Suppressing Dissent

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.