The nation’s highest court said on Monday it would take up a First Amendment clash about college governance, evaluating whether a public-college board had the grounds to censure one of its members in a case that could have broad implications for boards and free speech.
The case centers around David B. Wilson, a member of the Houston Community College Board of Trustees between 2014 and 2019. Board members voted to censure him in 2018. At that point, Wilson had filed several lawsuits against the college, and he had also backed robocalls protesting college operations in Qatar and arranged a private investigation into whether a board colleague lived in her district. The board’s chair at the time, Carolyn Evans-Shabazz, called his conduct “inappropriate” and “reprehensible.” As part of the censure’s sanctions, Wilson would be unable to hold board leadership positions or get reimbursed for board travel. He also would need additional approval for community-affairs spending.
To Wilson, the vote was a violation of his First Amendment rights. He was punished, he argued, for speaking out on issues of public concern, and it caused him mental anguish.
Individual trustees were welcome to disagree with his constitutionally protected speech, Wilson told The Chronicle on Monday. But a censure from a government body like the board over a matter of speech is overstepping, he said.
A district court disagreed, but the U.S. Court of Appeals for the Fifth Circuit sided with Wilson. Elected officials should speak out on matters of public concern, that body wrote.
The college’s lawyers petitioned the Supreme Court for further review. A censure is a “quintessential form of government speech,” they wrote in an appeal, and the First Amendment does not bar someone from criticism. The appellate court’s decision “implausibly holds that elected officials suffer a constitutional injury when they are criticized for their performance in office,” they wrote. (A lawyer for the college did not respond to an email seeking comment.)
Robert Glaser, the board’s chair, told The Chronicle that during his time as a trustee, the board has rarely voted to censure, outside of the Wilson vote. “We had to spend additional time and resources on issues that were brought up by Trustee Wilson,” he said on Monday. “It did take away from the normal duties.”
Glaser, who voted against the 2018 censure, said his colleagues are closely watching the case, Houston Community College System v. David B. Wilson, No. 20-804. “We knew it was in play, that it was a possibility,” he said. “I don’t think anyone would have imagined it would have got to this.”
Melissa M. Carleton, a partner at Bricker & Eckler who focuses on education law, said the censure is a “go-to tool” that boards use to take action against “problem children.” (Sometimes, she added, these trustees have legitimate points, and “the board is the problem child.”)
The case might not split along party lines, she added. Wilson’s argument that he suffered mental anguish “strikes me as a little bit of a snowflake argument,” Carleton said, but one could also characterize the case as one about government shutting down speech.
A ruling in favor of Wilson could undermine a common understanding among governing boards — that members should act as one and avoid personal crusades. Groups that advise boards tend to oppose so-called rogue trustees who go it alone in processes separate from official board forums. The Association of Community College Trustees urges board members to “govern as a singular unit and speak with a single voice.” Elected trustees in particular, the group advises, should “avoid bad publicity for the college, the board, and for themselves.”
The group specifies that individual board members should not conduct investigations into college businesses. “Even though trustees may have concerns about the college’s management, they need to be prudent in their requests to avoid their own mismanagement or micromanagement.”
But there was plenty for Wilson to protest, his lawyers argued in a brief to the Supreme Court. Mere days before Wilson’s censure, a former board member was sentenced to prison after a judge said he took $225,259 from people seeking contracts with the college.
“As a member of the Board, Wilson committed himself to helping root out what he saw as the unwise, unethical, and often unlawful conduct of fellow Board members,” the lawyers wrote in a brief. “Wilson’s colleagues on the Board were not pleased to have their behavior questioned so publicly.”
Censures, his lawyers wrote, are an improper response for “core political speech” or for disagreement with the majority of a government body.One attorney, Michael B. Kimberly, did not respond to an email request for comment.
The official notices of disapproval are also often one of the few ways board members can reprimand one of their own. In Houston, the censure followed years of controversy surrounding Wilson — “immediate and constant turmoil,” lawyers for the college said.
He won his seat in 2013 by fewer than 30 votes after flooding his district with images of Black people he found online with the message, “Please vote for our friend and neighbor Dave Wilson,” the Houston Chronicle reported. Wilson is white, and critics called the tactic misleading.
Lawyers called the time before the board’s 2018 censure of Wilson “increasingly chaotic,” with lawsuits, investigations, and ever-growing legal fees.
Wilson’s public pressure on issues of college policy also raised concerns about accreditation, his board colleagues said. One former trustee, Zeph Capo, said before the censure vote that his only reason for voting affirmatively was to “send the message to SACSCOC that we are doing everything within our power, that we are not controlled by any minority.” The Southern Association of Colleges and Schools’ Commission on Colleges, HCC’s accreditor, requires that governing boards are “not controlled by a minority of board members.”
Belle S. Wheelan, president of SACSCOC, told The Chronicle on Monday that the accreditor closed probes into the college after it was “satisfied” by the response it received from the college’s chancellor.
Wilson is no longer a trustee; he resigned his seat in 2019 and lost an election for a different seat on the board later that year. He said he and his wife will come to Washington for arguments before the Supreme Court. “This is a big deal for us.”
