WASHINGTON (CN) — What authority does a board of elected officials possess to censure its members? The issue will be front and center before the U.S. Supreme Court this year.
On Monday, the nation’s high court accepted a petition from the Houston Community College System Board of Trustees outlining the body’s issues with David Wilson, a member of the board. After what the board’s brief outlined as “an increasingly chaotic series of events” set in motion by Wilson, members voted to censure his conduct.
That conduct related to Wilson’s insatiable appetite for lawsuits, the other board members write. They say he filed multiple suits against the board he was elected to represent, leaking confidential information and encouraging others to join him in litigation. Wilson cost the board $300,000 between four lawsuits he filed by 2017.
Wilson argues his censure violates his First and 14th Amendment rights, and asks the board to compensate him for the mental anguish he’s suffered and the time he’s wasted on what he argues is a frivolous matter.
A district court disagreed with his assessment, saying his rights were never infringed upon, reasoning that a board’s decision to censure one of its own members is only a mark of disapproval. But the Fifth Circuit reversed this order and reinstated Wilson’s claims for damages, ruling Wilson was reprimanded for generally protected speech under the First Amendment.
The Fifth Circuit denied an appeal from the board for a rehearing, and the body appealed the matter to the Supreme Court.
Richard Morris — a principal attorney for Rogers, Morris & Grover representing Houston Community College System — wrote in a brief to the court that Wilson’s actions posed a direct threat to Houston Community College’s accreditation.
The district court’s reasoning to grant the body’s dismissal hinged on Phelan v. Laramie County Community College Board of Trustees, another dispute over First Amendment rights, according to Morris. In that case, the court reasoned that if an elected body’s censure of one of its members didn’t curtail that member’s ability to express herself and didn’t prevent her from performing her official duties, then the censure did not inhibit her First Amendment rights.
But the Fifth Circuit relied on a separate precedent involving the Texas Commission on Judicial Conduct and its rule that judges may raise First Amendment retaliation claims against censures involving protected speech. Wilson’s speech would have been generally protected under the First Amendment, so it should be generally protected from censure, Morris argued to the court.
Morris says the decision conflicts with rules adopted throughout the federal judiciary.
“What’s more, the Fifth Circuit’s rule disregards three separate lines of this court’s precedent,” Morris wrote. “It fails to apply the presumption of constitutionality accorded to longstanding historical practice; it wrongly bars a quintessential form of government speech; and it implausibly holds that elected officials suffer a constitutional injury when they are criticized for their performance in office.”
In an interview Tuesday, Morris said boards such as Harris County Community College’s need the ability to have their own voice in the form of censorship. The problem with the Fifth Circuit’s ruling, he said, was that it chills speech of the majority.
A ruling in favor of his opponent, the attorney said, would limit the ability of boards of any kind to denounce speech that misaligns with the goals of that group. Morris noted some 1,100 school districts in Texas would be inhibited from taking stances against speech they disagreed with.
“We live in an era, unfortunately, of disinformation and if one board member is allowed to exercise their free speech, but then they’re insulated from criticism by a board, I think that that causes people to lose faith in their institutions,” Morris said.
Michael Kimberly, a McDermott, Will & Emery attorney representing Wilson, wrote to the court that the board’s position established “political orthodoxy,” unlawfully forcing members to conform to the ideas of the majority.
“When a majority of lawmakers (or board members) disagree with the views of a colleague, they are free to express their disagreement using speech of their own,” Kimberly argued. “Such exchanges are the lifeblood of democratic discourse. What the majority may not do, however, is adopt an official resolution — purporting to speak for the government itself — that censures members of the minority simply for expressing minority views.” (Emphasis in original.)
Kimberly says the board’s censure of his client is itself a punitive measure, quoting portions of the board’s resolution of censure that described Wilson’s behavior as “reprehensible” and “inappropriate.” Further, Kimberly cites the board’s own acknowledgment that censure is “the highest level of sanction available” to the body as further evidence of the censure’s punitive nature.
“Beyond all that, the censure here did more than merely express a reprimand; it also barred Wilson from accessing his discretionary trustee bank account and receiving reimbursements for college-related travel,” Kimberly wrote. “These are plainly adverse actions taken in retaliation for speech and petitioning protected by the First Amendment.”
Kimberly did not respond to a request for comment Monday.
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