ISU faculty group files federal lawsuit

By Michael H. O’Donnell
modonnell@journalnet.com

An administrative policy of blocking faculty-wide email from the Idaho State University Provisional Faculty Senate since last November has given birth to a federal complaint alleging violations of the First Amendment guarantee of free speech.

Camacho Mendoza Coulter Law Group of Eagle filed a complaint Tuesday in Federal District Court on behalf of its client, Idaho State University Faculty Association for the Preservation of the First Amendment (ISUFAPFA). The complaint alleges a denial of rights guaranteed by the First and Fourteenth Amendments of the United States Constitution and names as defendants, Idaho State University President Arthur Vailas, and Interim Provost, Barbara Adamcik.

The complaint asks the federal court to issue a temporary restraining order and/or a preliminary injunction that would end the practice of denying access to faculty-wide email services by members of any faculty group.

When contacted Tuesday, ISU Communications Director Mark Levine said no one at the university has been served notice of legal action.

“The university has not be served with any complaint,” Levine said. “We will respond in due course.”

ISU’s interim provost has admitted emails from members of the PFS to all faculty using the university’s email system have been blocked following a disagreement over whether or not a faculty-wide, up-or-down vote on a draft faculty constitution prepared by the PFS should have been held Nov. 16, 2011. Adamcik was adamant that the vote was premature and the constitution needed fine tuning before going to a faculty vote.

When the PFS moved forward with the vote, their ability to mass email faculty was blocked from Nov. 8 to the current time. That draft constitution was approved 201-98, but has been held by President Vailas. The ISU administration has circulated its own version of a faculty constitution and has forwarded provisions from it to the State Board of Education despite strong faculty objections to those provisions.

“They (ISU administrators) have shown they have no respect for us or this faculty,” provisional faculty senator Chad Gross said during a Monday PFS meeting. All of the provisional senate members attending the meeting expressed frustration over the way ISU’s administration has handled the development of an acceptable faculty constitution.

“The administration doesn’t want a vote on their version,” PFS vice-chairman Dave Delehanty said.

The complaint filed in federal court states the administration also doesn’t want the free exchange of information and opinions via the campus email system.

“By unlawfully censoring and preventing the PFS from effectively communicating with the faculty of ISU, the Defendants were able to prepare an alternative faculty constitution desirable only to the Defendants and effectively stymie the ability of the PFS to communicate
with its constituents,” a press release from the Coulter law firm states.

The release goes on to say: “Thus the State Board of Education will on February 15, 2012, consider Faculty Governance without meaningful input from the elected representatives of the Faculty.”

The SBOE will actually discuss shared governance issues at ISU during the second day of its meetings on Feb. 16.

In the federal complaint itself, ISU’s written policies regarding the use of email on campus is specifically cited.

“According to section 5(b) of the Acceptable Use Policy, ‘It is the intent of ISU to provide access to all authorized users. Given the critical nature of information systems, however, network and Internet use may be revoked as necessary, and in accordance with due process procedures, to protect the access of everyone’,” the federal complaint states.

It alleges no due process procedures were followed with Adamcik decided to suspend the right of PFS members to send emails to their constituents.

“Defendants actions to censor and block the speech of the PFS, and its Chair or designee, since November 8, 2011, constitute an unreasonable time, place, and manner restriction on free speech based on the content of the sender’s message,” the complaint states. “Defendants’ content-specific restriction and outright block of an authorized user of the Facultymemos listserv inhibit Plaintiff’s members’ exercise of their right to free speech as recognized under the First and Fourteenth Amendments to the Constitution of the United States.”

During the process of developing a faculty constitution at ISU, Adamcik has used the same email system to send out faculty-wide emails sharing the administration’s view and version of a constitution as well as a call for faculty input.

The American Association of University Professors (AAUP) sanctioned ISU after it suspended its faculty senate last year. It has been monitoring the university’s progress in adopting a new faculty constitution.

“I think it is reprehensible for an administration to prevent elected faculty representatives from communicating with their constituents, if that is indeed what occurred.,” said Director of Academic Freedom, Tenure and Governance for the AAUP, Greg Scholtz.

“Obviously, no recommendation on removing the sanction from Idaho State can go forward to our annual meeting as long as conditions for academic governance remain deficient, Scholtz added.

Read the full text of the complaint: Docket 1 Complaint

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41 Responses to ISU faculty group files federal lawsuit

  1. Muzzled2 says:

    Splendid move! Bravo, PFS! I hope if nothing else this will shed some more light on our plight here and enable other institutions to avoid the implacable removal of faculty governance rights that we are experiencing due to the political machinations of the Vailas administration and the Idaho SBOE.

  2. Ugotta B. Kydding says:

    Truth: it just doesn’t get any better than this. And by “better,” I mean entertaining. And by “entertaining,” I mean in that Zombie-Apocalypse-Movie kind of way.

    • JW says:

      I agree. These fools actually think that they have a right to their workplace’s communication system! What a joke. I hope they are shelling out lots of money.

      • Uh says:

        Uh, their “workplace” is a taxpayer-funded state institution. If free speech and the Constitution do not apply in an institution funded by the citizens, then where does it apply?

      • PeepStone says:

        JW:

        I just read the complaint from the ISJ link above.

        It seems Herb Maschner was able to send out electronic Chistmas cards but another faculty member was denied list server access even though that faculty member did not violate the e-mail use policy. Didn’t Herb also write a pro-administration piece? Was he afraid he would be denied list server access too? Is Herb really JW?

        The complaint is asking the defendants to pay all fees. I hope you will be happy paying your share as it looks like an open and shut case.

        • What I think says:

          Let’s not forget that many administrators, Adamcik included, made sure to line and mark their ballots in the very same vote that they tried very hard to keep the REST of the faculty from participating in. I think that kind of behavior is also going to be a little bit hard to explain in federal court…

        • Victim of Maschner says:

          Some are clearly more equal than others. Personally, Herb reminds me of Napoleon (the pig, not the general).

      • J says:

        @ JW
        Any fool can criticize, condemn and complain and most fools do – Benjamin Franklin

      • Victim of Maschner says:

        When the use of the communication system directly relates to the performance of their jobs they most certainly DO have a right to use it, just like I had every right to continue to use my office phone to talk to State officials about the safety violations in your lab, Herb.

    • Or Perhaps says:

      Or, perhaps in that “collapse of western civilization” kind of way, in which case I agree. The first things tyrants like to remove from a populace they intend to subjugate is freedom of speech and the abiility to have bonafide representation in governance.

  3. Or Perhaps says:

    JW, how would you like it if President Obama kept your elected representatives in the federal government from contacting you for input on tax and abortion bills under consideration by the legislature?

  4. Pingback: ISU Faculty Association files federal suit against university « TBA

  5. Sarah Knudson says:

    Indeed, ISU is funded partially by state dollars. However, the bulk (more than half) of the university funding comes from grants, contracts, and tuition dollars. (which can be attributed to faculty work)

  6. PeepStone says:

    A public university grants faculty, staff, and students access to computers paid for by faculty, students and American tax dollars. An administrator censors e-mails from a duly elected faculty representative notifying their constituents about their responsibility to vote on a constitution requested by the SBOE. What is next? Will all writing from the faculty need to go through an administrator before it can be released?

    I hope JW gets deported to North Korea as part of the settlement so he can enjoy the system of control he prefers.

    • Kendra says:

      Peepstone,
      Below, I cut and paste an email sent by Vice President Crowell on April 2009:

      Colleagues,

      President Vailas issued an executive order today stating that all ISU media requests need VP or President approval. If you or anyone in your institute/center/division are contacted by the media (newspaper, radio, television, etc.), please contact me before agreeing to an interview or photo shoot. I will review and coordinate the request with the upper administration.

      Thank you,

      Pam

      Pam Crowell, Ph.D.

      Vice President for Research

      Professor of Biomedical and Pharmaceutical Sciences

      Idaho State University

      921 South 8th Ave., Stop 8130

      Pocatello, ID 83209-8130

      (208) 282-3134

      crowpame@isu.edu

  7. Red Sucks Notion says:

    Let’s not forget the SBOE’s role in all of this.

    1) They command that Vailas work with the faculty to prepare a constitution the faculty will accept.
    2) They were poised to accept a constitution that is little more than a blueprint for dictatorship.
    3) When/if they accept this constitution they will reveal themselves to be liars, because the Vailas constitution was not developed through work with the faculty and is not accepted by the general faculty.
    3) When the firestorm over the Vailas constitution erupts, they lie again, claiming that it was not submitted for approval, only for discussion. (P.S.: look for that poor SBOE PR flack who said it was “the constitution” to be fired later this spring for nothing more than telling the truth).

    After years of wondering what is going on in the heads of the SBOE, I think it’s safe to say there is only one motive on their minds. They will do anything, anything at all, anything that’s necessary, anything that involves lying, anything that un-American, anything that damages ISU, anything that a dictator comes up with, anything that damages faculty, anything that damages students, anything that damages this part of the state, anything. . .to avoid admitting that they made a mistake regarding Vailas.

    Admitting when one is wrong is among the first, and most basic principles of good leadership and good oversight. None of the people on the SBOE deserve the positions they hold.

    • Denise says:

      Oh, Habib. Your so melodramatic!

    • What I think says:

      I agree – it looks very much like the SBOE lied. This is very, very bad news for all of the institutions under their oversight. They didn’t have to lie for Vailas – he’s their EMPLOYEE, for goodness sake. This is is why I believe the SBOE is corrupt and may be the driving force behind these radical changes. All that’s missing is the real motive – are we a “test case” as some have said? Is this just the first step in removing nearly all faculty governance rights in higher education in the state of Idaho? Do they just hate ISU for some weird reason and this is payback? What in the world are these people thinking, trying to pull a stunt like this???

  8. Masha says:

    Look, everything is going great at ISU, except for one thing. We need tanks. They need tp be positioned at each corner of the quad, so that their gun turrets have a clear view of everything and can be swung around and pointed at professors when they head off to class. We need snipers positioned on the roofs of the buildings, just for effect. I am sure Jack Wolfe can point out the best place on the museum roof. The rest we will have to scout out. We need sand bags and machine gun emplacements at strategic places around campus, particularly around the Rendezvous Building if the Faculty Senate ever meets again. Those candy-ass cars in the President’s and VP for Finance’s parking spots need to go. Replace them with APC’s. Listen, guys, this has to be done in a professional manner.

  9. Jack Woolfe says:

    You know, you guys really think you are involved in some historical freedom fight akin to those in the Arab Spring when really you’re just a bunch of losers. Failed academics with no research profile. You never were smart enough to realize that you are EMPLOYEES. And employees don’t get to dictate who gets to have access to their employer’s communication system. So if you are paying these lawyers thinking that this is really a freedom of speech case, I hope you chip in extra! Sucker! The really smart people here: the lawyers!

      • shhh! says:

        you’ve said this before, Jack, and really, I think you’re the only one making comparisons to the Arab Spring. Those folks have their lives on the line, we ‘only’ have our constitutional freedoms, you know, the things that fighters in the Arab Spring fought to GET. We just don’t want to lose ours, and find it sort of amazing that in the USA someone would think it’s just fine to censor people they disagree with, fire them, or threaten them.
        In an unrelated matter of coincidence, I did notice a striking resemblance between King Art and a certain someone in the Middle East who shall remain nameless….because he is no longer a leader.

    • What I think says:

      “You know, you guys really think you are involved in some historical freedom fight akin to those in the Arab Spring when really you’re just a bunch of losers. Failed academics with no research profile. You never were smart enough to realize that you are EMPLOYEES. ”

      More contempt and slander from an ISU administrator. This administration is just awash in contempt for the people they are supposed to be serving.

      I submit that it is YOU who have UTTERLY FAILED to adequately perform the job for which you all were hired! THIS is leadership? Calling faculty names is leadership? Firing people in retaliation is leadership? Telling us all to just shut up when we disagree is leadership? Lying to us and censoring us is leadership? Lying both to the public and the SBOE is leadership? Taking away our ability to properly do our jobs as academics is leadership? Baaahh!

      YOU. ARE. A. FAILURE. I don’t care how much research you think you do, and how little you seem to think the rest of us do. Your very words here condemn YOU as a failed academic. The first things a REAL academic would support are intellectual freedom and freedom of speech, because without that freedom we all just become toadies and mouthpieces for whatever tin-pot dictator happens to be signing our checks.

      Sorry, but that’s not a job most of us want, although it sure seems that SOME seem to thrive on it!

    • Vernon says:

      At a place of higher education, are the faculty just “employees”? Should the faculty just be worker-bees busting their butts for eight hours and then go home and forget about work until the next day?

      But that would certainly eliminate the need for faculty to justify community and discipline service during their performance appraisals; the type of service that often occurs after 8 to 5 and requires considerable after hours work. We also then would not have to answer the phone at nights and on weekends when our students call in a panic because of their troubles on an assignment, or when they just don’t think think they can “make it.”

      I don’t think any successful business just has “employees” anymore. Certainly places that excel, such as Apple, Google, and similar business don’t have just “employees.” They have dedicated individuals who are respected by their “Administration”. They have individuals encouraged to voice their opinions, and who are an essential part of the company.

      I was sort of hoping we were more than just “employees”, but if that is all we are, I don’t see much future for higher education in Idaho. No business can succeed with just “employees”.

      • Or Perhaps says:

        I’d say that the difference between having a “career” and just having “a job” has a lot to do with whether you see yourself a “just an employee” or not.

        So, now that we’ve all be set straight on our proper role in the Vailas plan, should we just stop doing all the extra things we do for our students? No, I plan to continue. Why? Because I have honor. Something some folks at ISU could use a bit more acquaintance with. What I am planning to do, though, is not participate in any way in the sham governance struture that is being forced down our throats. My opinion is, if the Vailas administration thinks they can do all the work that faculty used to do and still maintain a viable university all by themselves – well, let ‘em try. Except for what this will do to our students, I almost look forward to watching the ensuing mess and finger-pointing.

    • Victim of Maschner says:

      Stick with a shovel, Herb, as you are not nearly as talented with a pen.

  10. academic integrity says:

    “In ‘Rodriguez,’ Ninth Circuit Recognizes E-Mail Listserv Deserves First Amendment Protections, May 25, 2010, by Meghan Grizzle. Last Friday, the Ninth Circuit Court of Appeals handed down a unanimous decision that reaffirms the free expression rights for which FIRE advocates. Yesterday, Erica examined the case’s contribution to both individual and institutional academic freedom. It also contains interesting implications for the First Amendment doctrine of forum analysis.”

    http://thefire.org/article/11918.html

  11. Failas says:

    As usual, good arguments Herb.

  12. shhh! says:

    Failas, shh! we call him Jack or JW, to help him maintain his anonymity. ‘Cos otherwise, you know, no one would know! And Herb–er, Jack, really, you have to mix it up a bit, the “shut up and do your work” thing is really losing its traction. It really only works in N. Korea.

  13. John Barleycorn says:

    Does anyone know what happened today? Did the SBOE dissolve the Provisional Faculty Senate? Install the Vailas dictatorship?

    • PeepStone says:

      At what point can we label a statement as a lie?

      The previous infamous statement was “they were not fired, we just didn’t renew their contracts”

      Now we have:

      “There is some concern about emails being blocked, prohibiting senators in some instances from communicating with their own colleges,” Croker said.

      School officials deny the claim. The university did limit access to a faculty Listserv, said interim provost, Barbara Adamcik.

      Or in other words: the administration didn’t censor the faculty, they just limited their use of a list server.

      This is either an insult to the intelligence of Idahoans or an admission of gross administrative ignorance.

      • What I think says:

        “This is either an insult to the intelligence of Idahoans or an admission of gross administrative ignorance.”

        Why do we have to choose? Can’t it be both?

        I’d also add it’s a total failure of the SBOE to maintain adequate and FAIR oversight of their administrative employees running an institution under their authority. And a failure of political officials in this area to adequately exercise whatever influence they may have over the SBOE. Faculty are the ones who have the LEAST authority and power to act in order to preserve our voice and professional rights in this mess, yet from what I’ve seen so far, everyone seems to expect us to deal with it all by ourselves. Maybe they don’t want to get their hands dirty or risk being seen as “leftist libruls (sp)” by supporting teachers.

  14. What I think says:

    Well, we’ve apparently made the newswire. Someone I know found an online article in a Wisconsin newspaper about this. And there’s also a blurb in the Chronicle of Higher Ed. And now the Idaho Statesman. So, word is getting around, it seems.

    If you go back a few days, there’s a post from someone named “Vivian” who says she’s from Harvard, who says that the rest of the academic world is staring at the ISU administrator’s actions with shock and disgust and wondering why faculty are still putting up with this crap. (This was before the lawsuit, though, and it’s not clear if the person posting knew of the long history of resistance to administrative abuses of power here – and the fact that we’ve had two no-confidence votes with no resulting dialogue or changes because the SBOE has firmly sided with the administration and against faculty up to this point…)

  15. Yes suh says:

    What I think: can you post links you have please? I saw the Chronicle piece but not the comments from the Harvard person?

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