U.S. Supreme Court: College Board’s “Censure” Does Not Violate First Amendment

March 30, 2022

In a unanimous decision, the U.S. Supreme Court concluded on March 24, 2022, that the Board of Trustees for the Houston Community College System (HCC) did not violate the First Amendment when it censured one of its members.

David Wilson was one of nine trustees who sat on the HCC Board of Trustees. Each board member is elected by the public to represent a single-member district for a six-year term. First elected to the board in 2013, Wilson frequently clashed with his colleagues about the board’s actions and its plans for the future of HCC, which included funding a deal to establish a campus in Qatar. Wilson argued that his vociferous disagreement was necessary because he believed the board was not acting in HCC’s best interests and that it was in violation of its own bylaws. Wilson eventually sued HCC and the other individual trustees in state court. The board responded by issuing Wilson a reprimand in 2016.

However, the reprimand did not deter Wilson from continuing his campaign against the board. He filed a second state court lawsuit, arranged robocalls to publicize his views and even hired an investigator to surveil another board trustee. In 2018, responding to Wilson’s escalating hostility and contentious behavior, the board issued a public resolution “censuring” Wilson, explaining that his conduct was “not with the best interests of the College” and “not only inappropriate, but reprehensible.” The board also penalized Wilson by making him ineligible for reelection in 2018 and stripping various other privileges, such as his eligibility for travel reimbursement and access to funds afforded to trustees for their involvement in community affairs.

After the public censure, Wilson amended his pleadings in the second state court lawsuit to add a federal civil rights claim alleging that HCC unconstitutionally retaliated against him for exercising his First Amendment rights. HCC removed the case to a Texas federal district court, which dismissed the case after concluding that Wilson lacked standing to pursue his claim against HCC. The U.S. Court of Appeals for the Fifth Circuit reversed the district court on Wilson’s standing and concluded on the merits that Wilson had stated a viable claim for First Amendment retaliation with regard to the board’s public censure. The Fifth Circuit concluded that the board’s other actions, revoking Wilson’s privileges of office, did not violate the First Amendment because they were just that — privileges, not entitlements.

Addressing only the narrow issue of whether Wilson may pursue a First Amendment claim to challenge a verbal censure, the U.S. Supreme Court reversed the Fifth Circuit. After examining the extensive history and tradition of elected bodies like the board censuring its own members based on the members’ speech — a practice the court characterized as “countervailing speech” and debate — the Supreme Court held that Wilson’s First Amendment retaliation claim could not proceed. Reinforcing the court’s focus on this long history of such censures, the court further noted Wilson’s failure to allege that he suffered a materially adverse action based on his speech, i.e., that the censure would not deter an elected official like Wilson from exercising his or her right to speak. In particular, the Supreme Court explained, the censure “concerned the public conduct of another elected representative” and that “[e]veryone involved was an equal member of the same deliberative body.” To that end, the court clarified that in taking action against Wilson, the other board members were merely exercising their own publicly charged responsibilities — just as Wilson believed he was doing himself in speaking out against the board’s actions.

The Supreme Court emphasized that “the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory.” The Supreme Court noted that Wilson was an elected official and that elected officials place themselves in a position to be criticized by their peers. The court also found it relevant that Wilson did not challenge the board’s 2016 reprimand and that it was “hard to see” how “[a] reprimand no matter how strongly worded does not materially impair the freedom of speech, but a disciplinary censure does.” The court explained that the censure “[did] not involve expulsion, exclusion, or any other form of punishment.” The court held that a “disciplinary censure” that amounts to no more than a verbal censure is not an adverse action sufficient to sustain a First Amendment claim for retaliation.

The Supreme Court emphasized that its decision was a “narrow one.” As the court explained, this case involved only “a censure of one member of an elected body by other members of the same body.” Accordingly, whether a different public censure by a board of one of its members or a nonmember violates the First Amendment will need to be determined based on the unique history, if any, of such censures and the facts and circumstances of that future case.

McGuireWoods’ robust education industry team serves as a trusted adviser to the boards of colleges and universities. For any questions concerning this alert, please contact any of its authors.