Do board of education members have standing to challenge the enforcement of the School Ethics Act on First Amendment grounds? In the case of Nazarene v. Dehmer, 2026 U.S. Dist. LEXIS 115888 (May 26, 2026), the District Court for the District of New Jersey denied a board member’s request to enjoin enforcement of the School Ethics Act against her related to her use of social media, and issued an order to show cause as to why her complaint should not be dismissed with prejudice.
In this case, the plaintiff was a board member for a term beginning in February 2025 and ending in December 2027. Prior to the election, the plaintiff created and used a Facebook page to promote her campaign. Once elected, she continued to use her Facebook page to engage constituents about public school matters to solicit feedback. Some, but not all, of these posts included disclaimers indicating that the opinions expressed were her personal opinions. Plaintiff’s fellow board members grew concerned that her social media activity was violating several provisions of the School Ethics Act, particularly those sections that prevent Board members from taking action to compromise the board. Plaintiff’s fellow board members filed a school ethics complaint regarding the Facebook posts. Plaintiff responded to the complaint asserting that her communications with constituents were protected by the First Amendment. Instead of defending against the school ethics complaint, plaintiff filed a lawsuit in federal court against the Commissioner of Education and the complainants, which stayed the school ethics action.
Plaintiff alleged “Defendants’ past interpretation and enforcement of the Act have forced her to choose between self-censorship and the risk of formal discipline, and that this chill on her speech violates her First Amendment rights.” Plaintiff filed a motion for preliminary injunction along with the complaint, asking the court to prevent enforcement of the act to prevent plaintiff from speaking on matters of public concern. The Court found that it could not grant plaintiff’s motion without analyzing whether she had standing to bring a First Amendment Claim.
The Court concluded the plaintiff failed to demonstrate standing for the purposes of her motion. Thus, the Court denied the preliminary injunction and issued an order to show cause why the Complaint should not be dismissed for lack of standing. The Court focused on the fourth element of First Amendment standing, which is whether the threat of enforcement of the challenged law is credible and substantial. Crucial to the Court’s analysis was the finding that prior Commission decisions reflect a fact-specific and uneven enforcement history, rather than a clear pattern of sanctioning personal-capacity speech. Moreover, the School Ethics Act’s screening mechanism, the absence of a probable cause finding by the Commission, the stay on enforcement during the civil suit, and the purely civil nature of any sanction made the alleged threat too attenuated to establish standing.
This case is meaningful because it indicates that a board member does not have standing to preemptively challenge enforcement of the School Ethics Act on free speech grounds.
