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Idaho State University Faculty Association For the v. Idaho State University

March 13, 2012

IDAHO STATE UNIVERSITY FACULTY ASSOCIATION FOR THE PRESERVATION OF THE FIRST AMENDMENT, AN IDAHO UNINCORPORATED NONPROFIT ASSOCIATION,
PLAINTIFF,
v.
IDAHO STATE UNIVERSITY, ARTHUR VAILAS, AND BARBARA ADAMCIK,
DEFENDANTS.



The opinion of the court was delivered by: B. Lynn WinmillChief JudgeUnited States District Court

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Before the Court is plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 2). The Court heard argument on March 2 and permitted counsel to submit post-argument briefing. After considering the arguments of counsel, the Court will deny the request for a preliminary injunction as explained in this decision.*fn1

SUMMARY

In this case, the Court must determine whether Idaho State University violates the First Amendment rights of some of its faculty when it prevents them from using a university-moderated and university-controlled listserv to distribute email communications which are at odds with positions taken by the university administration. The Court concludes that it does not.

To state the obvious, plaintiff's members are university professors -- public employees. Of course, individuals do not relinquish their First Amendment rights just by accepting employment with a state university. But, when faculty members speak concerning job-related matters -- including communicating with other faculty members using a university-controlled listserv -- they speak not as private citizens, but as public employees. Under those circumstances the messages communicated by the public employee may be seen as reflecting the university's own position, and the university is therefore free to "take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995). Otherwise stated, when the university opens its own mouth to speak, individual faculty members do not have the right to "play ventriloquist." Downs v.

L.A. Unified Sch. Dist., 228 F.3d 1003, 1013 (9th Cir. 2000).

Here, plaintiff concedes that the professors do not wish to speak as private

citizens. They admit that all the speech at issue is job-related. This concession, coupled with the university's control and moderation of the listserv in question, basically ends the analysis. Plaintiffs are not entitled to injunctive relief under the governing legal framework established in Pickering v. Board of Education, 391 U.S. 563 (1968), as applied by the Ninth Circuit in Johnson v. Poway Unified School District, 658 F.3d 954, 961 (9th Cir. 2011). The Court thus concludes that plaintiff's motion for injunctive relief should be denied.

FACTUAL BACKGROUND

Plaintiff, the Idaho State University Faculty Association for the Preservation of the First Amendment, alleges that ISU and certain university officials have violated its members' First Amendment rights. More specifically, the association contends that defendants have improperly prohibited members of ISU's provisional faculty senate from sending email messages through an ISU listserv called facultymemos.

Facultymemos is not a "listserv"*fn2 per se. It is an email list created through "Mailman," which is the university's mass email service. Mailman allows the university to create various emailing lists -- including, for example, facultymemos, staffmemos, and studentmemos. As the name "facultymemos" suggests, if a person wishes to send an email to the faculty at large, they simply type in a single address and the email is sent, en masse, to the entire faculty.

The parties' dispute over facultymemos erupted in November 2011, when members of ISU's provisional faculty senate wanted to circulate a draft constitution via facultymemos. The provisional faculty senate had been created roughly six months earlier, in April 2011, and was tasked with developing a new constitution and bylaws for a full faculty senate, to be approved by the ISU President and the State Board of Education. By early November 2011, the provisional faculty senate had a draft constitution ready for circulation to the faculty. The vice chair of the senate, Dr. David Delehanty, attempted to send the draft constitution to the entire faculty -- via facultymemos -- for a vote. According to Dr. Delehanty's email, the faculty would have had a little over a week to ratify or reject the draft constitution. See Ex. F. to Cole Dec., Dkt. 2-2, at 18.

The university's Vice President of Academic Affairs, Dr. Barbara Adamcik, did not want the draft circulated via facultymemos at that point, however. As she explained in a November 11, 2011 letter to the faculty, she did not believe the review process was complete and wanted the faculty to have more time to discuss the draft. See Nov. 11, 2011 Letter from Barbara Adamcik to Faculty, Ex. H to Cole Aff., Dkt. 2-2, at 23. She also had substantive disagreements regarding the contents of the draft constitution. For example, she wanted the constitution to acknowledge the university's president "as being a member of and president of the faculty." Id. at 24. Additionally, the "administration believe[d] there should be a reasonable threshold of criticality for faculty to initiate a referendum to revisit an action or decision made by the President, a vice president, a dean, etc." Id.

Dr. Adamcik thus refused to allow the senate to use facultymemos to circulate the constitution. She explained her reasoning as follows:

I, on behalf of the Administration disagreed with the plan to conduct a faculty poll relating to the proposed Constitution in mid-November when the faculty was very busy concluding the fall semester's work. I did not want the official "facultymemos" Mailman List to be used to organize the polling because it would give the mistaken impression that the poll was sanctioned by the Administration. Since the Administration had a legitimate disagreement with the PFS [provisional faculty senate] about the poll, we did not want to mislead the members of the faculty by allowing the University's official "facultymemos" Mailman List to be used. It is my belief that the sole reason the ISU-PFS sought to use the official "facultymemos" Mailman List, as opposed to numerous other options available to it . . . was to foster this misrepresentation of University Administration sanctioning of the poll.

Adamcik Dec., Dkt. 10-1, ¶ 26.

As for the "numerous other options" referred to, Adamcik explains that the provisional faculty senate could have circulated the draft constitution by creating its own Mailman list, by sending the constitution through the university's general email system, or by posting the constitution on the provisional faculty senate's university-provided website. See Adamcik Aff. ¶¶ 17-20. Drs. Cole and Delehanty, however, were not satisfied with these alternatives; they wished to use the facultymemos listserv.*fn3

Drs. Cole and Delehanty say that before November 8, 2011 (when they wanted to circulate the constitution), they were able to send emails directly to the facultymemos email address without any prior approval from the university. They also point to one specific communication -- a holiday greeting card from the Idaho Historical Museum -- that they say was sent directly to all faculty using the facultymemos mailing list. Vice President Adamcik, however, says that "[n]o University employee, faculty member or student has ever been able to use their personal email addresses on the University's regular email service to directly post to the University's 'facultymemos' Mailman List without moderation by the University or its I.T. staff . . . ." Adamcik Aff., Dkt. 10-1, ¶ 27 (emphasis in original).

In any event, right around the time the senate and the administration were embroiled in their dispute about the use of facultymemos, the Idaho Supreme Court handed down its opinion in Sadid v. Idaho State University,265 P.3d 1144 (Idaho 2011). The provisional faculty senate asked permission to circulate this opinion via facultymemos. Adamcik said that the senate could post the decision on its website, but refused to allow the senate to circulate it via facultymemos.*fn4

In the Sadid case, ISU professor Habib Sadid alleged that the university had retaliated against him because of his comments criticizing the administration that had been published in a local newspaper over several years. Sadid sought damages under 42 U.S.C. § 1983 on the grounds that the university had violated his constitutional free speech rights. The trial court granted summary judgment in the university's favor. 265 P.3d at 1148. The Idaho Supreme Court affirmed, concluding that there was no evidence that the university had retaliated against Sadid. Id. at 1154-54. The court did, however, overrule parts of the lower court's ruling. For example, it concluded that Sadid's comments wereprotected by the First Amendment because he was speaking as a private citizen on a matter of public concern. Id. at 1149-51.

LEGAL STANDARD

A plaintiff seeking a preliminary injunction must establish that: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) an injunction is in the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). A preliminary injunction is "an extraordinary remedy never awarded as of right." Id. at 376. In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id. The standard for issuing a temporary restraining ...


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