The Ability of a Governing Body to Publicly Censure / Reprimand Members of the Governing Body

On March 24, 2022, the United States Supreme Court issued a unanimous Decision in Houston Community College System v. Wilson, 595 U.S. ___ (2022) – Addressing whether the Houston Community College System Board of Trustees (the “Board”) violated Trustee David Wilson’s (“Wilson”) First Amendment rights by censuring him.

The Houston Community College System is a public entity that operates various community colleges in Texas.  The Board consists of nine (9) members, each of whom is publicly elected from a single-member district for a six (6)-year term.  Since being elected to the Board in 2013, Wilson was often at odds with the Board about the best interests of the Houston Community College System.  Additionally, Wilson brought multiple lawsuits challenging the Board’s actions.  As a result, in 2016, the Board issued Wilson a public reprimand.

Despite the public reprimand, Wilson continued to challenge the Board’s actions.  In various media outlets, Wilson accused the Board of violating its bylaws and ethical rules.  He arranged robocalls to constituents of certain trustees to publicize his views.  He also hired a private investigator to surveil another trustee – To prove that she did not reside in the district that elected her.  Wilson also filed additional state court actions – One alleging that the Board had violated its bylaws by allowing a trustee to vote via videoconference and a second alleging that the Board had illegally prohibited him from performing his core functions as a Trustee when it excluded him from a meeting to discuss the original lawsuit.  As a result, in 2018, the Board again took public action to address his conduct – Censuring Wilson, finding that his conduct was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.”  Additionally, the Board imposed certain penalties, among them, deeming Wilson ineligible for Board officer positions during 2018 and ineligible for reimbursement for any college-related travel.  Finally, the Board recommended that Wilson complete additional training related to governance and ethics.

As a result of the censure, Wilson amended the pleadings in one of his pending state-court lawsuits, adding civil rights claims against the Houston Community College System and the other Trustees under 42 U.S.C. § 1983, asserting that the Board’s most recent censure violated the First Amendment.

After removing the matter to federal court, Wilson dismissed the other Trustees, leaving the Houston Community College System as the sole defendant.  The Houston Community College System moved to dismiss and the District Court granted the motion, concluding that Wilson lacked standing.

On appeal, the Fifth Circuit Court of Appeals reversed, holding that Wilson had standing and that his complaint stated a viable First Amendment claim (only as to the public censure of Wilson for his speech, finding that it addressed a matter of public concern and, therefore, an actionable First Amendment claim under § 1983 existed (the Fifth Circuit upheld the Board’s nonverbal penalties)).

The Supreme Court concluded that Wilson did not possess an actionable First Amendment claim arising from the Board’s purely verbal censure (the Court did not take up the Board’s nonverbal penalties).  The Court opined that the censure did not prevent Wilson from doing his job, it did not deny him any privilege of office and Wilson did not allege that the censure was defamatory.

As a general rule, the First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for engaging in protected speech.  Wilson argued that the Board’s public censure represented exactly that kind of impermissible retaliatory action.  Finding on behalf of the Houston Community College System, the Court opined, as follows:

First, the Court looked to long settled and established practice as a consideration of great weight in interpreting the meaning and application of the First Amendment under these specific facts and circumstances.  In so doing, the Court noted that elected bodies have long exercised the power to censure their members.  As an example, the Court cited to Congress and that fact that it has censured members not only for objectionable speech directed at fellow members, but also for comments to the media, public remarks disclosing confidential information and conduct or speech thought damaging the country.  The Court also noted that public censures are even more common at the state and local levels.  Additionally, the Court specifically pointed out that the parties failed to cite to any precedent suggesting that purely verbal censures (analogous to the public censure issued to Wilson) had ever been widely considered offensive to the First Amendment.  However, the Court cited precedent suggesting an understanding of the First Amendment that permits “. . . [f]ree speech on both sides and for every faction on any side.”

Second, the Court concluded that Wilson was unable to establish a First Amendment retaliation claim – Wilson was unable to establish that the Board took action adverse to him in response to his speech that would not have been taken absent a retaliatory motive.  In reaching this conclusion, the Court distinguished between material and immaterial adverse actions.  The Court concluded the Board’s censure was not a materially adverse action capable of deterring Wilson from exercising his First Amendment right to speak.  The Court noted that Wilson was an elected official and elected officials are expected to shoulder a degree of criticism about their public service from their constituents and their peers (and to continue exercising their free speech rights when the criticism comes).  Additionally, the only adverse action at issue (Wilson’s censure) was itself a form of speech on the part of the Board.  The censure itself was a form of protected speech – Albeit the First Amendment promised Wilson (as an elected representative) the right to speak on matters of government policy, it cannot be used as a weapon to silence other representatives seeking to do the same (in this case, the Board through censure).

In Houston Community College System v. Wilson, the Supreme Court has clarified that a governing body may publicly censure / reprimand its members for engaging in conduct, including speech, that the governing body’s members deem inconsistent with the best interests of the governing body and/or the entity it is charged with governing.  In addition to a public censure / reprimand, the governing body may also consider imposing nonverbal penalties, such as, disqualifying the offending board member for officer positions or membership on committees.

In rejecting Wilson’s claim, the Court noted that it was not suggesting that verbal reprimands or censures can never give rise to a First Amendment retaliation claim.  The Court specifically stated that a reprimand or censure of employees, students, licensees or government officials who are not members of the governing body may, depending upon the circumstances, give rise to a First Amendment retaliation claim.  Moreover, the Court noted that Houston Community College System v. Wilson is a narrow case.  It involves a censure of one member of an elected body by other members of the same body.  It does not involve expulsion, exclusion or any other form of punishment (which are generally not permissible).