Are Adjunct Professors Entitled to Equal Protection?

THE ADJUNCTS’ EQUAL PROTECTION CLAIMS ON APPEAL

To establish an equal protection violation a plaintiff must demonstrate that “he received treatment different
from that received by similarly situated individuals and that the unequal treatment stemmed from a
discriminatory intent.” Taylor v. Johnson , 257 F.3d 470, 473 (5th Cir. 2001) (citing City of Cleburne v.
Cleburne Living Ctr. , 473 U.S. 432, 439-40 (1985)). Discriminatory intent is present when “the decisionmaker
singled out a particular group for disparate treatment and selected his course of action at least in part for the
purpose of causing its adverse effect on an identifiable group.” Taylor, 257 F.3d at 473 (internal citations and
quotations omitted).

Discrimination Against Adjunct Faculty

The Adjuncts complain of discriminatory treatment in many respects, including pay, benefits, conditions of work,
and denial of the right to participate in the shared governance process. For these complaints to be actionable
as violations of the Equal Protection Clause, the Adjuncts must show that the discrimination cannot be justified
by a purpose important or compelling enough to trump the disadvantage inflicted upon them under the
applicable standard of review.

Standard of Review: Rational Basis and Hightened Scrutiny

Because the classification between adjunct and tenure/tenure-track faculty does not involve a protected or
“suspect” class subject to strict or intermediate-level scrutiny (such as race, color, alienage, sex, or birth out of
wedlock) the discriminatory treatment must serve a legitimate governmental interest that is furthered by the
classification, unless it burdens a fundamental right. Regents of University of California v. Bakke, 438 U.S. 265,
357, 98 S. Ct. 2733, 2782 (1978). Accordingly, the equal protection claims about denial of equal pay for equal
work, and for less favorable work conditions is subject to rational-basis review, while the denial of a voice in
governance must serve a compelling state interest that is substantially furthered by the denial, assuming the
right to participate is properly characterized as a due process right, rather than merely a statutory right under
Texas administrative law. Tex. Gov’t Code §2001.001(2).

Are Part-time and full-time Professors Similarly Situated?

The threshold issue in equal protection analysis is to show that the two classes are similarly situated. Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).

The Adjuncts do not contend -- as a general proposition -- that T/TT faculty and adjuncts are alike everywhere.
Instead they contend that the two classes of faculty are similarly situated at UHD, because UHD is a third-rate
institution of higher education and a teaching school as opposed to a research university. At UH-D the same
classes are taught both by FT and PT faculty. The assignments are treated as interchangeable. The required
educational credentials are also the same. Adjuncts are equally qualified. Some even have more teaching
experience than junior colleagues on the tenure-track, often because they teach more courses at more than
one institution. Instructors are not identified as FT or PT for course registration purposes. Students do not
know the difference unless they are told.

Neither length of service nor Ph-D status reliably distinguishes the two classes of professors at the University of
Houston Downtown. Some adjunct faculty members have been at UHD longer than TTs. Many have doctoral
degrees. Some publish books. Adolfo Santos’ affidavit supports these contentions. There is a single pool of
scheduled classes: Full-timers merely get first pick. (Slip op. at 13). When T/TT leave or die, their classes are
often taken over by adjuncts. Some department deal with budget shortages by farming out more courses to
adjuncts, and thus save money that can be used to fund raises or release time for full-timers.

Does the University Have the Burden to Justify Discrimination or Must the Adjuncts Prove that the
Absence of Any Rational Basis?

The party advancing the equal protection challenge generally has the burden to demonstrate that there is no
rational basis for the discriminatory treatment. Here however, the University moved for summary judgment, and
as movant, had the burden to justify its discriminatory treatment of adjuncts. It failed to meet that burden.

The University Failed to Marshal Evidence

Although the District Court’s opinion states that the University has presented competent summary judgment
evidence that adjunct part-time faculty are not similarly situated to full-time faculty, and that there is a rational
basis for the differential treatment, it does not identify any such evidence. The University did not offer such
evidence. Nor did it endeavor to justify the denial of voting rights in the Faculty Senate. The sole argument it
advances is that paying adjuncts poorly saves money. That rationale, however, does not provide valid grounds
for cutting the salaries (and benefits) of some, but not of others. The classification itself must pass muster as
rational.

The University's Budgetary Rationale for Discrimination is Unavailing

Assuming money-saving is a valid goal, more could be saved by cutting the salaries of full-time professors, or
by instituting cuts across the board. That will not occur, however, as long as full-timers have institutional power
whereas their adjunct colleagues are denied the right to participate in the decision-making process at all levels,
department, college, and university - including the process through which budgetary decisions are made
and/or influenced.

Denial of First Amendment and Due Process Rights Requires Strict Scrutiny Review

Whereas the denial of equitable and fair compensation is subject to rational-basis review, the denial of voice
and vote in the Faculty Senate, and in university committees, constitutes denial of representation and a voice
in the affairs of the university. That right is grounded in the due process clause, not in the provisions governing
the right to vote in political elections, and is thus fundamental and not limited to citizens under federal
nationality law. Accordingly, its denial to adjunct professors, alien or otherwise, is subject to heightened review.

Discrimination Against Adjunct Professors Cannot be Sustained on Rational Basis Standard Either

Appellants submit that it is not rational for the University of Houston Downtown to exclude half of the degreed
professionals who deliver its essential service to the university’s customers from the process through which
academic policies are reviewed and revised and the performance of students, and the institution as a whole, is
evaluated.

Under either standard of review, the denial to adjuncts of vote and voice in the Faculty Senate and in university
governance fails to pass constitutional muster because there is neither a compelling interest, nor a rational
basis to sustain it.

Lack of Representation in University Governance

The equal protection challenge might fail, had the adjuncts their own representative institution, as do students
and staff in the form of Student Government, and Staff Council, respectively. There is no such body, however,
as a result of which the Adjuncts are the only group within the campus community completely shut out of the
shared governance process. Adjuncts are thus denied an opportunity to affect the decisions and policies that
govern the conditions of their employment and the performance of duties of all teaching staff.

Conclusion

Because the District Court did not properly apply the framework for the analysis of equal protection claims, and
erroneous concluded that the University had marshaled competent summary judgment evidence that adjuncts
and tenure/tenure-track faculty are not similarly situated at UHD, the Court of Appeals for the fifth Circuit
should reverse and remand.

THE RULING IN THE COURT BELOW

Plaintiff maintains that UHD violated the Equal Protection Clause of the Fourteenth Amendment by treating
adjunct faculty less favorably than full-time, tenured or tenure-track faculty. To preclude the grant of summary
judgment on this claim, Plaintiff must present competent summary judgment evidence that UHD treated him
differently from others who were similar situated, without a sufficient basis for the differential treatment.
Wheeler v.Miller, 168 F.3d 241, 252 (5th Cir.1999); see also Village of Willowbrook v. Olech, 528 U.S.562, 564,
120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (clarifying that equal protection claims can be brought by a “class of
one” without allegation of race or other class-based animus“where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.”).

While “the Equal Protection Clause essentially directs that all persons similarly situated be treated alike,”
Wheeler v. Miller, 168 F.3d at 251, “‘the conscious exercise of some selectivity in enforcement is not in itself a
federal constitutional violation’,” Allred's Produce v. United States Dept. of Agriculture, 178 F.3d 743, 748 (5th
Cir. 1999) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)).

While equal protection claims ordinarily have been premised on allegations of class-based discrimination,the
Supreme Court has clarified that the protection afforded by the Equal Protection Clause is not so limited. In
Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Court recognized that successful equal
protection claims may, and have, been “brought by a ‘class of one,’ where the plaintiff alleges that she has
been intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Id. at 1074.

The Court reiterated that “‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to
secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through duly constituted agents.’” Id. at
1074-75(quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed.340
(1923)) (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38S.Ct. 495, 62 L.Ed.
1154 (1918)).

Plaintiff alleges that UHD treated all adjunct faculty differently from full-time faculty, including by paying adjunct
faculty less and by depriving them of equal access to participation in UHD governance, such as membership
and voting rights in the Faculty Senate.

UHD has presented competent summary judgment evidence that adjunct part-time faculty are not similarly
situated to full-time faculty, and that there is a rational basis for the differential treatment. Plaintiff has failed to
raise a disputed fact issue material to determining that similarly-situated persons were treated differently or that
UHD lacked a rational basis for its actions. This court grants UHD’s motion for summary judgment as to the
equal protection claim.

Faculty Rights Coalition v. Shahrokhi, WL 1657116 (S.D.Tex)(July 13, 2005)