Transcript

Host: Hello and welcome to Prevention and Protection, the United Educators risk management podcast. Today’s discussion of the United States Supreme Court’s ruling in Houston Community College System versus Wilson is hosted by Heather Salko of United Educators’ Risk Management department. Heather is the Manager of Risk Research and is joined by two guests today.  

Before we begin, a reminder to listeners that you can find other UE podcasts, as well as UE risk management resources, on our website, www.ue.org. Our podcasts are also available on Apple Podcasts. Now, here’s Heather. 

Heather Salko: Thank you, and hello to everyone listening. Today I’m so pleased to have attorney Jonathan Brush of the firm Rogers, Morris, & Grover in Texas and Laura Olariu of United Educators here to discuss a UE claim, which was decided by the U.S. Supreme Court this term — Houston Community College System v. Wilson. 

Jonathan is a civil appellate attorney who has worked on appeals and argued cases on behalf of educational institutions before the Fifth and Second Federal Circuit courts and the U.S. Supreme Court. Laura’s role in this claim was as the UE Resolutions Attorney who monitored and advised on the claim. She is now the team leader to the West team in UE’s Resolutions Specialty Group. Welcome, Jonathan and Laura. 

Laura Olariu: Thank you, Heather. 

Jonathan Brush: Thank you. 

Salko: Laura, let me begin with you. Could you please provide everyone listening with a very brief overview of the facts of this claim and how it came to be appealed to the U.S. Supreme Court? 

Olariu: Of course. The Houston Community College System board of trustees is a publicly elected body, and David Wilson was elected as a trustee to the board in 2013. Soon after being elected to the board, he began publicly challenging many of the board’s actions, and he did this by filing a series of lawsuits, arranging robocalls to constituents, and using media outlets to voice his views and his concerns. He even hired a private investigator to follow a trustee to confirm that they actually resided in the district which they represented. 

Finally, in 2018, the board responded by adopting a public resolution censoring Wilson. The resolution stated that Wilson’s conduct was not consistent with the best interests of the college and his actions were not only inappropriate but reprehensible. Wilson, who already had a lawsuit pending against Houston Community College, also known as HCC, amended that lawsuit to allege that the censure was issued to punish him for exercising his First Amendment right to free speech. 

After transferring the lawsuit to federal court, the college moved to dismiss the lawsuit and the district court granted the motion. Wilson then appealed to the Fifth Circuit. On appeal, the Fifth Circuit reversed the holding and ruled that a reprimand against an elected official for speech addressing public concerns is actionable under the First Amendment. This decision by the Fifth Circuit was in conflict with decisions from several other circuit courts, so HCC filed a petition for rehearing en banc, which was denied, but with a split vote of eight judges for rehearing and eight against it. Two powerful dissents from the denial endorsed the college’s legal position and also pointed out that the Fifth Circuit decision had opened a circuit split. It was then that it was decided that the college would file a petition for cert to the U.S. Supreme Court. 

Salko: Oh, thank you, Laura. That’s really a very helpful setup as we discuss the importance of this case. Jonathan, this was a case, as Laura mentioned, about speech and the First Amendment. What was the issue itself that came before the Supreme Court? 

Brush: The issue that the Supreme Court considered and decided was whether a governmental body’s censure, standing alone, of one of its members that was taken in part in response to the member’s speech would give rise to a First Amendment retaliation claim. And so what the court was looking at was really a First Amendment retaliation question. There was no dispute that Trustee Wilson had spoken publicly and that he had exercised his own First Amendment right to speak, and the college’s censure resolution squarely pointed, among other things, to Trustee Wilson’s speech. And so Trustee Wilson took the position that the censure itself was retaliatory and caused him a First Amendment injury. 

The censure in this case contained some components that were not strictly the words of the censure, which were part of the case in the district court in the Fifth Circuit and continued to play a role. But the Supreme Court didn’t consider those issues. And those specifically were the college debarred Wilson from serving as a board officer. And so the board has officer positions of President, Vice President, and so on, and those positions are selected by the other board members. He was debarred from serving as a board officer, he was debarred from receiving reimbursement for travel, and debarred from receiving reimbursement for funds or access to funds from his community accounts fund. And so those were non-speech components of the censure. They had a more tangible flavor to them. 

And the district court, in dismissing the case, held those tangible components didn’t offend the First Amendment, and the Fifth Circuit agreed, interestingly. The Fifth Circuit panel said that the imposition of those conditions didn’t support a First Amendment retaliation claim. And so the Supreme Court didn’t consider those elements. It only looked at the words of the censure alone, what we came to call a bare censure, the idea of a governmental censure that simply expresses disapproval in the form of words. 

Salko: Great. Thank you. That’s very helpful for us to all know. And Laura, before we move on, I just want to say this isn’t the first time UE has had a claim that made it all the way to the Supreme Court. Would you explain why UE felt that it was important to support HCC in this appeal from the Fifth Circuit’s decision and what role UE played in the appeal and the argument? 

Olariu: Yes. This was an important decision that had an effect on institutions with publicly elected boards in the Fifth Circuit, which included Texas, Louisiana, and Mississippi. If the ruling stood, it would be the equivalent to denying the board’s First Amendment protections to speak. So therefore institutions would routinely be faced with lawsuits anytime a board censure was issued to a rogue member. And UE supported HCC to pursue the petition for cert to the U.S. Supreme Court because it was such an important decision. 

Salko: Jonathan, before we get back into the case and its decision, petitioning the U.S. Supreme Court and briefing an appeal is a huge undertaking. Many of our listeners may not be familiar with the process. Could you please explain how the court decides to hear a case? 

Brush: Certainly. I can kind of give the overview of the procedural process and things that the court looks for. In our case, the key was a circuit split, and a circuit split on a First Amendment question is usually going to garner the court’s attention. And so we had a new rule of law in the Fifth Circuit that was at odds with decades of jurisprudence from other circuits. 

So when there’s a split between the Circuit Courts of Appeal in the United States — there are 11 numbered circuits, plus the D.C. Circuit and the Federal Circuit — if the rule of law in one circuit is different from another, that’s going to gather the court’s attention. So the first step is to file a petition for writ of certiorari, and that’s an initial opening brief, a relatively short brief, that asks the court to take the case. Typically, the respondent will decline to file a response to the petition for certiorari unless the court requests one, and the court will not typically grant the petition absent a request, they’re going to ask for a request. 

In this case, Trustee Wilson voluntarily filed a response to the petition for writ of certiorari, which in some respects, probably made the case even more interesting to the court. Instead of saying, “There’s nothing to see here,” it said, “There’s something to see here.” But given the circuit split, he perhaps saw the inevitable. 

The court then considers the petition for certiorari, the response, and the reply at conferences. And you can go to the court’s website and see their calendar and when they’re listing conferences. And after the court is considered for conferences, they either grant or deny the petition. If the court grants the petition, then it opens another round of briefing on the merits. And at that point, the petitioner provides a brief on the merits, the respondent responds, and then reply briefing is undertaken, and then the court will set the case for argument. That’s sort of the bare procedural elements. 

Another important component is amicus practice, which probably doesn’t come up as much in the Circuit Courts of Appeals or intermediate courts, where I’ve spent most of my time and what most practitioners probably spend more time in. They’re very important because they help show the court other people care about this case other than the parties. And so we sought amicus support from the Texas Association of School Boards Legal Assistance Fund, and they filed an amicus brief at the certiorari stage. 

And then there’s another round of amicus briefing at the merits stage. And in that section, we had briefing supporting us from the United States, the state of Texas jointly with the District of Columbia and 15 other states, which is a fairly unique coalition of states, and then amicus support also from the amicus group that represents colleges and universities, and the American Jewish Congress filed an amicus brief in support of the college. 

When the response brief is filed, amici for the respondent are able to chime in, and the ACLU and a couple of other groups filed an amicus brief here in support of the respondent. That’s sort of the bare bones of the procedural component. 

Salko: Great. Thank you. Oral argument, Jonathan, was held in this case back in 2021, November exactly. What was that like and what were some of the questions or concerns or issues that were raised by the justices during that oral argument? 

Brush: Certainly. And so my partner, Rick Morris, was the lucky one who actually got to argue it. And so I had the opportunity to have probably the best seat in the house. And it’s somewhat of a surreal experience because it’s the highest court in the nation but it’s also one of the more informal courts in terms of when we got into the courthouse. The clerk of the Supreme Court came up in his tailcoat and stuck out his hand and said, “Hi, I’m Scott.” That doesn’t happen in most federal courts. 

But when you come into the courtroom, and our argument was held in person, but because of COVID restrictions it was a fairly sparsely occupied courtroom — only media, the justices, court staff, counsel, and one co-counsel were allowed in — so clients weren’t allowed in. That made it probably a little more surreal and perhaps less formal. But the argument itself flowed fairly quickly and was, again, somewhat collegial in a sense. That was my sense. The questions were not the sort of rapid-fire, harsh questions that lawyers sometimes get in lower courts, but much more thoughtful questions. 

So our argument was divided, our side went first, and then we’d ceded time to the Assistant to the Solicitor General so Sopan Joshi (Assistant to the Solicitor General), who then argued, and then the respondent argued, followed by the reply portion. We had done extensive preparation to get Rick ready for argument in doing moot courts, both here in Texas, at the south Texas College of Law, and also out at Stanford University. We co-counseled the Stanford Supreme Court Litigation Clinic and they provided really invaluable assistance in getting ready for argument and brief writing. So in terms of helping with the brief writing, framing issues, and bouncing ideas. 

And so Rick had done, I think, six or seven moot courts with the last two being one out at Stanford and one here in Houston with local practitioners. And what was very interesting about the argument was there was not a single question asked of either side that we hadn’t heard in some permutation or some form.  
And the question that kept coming in all of the arguments and preparation we did is: “What’s the limiting principle? How far could a censure go?” And so it was no surprise that was the first question that came out of the gate. The only thing perhaps was surprising was that it was Justice Thomas who asked the question. 

But in terms of the argument itself, none of the questions came as surprises to us. We felt well-prepared for all of the questions and that goes to the preparation that you put in. So the process of preparation is much more extensive than it is for a non-Supreme Court case. 

Salko: Jonathan, how, for our listeners, did the court rule, or what was their holding or decision in this case? 

Brush: So the ultimate holding or decision, the court first had to sweep away the idea that the non-words component was still in the case, what we referred to as the censure plus. The court made plain that it had granted review only to consider whether a bare censure offended the First Amendment, suggesting that the respondent would have been changing the judgment below and needed to cross-petition to preserve that issue. 

And the court held that an elected body’s censure resolution of one of its members standing alone did not offend the First Amendment. And the court really looked to history and tradition to ground that rule. There’s a robust tradition in American democracy, and before that, in English practice of censures of representatives. And the court essentially found that, given that background, given its prior jurisprudence, a censure standing alone does not offend the First Amendment and does not give rise to a First Amendment retaliation claim. 

Now, the court put some important caveats on its holding, that they’re holding as a narrow one. A different result might obtain if it’s a censure of a member of the public, a censure of an employee, a censure by a licensing board, all of those would be separate contexts. And I think the court left open the possibility that if a censure included some tangible penalty, that the Wilson case might not resolve that question, that that would be an open question for another day. It just wasn’t before the court in this case. So the ultimate holding is that a governmental body that censures one of its members in response to speech does not create a First Amendment injury that will give rise to a First Amendment retaliation claim. 

Salko: Thank you. Laura, as you mentioned before, this obviously applies to in the context of public educational institutions, but do you have any takeaways or lessons from UE members based on this claim? 

Olariu: Yes. This, as you mentioned, specifically relates to public educational institutions that also have publicly elected bodies because it allows these bodies, like the board of trustees here, to respond to one of its own member’s speech with a verbal censure, which is also considered speech. So this overall allows publicly elected boards to continue to debate without fear of additional lawsuits on that basis. 

Salko: Jonathan, do you have anything else you think you want to add about this? Are any other broader lessons people can learn? 

Brush: I think there are a few broad lessons that are good for both practitioners and clients. To Laura’s point about preserving the tool of censure, it’s something that is commonly done in legislative assemblies. And I think governmental entities that enact censures need to look carefully to make sure they’re staying within what we know is lawful. And so a purely verbal censure is lawful and that preserves that robust tool. 

A practitioner governmental body that wants to do something different should carefully consider how far away from the Wilson case they’re getting. Are they likely to engender litigation? Because the point isn’t really to create more litigation, it’s to restore order inside the board room. 

I think for the practitioner, lessons that we learned are that it helps to get help. Stanford was invaluable. There are enumerable clinics and organizations that can help. Ask your friends, ask your colleagues to read briefs, to moot you. The variety of perspectives we got from different people was invaluable. And you know when you keep hearing the same question coming up that you’re going to hear that question in court and you have to have the answer ready. 

And the final point is, think about what’s the most limited rule of law you can both win with and your client can live with. And so we distilled down to this bare verbal censure and limited it to elected bodies. Because when we would brainstorm this case with our co-counsel or with people outside, the question kept, “Well, what’s your limiting principle? Where do you stop? How far you can you go?” And I think Justice Thomas asked, “Well, could you have put them in prison?” 

And setting aside the merits and what was done in England before the revolution, we don’t have to ask those questions or even answer them if we define our problem set as elected representatives. And that cuts off a whole wing of inquiry and challenge, and the tighter your rule that you can win with and live with, I think the easier it is to prevail and the easier it is to persuade the court. 

Salko: Preparation and limits — words we can all live by. Thank you. I want to thank both of you for joining us today and for explaining the facts and the legal issues in this case, as well as the court’s decision. I am sure that our listeners and UE members appreciate you sharing your experience, wisdom, and some practical tips from this case. Thank you. 

Olariu: Thank you, Heather. 

Brush: Thank you, Heather. 

Salko: If listeners want to learn more about the claims that UE helps institutions appeal, UE does have a quarterly publication called UE on Appeal that can be found on our website at www.ue.org. 

Host: From United Educators Insurance, this is the Prevention and Protection podcast.