Legal Commentary

School Board Members May Choose to Remove Their Vice President Based on His Speech

By Eugene Volokh

So holds Blair v. Bethel School Dist., decided Monday by the Ninth Circuit. The result sounds quite right to me:

[M]ore is fair in electoral politics than in other contexts. It is common for political bodies to have internal leadership structures and for members of those bodies to be openly partisan in voting for and against one another for leadership positions. In fact, we expect political officials to cast votes in internal elections in a manner that is, technically speaking, retaliatory, i.e., to vote against candidates whose views differ from their own. Indeed, an internal political leadership election is often a referendum on the majority point of view. Yet, to accept Blair?s argument is to hold that the First Amendment prohibits elected officials from voting against candidates whose speech or views they don?t embrace. Experience and political reality convince us this argument goes too far; the First Amendment does not succor casualties of the regular functioning of the political process.

To lend perspective to this point, we conceive little difference between what the Board?s internal vote against Blair accomplished and what voters in a general public election might do if they too were disaffected by Blair?s advocacy. In other words, it wouldn?t have been controversial in the least ? and certainly not a violation of the First Amendment ? had Blair?s constituents refused to support his reelection on account of his outspoken opposition to Superintendent Seigel. We see no reason the Board members? votes here should be regulated in a way that the general public?s are not.

Note that the matter would have been different had the school board removed a member from his popularly elected office, as opposed to a school board?s removing a member from a political office to which it had itself appointed him (as here), or for that matter as opposed to the voters? recalling a politician that they had themselves elected (which of course they may do, even in retaliation for the politician?s constitutionally protected speech). See Bond v. Floyd (1966), holding unconstitutional a legislature?s expulsion of a member for his speech.

Full post as published by The Volokh Conspiracy on June 16, 2010 (boomark / email).