Board governance: U.S. Supreme Court upholds power of elected boards to censure their own members

After years of recriminations and acrimony among board members of the Houston Community College System (“system”), the board censured one of its members for “objectionable” conduct – including speech – “not in the best interests” of the University. Board member David Wilson sued the system for violating his First Amendment free speech rights. In a unanimous decision, the Court ruled that the Council did not violate any First Amendment rights when it passed a purely verbal censure of Mr. Wilson. (Houston Community College Sys. against Wilson (2022) – USA –.)

The Court held that censorship by the Council was not a sufficient material adverse action to trigger First Amendment protections. Mr. Wilson, as an elected official, had to “assume a degree of criticism” about his public office and exercise his right of reply. Equally important, the only adverse action was itself a form of speech exercised by the other members of the Council. The Court therefore concluded that there was no actionable First Amendment claim. At the same time, the Court was careful to limit its decision to reprimands addressed by an elected body to one of its members. The outcome could be different, the Court explained, for government reprimands directed at a government employee or a private citizen. Likewise, censorships accompanied by other punitive measures, such as expulsion or exclusion, could have a different result.

The System Board of Trustees is a nine-member public body that oversees the administration of various community colleges in Texas. Mr Wilson was first elected to the board in 2013 and his tenure has been “stormy”. (Wilson, supra, Slip Opinion at p. 1.) He was often at odds with the leadership of the Council and made his opinions known. He accused the board of violating its own statutes and ethics rules; he organized robocalls to voters to broadcast these views; and he hired a private detective to watch a fellow administrator who he believed did not live in the district in which she was elected. He also filed a number of lawsuits against the council, alleging a wide variety of council misconduct.

In one of the lawsuits, Mr. Wilson alleged that the board violated its own bylaws by allowing a director to vote by videoconference. When his colleagues did not allow him to attend a meeting to discuss the litigation, Mr. Wilson filed a second complaint alleging that the board and the system had “prohibited him from performing his essential duties as a fiduciary”. (Identifier. to the P. 2.) These lawsuits, and others brought by Mr. Wilson, have resulted in the system over $270,000 in legal costs. In 2018, the council passed a resolution “censuring” Mr Wilson and saying his conduct was “not in the best interests of the College” and “not only inappropriate, but reprehensible”. (Identifier.) The Commission also “imposed certain sanctions. It provided that Mr. Wilson was “ineligible for election to council leadership positions for the 2018 calendar year”, that he was “ineligible for reimbursement of any College-related travel” and that his future application “to access… to his council’s community affairs account funds” would require council approval. Same. The Board further recommended that Mr. Wilson “take additional training relating to governance and ethics”. » (Identifier.)

Mr. Wilson quickly amended one of his petitions against the system to include a First Amendment demand. The federal district court denied the First Amendment request based on the no-confidence resolution, but the Fifth Circuit overruled. The Supreme Court granted certiorari consider whether Council censorship violated the First Amendment.[1] (Identifier. to the P. 4.)

The Court began its analysis with a look at the historical practice of censorship. Often, the Court explained, “regular practice” can illuminate or “liquidate” the “terms and phrases” of the Constitution. (Identifier. to the P. 5, citing among others 8 Writings of James Madison 450 (G. Hunt ed. 1908) [Letter from J. Madison to S. Roane (September 2, 1819)].) Citing examples of colonial assemblies, the United States Congress, and state and local elected bodies, the Court found a long and well-established historical practice of elected bodies censuring their members for their conduct and speech considered harmful. And the Court found “no evidence” to suggest that “previous generations” thought a representative’s speech could be “cut short” by the contrary speech of the representative’s colleagues. Thus, “history suggests…a[n] understanding of the First Amendment…allowing free speech on both sides and for every faction on any side. (Identifier. to the P. 7, citing Thomas v. Collins (1945) 323 US 516, 547 [internal quotations omitted].)

The Court then analyzed the claim under “contemporary” First Amendment doctrine. To prevail, a plaintiff must show “adverse action” taken in response to protected speech. Harmful negative actions can take many forms – arrest, denial of a license or dismissal from public service – which are easy to identify. Less severe actions may also qualify, depending on their severity or negative effect on the applicant’s speech. In this case, the Court explained, the effect was immaterial for at least two reasons. First, “[i]In this country, we expect elected officials to endure some degree of criticism of their public service from their constituents and peers – and to continue to exercise their right to freedom of expression when criticism arises. (Identifier. to the P. 8.) Whatever the meaning of the First Amendment under differing interpretations, the Court explained, there is virtually universal agreement that it was enacted “to protect the free discussion of governmental business.” (Same.quoting, Mills v. Alabama (1966) 384 US 214, 218.) Second, the only adverse governmental action unleashed against Wilson was also a form of speech itself. This was the public conduct of a member of the same legislative body that had pronounced the censure. This did not prevent him from doing the work for which he had been elected, nor did it deny him any privileges of his office. And that did not materially dissuade him from exercising his own right to speak. The First Amendment cannot, according to the Court, be used as a weapon to prevent other representatives from speaking freely on matters of government policy. Given these infirmities in the plaintiff’s claim, the Court held that the Commission’s censorship could not be characterized as a “material adverse action” under First Amendment jurisprudence. (Identifier. to the P. 9.)

The Court concluded by stating the limits of its decision. “Our case is narrow[] … concerning “a censure of a member of a body elected by other members of the same body”. (Identifier. to the P. 13.) “We do not mean that verbal reprimands or censures can never give rise to a claim of First Amendment reprisal.” (Identifier. to the P. 10.) For example, government reprimands against students, employees, or licensees could “under certain circumstances” materially alter First Amendment protections. (Identifier.). (Identifier. at pp. 10-11.) But Wilson is none of these cases that the Court concluded by dismissing Wilson’s claims against the board.

Public censorship plays an important role in the governance policies and practices of many public pension boards. Under these policies, a public censure is often the means a board can use to hold a member accountable for a policy or rule violation. The Court’s decision in Wilson confirms the right of councils to impose this sanction on their own elected members.

Corn Wilson also leaves several related questions unanswered. Can a council impose the same sanction on an appointed representative as on an elected one? In its landmark inquiry, the Court focused its examination on elected bodies, such as Congress and state legislatures. At the same time, much of the Court’s analysis would seem to apply to the censure of an appointed member, particularly where the member is deemed under state law to hold office in the in the public pension board as a public official and other members of the board are elected. But the holding company does not expressly cover these types of members. Similarly, the Court did not address other forms of sanctions, such as “expulsion, exclusion or any other form of sanction”. Any censure resolution that included a punishment that effectively prevented a Council member from performing their “essential functions” on the Council would almost certainly be subject to more rigorous scrutiny.