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
HOUSTON DIVISION
| FACULTY RIGHTS COALITION, |
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| and WOLFGANG P. H. DE MIÑO, |
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| Plaintiffs, |
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| HOSSEIN SHAHROKHI, in his official |
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CIVIL ACTION NO. H-04-2127 |
| capacity as Executive Director of |
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| Information Services at UHD, |
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| a component of the |
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| University of Houston System, |
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| Defendant |
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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 MIÑO, 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 OutlookTM 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 decisions 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 [Family Educational Rights and Privacy Act] 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 OutlookTM 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 UHD. 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 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 UHD 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 [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-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 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:
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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: FacultyRightsTx@cs.com |
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[Reprinted from: http://www.faculty-rights-coalition.com/Shahrokhi-Complaint-USDC-Houston-04-02127.html, accessed 02/12/06.]
Web site created November, 1998
This section last modified February, 2006
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