On Dec. 11, the District 202 School Board, by a 5-2 vote, adopted a Resolution that we think violates the First Amendment. Board members Gretchen Livingston and Jonathan Baum voted against it, with the remaining members of the Board voting for it. The Resolution states: 

 “BE IT RESOLVED THAT when the superintendent or Board president communicates district information exclusively to the Board and/or other School District administrators in an email or other written communication, Board members shall adhere to the following practices: 

“1. Assume the communication is confidential unless it states otherwise; and 

“2. Maintain the confidentiality of the communication unless: a. The author of the communication grants consent to the Board member to share the communication with a specific third party; or b. Extraordinary circumstances exist, and the Board member reasonably believes that there is a legal obligation or it is in the best interest of the School District to share the communication with a third party and the author is unlikely to consent to release of the communication. In such a case, the Board member shall, unless legally prohibited, first seek guidance and/or inform the Board president, superintendent, or Board attorney prior to sharing the communication with a third party.”

The Illinois Freedom of Information Act creates a presumption under State law that all communications sent by the Superintendent and by the Board President to members of the School Board are open to the public and that they are not confidential. While some of the communications may be exempt from disclosure under the FOIA, the Resolution makes no distinction. Instead, it deems all such communications confidential and, significantly, it restricts a School Board member’s disclosure of all such communications.  

In our view, the Resolution imposes a prior restraint on a Board member’s right of free speech. Under this Resolution, if the Superintendent or the Board President sends an email to members of the School Board concerning a proposed change in policy that is being considered by administrators, the Board member will be required to maintain the confidentiality of the communication, unless he or she obtains consent or unless extraordinary circumstances exist, and even then the Board member must jump through some other hoops.

The Resolution would thus restrict a Board member’s right to immediately inform the community of a potential change in policy. It would restrict a Board member’s right to immediately publicly agree or disagree with the proposed change.

Board members are elected by the public to serve on the Board and they owe a duty to the public. If they become aware that a proposed change in policy is coming down the pike, they should be allowed to immediately bring it to the public’s attention and to express their views. They should not be gagged by a School Board rule that would prohibit them from bringing it to the public’s attention and from speaking their minds at the earliest possible moment.

Free speech, public debate, and public disagreement are the hallmarks of a democratic society.

In Bond v. Floyd, 385 U.S. 116, 135-137 (1966), the United States Supreme Court held that the government may not impose greater restrictions on an elected official’s right to free speech than it can impose on members of the general public. The Court also recognized the importance of protecting an elected official’s freedom of speech, stating:

“The First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), is that “debate on public issues should be uninhibited, robust, and wide-open.

“Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. … Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.”

We recognize that the District has a valid interest in protecting the confidentiality of information that is subject to the attorney client privilege or that relates to personnel matters or to individual students or possibly to certain pre-decisional opinions exempt from disclosure under the FOIA. But the Board’s Resolution is not limited to that information. The Board has not adopted the most narrowly tailored means to protect that information, but instead it applies to all communications from the Superintendent or Board President to members of the School Board. As such, we think the Resolution violates the First Amendment. 

We urge the School Board to vacate the Resolution.