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March 30, 2023What Are the Free Speech Rights of a Transphobic School Board Member? Looking at Hunterdon Regional.
How much leeway does a school board member have when opining on hot-button issues–or any issues at all? This question is at the heart of a dispute at Hunterdon Central Regional High School that involves the behavior of school board member Rebecca Petersen, who was elected last year, along with the other two candidates on her slate with backing from the New Jersey Project. This group describes itself as “a union of parents from all over New Jersey protecting childhood for our children” and members appear particularly concerned with “new sex ed standards, and an activist teacher’s union that is creating activist teachers.”
Earlier this month this social media post went out:
(Note if you’re scratching your head: the poster is misgendering transgender celebrities Marsha P. Johnson and Laverne Cox [photo above], who were featured in the district’s women’s history display. Also, Hunterdon Regional High was in the news last October when staff members complained that a drag show, organized by a LGBTQ student support group, wasted instructional time and was exclusionary because it was invitation-only. )
When students and parents complained about the transphobic message from “@mammallama,” the School Board launched an investigation and issued a disapproving statement, saying “these posts convey outright disdain and disrespect for our Board, our school, and our staff…these posts do not reflect how a board member should communicate about the district they serve.”
Then a transgender social justice group called Flemington QTs was able to trace the origin of the message to Peterson because “the user name @mammallama led to an Instagram account registered to Peterson’s name and had the same profile photo as her Facebook account.” Now, reports Advance Media, Petersen has hired a lawyer to represent her as she files ethics charges against board President Lisa Hughes and Vice President Dorothea Kellogg, accusing them of spearheading “a dystopian search for the identity of the anonymous Tweeter.” She says the account is her protected speech and efforts to stifle her violate her constitutional rights.
Who’s right and who’s wrong? When does the obligations of an elected position—especially in a school—take precedence over the right to free speech?
No one is sure.
According to the New Jersey School Ethics Commission,
The Commission believes that the standards established by the Legislature do not sharply curtail a board member’s First Amendment rights. Rather, the standards provide the Commission with guidance in balancing a board member’s rights as a private citizen with the interest of the Legislature in ensuring that a board member preserves public confidence and avoids conduct that would violate the public trust or create a justifiable impression among the public that such trust is being violated. See N.J.S.A. 18A:12-22(a).
In brief, the Commissioner strongly urges school board members to always use disclaimers when publishing personal opinions. Here is an example of what the Commission recommends: “the following statements are made in my capacity as a private citizen, and not in my capacity as a board member. These statements are also not representative of the board or its individual members, and solely represent my own personal opinions.”
Yet board members have been censured even when using disclaimers. And then there is the wrinkle of Peterson not actually using her name (although a clear trail led right back to her). And then there is her pattern of transphobic utterances: on March 17th, Peterson tweeted about the Biden Administration’s Assistant Secretary of Health, Rachel Levine, who is trans, “I might care what he has to say about transition after he slices his d**k like a banana and inverts it. Until then, he just a dude with long hair.”\
Word to the wise from a long-time (former!) school board member: stay off social media.
1 Comment
In addition to the information in the article it should be noted that the School Ethics Commission issued an advisory opinion last year, A02-22, that says that even a disclosure that the statements or opinions being made are those of the individual and not those of the board, may not be enough to avoid a board member from committing an Ethics violation. They warn board members that they post on social media at their own risk.
Additionally, Peterson has hired an attorney who is claiming that the actions of the board in doing an investigation violate Peterson’s first amendment rights. It is true that the first amendment, in accordance with Supreme Court decisions, protects not only hate speech but the anonymity of the actor to whom the hate speech is attributed. Further, Peterson’s attorney has indicated that they will or have filed an Ethics complaint claiming a conspiracy against Peterson by the other members of the board.
In the opinion of this writer, if a board of education is made aware of the fact that one of its members has been involved in actions that could lead members of the public to believe that the board member might be unable to represent constituents in an independent and unbiased manner, or that impression is given to the public, it is incumbent on the board to investigate. This is not a conspiracy. This is a board fulfilling it’s obligations.
And let’s face facts, effectively, there are two court systems in the United States. The courts of law established by the US and New Jersey Constitution and the courts of public opinion. Judging by the response and the speakers at last night’s Board of Ed meeting, if in fact this is Peterson’s Twitter account, she has clearly lost in the court of public opinion.