Adjunct Unionization: Faculty Rights Coalition v. Shahrokhi -The Campus e-Speech Case

CASE SYNOPSIS

This section 1983 civil rights action was brought to test the free
speech rights of college faculty on a state university's email system
and to seek a determination of the nature of this state-created forum
under the First Amendment. The Fifth Circuit side-stepped the
question in White Buffalo v. UT, but characterized it as "dicey" and
"important." See White Buffalo Ventures, LLC v. Univ. of Texas at
Austin, 420 F.3d 366 (5th Cir. 2005, cert. denied).

THE PLAINTIFFS: Adjuncts at the University of Houston Downtown (UHD), a
component university of the University of Houston System (UHS)

THE DEFENDANTS: Hossein Shahrokhi, UHD's Director of Information
Technology (IT), Molly Woods UHD 's Provost; in their official capacities.

THE ELECTRONIC SPEECH AT ISSUE   click for --> Complaint

Criticism of university administrators
Institutional performance (retention and graduation rate)
Deceptive advertising and student recruitment
University budgeting issues
Disparity of pay between administrators and faculty
Disparate treatment of adjunct faculty with respect to pay, benefits, etc.
Denial of health insurance and other benefits to adjunct faculty members
Exclusion of adjunct faculty from shared governance and committees
Denial of voting rights to adjunct professors in the Faculty Senate
Advocacy of adjunct faculty rights to representation and a voice in governance
Rights of adjunct faculty members to unionize and bargain collectively
Chilly climate for free speech and academic freedom, stifling of dissent
Retaliation against those who speak out, advocate reform, organize for change

NATURE OF CHALLENGED RESTRICTIONS ON e-SPEECH

Blocking of email critical of administrators to all faculty and staff account holders
through a TO_ALL email distribution list (content-based censorship).

Prior restraint on distribution of Part-time Professors' Petition.

Policy of disabling send-function upon exhaustion of account storage capacity
limit of 20MB.

Policy of disabling adjunct professors' access to email accounts during the
summer, where the blocking is not imposed on regular faculty who do not teach in
the summer, and where adjunct email accounts remain active for purpose of
receiving inbound email.

Interception of non-commercial messages by university's spam filter.

OTHER ISSUES

Constitutionality of Alien Exclusion Clause in Texas Labor Code Provision on
Labor Organizations and Labor Union Organizing

Constitutionality of Texas labor laws regulating and restricting unionization and
collective action. Prohibition on collective bargaining at state universities in Texas.

LITIGATION HISTORY

The District Court granted Sum mary J udgment for the Defendants on July 13,
2005, holding that the University had not violated the Plaintiffs' first amendment
and equal protection rights. Judge Lee H. Rosenthal dismissed the constitutional
challenge to provisions of the Texas Labor Code that restrict labor union
organizing for lack of standing and denied Plaintiffs' Rule 59 M otion for
R econsideration on August 10, 2005.

Notice of Appeal filed August 11, 2005. Fifth Circuit Docket No. 05-21098
Lars Alvin Walter Hagen, Assistant Attorney General, represented the university
defendants in the Fifth Circuit.

A panel of the Fifth Circuit affirmed the District Court's judgment on Nov. 2, 2006.
Faculty Rights Coalition vs. Shahrokhi, (5th Cir. 2006)

DISTRICT COURT'S FINDINGS AND CONCLUSIONS OF LAW

UH-D's email system is not a public forum.

E-mail storage capacity limits (20MB) necessary to protect IT system resources.

Denial of access to part-time faculty members' email accounts between Spring
and Fall semesters (i.e, during the summer) does not violated their equal
protection rights.

Interception of adjunct email from private account by UH-D's spam filter did not
violate First Amendment because UHD took corrective action by designating
originating address as legitimate.

Constitutional challenge to Texas Labor Code provision restricting unionization of
public employees and prohibiting collective bargaining fails for lack of standing.

ISSUES PRESENTED ON APPEAL

What kind of forum does a state university's internal email system constitute
under the First Amendment?

What standard of review applies to the restriction of electronic speech by faculty
employees in university-sponsored electronic forums?

Is the server-capacity and disk-space-limitation rationale a viable defense in light
of the Fifth Circuit's rejection of this argument in the commercial spam context?
See White Buffalo Ventures v. University of Texas, 420 F.3d 366 (5th Cir. 2005).

Did UHD discriminate on the basis of viewpoint in restricting part-time professors'
access to and utilization of its email system where the same restrictions were not
applied to full-time tenured / tenure-track faculty?

Does the rational-basis test apply when differential treatment of part-time and
full-time professors is challenged on Equal Protection grounds, when the affected
right is guaranteed by the First Amendment (freedom of speech, freedom of
association, and right to seek redress of grievances)?

Does the two-tier faculty employment system violate the Equal Protection Clause?

Are UHD's spam filters constitutionally permissible in light of the fact that they
also intercept what the University concedes were legitimate messages in addition
to commercial spam?

Is the University of Houston's policy restricting labor unions, and the state law it
mirrors, constitutional under the First Amendment?

Is a Texas Labor Code provision that prohibits non-citizens from becoming labor
union organizers constitutional? Did the named Plaintiff have standing to raise the
issue? Tex. Lab. Code §101 (aliens and felons excluded).

Contact email address: WOLFGANG HIRCZY DE MINO   w_demino@yahoo.com