Miriam PearlmutterMarch 29, 2022

In Houston Community College v. Wilson, a unanimous Supreme Court held on March 24, 2022 that no First Amendment rights are abridged when a board verbally censures one of its own members.

Wilson, an elected member of a community college board of trustees, challenged his board’s decisions by filing various lawsuits against the entity and its other members.  Eventually, the board adopted a public resolution censuring Wilson, imposing certain penalties, and recommending he complete training in governance and ethics. The resolution stated that Wilson’s conduct was not consistent with the best interests of the college and was not only inappropriate, but also reprehensible.  Thereafter, Wilson amended his complaint to include a First Amendment claim against the board for issuing the verbal censure. Whereas the trial court dismissed this claim, the Fifth Circuit of Appeals reversed, concluding that reprimanding an elected official for speech addressing a matter of public concern can violate the First Amendment. In other words, the Court of Appeals held that the board’s verbal reprimand may have been a retaliatory act against Wilson and violated his free speech rights.

The United States Supreme Court disagreed.  In a unanimous opinion, authored by Justice Gorsuch, the Court first recited America’s long history of assemblies censuring their own members. These censures included not only Congressional reprimands to Senators or Representatives, but also censures issued by state and local bodies. The Court held that a verbal reprimand by itself does not constitute adverse action for retaliation under the First Amendment.  The Court also noted that elected officials are expected to shoulder criticism about their public service and to continue exercising their free speech rights despite such criticism.  Finally, the Court emphasized that the verbal reprimand reflected the exercise of free speech rights by the remaining board members, rights no less important than the one Wilson claimed. Because the censure did not exclude Wilson from any privilege of office or prevent him from doing his job, it could not constitute retaliation under the First Amendment.

Notably, however, the Court only considered a verbal censure of an elected official by members of the same body. This ruling cannot be generalized to circumstances where a verbal censure is accompanied by other punitive actions or where the censured individual is an employee or student. Nevertheless, this Supreme Court decision may be helpful as school boards and university boards of trustees consider their options in addressing internal conflict. If your school district or university is facing challenges in deciding how to resolve similar concerns, please do not hesitate to contact us for further assistance.

Miriam Fair is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mfair@walterhav.com or at 216-619-7861.