ELA update: Board member censure upheld

A state appellate court has upheld a school board’s authority to censure a board member who breached the board’s rules prohibiting discussion of personnel matters in open session unless the affected employee requests it. The 4th District Court of Appeal agreed with CSBA’s Education Legal Alliance amicus brief position that the board’s censure motion was simply the board’s “speech” protected by the board’s First Amendment rights, according to Alliance Director Richard Hamilton. The censure did not violate the board member’s free speech rights, did not punish the board member and placed no restrictions on his future conduct.

In what Hamilton called “an observant footnote,” the court said: “We note that as a self-described ‘iconoclastic legislator,’ [the board member] seems to be remarkably easily dissuaded from expressing his views. An ‘iconoclast’ is defined as ‘one who attacks established beliefs, ideals, customs, or institutions … ’ (Webster’s 3d New Internat. Dict. (1981) p.1121.) It must be nearly impossible to be that guy if you are unwilling to endure a little blow-back.”

In its arguments, the district successfully characterized the board member’s lawsuit as “strategic litigation against public participation,” or a SLAPP lawsuit. That invokes special anti-SLAPP rules resulting in dismissal of the lawsuit with an award of attorney’s fees in favor of the district.

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The case is Californians Aware et al. v. Orange Unified School District et al.; the entire decision can be found at http://www.courtinfo.ca.gov/opinions/nonpub/G038499.PDF .