument in support of the Houston community college board, with Sopan Joshi, an assistant to the solicitor general, arguing that “elected bodies in our Anglo-American legal tradition have long entered disciplinary actions against their members, including for those members’ speech, with no suggestion that it violated principles of free speech.”
He said that Congress since 1791 has censured and even expelled members for their private speech. His discussion of the historical approach prompted Kagan to ask him whether it was “clear to you that a history that’s all about members of Congress applies equally to members of a local school board, part-time, unpaid?”
“You know, there are elected representatives and then there are elected representatives,” Kagan said. “Should we try to draw any distinctions?”
Joshi said there were reasons to think of members of Congress and the local school board member as similar for the purposes of the constitutional issues before the court.
“I think the idea is that the Constitution’s grant of the disciplinary power and the expulsion power reflects a well-understood, universal, long-established tradition of legislative bodies,” Joshi said.
A decision in the case is expected by next June.
