Faculty Rights Coalition v. Hossein Shahrokhi 04-02127 U.S.D.C.- S. D. of Texas-Houston

                       IN THE UNITED STATES DISTRICT COURT
                  FOR THE SOUTHERN DISTRICT OF TEXAS
                                      HOUSTON DIVISION

FACULTY RIGHTS COALITION,
and WOLFGANG P. H. DE MIÑO,
Plaintiffs,

v.

HOSSEIN SHAHROKHI, in his official
capacity as Executive Director of
Information Services at UH-D,
a component of the
University of Houston System,
Defendant.

                                     ORIGINAL COMPLAINT

TO THE HONORABLE JUDGE OF THIS COURT:

Now comes the FACULTY RIGHTS COALITION, by and through WOLFGANG P.
HIRCZY DE MIÑO, who appears both in his individual and representative capacity,
and for cause of action against Defendant HOSSEIN SHAHROKHI would show the
following:

I. PRELIMINARY STATEMENT

This is a civil rights action under 42 U.S.C. §1983 seeking declaratory and
injunctive relief. Plaintiffs sue on behalf of part-time faculty members (“Adjuncts”) at
the University of Houston–Downtown (“UHD”) to vindicate and protect their First
Amendment rights to engage in political speech on campus both physically and
virtually, engage in advocacy, seek redress of grievances, and associate with each
other for these purposes.

II. JURISDICTION AND VENUE

2.1        Federal question jurisdiction in this civil action is based on 42 U.S.C. §1983
and §1988 of the Civil Rights Act, and on the First and Fourteenth Amendments of
the U.S. Constitution.

2.2        This court has jurisdiction to adjudicate related state law claims brought
under the Texas Open Records Act pursuant to the supplemental jurisdiction
statute.

2.3        The occurrences and actions and/or omissions by the Defendant upon
which this action is based occurred in Houston and thus within the area
encompassed by the Southern District of Texas–Houston Division.

III. IDENTITY OF THE PLAINTIFFS, STANDING, AND CAPACITY

3.1        The individually named Plaintiff, WOLFGANG HIRCZY DE MINO, PH.D.,
(“the Named Plaintiff” hereinafter) is a citizen and resident of Texas, a part-time
faculty member and as such an employee of the University of Houston-Downtown,
a public university. The Named Plaintiff is a member of a learned profession, an
educator, a member of the State Bar of Texas and its Labor and Employment Law
Section, and a member of the public. In bringing this action, he does not speak for
the University or any of its components.

3.2        The FACULTY RIGHTS COALITION (“FRC”) is an unincorporated
association. FACULTY RIGHTS COALITION was registered as an assumed name
by the Named Plaintiff in the Harris County Clerk’s Office in 2003. It currently
operates as a sole proprietorship with unlimited liability.

IV. IDENTITY OF DEFENDANT

4.1         Defendant HOSSEIN SHAHROKHI (“Shahrokhi” or “the Named Defendant”
hereinafter) is a state official herein sued for injunctive and declaratory relief in his
official capacity as Executive Director of Information Services at the University of
Houston-Downtown (UHD), a component of the University of Houston, located at
One Main Street, Houston, Texas 77002. The University of Houston is an agency of
the State of Texas.

4.2        Defendant may be served with summons at One Main Street.

4.3        Defendant is in charge of all information technology (IT) services and has
managerial control over IT staff at the University of Houston-Downtown.

4.4        At all times relevant to this suit, the Defendant was acting within the course
and scope of his employment and under color of state law.

V. STATEMENT OF FACTS

5.1        UHD provides all of its faculty and students access to its computing
facilities including e-mail accounts, which allow them to send and receive electronic
messages. Faculty e-mail accounts identify the holder by name and first initial.
They have the domain name “@uhd.edu” and are operated through Microsoft's
Outlook™ software.

5.2        The Named Plaintiff teaches part-time at UHD and holds the job title
“Adjunct Lecturer.” Adjuncts are faculty members hired to teach less than full time
or appointed to teach full time only for one semester. There are close to 300
Adjuncts at UHD. Adjuncts are responsible for more than 50% of all student credit
hours, but have no representation in shared governance, cannot vote in Faculty
Senate elections, and have no opportunity to participate in the making of decision
and policies that affect them and the students they teach.

5.3        Both full-time and part-time faculty members are assigned @uhd.edu e-
mail accounts. Faculty are instructed to place their e-mail address on their syllabi,
and to use them to communicate with their students. Both full-time and part-time
faculty members are required to report course grades at the end of the semester
by entering them on a secure UHD web site accessed through their UHD network
accounts. After grade entry, provision is made for a copy of the completed roster to
be transmitted from the web site to each faculty member’s @uhd.edu email
account. The data is confidential under FERPA and is delivered with an advisory to
that effect.

5.4         UHD also maintains an e-mail distribution list (the functional equivalent of a
listserv), which allows members of the university community (other than students) to
send communications to all other subscribers simultaneously, rather than just
individually. This e-mail distribution facility is designated “DT_All_Users” (herein
“TO ALL”) and accessed actively and passively through the UHD-provided
Outlook™ e-mail accounts. A separate list is maintained for faculty only. Other lists
for specific categories of individuals such as deans, and for student organizations
and private societies also exist.

5.5         Functionally, the TO ALL distribution facility operates as a virtual, round-
the-clock public forum for faculty, staff, and administrators at UHD, a group often
referred to as the “university community” or “UHD community.“ The term “Cougar
family” is also used, but normally understood to include the other campuses of the
University of Houston System as well.

5.6        At all relevant times Shahrokhi was the Executive Director of Information
Technology and thus in charge of computing services including faculty e-mail
accounts and related computer facilities at UH-D. He either acted as “System
Administrator” or had full supervisory control of and over the relevant “System
Administrator” of any of UHD’s component computer systems.

5.7        On February 2, 2004 Nader Naderi (“Naderi”), a part-time faculty member
in the College of Social Sciences and Humanities, responded to a notice about
parking permits with critical comments TO ALL regarding administrative failures
and working conditions for Adjuncts at UHD.

5.8        Naderi was publicly rebuked for airing his grievance by reply e-mail posted
TO ALL by a UHD administrator and was reminded of his tenuous employment
status at the University. Adjuncts have no vested property right in reappointment
after their term is up.

5.9        The Named Plaintiff then composed an e-mail message in support of
Naderi’s right to speak out on matters of public concern and attempted to post it TO
ALL.

5.10         The message was intercepted by the System Administrator and returned
with the notation that the Named Plaintiff was not authorized to post.

5.11        On information and belief, the System Administrator restricted the
Adjuncts’ access to the TO ALL e-mail distribution list after Mr. Naderi’s had used it
to vent displeasure with UHD Administrators, and did so for the express purpose of
preventing the Adjuncts from airing further criticism. By virtue of his official capacity
as Executive Director of Information Services, Shahrokhi is part of the UHD
Administration.

5.12        No restrictions were imposed on a previous occasion, when a complaint
about Metro police issuing citations to pedestrians for crossing Main Street in front
of the building engendered a lively exchange on the TO ALL distribution list.
Instead, the expressions of outrage prompted a top-level UH-D administrator to
intercede with Metro in an effort to resolve the jaywalking controversy.

5.13        Subsequent to the Adjunct complaint the Named Plaintiff’s account was
restricted, allowing him to only receive, but not respond to, incoming messages.

5.14        On May 1, 2004 the Named Plaintiff requested that Shahrokhi remove the
restrictions on his UHD e-mail account and allow him to post a message “on matters
of public concern.” The Named Plaintiff indicated that he wished to articulate
criticism of the UH administration and the Regents, complain of salary disparity
between faculty and administrators, inform the university community about the
source of the larger portion of the Chancellor’s $400,000+ annual salary which is
not authorized to be paid from state funds, and raise awareness of the inequitable
treatment of the Adjuncts with respect to working conditions and pay. Inter alia, the
Named Plaintiff suggested that in the current environment of resource constraints
at UH the Chancellor’s salary also be subjected to budget-cutting and that the
funds thus saved be reallocated for the purpose of reducing class size for the
benefit of the Adjuncts and their students.

5.15        At UHD only 35% of lower division courses are taught by tenure or tenure-
track faculty. Even though UHD touts its faculty as “internationally respected” in
radio commercials, the majority of its professoriate does not earn a living wage.
Adjuncts are paid less (on a FTE 10-month comparison basis) than elementary
school teachers in HISD even though they hold advanced degrees. At UHD
average class size is twice that found in public schools. Unlike public schools, the
University charges its students/customers for services rendered and cancels
classes that do not break even (at a minimum enrolment of 10). As a matter of
University policy, most Adjuncts are given only two courses to teach in order to
keep them ineligible for group medical insurance to which the University would
otherwise have to contribute on a pro rate basis. The 65 adjuncts in the Social
Sciences Department, who account for 62% of the student credit hours (SCHs)
generated in that department, share a single room with one phone line to serve the
needs of the 4,288 students enrolled in the 128 sections they teach (of 227). UHD
nevertheless promotes itself as a “full-service university” where classes are small
and where professors are accessible and know students by name.

5.16        Shahrokhi responded to the request for access to the TO ALL list by
claiming there were no posting restrictions and that his approval for posting was not
needed.

5.17        Kirk Hagen, the new president of the Faculty Senate (elected by tenure
and tenure-track faculty only) opined that the restrictions were legitimate because
of limited computing capacity at UHD.

5.18         The size of the message the Named Plaintiff proposed to distribute TO
ALL was the equivalent of three or four printed letter-size pages (ca. 38KB).
Numerous messages of larger byte size had been distributed both prior and
subsequent to the Named Plaintiff’s request without apparent problems.

5.19        Unable to post TO ALL, or to other Adjuncts specifically, the Named
Plaintiff invoked the Open Records Act and formally requested the names and e-
mail addresses of all adjunct faculty members employed at UHD as of May 14, 2004
in writing.

5.20        Shahrokhi did not respond to the request, but forwarded it to the General
Counsel’s O ffice.

5.21        On May 15, 2004 the Named Plaintiff, using a non-UHD account, e-mailed
a document captioned “Part-time Professors’ Bill of Particulars and Petition for
Redress” (“The Adjuncts’ Petition”) to Shahrokhi with a request that it be distributed
TO ALL. The Named Plaintiff copied the former and current President of the UHD
Faculty Senate on the message.

5.22        Shahrokhi did not post the Adjuncts’ Petition TO ALL. On information and
belief, Shahrokhi forwarded it to top-level administrators and the Office of General
Counsel at the University of Houston System and then blocked out the sender’s
email address, causing the message to be returned as (allegedly) “undeliverable.”

5.23        Faculty Senate President Hagen, who was copied on the message
containing the Adjuncts’ Petition, did receive it and responded the same day,
expressing sympathy. Hagen characterized the treatment of adjuncts by American
universities as “scandalous,” but did not post the Adjuncts’ Petition TO ALL either.
He acknowledged the political nature of the Adjuncts’ manifesto.

5.24         Former Faculty Senate President Nell Sullivan did not respond or
acknowledge receipt of the Adjuncts’ Petition. Sullivan had not responded to an
earlier inquiry by email about Adjunct’s (nonexistent) voting rights in Faculty Senate
elections while she was still President. The query about voting rights was the last
message the Named Plaintiff was able to send from his UHD-assigned e-mail
account before it was placed on receive-only status.

5.25        After the Adjuncts had turned in their grades on-line on Monday, May 18,
2004, their accounts were promptly “frozen.” The accounts remained active to the
extent of not generating bounce-back messages with the notation “undeliverable.”
Attempted log-ins, however, triggered an “account expired” message.

5.26        The System Administrator also removed a web page listing names and
contact information for adjunct faculty in the Department of Social Sciences, the
home department of both Naderi and the Named Plaintiff from the Department’s
home page. The listing for tenure and tenure-track faculty was not removed. When
clicked, the hyperlink for adjunct faculty listings would produce a pop-up message
stating that the information could not be accessed for “security” reasons.

5.27         Searches of specific Adjuncts’ names in UHD’s online faculty/staff
directory generated no hits. Contact information for tenure and tenure-track faculty,
by contrast, could easily be found in this manner both before and after the end of
the Spring semester.

5.28        The System Administrator also removed the on-line Spring 2004 class
schedule, which included instructors’ name for each section, from UHD’s student e-
services web site, which is accessible to the public. Adjuncts taught close to half of
those sections.

5.29        On May 18, 2004 the Named Plaintiff submitted an inquiry regarding time,
place, and manner restrictions on expressive activities, if any, applicable to UHD’s
commencement ceremonies scheduled for Saturday, May 22, 2004, to UH General
Counsel Dona Hamilton. Plaintiffs had reason to fear arrest for protesting in a
manner that might be construed as falling outside protected First Amendment
activity.

5.30        UH had previously adopted and tenaciously defended an expressive
activities policy (“speech policy”) on the Central Campus that impeded students’
right to promote ideas and spur public debate. It was stuck down as
unconstitutional last year. See Pro-Life Cougars v. Univ. of Houston, 259 F. Supp.
2d 575 (S.D.Tex. 2003).

5.31        Following a meeting by the Regents in executive session at UHD on
Friday, May 21, 2004, General Counsel Dona Hamilton informed the Named
Plaintiff Friday afternoon that UHD had no express policy on First Amendment
activity, and that there were no express restrictions on the size of hand-held
signs.

5.32         The Office of General Counsel also advised the Named Plaintiff that it
would promptly release the information on Adjuncts requested by the Faculty
Rights Coalition (FRC) pursuant to the Open Records Act.

5.33         The Named Plaintiff attended UHD commencement on May 22, 2004, but
refrained from engaging in, or persuading others to engage in, First Amendment
expressive activity.

5.34        On May 24, 2004 the Named Plaintiff received the written response to
FRC’s Open Record Request from UH General Counsel’s Office by certified mail. It
contained a print-out listing 96 names with UHD e-mail addresses and mailing
addresses.

5.35        According to the most recent edition of the Fact Book on UHD’s web site,
the number of adjuncts employed at UHD is 281 (accounting for 53% of all faculty).
The list released by the General Counsel’s Office represents approximately one
third of all Adjuncts at UHD. It included neither Naderi, nor the Named Plaintiff.

5.36        Plaintiffs now bring suit to vindicate and secure their right to engage in
First Amendment activity in UHD’s online “town hall,” and to compel UHD and its
officials to comply with the Open Records Act by releasing a complete list of all
Adjuncts along with their UHD-assigned e-mail addresses.

VI. FEDERAL CAUSE OF ACTION: VIOLATION OF THE ADJUNCTS’ FIRST
AMENDMENT RIGHTS

6.0        Plaintiffs incorporate the factual allegations set forth in paragraphs 5.1
through 5.36 supra.

6.1        The First Amendment of the United States Constitution provides that “[c]
ongress shall make no law .... abridging the freedom of speech. “ U.S. CONST.
amend. The Fourteenth Amendment makes this limitation applicable to the states,
and their agents and agencies. City of Ladue v. Gilleo, 512 U.S. 43, 45 n.1, 129 L.
Ed. 2d 36, 114 S.Ct. 2038 (1994).

6.2         The First Amendment protects speech by employees commenting as
citizens on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.
Ct. 1684, 75 L. Ed. 2d 708, 720 (1983). The basis for according constitutional
protection to private speech on the part of employees of a governmental agency is
to allow the employees to participate freely in public affairs and avoid chilling the
use of speech that the employer might find objectionable. Pickering v. Bd. of Educ.,
391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

6.3        Plaintiffs’ status as nontenured faculty does not deprive them of their First
Amendment rights. Perry v. Sindermann, 408 U.S. 593, 597-98, 33 L.Ed. 2d 570,
92 S.Ct. 2694 (1972). Nor may public employees be forced to give up their First
Amendment rights as a condition of public employment. Pickering v. Board of
Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

6.4        In voicing criticism of university administrators, Plaintiffs spoke on (and
attempted to speak out on) matters of public concern. In attempting to distribute the
Adjuncts’ Petition through UHD’s virtual forum, the Plaintiffs sought to make the
university community aware of a variety of issues of concern pertaining to university
governance, sought to engender public discussion of policies and decisions
affecting many faculty members, and attempted to take the first steps toward their
resolution. In so doing, the Plaintiffs sought to exercise their free speech rights as
well as their right to seek redress of grievances.

6.5        To the extent that Naderi and the Named Plaintiff sought to communicate
with similarly situated colleagues through the TO ALL e-mail distribution list, and
thereby sought to induce them to pursue a resolution of their shared concerns
jointly, they also exercised their right to freely associate to advocate their beliefs
and seek an improvement of their working conditions.

6.6        The Plaintiffs’ exercise of their right to speak on matters of concern to the
university community in its virtual (electronic) forum is neither disruptive, nor does it
in any way distract from the efficiency of the performance of the University’s
mission. Subscribers can read, or chose not to read, e-mailed messages at their
leisure. The same forum is routinely used by other members of the university
community and by administrators to post messages on private matters, on matters
of concern to the university and its employees and students, and on matters
relevant to list subscribers as citizens of communities beyond campus of which
they are members.

6.7        By impeding and restricting the Plaintiffs’ access to, and use of, UHD’s e-
mail system and associated TO ALL e-mail distribution list, the Defendant imposed
a prior restraint upon the Plaintiffs’ First Amendment rights to free expression in a
public forum created by UHD, and serving the UHD community, and thus deprived
the Plaintiffs of federally protected constitutional rights.

6.8        By obstructing the dissemination of facts and opinions on the basis of their
content the Defendant engaged in impermissible viewpoint-based regulation of
political expression in a public forum on campus, or alternatively a limited public
forum, in violation of the Plaintiffs’ federal constitutional rights.

6.9        A plaintiff’s suit alleging a federal law violation must be brought against
individual persons in their official capacities as agents of the state, and the relief
sought must be declaratory or injunctive in nature and prospective in effect.”
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
Such relief is not barred by the Eleventh Amendment. Ex parte Young, 209 U.S.
123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Plaintiffs satisfy this requirement by
seeking relief against individually named Defendant Shahrokhi in his official
capacity, rather than naming the University of Houston itself as a defendant.

6.10        Wherefore the Plaintiffs ask the Court to declare that the selective
restriction on posting of messages to UHD’s TO ALL e-mail distribution list is
unconstitutional, and to immediately enjoin the Defendant from impeding or denying
the Plaintiffs access to their UHD assigned e-mail accounts and ability to use the
TO ALL e-mail distribution list to post and receive messages.

VII.   PENDANT STATE LAW CLAIM PARTIAL DENIAL OF ADJUNCTS’
STATUTORY RIGHTS UNDER THE TEXAS PUBLIC INFORMATION ACT

7.0         Plaintiffs incorporate the factual allegations set forth in paragraphs 5.1
through 5.36, supra.

7.1         The Open Records Act [now Public Information Act] entitles the public to
obtain access to information “collected, assembled, or maintained by a
governmental body.” Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996);
Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.–
Austin 2001, no pet.)(quoting Homes); Tex. Gov’t Code Ann. §§ 552.001-.353.

7.2        Public information may not be withheld except as expressly provided by the
Act. Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.3d 351, 356 (Tex.
2000); Arlington Indep. Sch. Dist., 37 S.W.3d at 157.

7.3        Here, neither Shahrokhi nor the University, through its General Counsel,
claimed any of the exceptions available under the Act. Nor did either request a
letter ruling from the Open Records Division of the Texas Attorney General’s Office.

7.4        Public officials have a ministerial duty to act in accordance with the
statutory obligations imposed upon their governmental unit by the Public
Information Act. Tex. Gov’t Code Ann. §§ 552.001-.353.

7.5        Shahrokhi failed to release information on all 281 adjuncts responsive to
the Open Records request. The General Counsel’s Office released only 91 names
and addresses to the Faculty Rights Coalition. Shahrokhi, in his official capacity,
and the University as a governmental unit subject to the Act thus complied only
partially.

7.6         Plaintiffs now ask the Court to issue a preliminary injunction enjoining
Defendant Shahrokhi from withholding the requested information and directing
Shahrokhi to release the remaining responsive names and e-mail addresses by a
date certain.

                                         PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the Plaintiffs respectfully request that the
District Court declare that UHD’s TO ALL e-mail distribution facility constitutes a
public forum with respect to employees and administrators at UHD, and that
Plaintiffs’ right to engage in expressive and associational First Amendment activity
in this “campus town hall” in the University’s cyberspace was unlawfully interfered
with by Shahrokhi and/or his agent(s).

In the alternative, Plaintiffs request that the District Court declare that the TO ALL
distribution list constitutes a non-public forum equal access to which was
impermissibly denied to the Plaintiffs in a discriminatory fashion in connection with
the Adjunct’s second-class status and exclusion from shared governance and
denial of voting rights. Plaintiffs ask the Court to find that the Defendant deprived
Plaintiffs of their federal constitutional rights on account of the content of their
speech (and intended speech) in violation of Plaintiffs’ rights to seek a voice in the
affairs of the university, representation with respect to shared governance, and
redress of grievances.

Plaintiffs ask that the Court immediately enjoin the on-going violation of their First
Amendment rights by Defendant Shahrokhi by issuing a temporary restraining
order/ preliminary injunction, and upon trial of this matter, a permanent injunction
prohibiting the Defendant, his servants, agents, and employees from obstructing,
impeding, or interfering with, adjunct faculty members’ right to access and use their
e-mail accounts and the associated TO ALL e-mail distribution list for protected
First Amendment activities.

Plaintiffs further pray that the Court issue an interlocutory order compelling the
Named Defendant to perform the ministerial duty of releasing the names and e-
mail addresses of all Adjuncts employed at UHD as of May 14, 2004 to the Faculty
Rights Coalition responsive to their request under the Public Information Act. In the
alternative, Plaintiffs request that the Court accelerate the due date for mandatory
disclosure of interested parties under the Federal Rules of Civil Procedure for this
purpose, and require the Defendant to identify all Adjuncts by name and address
by a date certain.

Plaintiffs pray for attorney’s fees, paralegal and other litigation fees, reasonable
expenses, and all recoverable costs of court.

           Respectfully submitted on May 28, 2004.

           FACULTY RIGHTS COALITION
           By:

           _______________________________________________
                           WOLFGANG HIRCZY DE MIÑO, PH. D.
                           Texas Bar Card No. 32143
                           FACULTY RIGHTS COALITION
                           2038 ½ Lexington
                           Houston, Texas 77098
                           Tel.: (713) 806-8517
                           Fax: (713) 527-0391
                           E-mail: admin @ faculty-rights-coalition.com