STATE COLLEGE (TNS) — A Centre County judge handed Penn State’s governing body an early victory Monday in a lawsuit brought a former trustee who argued its updated bylaws were unconstitutional.

Centre County Judge Brian Marshall found Penn State’s board of trustees’ governing rules — which require trustees to support majority decisions and not publicly criticize the university — represent a “right to self-governance.”

The bylaws were passed by the board with a 27-6 vote in July 2024. Marshall dismissed former alumni-elected trustee Barry Fenchak’s lawsuit with prejudice, meaning it cannot be refiled.

“The burden of caution employees bear with respect to words they speak will vary with the extent of authority and public accountability the employee’s role entails,” Marshall wrote in the ruling. “Logically, then, a Trustee — holding a position that carries more authority and public accountability than any other — should be held to the highest standard.”

The frequently outspoken Fenchak and his attorneys took particular issue with the requirement that trustees support majority board decisions, characterizing it as a “draconian gag order.”

Marshall said that section of the board’s bylaws is “undoubtedly a restriction on the speech of Trustees.” And while the restriction is seemingly inconsistent with the state constitution’s broad guarantee of free speech, Marshall said the right is not absolute.

“The Amended Bylaws represent the Board’s right to self-governance, which the Board determined to be necessary to operate efficiently and effectively,” Marshall said. “It should be no surprise that ‘when a citizen enters government service,’ he necessarily ‘must accept certain limitations on his … freedom.’”

In filings and a courtroom hearing this month, the university’s attorneys argued the bylaws are a standard and lawful way for the board to govern itself. They also defended the restriction as a way to prevent confusion that could result if trustees were to speak publicly as a “Board of one.”

A university spokesman declined comment Wednesday about the ruling.

“Fenchak essentially argues that the Board has no power to regulate anything that a Trustee might say about the University, regardless of the medium, the capacity in which the Trustee speaks, or what the Trustee may reveal about the inner workings of the Board,” attorney Andy R. Stanton wrote in a previous court filing. “Setting aside the examples of his own behavior that Mr. Fenchak agreed would justify removal, that position is practicably unworkable.”

Fenchak’s attorney Terry L. Mutchler pushed back, saying her client was fighting a “lip-locked Board that prides secrecy, uniformity, and uninterrupted rubber-stamping.” With his persistent questions about some of the board’s financial decisions, Mutchler said the board changed the way it operates to target and permanently remove him.

Speaking Wednesday with the Centre Daily Times, Mutchler said she disagrees with Marshall’s ruling. She said it “doesn’t make sense” and that she and Fenchak are considering an appeal.

“The Board is building, brick by brick, a fortress to protect whatever actions they wish to take and to insulate themselves from public comment and criticism,” she wrote in a previous filing.

Marshall’s dismissal of the lawsuit was far from a surprise. In a previous opinion he reiterated Monday, the judge found the bylaws to be “inoffensive and are likely not inconsistent with the law.” Penn State previously put forward evidence that other universities have similar provisions.

A board committee is scheduled to meet Sept. 11 in executive session to consult with attorneys about “potential additional proposed revisions” to the bylaws, trustee Dan Onorato said during a meeting this month.