At the recent TASA/TASB Convention my law partner, Karla Schultz, presented a session on this topic along with TASB attorney Mark Tilley. It was very interesting and informative. Karla and Mark reminded me of a case from long ago that went to the Supreme Court during the tumultuous 1960s. The case involved Julian Bond, who was elected to the Georgia House of Representatives in 1965. Mr. Bond achieved fame prior to his election as the Communications Director of the Student Nonviolent Coordinating Committee (SNCC). SNCC was a controversial organization at the time.
After his election, but before he was sworn into office, Mr. Bond gave a radio interview in which he expressed his views about the War in Vietnam and the draft. Those views were decidedly left wing, and did not sit well with a majority of the members of the Georgia legislature. In fact, the House members voted 184-12 to refuse to allow Mr. Bond to take his seat in the House. Mr. Bond sued, claiming an infringement of his First Amendment rights.
He won. The Supreme Court acknowledged that an elected official can be required to swear to support the state and federal constitutions. But once Mr. Bond did that, it was improper for the other members of the legislature to question his sincerity. Thus the Court held that Mr. Bond had not waived, forfeited or diminished his free speech rights by running for office. He could take his oath to support the constitution, and then take his seat. The case is Bond v. Floyd, decided by the U.S. Supreme Court in 1966. You can find it at 385 U.S. 116.
That same logic applies to school board members. School board members do have a right of free speech. But as the presentation by Karla and Mark pointed out, school board members are restricted by other laws. Most prominently, the Texas Open Meetings Act limits board member speech in some ways, and board ethics limit them further. Matters discussed in closed session, for example, are supposed to stay in closed session.
So it’s tricky, and a Dawg post is not the place to try to lay out all the complexities of this topic. Your board members do have a right of free speech. But be careful. Seek legal advice when questions arise. At Walsh Gallegos, we will be happy to help you.
DAWG BONE: THROWBACK THURSDAY GOES BACK TO THE 1960s!
File this one under: BOARD GOVERNANCE