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What About My Rights?School Board Members and the First Amendment

Mark TilleyTexas Association of

School BoardsAustin, Texas

Karla Schultz Walsh, Gallegos, Treviño, Russo & Kyle, P.C. Austin, Texas

COSA School Law Seminar

April 7-9, 2016

Boston, MA

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Expressing Political Views

While the State has an interest in requiring its legislators to swear to a belief in the constitutional processes of government, it cannot limit its legislators’ capacity to discuss their views of local or national policy.

Bond v. Floyd, 385 U.S. 116 (1966).

Elected Officials Have Free Speech Right to Political Views

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Using office toexpress personal views

Content of political speech is protected, but not use of “the trappings” of an office to promote a personal message• Strict scrutiny applies when the government regulates an elected

official’s speech.

• Restrictions based on the content of speech do not withstand strict scrutiny.

• Restrictions on the use of the trappings of one’s office to boost their message survive strict scrutiny.

Jenevein v. Willing, 493 F.3d 551, 557 (5th Cir. 2007).

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Voting as Speech

Voting is not the protected personal speech of the elected official

•A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal.

• The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.

Nevada Comm’n on Ethics v. Carrigan, 131 S.Ct. 2343 (2011).

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Private Deliberations

aboutPublic

Business

So, we all agree that the

Superintendent has to go

ASAP?

I am totally on board with

that.

Yes.

Let’s put this on the

next agenda then.

Group

The sooner the better

imho

Agreed.

Me too.

Me three.

Just checking your

availability for a meeting

next week…

Hi!

I’m checking with others.

Will let you know.

John Smith

Ok. Thanks. Hope to

see you Saturday!

Great!

I have a conflict Monday,

but any other day works

Wouldn’t miss it!

See you then.

Avinash, Manuel ... Anna just called and we are both in agreement we need a special meeting at 6:00 pm Monday ... so you or I need to call the mayor to schedule it (mainly you, she does'nt like me right now I'm Keri's MOM).. we both feel Mr. Tom Brown was the most impressive..noneed for interviewing another engineer at this time ... have him prepare the postphonment of the 4.8 million, get us his firms review and implementations for the CURE for South Alpine....borrow the money locally and get it fixed NOW....then if they show good faith and do the job allow them to sell us their bill of goods for water corrections for the entire city......at a later date..and use the 0% amounts to repay the locally borrowed money and fix the parts that don't meet TECQ standards....We don't have to marry them ... with a life long contract, lets just get engaged!Let us hear from you both

KT

Hello Katie....I just talked with John Voller of Hibb and Todds of Abilene ... and invited him to come to the Monday meeting.... I asked him to bring his money man also.... these guys work for Sul Ross ... He said ... he will be at meeting Monday....I'll talk with Tom Brown also after my 8:00 class ...Thanks for the advice..... and I'll talk with Mickey as per your, Anna, and Manuel directions ... and arrange the meeting on Monday....We must reach some sort of decision SOOOOOOOOOOOOOON.Avinash

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Private deliberation among elected officials about public business is not protected speech

Penalties in open meetings laws are content-neutral time, place, or manner restrictions, not a criminalization of political speech based on content.

Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012).

“Public officials may need to have thicker skin... .”

Politics is Politics

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The “give-and-take of the political process” does not constitute retaliation for exercising right to free speech

Blair v. Bethel Sch. Dist., 608 F.3d 540 (9th Cir. 2010).

Dillaplain v. Xenia Cmty. Schs. Bd. of Educ., 2013 WL 5724512 (S.D. Ohio Oct. 21, 2013), appeal dismissed (Mar. 20, 2014).

Disruptive Behavior

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Managing the disruptive or unruly behavior of a member of a governmental body does not violate that individual member’s free speech rights

A governmental body has significant discretion to regulate its own meetings in the manner it sees fit.

Shields v. Charter Twp of Comstock, 617 F. Supp. 2d 606

(W.D. Mich. 2009)

Free Exercise of Religion

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An elected official’s religious expression in the performance of his or her official duties is “government speech” and not private speech protected by the First Amendment.

Miller v. Davis, No. CIV.A. 15-44-DLB, 2015 WL 4866729 (E.D. Ky. Aug. 12, 2015)

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What About My Rights?School Board Members and the First Amendment

Mark TilleyTexas Association of

School BoardsAustin, Texas

Karla Schultz Walsh, Gallegos, Treviño, Russo & Kyle, P.C. Austin, Texas

COSA School Law Seminar

April 7-9, 2016

Boston, MA