Monday, October 31, 2016

School board members and free speech (part two)

In part one, I wrote about how the First Amendment protects the right of school board members to explain their votes, even on the issue of the superintendent’s contract. I also wrote about how there are no Iowa statutes that even attempt to prohibit them from doing so.

Our own school district, though, has the following section in its Board Governance policy:
Members shall not publicly make or express individual negative judgments about Superintendent or staff performance. Any such judgments of Superintendent performance will be made only by the Board, meeting in executive session as appropriate.
I should start by saying that nothing any board member said at Tuesday’s meeting violated this policy. But that doesn’t matter. This is a plainly illegal policy, and the school district should be embarrassed by it.

This policy prohibits public speech on a matter of public interest and concern, which is the kind of speech that the Supreme Court has repeatedly described as being “at the heart of the First Amendment.” Even worse, it discriminates based on the viewpoint of the speaker: Negative speech about the superintendent’s performance is banned, while positive speech is allowed. In First Amendment analysis, viewpoint-based prohibitions on political speech are pretty much as bad as it gets. Policies don’t get much more unconstitutional than this one.

It should go without saying why such a policy is so constitutionally offensive. If the government can prevent the public from hearing viewpoints on one side of an issue while allowing them to hear viewpoints on the other side, members of the public will be deprived of information they need to make informed decisions about policies and about candidates. Such a policy would enable government officials to manipulate public opinion in a way designed to entrench themselves in power.

Moreover, such a policy would make it impossible for board members to do their jobs properly. Any time board members raise a concern about what our district is doing, they can be interpreted as implicitly criticizing the district’s administration or staff. If speech like that were prohibited, discussions at board meetings would become one-sided advertisements for the administration’s point of view. One-sided discussions lead to groupthink, not good decisions. Free and open discussion of issues—including the airing of critical views—is a crucial ingredient of good policymaking.

This is not to say that board members should cavalierly comment on the superintendent’s performance without first thinking through the potential benefits and harms of doing so. But regardless of whether that kind of speech is wise or unwise, the government can’t legally ban it. Our school district—which is responsible for teaching our kids how to become “responsible, independent, lifelong learners capable of making informed decisions in a democratic society”—should know better.


Jacki Marquardt said...

Chris, I was surprised last week to read the language referenced above in the board's code of conduct. Doing a quick Google search, however, I found the exact same wording in other school board's codes of conduct across the country. I find it curious that the seeming illegality of the policy has not been raised before elsewhere.

Anonymous said...

Chris, how has the Board President defended this? I am surprised to hear that this language is found in other boards' codes of conduct. Could this be amended? Is there really a case for the public to be forewarned that should they be openly critical of the Superintendent or administrators, there could be legal action taken against them? I don't understand how a threat of retaliation is not, in fact, retaliation - which the DE only cited the district for. It just doesn't make sense.

Anonymous said...

Google the problem some more. The illegality has come up. The wording probably came from a trade association. It's not in the kids' interest not to be able to discuss what works and what doesn't about the superintendent.

Amy said...

This is unbelievable. What is the procedure for changing the Code?

Anonymous said...

Board policies are voted on by the board. This board recently reapproved all board policies ...7-0?

Jacki Marquardt said...


Anonymous said...

The school board is *already* a one-sided advertisement for the administrative point of view. The level of community distrust in the superintendent and the school board is getting worse, and threatens the upcoming bond passage.

Apparently, the only way this superintendent will be subject to any measure of accountability is if the voters take matters into their own hands. I'm someone who always has voted to support schools, but this time I am unlikely to do so. The enormous and unjustifiable salary increases for this superintendent have been the final straw for me.

Sadly, the pain of a bond rejection will be felt most by district kids, but the current majority group in the school board bears that responsibility. They've left the community with no choice. Reasonable people have to step up and tell the board majority to come to their senses.

Anonymous said...

Following up on what 3:12 wrote, I don't think it is right that the district is banning negative thoughts about the superintendent on ThoughtExchange.

ThoughtExchange also lets users rate the district. Are the users names shared with administration?