Why are school board members afraid to speak?

Gail Nazarene, an elected school board member in New Jersey, thought she was performing her duties as a public servant and participating in the democratic process when she asked her constituents about tax increases on Facebook. This simple act led to an ethics complaint by another school board member because, unlike most other states, New Jersey interprets its school ethics rules to potentially cover any speech that’s merely about schools, supposedly because community members are likely to attribute any such statement from a board member as being on behalf of the board. 

But the First Amendment forbids the government from punishing school board members for speaking their minds on public issues. That’s why FIRE is suing New Jersey on Nazarene’s behalf. 

School boards are a uniquely American institution that originated in colonial Massachusetts, designed to maintain local control over education and prioritize community values over larger state and federal politics. To fulfill this purpose, school board members (who are usually elected) must communicate with their constituents, understand their needs, and keep them informed.

In the social media age, many elected officials post information and engage with constituents online. However, unlike most elected officials, school board members are often saddled with speech-restrictive ethics codes. 

These codes are often subjective and ambiguously worded, and — as Nazarene learned — they can carry legal and professional consequences for board members attempting to fulfill their obligations as public servants.

Most states have ethics codes for public officials, which usually include school board members. In many states, including New Jersey, education statutes also require school boards to adopt ethics codes. Even in states without statutory ethics requirements, most school districts are members of their statewide school board association and therefore may be required to adopt a code, usually one recommended by the association, to maintain membership. 

Regardless of their source or enforcement mechanism, school board ethics restrictions tend to restrict speech in similar ways. Civility and respect provisions, restrictions on voting statements, restrictions on partisanship and interest group influence, and board integrity provisions are all common features of these codes. 

Respect and civility

While civility and respect provisions may appear uncontroversial, these terms are inherently subjective. What qualifies as “respectful” is often in the eye of the beholder.

For example, North Dakota’s School Boards Association ethics code requires school board members to refrain from “attacking others in public.” Yet vehement public disagreement between board members, especially on controversial or emotionally charged issues, could easily be characterized as a public attack. 

Similarly, Vermont’s School Board Association code of ethics requires board members to “voice opinions respectfully.” The code does not define what respectful expression entails. 

Such ambiguity risks enabling a “heckler’s veto,” in which a single offended individual effectively silences speech others find acceptable. What one board member sees as passionate or loud disagreement might prompt another to seek sanctions or legal action. 

Voting statements

Some ethics codes prohibit board members from making statements about how they intend to vote or have voted. Vermont, which received a “red light” rating on FIRE’s School Board Speech Map, restricts board members from furnishing voters “any opinion or comment . . . on any matter to be voted on.”

Among other things, this restriction prevents candidates, including incumbents, from discussing pending matters during an election. This harms both the board member’s speech rights and constituents’ ability to make informed choices at the ballot box.

Partisanship

Provisions restricting partisanship and interest group influence are nearly impossible to enforce objectively. They also threaten board members’ associational rights and discourage consultation with experts. 

Ohio’s ethics code requires board members to “render all decisions based on the available facts and . . . independent judgment rather than succumbing to the influence of individuals or special interest groups.” Under this standard, a board member who, for example, consults an association of school counselors about student mental health could be accused of “succumbing to the influence” of a special interest group. Similar provisions exist in other states, such as Indiana, Nevada, South Carolina, and North Carolina. 

Because it is impossible to know how a member arrived at a particular decision, these rules invite selective enforcement against unpopular or controversial votes. A vote against expanded sex education, for example, might be labeled partisan even if it rests on logistical or policy concerns. 

These provisions may chill association with political parties, religious groups, and advocacy organizations as well. The term “interest group” is poorly defined, leaving board members uncertain whether participation in civic or religious organizations could expose them to discipline. 

Ironically, the associations that draft many of these codes are themselves interest groups engaged in advocacy and lobbying.

Board integrity

Other provisions restrict public criticism in the name of protecting the integrity of the board. Nevada’s code of ethics requires board members to “present personal criticism of district operation to the superintendent, not to district staff or to the board in [an] open meeting.” This provision limits board members’ ability to raise concerns publicly and undermines transparent problem-solving. It also prevents constituents from knowing how their elected officials think about district operations. 

Oregon has a similar provision. Neither code accounts for the possibility that the superintendent may be the subject of the criticism, nor do they consider that public criticism of district operations is often in the public’s interest or requested by constituents. 

Other provisions go even further. Washington requires board members to “support all board adopted policies,” while Indiana requires members to “recognize the integrity of previous board members and the merit of their work.” These rules prohibit board members from criticizing board decisions regardless of how they voted or whether they agree. Such restrictions prevent board members from informing constituents about policy disagreement, depriving voters of information necessary for democratic accountability.

Additionally, board members in many states may not appear to speak on behalf of the board. A board member speaking in an individual capacity risks an ethics violation if someone interprets their statement as representing the board — exactly what happened to Nazarene. 

These provisions can deter board members from using social media, voicing dissent, and communicating with constituents. While disclaimers such as “all opinions are my own” may mitigate this risk, they do not always provide protection. In New Jersey, they could be entirely useless, as the state may find that a reasonable person would still be confused about the capacity in which a board member is speaking in spite of any disclaimer.

Chilling effect

Many of these provisions rely on ambiguous and subjective language. Terms like “respect,” “attack,” or “interest group influence” leave board members guessing about what speech might trigger an ethics complaint. Because the boundaries are unclear, enforcement can become unpredictable. One board member’s policy criticism may be treated as ordinary democratic debate, while another’s may be framed as uncivil conduct or improper advocacy.

The consequences are not merely theoretical. Ethics complaints can trigger investigations, legal expenses, reputational damage, and professional consequences. Even when a board member ultimately prevails, the process itself can be costly and time-consuming. And even frivolous ethics complaints against constitutionally protected speech might be used as fodder in school board elections. 

Faced with that uncertainty, many board members may conclude the safest course is to avoid speaking publicly about controversial issues at all — especially on social media, where comments are easily taken out of context. That dynamic is exactly what constitutional law calls a chilling effect: rules so vague or punitive that people refrain from exercising their rights in the first place.

If states or associations can punish board members for speaking to constituents, like Gail Nazarene in New Jersey, then school board members have a powerful incentive to say nothing at all. This leaves voters uninformed and governments unaccountable. When elected officials are afraid to speak, democracy suffers from their silence.