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A community-college spat leads to a First Amendment retaliation claim

From the time he was elected to the board of trustees of the Houston Community College System in 2013, David Wilson contends, he was unwilling to go along to get along. Wilson’s repeated criticism of what he describes as the board’s “pay to play” culture led the board to censure him in 2018. On Tuesday, the Supreme Court will hear oral argument on whether the First Amendment restricted the board’s authority to do so.

The Houston Community College District is a system of community colleges in the greater Houston area. It is run by a nine-member board, with each member elected by the public to represent a single-member district. Wilson contends that just before and during his time in office, the board “was plagued by accusations of corruption and other malfeasance, culminating in the longest-serving trustee’s conviction on federal bribery charges.” As a result, Wilson writes, he “actively aired his criticisms of the Board in the press and telephone campaigns.” This included speaking out against, among other things, a $45 million deal to establish the Community College of Qatar – a project that involved tens of thousands of dollars in luxury-travel expenses for board members. Wilson also filed two lawsuits against the college and individual trustees in state court, arguing that the board had violated its bylaws when it allowed a trustee to vote by videoconference and challenging Wilson’s exclusion from a board meeting.

Wilson’s actions led the board to adopt a resolution in January 2018 that publicly censured Wilson for his conduct. The resolution indicated that Wilson’s actions were “not consistent with the best interests of the College or the Board,” “in violation of the Board Bylaws Code of Conduct,” and reflected a finding by the board that Wilson’s “conduct was not only inappropriate, but reprehensible.”

The censure resolution prompted Wilson to add a federal civil rights claim to his first state-court lawsuit, arguing that the censure violated his right to free speech. Wilson asked the court to block the college and the trustees from enforcing the censure (which would include additional penalties such as barring him from running for officer positions on the board the following year) and $20,000 in damages and punitive damages.

The college removed the case to federal court, where Wilson later dropped his claims against the individual trustees. The district court dismissed Wilson’s lawsuit, holding that Wilson had not shown that he had actually been injured by the censure because he could still perform his official duties and speak publicly. Therefore, the district judge reasoned, Wilson lacked a legal right to sue, known as standing.

The U.S. Court of Appeals for the 5th Circuit reversed. Wilson, the court ruled, had alleged that the board had censured him as punishment for exercising his right to free speech – which is enough for standing. Moreover, the court of appeals added, Wilson had also made out a First Amendment claim. By a vote of 8-8, the full court of appeals declined to rehear the case. Houston Community College came to the Supreme Court, which in April 2021 agreed to weigh in.

Defending the censure at the Supreme Court, the college stresses that the First Amendment prohibits the government from using its power to regulate, compel, or prohibit speech. But the college didn’t do any of those things in this case, it emphasizes. Instead, it says, the censure was merely “peer criticism”: “a pointed expression of the body’s official disapproval and its desire that, as a fellow member of the Board,” Wilson “should speak and act differently in the future.”

The college contends that both history and tradition reject the arguments made by Wilson and the court of appeals. Throughout history, the college asserts, elected legislatures have disciplined their members for speech that criticized the legislature or the government, often using methods such as imprisonment or expulsion that were “much more extreme than censure.” The powers given to Congress in the Constitution “have long been understood to extend at least to censure or other forms of official reprimand,” the college continues, as evidenced by the Senate’s famous 1954 condemnation of Sen. Joseph McCarthy for conduct that “tended to bring the Senate into dishonor and disrepute.” That power to censure has extended to local elected government bodies, the college maintains.

Allowing Wilson to block the censure by arguing that it violated his First Amendment rights would itself undermine the First Amendment, the college contends. A local government body is normally entitled to speak for itself, including by responding to Wilson’s right to speak, even when that means preferring one position over another. The democratic process, rather than courts, should serve as a check on government speech, the college reasons. This can happen before the speech, as members of the community can weigh in on whether to adopt a censure resolution. And after a government body adopts a censure resolution, voters who disapprove of the individual member’s conduct and agree with the resolution can vote him out of office. Alternatively, voters who disagree with the resolution can vote against the members of the majority who supported it. “This,” the college contends, “is how democracy is supposed to work.”

The federal government filed a “friend of the court” brief supporting the college. It stresses that the question before the court is a narrow one, involving “only a censure imposed by an elected body against one of its members.” The justices need not and should not address any broader issues, the government emphasizes, such as whether Congress can censure members of the executive branch, like the president, or whether individual legislators can be sued or prosecuted for their work in office.

Wilson acknowledges that he could be censured for his conduct within what he calls the “legislative sphere” – his actions at official meetings or hearings or his contributions to reports, for example – without violating the First Amendment. But the board cannot, he continues, censure him for his speech outside that sphere. This conclusion is supported by history, he suggests, as the founders “considered official censures to be serious punishments,” rather than “expressions of opinion.” And in current practice, he notes, both modern courts and local elected bodies have also recognized that censures are a form of punishment. Indeed, local elected bodies, such as the Los Angeles City Council, use a two-stage process similar to a trial before censuring someone.

Wilson pushes back against the suggestion that the board’s censure of him was merely “peer criticism.” Houston Community College could have expressed its disapproval of Wilson’s speech by having board members speak out individually, or by adopting a statement indicating that Wilson’s criticisms did not reflect the board’s values, but without censuring him. Instead, he emphasizes, the board relied on its disciplinary power to censure Wilson.

In any event, Wilson writes, the board’s censure of him was “plainly punitive”: Not only did the board express disapproval of his speech, but there were direct consequences. He became ineligible for travel reimbursements and could not hold an officer position on the board, among other things. “These practical consequences impeded his ability to function as a trustee; they were stiff punishment designed to silence him.” Wilson contends that the censure is unconstitutional under the court’s 1966 ruling in Bond v. Floyd, a case involving the exclusion by the Georgia House of Representatives of a member who had been outspoken in his opposition to the Vietnam War. The Supreme Court ruled unanimously that the legislature’s disqualification of the member because of his statements violated his First Amendment rights.

Wilson concludes by warning the justices that a ruling in the college’s favor could have much broader implications. If, he writes, “censures are innocuous expressions of government opinion,” while legislatures could also “use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, A community-college spat leads to a First Amendment retaliation claim, SCOTUSblog (Nov. 1, 2021, 7:59 PM),