Elk River ISD 728 vs. the First Amendment?

Is Past Prologue? Could Minnesota’s ISD 728 (Elk River) Be On a Path Leading to a Lawsuit?

By John W. Palmer, Ph.D.

Yesterday this blog reported on the December 11th meeting of the Minnesota ISD 728. That post led me to doing a search for any legal actions related to disciplining and or removal of a school board member for exercising their First Amendment Rights. The search yielded two interesting findings. One finding came from Minnesota, the other from Pennsylvania.

The Minnesota finding reported on the state’s first and perhaps only case of the removal of a school board member. If you thought the case happened in the tumultuous 20th Century, you were wrong. The Austin, MN case happened in 2010. An internet search using the keywords Minnesota School Board Member Removal yielded no other instance of a removal of a sitting school board member. The Minnesota case involved a lawsuit and is reported in this Austin Daily Herald story from Tuesday, March 9, 2010.

School board removes Rude

By Rachel Drewelow

Making state history, the Austin Public School Board has removed one of its elected members. Curt Rude was ousted from his seat on the board by a unanimous vote Monday night — marking the first time a Minnesota school board member has been dismissed by their colleagues. 

Under state law, four members of a school board can vote to remove any member for "proper cause," a term which is not defined within the law. The independent arbitrator’s recommendation to the board noted that school boards have the power to interpret the term and that Rude’s lawsuit and record of service were grounds to oust him. 

"Rude's failure to perform his duties as a School Board member, as established by his multiple violations of School Board Member Code of Conduct… constitutes ‘proper cause’ for his removal from the School Board," the recommendation read.

The Pennsylvania find is reported Institute for Free Speech website under this heading:

Pennsylvania School Board Agrees to $300K Settlement in Lawsuit for Censoring Critics

Pennsbury school board officials used unconstitutional policies and bullying tactics to silence criticism of diversity, equity, and inclusion agenda

July 15, 2022

By IFS Staff

The Press Release opened with these paragraphs:

Philadelphia, PA – Last May, a solicitor for the Pennsbury School Board shouted down and censored critics of a new district policy during public comment time at a board meeting, screaming "you’re done!" Several of the targets of his wrath said, "see you in court." After almost a year of litigation, the board agreed last night to settle the lawsuit and pay $300,000 in attorney’s fees and nominal damages.

In addition, the district has rewritten its public-comment policy to conform to the First Amendment and the federal court’s preliminary injunction ruling. It also abolished its so-called civility policy and parted ways with the law firm that was advising it during the time it censored comments, including the solicitor who shouted down speakers.

The release went on to report on matters similar to the censure of two Minnesota ISD 728 school board members:

A federal court ruled in November that several Pennsbury policies governing speech at school board meetings were unconstitutional. Those policies, modeled after a template recommended by the Pennsylvania School Boards Association (PSBA), allowed the meeting’s presiding officer to stop speakers whose comments were deemed "personally directed," "personal attacks," "abusive," "verbally abusive," "irrelevant," "disruptive," "offensive," "inappropriate," or "otherwise inappropriate."

After an evidentiary hearing in Philadelphia, Judge Gene Pratter found ample evidence that the Board selectively enforced the rules to stifle criticism of its actions and members.

The plaintiffs in the case were censored for attempting to criticize district policies, including efforts to promote contested ideas about diversity, equity, and inclusion.

Perhaps the Minnesota ISD 728 School Board members and the board’s attorney who advised the board to censure two of their colleagues need to become better informed regarding the US Constitution and Judge Prater’s ruling so they avoid losing a lawsuit? Finally, the two censured board members can rest a little easier knowing how rare a removal of an elected school board member is in Minnesota and know that their actions are protected by the US Constitution.

Finally, check this out:

John W. Palmer’s 1981 Ph.D. is in Education Leadership and Administration awarded by the University of Minnesota. Dr. Palmer is a professor emeritus following over 40 years of service as an educator at both the PK-12 and University settings.