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  • By: Anthony P. Sciarrillo, Esq.

CONTROVERSIES OVER FREE SPEECH

Updated: Mar 24

CONTROVERSIES OVER FREE SPEECH ABOUND AS FEDERAL GOVERNMENT ADDRESSES ISSUES INVOLVING BOTH BOARD MEMBERS AND PARENTS


Actions taken by both the federal judiciary and law enforcement agencies have sought to address issues within school board meetings, and with it, have the potential to impact the free speech rights of people on either side of the dais.


Late last year, the United States Supreme Court heard arguments in the mater of Houston Community College System v. Wilson, involving a former school board member’s claim that the community college district, for whom he had previously served, had violated his First Amendment Rights. Initially elected as a trustee in 2013, Wilson raised concerns over the Board’s violation of bylaws by voting to install a campus for the community college in Qatar. To voice these complaints, Wilson communicated with members of the public, both through a robocall campaign and an interview with a local radio station. Wilson later brought action against the community college seeking a declaratory judgment ruling that a fellow trustee’s vote was invalid under the Board’s bylaws, having been cast via videoconferencing rather than in person, and hired a private investigator to investigate a trustee’s residency. In response to Wilson’s actions, the Board adopted a resolution censuring Wilson, asserting that his actions were “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” In response, Wilson modified his previously filed complaint, which was later removed to federal court, to include an allegation that the Board’s censure, inter alia, violated his First Amendment Rights to Free Speech.


Despite the District Court for the Southern District of Texas ruling that Wilson’s First Amendment claim should be dismissed for lack of standing, the Fifth Circuit reversed, citing prior appellate court precedent holding that “censures of publicly elected officials can be a cognizable injury under the First Amendment.” Having accepted the community college’s writ of certiorari, it is the task of the United States Supreme Court to determine if, and on what basis, that censure of a board member constitutes a violation of that board member’s freedom of speech guaranteed under the First Amendment. The case has sparked a wide range of support on either side, including a amicus brief filed jointly by the American Civil Liberties Union, Rutherford Institute, and the Institute for Free Speech in support of Wilson.


At the same time, the Biden Administration’s Justice Department, Attorney General Merrick Garland, called for a meeting with federal state, local, and other law enforcement officials to address the increased number of incidents of harassment and intimidation of school board members, teachers, and other school employees and officials. This action was taken in response to increased calls for action, and notably a September 29, 2021 letter from the National School Boards Association was sent to President Biden, in which the NSBA described the issue by noting “America’s public schools and its education leaders are under an immediate threat”, asking for “federal law enforcement and other assistance to deal with the growing number of threats of violence and acts of intimidation occurring across the nation.” The NSBA’s letter, for which the association has since apologized for, and the Justice Department’s subsequent response, has drawn the ire of conservative groups, some of whom claim that the Justice Department’s position poses a threat to free speech and Missouri Senator Josh Hawley decried “collusion” between the NBSA and the Justice Department.


Both issues are examples of disputes concerning the extent to which the speech and actions of both school officials and parents are protected by the First Amendment. The Supreme Court’s decision in the Wilson matter will particularly provide clarity as to the recourse school boards may take against board members that engage in actions at odds with the board, while the Justice Department’s response to the purported intimidation of school officials will establish precedent of the federal government response to such issues, which remain prevalent.


This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Anthony P. Sciarrillo of Sciarrillo Cornell at edlawgroup@sciarrillolaw.com or Anthony E. Russo at arusso@sciarrillolaw.com