School boards and the First Amendment

School board members and their First Amendment rights was the topic of a Friday session at the Council of School Attorneys (COSA) School Law Seminar, held in conjunction with NSBA’s Annual Conference in Boston.

The session was presented by Karla Schultz of Walsh, Gallegos, Trevino, Russo, & Kyle, PC, in Austin, Texas, and Mark Tilley of the Texas Association of School Boards, also in Austin.

Both presenters used case law as examples of what school board members, as elected official and private citizens, can and cannot do under their right to free speech.

In one case, a school board member who voted in matter despite a flagrant conflict of interest, violating state ethics law. He protested to the state Supreme Court that he had a First Amendment right to cast a vote. The court found against him, saying that legislative power belongs to people, and there was no personal right to vote.

Tilley discussed the actions of board members against other board members for having exercised their First Amendment rights to free speech. “What can you do? In Texas, you can censure them,” he said. “It’s a public way to show displeasure. However, the First Amendment does forbid retaliation against officials for excising free speech.”

The case law example: A school board vice president who had an active dislike of the superintendent, and who was always the lone vote against the superintendent’s contract extension. When the board member made a derogatory remark about the superintendent in the press, the board took action by removing him from his vice president’s role.

The board member then sued the rest of the board, claiming his comment was protected by the First Amendment. The court ruled against him, saying that his fellow board members wanted a vice president who reflected their views. The removal from the vice president’s role did not punish him for his speech.

The First Amendment, said Tilley, “doesn’t immunize you from political fallout. There’s no freedom of consequences from that speech.”

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