Removal Of Governing Board Member's Vice Presidency Title Did Not Violate Free Speech Rights
July 2010
Number 23
CLIENT NEWS BRIEF
REMOVAL OF GOVERNING BOARD MEMBER'S
VICE PRESIDENCY TITLE DID NOT VIOLATE
FREE SPEECH RIGHTS
The United States Ninth Circuit Court of Appeals has ruled that a school district's
governing board did not violate a governing board member's free speech rights when
it voted to remove his title of Board Vice President. In Blair v. Bethel School District (9th
Cir. 2010) ___ F.3d ___ [WL 2351928], the appellate court found that a public official may
not use the First Amendment to shield the official from political fallout caused by his or
her actions.
Ken Blair had served on the Bethel School District ("District") Board since 1999. The
District is located near Tacoma, Washington. The Board elects its own president, vice
president, and legislative representative and Mr. Blair had served in each of these
positions over the years, but most recently as Board Vice President.
Mr. Blair had been a vocal and persistent critic of the District's superintendent since the
superintendent was hired in 2000, and had voted consistently against renewing the
superintendent's contract. The other Board members did not share Mr. Blair's
dissatisfaction with the superintendent. In September 2007, Mr. Blair was the lone
dissenter when the Board voted 4-1 to renew the superintendent's contract and raise his
pay. The next day, Mr. Blair complained to a newspaper reporter about the renewal of
the superintendant's contract, and on October 9, 2007, the Board voted to remove Mr.
Blair as Vice President, though he remained on the Board. Mr. Blair sued the District, the
superintendent and the other Board members under 42 U.S.C. § 1983, alleging that he
was retaliated against for exercising his free speech rights. 42 U.S.C. § 1983 allows
individuals to sue and recover when their constitutional rights are violated by public
officials.
The court found that the Board's actions did not prevent Mr. Blair from continuing to
speak out, vote his conscience and serve his constituents as a Board member. While
Mr. Blair had a right to criticize the superintendent and vote against retaining him, Mr.
Blair's fellow board members had the corresponding right to replace him as Vice
President with someone who represented the majority view of the Board. Mr. Blair's
Page 44
As the information contained herein is necessarily general, its application to a particular set of facts
and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We
recommend that you consult with your counsel prior to acting on the information contained herein.
Written by:
July 2010
Number 23
CLIENT NEWS BRIEF
authority as a Board member was unaffected by the loss of the title; even though he
was no longer Board Vice President, he retained the "full range of rights and
prerogatives that came with having been publicly elected."
The court found the Board's removal of Mr. Blair's title analogous with unhappy
constituents refusing to support an incumbent board member's re-election. Further,
while the First Amendment protects free speech, it does not immunize a person from the
political fallout that can result from the exercise of free speech rights.
The court's decision illustrates that there are means for the elected body of a public
agency to censure one of its members, so long as it does so within the bounds of
applicable law and does not deprive the censured member of his or her free speech
rights.
If you have any additional questions about this case, governing board members' free
speech rights or free speech rights in general, please do not hesitate to contact one of
our seven offices located statewide or consult our website.
Scott Cross
Shareholder & Local Government Practice Group Co-Chair
Fresno Office
scross@lozanosmith.com
Mary Gates
Paralegal
Monterey Office
mgates@lozanosmith.com
© 2010 Lozano Smith Page 45
Number 23
CLIENT NEWS BRIEF
REMOVAL OF GOVERNING BOARD MEMBER'S
VICE PRESIDENCY TITLE DID NOT VIOLATE
FREE SPEECH RIGHTS
The United States Ninth Circuit Court of Appeals has ruled that a school district's
governing board did not violate a governing board member's free speech rights when
it voted to remove his title of Board Vice President. In Blair v. Bethel School District (9th
Cir. 2010) ___ F.3d ___ [WL 2351928], the appellate court found that a public official may
not use the First Amendment to shield the official from political fallout caused by his or
her actions.
Ken Blair had served on the Bethel School District ("District") Board since 1999. The
District is located near Tacoma, Washington. The Board elects its own president, vice
president, and legislative representative and Mr. Blair had served in each of these
positions over the years, but most recently as Board Vice President.
Mr. Blair had been a vocal and persistent critic of the District's superintendent since the
superintendent was hired in 2000, and had voted consistently against renewing the
superintendent's contract. The other Board members did not share Mr. Blair's
dissatisfaction with the superintendent. In September 2007, Mr. Blair was the lone
dissenter when the Board voted 4-1 to renew the superintendent's contract and raise his
pay. The next day, Mr. Blair complained to a newspaper reporter about the renewal of
the superintendant's contract, and on October 9, 2007, the Board voted to remove Mr.
Blair as Vice President, though he remained on the Board. Mr. Blair sued the District, the
superintendent and the other Board members under 42 U.S.C. § 1983, alleging that he
was retaliated against for exercising his free speech rights. 42 U.S.C. § 1983 allows
individuals to sue and recover when their constitutional rights are violated by public
officials.
The court found that the Board's actions did not prevent Mr. Blair from continuing to
speak out, vote his conscience and serve his constituents as a Board member. While
Mr. Blair had a right to criticize the superintendent and vote against retaining him, Mr.
Blair's fellow board members had the corresponding right to replace him as Vice
President with someone who represented the majority view of the Board. Mr. Blair's
Page 44
As the information contained herein is necessarily general, its application to a particular set of facts
and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We
recommend that you consult with your counsel prior to acting on the information contained herein.
Written by:
July 2010
Number 23
CLIENT NEWS BRIEF
authority as a Board member was unaffected by the loss of the title; even though he
was no longer Board Vice President, he retained the "full range of rights and
prerogatives that came with having been publicly elected."
The court found the Board's removal of Mr. Blair's title analogous with unhappy
constituents refusing to support an incumbent board member's re-election. Further,
while the First Amendment protects free speech, it does not immunize a person from the
political fallout that can result from the exercise of free speech rights.
The court's decision illustrates that there are means for the elected body of a public
agency to censure one of its members, so long as it does so within the bounds of
applicable law and does not deprive the censured member of his or her free speech
rights.
If you have any additional questions about this case, governing board members' free
speech rights or free speech rights in general, please do not hesitate to contact one of
our seven offices located statewide or consult our website.
Scott Cross
Shareholder & Local Government Practice Group Co-Chair
Fresno Office
scross@lozanosmith.com
Mary Gates
Paralegal
Monterey Office
mgates@lozanosmith.com
© 2010 Lozano Smith Page 45
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
