Can the board censure one of its members?

First, an announcement. We have a WINNER in the Dawg’s April Fool’s Lawyer Joke Contest.  Maria Washington, a Section 504 Specialist and Loyal Daily Dawg Reader from Socorro ISD offered the following:

The man in the interrogation room tells the cop: “I’m not talking until I have my lawyer present.” 

The cop: “But, Sir, you are a lawyer.”

The man: “Exactly.  Where’s my present?”

Thanks to all who played!  Now for today’s content….

At long last we have found something that all of our Supreme Court justices agree on.  School board members can issue a formal resolution of censure, describing one member’s conduct as “inappropriate” and “reprehensible,” without violating the First Amendment.   That’s the unanimous decision of the Court in Houston Community College System v. Wilson, issued on March 24, 2022.

Mr. Wilson had been a thorn in the side of other board members for many years.  In fact, the board reprimanded him in 2016.   This did not deter Mr. Wilson: 

In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views.  He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her.  He also filed two new lawsuits in state court. 

And so in 2018 the board censured him for actions “not consistent with the best interests of the College.”  In response, Mr. Wilson sued HCC, claiming that this censure resolution was an act of retaliation, punishing him for speaking his mind as the 1st Amendment allows.

SCOTUS rejected that argument.  The Court pointed out that elected representatives should expect criticism.  Moreover, what Mr. Wilson characterized as an “adverse action” was itself “a form of speech.”   Consider:

The 1st Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy.  But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. 

It’s a community college case, but the legal standards are equally applicable to public school trustees.  HCC prevailed, but there are some cautionary statements in the decision. 

*It was significant that the censure was aimed at an elected member of the board.  The Court points out that a governmental censure of a private individual would be a different kettle of fish.

*The Court ruled only on the verbal censure.  There were some punishments that went along with the censure, but for procedural reasons, those issues were not before the court. The Court noted that a censure accompanied by some form of punishment might be treated differently. 

*This was not a defamation case. The Court ruled only on the 1st Amendment issue.  If Mr. Wilson had alleged that the censure constituted libel, that would have presented a different issue.

In short, the Court affirmed the authority of elected bodies to hold members to certain standards, and to publicly point out when a member falls short.  But there are still some legal issues to be dealt with here.  Don’t act hastily.  Get some legal advice.


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Tomorrow: Toolbox Tuesday!!