5th Circuit holds that public censure of a board member might violate First Amendment

The majority of the board for the Houston Community College System apparently felt that board member David Wilson was out of line.  Voters elected Mr. Wilson to the board in 2013. Four years later he stirred things up, much of this due to the decision by the board to fund a campus in Qatar. 

*He expressed concerns that the board was not following its own bylaws. 

*He gave an interview about his disagreements with the board to a local radio station.

*He set up robocalls to constituents .

*He filed two lawsuits against HCC and his fellow board members.   

*He retained private investigators to investigate HCC and the residency status of one of the board members. 

*He maintained a website where he published his various concerns. 

On January 18, 2018, the board voted to adopt a resolution publicly censuring Mr. Wilson.  The court described it this way:

In the censure resolution, the Board chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed.  The Board directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Mr. Wilson sued HCC, alleging that this censure resolution punished him for the exercise of free speech.  In a ruling that is sure to draw considerable attention from school board members, the 5th Circuit held that Mr. Wilson stated a valid claim.  Key Quotes:

Under our precedent, Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Additionally, the Supreme Court has held that a free speech violation giving rise to a reputational injury is an injury in fact.

….a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under Section 1983.

Notice: this suit was not against the individual members of the HCC board.  If it had been, those members would have vigorously asserted various theories of immunity, including legislative immunity which is very broad. Mr. Wilson limited his suit to the HCC itself, rather than the individuals. 

Here's another interesting wrinkle: the board imposed three sanctions on Mr. Wilson in addition to the censure.  He would not be eligible to serve as an officer (sounds like he would not have been elected to an office anyway); he was ineligible for travel reimbursement for a year; and his requests for access to the funds in his Board account for community affairs would have to be approved by the full Board.  Even though these measures were more concrete than a censure resolution, the 5th Circuit held that they “do not violate [Mr. Wilson’s] First Amendment rights.”  It was only the censure that was legally significant. 

Do you ever have disagreements between board members?  Do some of your board members believe that some other members are out of line? Inappropriate?  Illegal?  This case is an important precedent establishing the parameters for board action that disciplines individual board members.  This is an area where the board would be wise to consult carefully with legal counsel before taking action. 

The case is Wilson v. Houston Community College System, decided by the 5th Circuit on April 7, 2020.  HCC is seeking to have the decision reviewed by the 5th Circuit en banc.  So stay tuned.


Tomorrow: the football field did not live up to expectations…