NYSSBA deputy director addresses confusion about free speech rights of school board members

After reading Monday’s story in The Batavian about policies in five local school districts that prohibit individual school board members from sharing their views in public forums, such as news stories, the attorney for the New York State School Boards Association suggested that maybe something has been lost in the translation.

The NYSSBA’s policy recommendation seems clear: “ … whenever communicating about issues related to the district, each board member should clearly state that he or she is communicating a personal opinion and is not speaking for the board.”

Somewhere along the line, some school districts have turned this into a restriction on speech even by individual board members.

The fact that individuals don’t give up their First Amendment rights when elected to any public office, including school boards, could perhaps be more clearly communicated, suggested Jay Worona, deputy executive director and general counsel for the NYSSBA.

“We’re the glad that you wrote the story,” Worona said, “it helps to remind us what the perspective of the press is related to covering their respective stories. Although board members, in the absence of being specifically authorized to speak on behalf of the board, may not do so (speak for the board). They certainly are not precluded from providing the press with their individual perspectives if they choose to do so.”

Further research by The Batavian on the topic also reveals the NYS Board of Education, as expressed in nearly a dozen rulings since 1978 by education commissioners, clearly supports the right of board members to speak freely. Ruling after ruling states, “Individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used.”

In our research, The Batavian also found another document from the NYSSBA that more clearly states that individual board members retain their free speech rights. 

“Individual school board members and other school officials, acting in their personal capacity, have the same right as any other member of the community to express their views on public issues,” the document states.

Yet, in Genesee County, there are five school districts – Alexander, Byron-Bergen, Le Roy, Oakfield-Alabama, Pavilion – that have articulated policies prohibiting individual board members from publicly stating their views outside of board meetings.

After reading The Batavian's story, Rick Blum, policy director of the Reporters Committee for Freedom of the Press, said he was baffled that elected bodies had such rules and the elected officials accepted such restrictions.

"I don’t understand how elected officials are not allowed to talk to their constituents," Blum said. "It doesn't make sense to me. If you are an elected representative, elected to run and administer a school board or any government agency or public office, you need to do it in a representative, democratic way."

Since the story appeared Monday, The Batavian has spoken with one local school official about speech restrictions.

Alexander Superintendent Catherine Huber, Ed.D., said -- in a single statement -- that board members both can and can't speak freely: They can't share their personal views on district business; and, they have the ability to express opinions. (NOTE: We will have more from this 45-minute interview in later stories.)

"Recently we did a board retreat and the board established norms, which you also probably saw on our website, and one of the norms that the board established was that they would speak with one voice," Huber said. "They would speak with one voice on matters related to the school district.

"Board members individually don't have power on their own. They have power and they come together around the board table. That is not the same as their inability to express an opinion. Anybody has the ability to express an opinion. But in terms of commenting on district business, the board members only can speak with that same one voice as a board and not as individuals and they've designated the superintendent, as they probably have in most school districts, as the spokesperson for the district."

In the interview, we compared the "one voice" policy to Communist China. Huber's only response, "You have the policies and I know you have the policies from the other school districts as well."

When The Batavian pointed out such a policy negates dissent or individual views, Huber responded, "It's in keeping with our policy. An important thing to keep in mind, too, is that one of the central jobs of a Board of Education is that they get to approve a policy. So Boards of Education approve the policy that talks about things like who is the spokesperson for the board."

When The Batavian tried to talk with Alexander board members after an April 23 meeting, Huber stepped in, and board members reiterated, that only she could speak to reporters, a communication transaction Huber confirmed during Wednesday's interview.

After that encounter and subsequent communications with the district, The Batavian decided to survey the seven other school district's in the county expecting to find Alexander's policy was an anomaly. What we found is, it is not. While the policies of Batavia, Pembroke, and Elba are, arguably, the anomaly, there are five districts willing to openly state board members can't speak freely.

There does seem to be some confusion in Elba about the policy. While Superintendent Keith Palmer said, "Board members should emphasize to the media when asked to speak as a board member that they can only speak as a private citizen," which is in keeping with NYSSBA guidelines. When, however, The Batavian attempted to send interview questions to Elba's lone school board candidate, Candy Bezon, she declined to answer citing board policy.

The story about board member speech restrictions seemed to surprise NYSSBA's Worona. He indicated he didn't know such policies existed at school districts in New York.

The NYSSBA serves 660 school boards in New York and provides information, training and advice on matters affecting school boards to its members.

Worona said if there is a lack of clarity among school boards, it something NYSSBA should address.

"We want to make sure our school boards are judged by what they do not how they do it," Worona said.

It's reasonable for school boards to have a designated spokesperson, whether that's the board president or the superintendent, because a spokesperson is likely to be the person with the most knowledge and information about a particular topic, but a board designating a spokesperson should not be confused with the right of individual board members to answer questions, or for reporters to ask them.

Board members, of course, have a right to decline interview requests for their own personal reasons.

“Some board member who wishes not to speak the press may not do so, not to be difficult, but because they don’t feel comfortable with that media," Worona said.

Some school district and board policies may not necessarily reflect that nuance, Worona said.

There's no nuance, however, in the decisions issued by NYS Board of Education commissioners going back to 1978 when a commissioner ruled on the appeal of Rita Wolfe. 

Wolfe was a Cold Spring Harbor School Board member who sent letters to residents of Cold Spring Harbor encouraging them to vote against a proposed school budget, an action the commissioner ruled was not illegal since Wolfe lobbied residents at her own expense.

"Although an individual board member or those members holding a minority view are not entitled to have their opinions published at the district's expense in board publications, this does not mean that the individual board member may not communicate his views at his own expense."

The Wolfe decision (which, given it is from 1978, is not available online) is cited in several subsequent commissioner decisions. Decisions that either site Wolfe or state the same principle include the application of Katrina Dinan, application of Rhea Vogel, the appeal of Kevin R. Allen, the appeal of Jeremy J. Krantz (which also notes that school district employees enjoy the same right to publicly express their personal views), the appeal of Guilaine Leger-Vargas, the appeal of Dione Goldin (which involves comments Goldin made to a newspaper reporter), the application of Kaila Eisenkraft, the appeal of Glen W. Johnson, the appeal of Vincent Wallace, and the application of Julianne C. Gabryel.

What an individual reporter can do about government policies that prohibit free speech by elected officials may be limited; though courts have found, such as in Chicago Reader v. Sheahan that government agencies can't argue that alternative newsgathering resources are available as an excuse for refusing direct access to a primary source. Yet this is what Attorney Jennifer Schwartzott -- who represents Alexander, Byron-Bergen, and Pembroke -- suggested when defending school districts' speech policies.

"Community members who are interested in what the local board members have to say can attend board meetings when the members discuss issues, share their opinions, and make decisions," Schwartzott said in response to questions emailed to her last week about individual board member rights.

Speech restrictions, however, abridge the rights most directly of school board members.

David C. Bloomfield, J.D., professor of Education Law at Brooklyn College and The CUNY Grad Center, and author of a book on education law written for community members who wish to better keep tabs on their local school boards, said board members who wish to challenge the speech restrictions might best be served by going to the NYSSBA to get information to bring back to their fellow board members. If necessary, however, they might need to file an application or appeal with the education commissioner.

"The new information (the decisions mentioned above that we found since the last story, with the help of Bloomfield) seals the deal," Bloomfield said. "Rather than speculating, it’s right there, spelled out in black and white. A district shouldn’t even discourage board members from speaking out. The First Amendment should be exercised."

There is no specific state law, such as the Freedom of Information Law or the Open Meetings Law, that addresses directly a board member's right to speak freely but such a law shouldn't be necessary, said Robert Freeman, director of the state's Committee On Open Government. "We have the First Amendment.

“If a board member is speaking out, it’s up to the board to take action, and I don’t think a board would, if they thought about this, because I think a board would recognize the right of a board member to speak out, absent not representing himself or herself, as speaking for the board,” Freeman said.

Later he added, “If a board member wants to speak out then I think he or she should and challenge the policy.”

If board members won't protect themselves, it will be up to voters to make changes, said the Reporters Committee policy Director Blum.

"I think the public is going to have to elect people who are going to change school board policy," Blum said.