Unconstitutional
School Board Policies
Cannot Suppress Concerns
The outgoing
leadership of the West Bend school board introduced two new policies on Monday that
pretend to simply streamline how citizens, including district employees, can
raise concerns with the school district. The combined policy shifts will
concentrate power in the superintendent's office and severely limit what
individual school board members can do when they are contacted with citizen
concerns. They will fail to squelch dissent and criticism from those
challenging the status quo.
The policies, if
enacted, will clearly violate the First Amendment to the United States
Constitution, the statutory authority and responsibility of school board
members and the statutory ability of the West Bend Education Association to raise
staff concerns directly with school board members. They will severely limit the
ability of individual teachers and other staff to raise concerns as well.
The new policy
proposals are the next attempt to curtail, if not eliminate, teacher and public
criticism of administration policy and procedures. They are clearly intended to
handcuff the new board after the April election and limit those who might
disagree with the administration.
The proposed
policies essentially direct all complaints/concerns to be shifted away from the
Board and into an internal complaint management system designed to bury anyone
who might dare to speak up. The potential for discipline against staff members
who might go outside this chain of command is clear.
There are several
problems with this system.
Public schools are
governmental agencies exercising the public trust to see to the education of
all our children with tax dollars provided to make it so. The public elects the
school board to oversee the process, set budgets, approve expenditures and a
host of other duties. They are ultimately responsible to the electorate for
their performance.
The First Amendment
to the U.S. Constitution allows all citizens to approach board members,
individually and collectively, to "petition for the redress of
grievances." This cannot legally be shifted away from the elected
officials to an administrative functionary. Similarly, given their statutory
oversight functions, individual board members have a duty to receive citizen suggestions
and complaints and to investigate them in order to become fully informed and better
able to perform their duties.
These two policy
proposals also make some pretty glaring assumptions about the nature of
complaints that may be brought. Certainly, there are some that could and should
be resolved at the building supervisory level, like please fix my cracked
classroom window. Concerns that involve board policy, budget, and other
governance issues should not be referred in the first instance to the
Superintendent, much less to lower level functionaries. Systemic concerns
should go to the board directly and be put on the agenda for discussion in open
public meetings, except where prohibited by law. That is what transparency
looks like.
Finally, the staff
complaint proposal ignores the constitutional reality that district employees
are also citizens and entitled to the same level of access as everyone else to
"petition" their elected officials. Those represented by a union, the
WBEA, also have the legal right to address the board, individually and
collectively, about concerns the union may have that cannot be denied by board
policy. The litigation that will follow any attempt to discipline teachers for
violating their policy will certainly cost the district thousands of dollars as
it loses the latest attempt to squelch dissent battle.
Courts considering
First Amendment cases look at any regulation or policy that might limit public
access to elected officials with skepticism. If the new policies sweep
protected activity and speech into their orbit along with properly limited
activity and speech, they are considered “overbroad” and struck down.
Limitations that infringe on protected speech and activity must do so in the
least restrictive manner and be justified by a compelling governmental
interest.
Representative
democracy is a messy business. Making it harder for people to raise concerns
with their elected officials and easier to discipline staff who dare to
criticize is unacceptable. These policies strip too much power and
accountability away from the school board and give too much power to the
district administration to throttle criticism and dissent. They are classically
“overbroad” under the First Amendment and should be rejected.
Waring R. Fincke is
a retired attorney and Vice-Chair of the Democratic Party of Washington County.
