Texas Professor Sues College after Being Disciplined for Speaking Out of Turn

By on July 13, 2011

A professor at the College of the Mainland (COM), a community college in Texas, has sued the college, alleging a violation of his First Amendment rights after he was officially reprimanded for comments made at a meeting of COM’s Board of Trustees last year. 

The Galveston County Daily News writes:

David Michael Smith, who teaches political science at the college, received an official warning letter after an argument with college President Michael Elam during a board of trustees meeting in June of last year.

Smith attended the meeting to speak to the board about dues deductions for union members. Smith is the president of COM-Unity, the college employees’ union.

During the meeting, Elam and Smith disagreed about whether the professor had agreed to have the union placed on a direct deposit pay system. Smith was reminded not to speak out of turn by members of the board.

A few days later, Smith was issued a disciplinary letter, stating he had violated a section of the faculty code that states that educators should "treat all persons with respect, dignity and justice, discriminating against no one on any arbitrary basis."

Although laws vary by state, most trustee meetings of public institutions are meetings which the public is invited to attend; further, notice of the meeting and its agenda must be made public a reasonable amount of time before the meeting’s occurrence. Members of the community, along with students and faculty, are able to offer comment at these meetings, with some content-neutral guidelines: requiring speakers to sign up to speak in advance, for example, and to keep remarks under a certain time. 

Whatever the guidelines provided, Smith admits he did not follow them, and spoke out of turn. Occasionally, at meetings where the forum is opened up to the general public, this will happen. But, he points out in the Daily News, "that’s not something for which I can be lawfully disciplined."

As the Daily News notes, Smith had tried to resolve this matter internally for the past year, but his most recent appeal of the reprimand was denied by President Elam and the Board of Trustees. Smith believes he is being retaliated against for his union’s opposition to Elam. Perhaps it’s the case that there is longstanding ill will toward Smith on Elam’s part; the Daily News notes that Smith and his wife sued COM in 2009 after they were denied the chance to speak at a trustees meeting. Smith won, and COM was forced to change its policy on speakers at the meetings.

The disciplinary action taken against Smith is petty on COM’s part. FIRE has a great deal of experience fighting unconstitutional speech codes with language similar to COM’s requiring that all persons treat all others with "respect, dignity and justice." Further, it’s quite hard to believe that anything Smith could say would reasonably "discriminat[e] … on any arbitrary basis." It seems even less excusable for senior officials to hide behind such language here than for students, at other schools, to use a "respect" policy to seek punishment for those who offend them. (The trustees, by the way, are elected officials and thus should be familiar with the idea that their duties will occasionally expose them to the opprobrium of those they serve.)

Smith’s offense, if committed at Mom and Dad’s dinner table, might net a child an extra serving of peas, or some unwanted chores. It does not seem worthy of what, in Smith’s case, amounts to an official rebuke by the state. We’re curious to see where this case goes next.