|
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. H-04-2127
FACULTY RIGHTS COALITION,
and WOLFGANG P. H. DE MIÑO,
Plaintiffs,
v.
HOSSEIN SHAHROKHI, in his official
capacity as Executive Director of
Information Services at UHD, 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
MINO, 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 Univerisity 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.” Adjunts 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 professorate 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 office.
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 Nadari 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) 527-039
E-mail: mailto:wolfh778@cs.com