PO Box 87131
San Diego, CA 92138-7131
T/ 619-232-2121
F/ 619-232-0036
www.aclusandiego.org
September 29, 2008
Mark Bresee, Esq.
General Counsel
San Diego Unified School District
4100 Normal St.
San Diego, CA 92103
Re:
SDUSD Board Governance Policies
Dear Mr. Bresee:
I am writing with respect to certain provisions of the recently approved Board
Governance Policies (BGP), especially the following: “When speaking to the press or
otherwise sharing personal opinions, members will respect decisions of the board and
will not undermine those decisions…. Members will not publicly express individual
negative judgments about superintendent or staff performance. Any such judgments of
superintendent or staff performance will be expressed in executive session.” (BGP p. 21.)
Violation of these provisions may result in removal from leadership or committee posts
or public censure by the Board. (BGP p. 24.) These provisions apparently apply to board
members inside or outside board meetings.
While such provisions may be motivated by worthy goals, they unfortunately
violate the constitutional right to freedom of speech.1 They curtail core political speech
based on viewpoint or content. Leventhal v. Vista Unified School Dist., 973 F. Supp. 951,
960 (S.D. Cal. 1997) (rule prohibiting criticism of district employees was “classic form of
viewpoint discrimination”); Baca v. Moreno Valley Unified School Dist., 936 F. Supp.
719, 730 (C.D. Cal. 1996) (policy invalid because it allowed “laudatory and neutral”
statements while prohibiting “negatively critical” statements on “District employees'
conduct or performance”); cf. Chaker v. Crogan, 428 F.3d 1215, 1228 (9th Cir. 2005) (by
targeting only “speech critical of peace officer conduct … statute impermissibly
1
Other problems arise as well, such the vagueness of terms such as “undermine,” “negative judgment,”
“respectful body language,” “play to the audience” (BGP p. 11), “tactfully,” and “positive image.” (BGP p.
22.) Also, a rule that a member may not “embarrass” the district may also be construed to prohibit
protected speech, for example if critique or dissent is deemed “embarrassing.” (BGP p. 22.) This letter
highlights examples without necessarily exhausting every constitutional issue raised by the BGP.
Mark Bresee, Esq.
September 29, 2008
Page 2 of 4
regulates speech on the basis of a speaker’s viewpoint”). Such viewpoint or content
discrimination is unconstitutional. Rosenberger v. Rector of University of Virginia, 515
U.S. 819, 828-29 (1995).
Individuals do not surrender their free speech rights when they become elected
officials. The government may not impose greater speech restrictions on elected officials
than it could on members of the general public. Bond v. Floyd, 385 U.S. 116, 132-33
(1966) (overturning state legislature’s refusal to seat elected member because of
opposition to his viewpoint); Wrzeski v. City of Madison, 558 F. Supp. 664, 667 (D. Wis.
1983) (“Legislators enjoy the same First Amendment protections as any other members
of our society.”).
“Debate over public issues, including the qualifications and performance of public
officials (such as a school superintendent), lies at the heart of the First Amendment,”
which specifically protects “the ability to question and challenge the fitness of the
administrative leader of a school district, especially in a forum created specifically to
foster discussion about a community’s school system.”2 Leventhal, 973 F. Supp. at 958;
see also Bach v. School Bd. of City of Virginia Beach, 139 F. Supp. 2d 738, 743 (E.D.
Va. 2001) (First Amendment “protects the ability to question the fitness of the
community leaders, including the administrative leaders in a school system”); Baca, 936
F. Supp. at 738 (enjoining rule prohibiting criticism of school district employees at board
meetings).
The courts have thus rejected any attempt to curtail the right of elected officials to
comment on issues, including the qualifications, integrity, and job performance of other
officials. For example, in Kucinich v. Forbes, 432 F. Supp. 1101 (D. Ohio 1977), the
court overturned a City Council’s decision to suspend a member for suggesting in
legislative debate that another member had entertained taking a bribe. See also, e.g.,
Vacca v. Barletta, 753 F. Supp. 400 (D. Mass. 1990) (school committee chair violated
First Amendment by removing member from meeting for content of speech); Ammond v.
McGahn, 390 F. Supp. 655, 660 (D.N.J. 1975) (exclusion of senator from caucus “in
retaliation for her critical public statements” regarding caucus violated “her right of free
speech under the First Amendment”), rev'd on other grounds, 532 F.2d 325 (3d Cir.
1976). Therefore, elected officials may not be “punished or restricted for making public
statements that the majority found offensive.” Parker v. Merlino, 646 F.2d 848, 853 (3d
Cir. 1981).
No matter how laudable the purpose of the BGP, it cannot justify restrictions that
abridge the right to freedom of speech. Though civility and constructive dialogue are
admirable goals, they cannot justify unconstitutional restrictions on speech. Moreover,
2
The Brown Act’s authorization to discuss personnel matters in executive session neither trumps the First
Amendment nor grants “authority to silence public speech that may also touch upon related employment
issues.” Leventhal, 973 F. Supp. at 958.
Mark Bresee, Esq.
September 29, 2008
Page 3 of 4
the provisions at issue imperil the open debate necessary for the public to evaluate its
elected officials. As the Supreme Court has noted:
The manifest function of the First Amendment in a representative
government requires that legislators be given the widest latitude to express
their views on issues of policy. The central commitment of the First
Amendment … is that ‘debate on public issues should be uninhibited,
robust, and wide-open.’ … Just as erroneous statements must be protected
to give freedom of expression the breathing space it needs to survive, so
statements criticizing public policy and the implementation of it must be
similarly protected.… Legislators have an obligation to take positions on
controversial political questions so that their constituents can be fully
informed by them, and be better able to assess their qualifications for
office; also so they may be represented in governmental debates by the
person they have elected to represent them.
Bond, 385 U.S. at 135-137. This principle applies with particular force to school
districts. “The public entrusts school boards with the education of its children, and the
schools play a critical role in the social, ethical, and civic development of those students.
To relegate discussion on the education of a community’s children to closed, back-room
sessions would deprive the public of the most appropriate forum to debate these issues.”
Leventhal, 973 F. Supp. at 960-61.
The public is therefore entitled to unfettered expression of board members’
opinions on board decisions or the performance of employees. Without full and candid
communication of board members’ positions on these important public issues, the public
cannot properly exercise its right to monitor their performance and hold them accountable
at the ballot box.
Dissent and critique are essential components of democratic government. Some
might view a board member’s disagreement with decisions as “undermining” those
decisions. Others might claim it “embarrasses” to critique the board or its employees.
But such speech is a cornerstone of democracy. “Criticism of government is at the very
center of the constitutionally protected area of free discussion. Criticism of those
responsible for government operations must be free, lest criticism of government itself be
penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
While the relevant BGP provisions may be motivated by a genuine desire to
promote effective governance and operation of the school district, they nonetheless
constitute an undue restriction on freedom of speech. Only “the electorate [is] permitted
to judge [an elected official] and punish him for his expression of ideas and opinions.”
Kucinich, 432 F. Supp. at 1117. Therefore, I am writing to request that the district revise
the BGP to conform to constitutional guarantees of freedom of speech and the public’s
right to remain fully informed of the positions of its elected officials.
Mark Bresee, Esq.
September 29, 2008
Page 4 of 4
Please feel free to call or e-mail me if you have any questions or would like to
discuss these issues. Thank you for your attention to this matter.
Sincerely yours,
David Blair-Loy
Legal Director