Judge rules censorship clause in former Director of School’s severance agreement unconstitutional

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    NASHVILLE, TN (WSMV) — A Davidson County judge ruled in favor of three school board members who sued Metro and former Director of Schools Dr. Shawn Joseph over the legality of the School Board censorship clause in Joseph’s severance agreement.

Davidson County Chancellor Ellen Hobbs Lyle issued an order on Tuesday striking down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

Last year Joseph announced he would not seek to renew his contract, which was set to expire June 30,2020. The school board voted to buy out Joseph’s contract and approved his severance agreement at a school board meeting on April 9, 2019. Part of Joseph’s severance agreement included a clause prohibiting the school board from making “any disparaging or defamatory comments regarding Dr. Joseph and his performance as Director of Schools.

School Board members Jill Speering, Fran Bush and Amy Frogge voted against the terms of the agreement. The motion passed 5-3.

Earlier this year the three school board members filed a lawsuit against Joseph and the Metro government claiming the clause in Joseph’s severance agreement violated their First and Fourteenth Amendment rights.

Among other things, the clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.”

Upon review of it, Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy. As a result, the clause was invalidated as unenforceable. Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.

“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel Horwitz, who represented all three Plaintiffs, in a news release. “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”

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