Lawsuit Against University of Houston to Secure First Amendment Rights
(Filed May 28, 2004)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
FACULTY RIGHTS COALITION, § and WOLFGANG P. H. DE MIÑO, § Plaintiffs, § v. § § HOSSEIN SHAHROKHI, in his official § CIVIL ACTION NO. H-04-2127 capacity as Executive Director of § Information Services at UHD, § a component of the § University of Houston System, § Defendant §
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 ofII. JURISDICTION AND VENUE
part-timefaculty 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.
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 MIÑO, PH.D., ("the Named Plaintiff" hereinafter) is a citizen and resident of Texas, a
part-timefaculty 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
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
5.2 The Named Plaintiff teaches
part-timeat 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 decisions and policies that affect them and the students they teach.
full-timeand part-timefaculty members are assigned @uhd.edu full-timeand part-timefaculty 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 [Family Educational Rights and Privacy Act] and is delivered with an advisory to that effect.
5.4 UHD also maintains an
5.5 Functionally, the TO ALL distribution facility operates as a virtual,
round-the-clockpublic 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
5.7 On February 2, 2004 Nader Naderi ("Naderi"), a
part-timefaculty 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
5.9 The Named Plaintiff then composed an
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
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-levelUHD 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
budget-cuttingand 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-trackfaculty. 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-monthcomparison basis) than elementary school teachers in HISD [Houston Independent School District] 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-serviceuniversity" 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-trackfaculty 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
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-UHDaccount, e-maileda document captioned " Part-timeProfessors' 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-leveladministrators 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
5.25 After the Adjuncts had turned in their grades
on-lineon Monday, May 18, 2004, their accounts were promptly "frozen." The accounts remained active to the extent of not generating bounce-backmessages 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-trackfaculty was not removed. When clicked, the hyperlink for adjunct faculty listings would produce a pop-upmessage 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-trackfaculty, 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-lineSpring 2004 class schedule, which included instructors' name for each section, from UHD's student e-servicesweb 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-LifeCougars 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
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-outlisting 96 names with UHD
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 theirVI. 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
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-mailedmessages 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
6.8 By obstructing the dissemination of facts and opinions on the basis of their content the Defendant engaged in impermissible
viewpoint-basedregulation 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 ALLVII. 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.
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.
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
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Plaintiffs respectfully request that the District Court declare that UHD's TO ALL
In the alternative, Plaintiffs request that the District Court declare that the TO ALL distribution list constitutes a
non-publicforum equal access to which was impermissibly denied to the Plaintiffs in a discriminatory fashion in connection with the Adjunct's second-classstatus 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-goingviolation 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
Plaintiffs further pray that the Court issue an interlocutory order compelling the Named Defendant to perform the ministerial duty of releasing the names and
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
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
[Reprinted from: http://www.faculty-rights-coalition.com/Shahrokhi-Complaint-USDC-Houston-04-02127.html, accessed 02/12/06.]
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