Idaho State University Faculty Association for the Preservation of the First Amendment v. Idaho State University et al

Filing 31

MEMORANDUM DECISION AND ORDER re: 29 Stipulation. The Court concludes that, under the facts stipulated to by the parties in this matter, there has been noviolation of either the First Amendment or the Due Process Clause. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IDAHO STATE UNIVERSITY
FACULTY ASSOCIATION FOR THE
PRESERVATION OF THE FIRST
AMENDMENT, an Idaho Unincorporated
Nonprofit Association,

Case No. 4:12-cv-00068-BLW
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
IDAHO STATE UNIVERSITY, ARTHUR
VAILAS, and BARBARA ADAMCIK,
Defendants.

INTRODUCTION
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
Memorandum Decision and Order - 1

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 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).
FACTUAL BACKGROUND
The Plaintiff and the Defendants have jointly stipulated to all facts contained in
this Memorandum Decision and Order. See Joint Stipulation, Dkt. 29.
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.

Memorandum Decision and Order - 2

Facultymemos is not a “listserv”1 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
1

Plaintiff describes facultymemos as a “listserv.” Wikipedia describes LISTSERV as a
“the first electronic mailing list software application consisting of a set of email addresses for a
group in which the sender can send one email and it will reach a variety of people.” See
www.wikipedia.org (entry for LISTSERV; last visited Mar. 1, 2012). After LISTSERV’s 1986
launch, other list management tools developed. Id. It appears that ISU’s list management tool –
Mailman – was one of these later list management tools. For ease of reference, the Court
sometimes generally refers to facultymemos as a “listserv.”
Memorandum Decision and Order - 3

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
Memorandum Decision and Order - 4

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.2
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.3

3

The Sadid opinion has no direct relevance to the provisional faculty senate’s work or to

Memorandum Decision and Order - 5

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 were protected by the First Amendment because he was speaking as a private
citizen on a matter of public concern. Id. at 1149-51.
ANALYSIS
A.

Standing
At the outset, the Court must address defendants’ contention that plaintiff lacks

standing.
Plaintiff relies on the doctrine of associational standing. Under that doctrine, an
association may sue on behalf of its members, even if it has not itself suffered an injury.
To obtain associational standing, the association must show that (1) at least one of its
members would have standing to sue in his own right, (2) the interests the suit seeks to
vindicate are germane to the organization’s purpose, and (3) neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.
this case although both Sadid and the plaintiff in this case share the same counsel. Additionally,
Dr. Delehanty provided a supporting affidavit for Sadid in his lawsuit.
Memorandum Decision and Order - 6

E.g., Fleck & Assoc. Inc. v. Phoenix, 471 F.3d 1100, 1105-06 (9th Cir. 2006) (citations
omitted).
The first requirement listed – a member’s standing to sue in his or her own right –
triggers another three-part inquiry. First, the plaintiff must have suffered an “injury in
fact” – an invasion of a legally protected interest which is concrete and particularized and
actual or imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and
quotations omitted); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
103-104 (1998) (the “triad of injury in fact, causation, and redressability constitutes the
core of Article III’s case-or-controversy requirement”).
Here, defendants argue that the faculty association lacks standing because the
entity allegedly harmed is ISU’s provisional faculty senate, which is not a member of the
faculty association. Defendants also argue that the associations’ individual members fail
to allege they were harmed by defendants’ actions. The Court disagrees.
Although the complaint primarily concerns the work of the provisional faculty
senate, it also alleges that individual professors have been unable to send emails. See
Compl. ¶¶ 16, 42, 55, 63. For example, plaintiff alleges that Philip Cole (the chair of the
provisional faculty senate) has been unable to send messages via the facultymemos
listserv. See, e.g., id. ¶ 63. Dr. Cole has also filed an affidavit stating that his email
address has been “blocked.” See Feb. 13, 2012 Cole Aff., Dkt. 2-2 ¶ 18 (“since
Memorandum Decision and Order - 7

November 8, 2011 . . . the email address for the PFS, fsenate, and my email, colephil, are
unable to send an email directly to Facultymemos.”) (emphasis added). The individual
members have therefore allegedly suffered an “injury-in-fact.”
The Court also concludes that plaintiffs have alleged facts sufficient to meet the
causation and redressability standing elements. Plaintiff alleges that defendants have
blocked and continue to block its members’ alleged right to use the facultymemos
listserv. If the Court determines that this prohibition is improper, it is likely that the
alleged injury would be redressed by a favorable decision. The faculty association thus
has standing to bring this action.
B.

The First Amendment Claim
Plaintiff contends that defendants violated the First Amendment, which is

applicable to states through the Fourteenth Amendment.4 The parties dispute the
standard applicable to this claim. Plaintiff lobbies for a traditional, forum-based analysis,
while defendants urge the Court to apply the balancing test established in Pickering v.
Board of Education, 391 U.S. 563 (1968).

4

The First Amendment provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.

Section 1 of the Fourteenth Amendment provides that “[n]o State shall ... deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” The term “‘liberty’ in the Fourteenth Amendment
to the Constitution makes the First Amendment applicable to the States.” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).
Memorandum Decision and Order - 8

The issue is easily resolved in defendants’ favor because the Ninth Circuit has
provided clear guidance on this very issue. In Johnson v. Poway Unified School District,
658 F.3d 954, 961 (9th Cir. 2011), the court held that that a forum-based analysis is not
appropriate “where the government acts as both sovereign and employer, . . . .” Id.
(citations omitted). Instead, courts must apply a Pickering balancing analysis, which
ultimately “reconcile[s] the employee’s right to engage in speech and the government’s
right to protect its own legitimate interests in performing its mission.’” Id. at 961 (quoting
City of San Diego v. Roe, 543 U.S. 77, 84 (2004)).
In the Ninth Circuit, the Pickering balancing test involves a sequential, five-step
inquiry, which asks:
(1) whether the plaintiff spoke on a matter of public concern;
(2) whether the plaintiff spoke as a private citizen or public employee;
(3) whether the plaintiff’s protected speech was a substantial or motivating
factor in the adverse employment action;
(4) whether the state had an adequate justification for treating the employee
differently from other members of the general public; and
(5) whether the state would have taken the adverse employment action even
absent the protected speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
In Johnson, a school district prohibited a math teacher from hanging two large
religious banners in his math classroom.5 The district court determined that the school
5

The two banners – which were each seven feet wide by two feet tall – stated, in large
type: (1) IN GOD WE TRUST; ONE NATION UNDER GOD; GOD BLESS AMERICA; AND
GOD SHED HIS GRACE ON THEE; and (2) All men are created equal, they are endowed by
their CREATOR. Johnson, 658 F.3d at 958.
Memorandum Decision and Order - 9

district violated Johnson’s First Amendment rights by forcing him to remove the banners.
The Ninth Circuit reversed, holding that the district court erred at the outset by applying a
forum-based analysis, rather than a Pickering-based inquiry. As the Ninth Circuit
explained:
To some degree, we can understand the district court’s mistake. An
analysis of the government’s regulation of speech ordinarily hinges on the
context, or forum, in which the speech takes place. Under that traditional
rubric, the government’s power is at its least when speech takes place in a
public forum, is greater when it is regulating speech in a limited public
forum, and is at its greatest when regulating speech in a non-public forum.
However, the Supreme Court has held that where the government acts as
both sovereign and employer, this general forum-based analysis does not
apply.
Id. at 961 (citations and paragraph division omitted). The court concluded that Johnson
could not survive a Pickering analysis because he was not speaking as a private citizen:
“Certainly, Johnson did not act as a citizen when he went to school and taught class, took
attendance, supervised students, or regulated their comings-and-goings; he acted as a
teacher – a government employee. Similarly, Johnson did not act as an ordinary citizen
when ‘espousing God as opposed to no God’ in his classroom.” Id. at 968 (internal
citations omitted).
In determining that there was “no justifiable cause” for the district court’s refusal
to apply Pickering to Johnson’s job-related speech, the court relied in part on Downs v.
Los Angeles Unified School District, 228 F.3d 1003 (9th Cir. 2000). Downs is instructive
here because it recognized that the threshold inquiry in government-employee speech
cases is whether the citizen or the government is speaking. Johnson, 658 F.2d at 962 n.7
(citing Downs, 228 F.3d at 1011-12). If the government is the speaker, the speech “is not
Memorandum Decision and Order - 10

subject to the constraints of constitutional safeguards and forum analysis, . . . .” Downs,
228 F.3d at 1013. As Downs put it, “[s]imply because the government opens its mouth to
speak does not give every outside individual or group a First Amendment right to play
ventriloquist.” Id.
In Downs, a public high school created bulletin boards for the purpose of
recognizing Gay and Lesbian Awareness month. The content of the boards was subject
to the school principal’s oversight. Downs, a high school teacher who objected to
recognition of Gay and Lesbian Awareness, created a competing bulletin board in the
school titled “Redefining the Family.” Id. at 1006. He sued after the school ordered him
to remove his materials. Id. at 1007. The Downs Court concluded that the bulletin boards
were school speech and, as such, the school was well within its rights to make contentbased choices regarding what it had to say on the boards.6 Id. at 1013.
As in Downs, where the school elected to speak through bulletin boards, ISU
opened its mouth to speak by creating a moderated listserv, which sends emails messages
with ISU signage.7 Plaintiff contends that the messages actually are not the university’s voice
because the university itself did not author the individual messages and the reader can easily
discern that.

6

Here, plaintiff has essentially conceded that the speech at issue is ISU’s speech under
Downs. That is, the faculty association admits that because its members “wish to speak as public
employees,” they cannot satisfy the second step of the Pickering analysis. (Recall, the second
step asks whether the individual wishes to speak as a private citizen or a public employee). As
Johnson explains, Downs largely controls step two of the Pickering analysis. See Johnson, 658
F.3d at 962 n.7.
7

The sample emails submitted to the Court show that an email sent via the facultymemos
list will have a subject line prefaced with the notation: [Facultymemos]. The “To:” line also
Memorandum Decision and Order - 11

But that argument misses the point. If it is known that the listserv is moderated, it
is reasonable to infer that recipients will recognize messages to be university-approved,
even if another person actually wrote the message. In Downs, the high school did not
create each individual posting on the bulletin boards either. The point was that the school
could decide what it wanted to say on the boards. It could do that by choosing to post
some messages, while rejecting others.
In sum, given the clarity of the Ninth Circuit’s instructions in both Johnson and
Downs, the Court concludes that Pickering supplies the governing legal framework.
Plaintiff’s citation to Rodriguez v. Maricopa County Community College District,
605 F.3d 703 (9th Cir. 2010) does not persuade the Court otherwise. Among other
things, Rodriguez does not directly address whether courts should apply a Pickering
balancing test, or a forum-based analysis in the context of public employees’ free speech
rights.
In Rodriguez, Hispanic employees sued a college district, contending that the
district’s failure to properly respond to a professor’s racially charged emails created a
hostile work environment in violation of Title VII and the Equal Protection Clause. The
court held that the professor’s speech was not unlawful harassment. Within that case, the
plaintiffs asserted that the college could have applied its harassment policy to suppress
the professor’s speech because he spoke in a limited or nonpublic forum. The Rodriguez
Court assumed that the email list and servers were limited and nonpublic forums and then
indicates that it is to “facultymemos.” See, e.g., Ex. B. to Feb. 13, 2012 Cole Aff., Dkt. 2-2.

Memorandum Decision and Order - 12

held that “state actors may not suppress speech because of its point of view, and that is
exactly what application of the harassment policy to [the professor’s] emails and website
would have done.” Id. at 710 (omitting internal citation to Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 46, 49 (1983).
There are two problems with plaintiff’s reliance on this portion of the Rodriguez
opinion. First, Rodriguez dealt with a school’s general internal email system. ISU’s email
system and servers – generally speaking – are not at issue here. Plaintiffs do not contend
that they have been deprived access to that system. Rather, the dispute relates to the
professors’ insistence that they have the right to distribute the email communications via
the university’s official facultymemos listserv. As already noted, ISU indicates that
sending a message through facultymemos has the effect of making the email appear as an
administration-sanctioned communication. Rodriguez did not directly face that issue. Cf.
Rodriguez, 605 F.3d at 710 (“Although Kehowski disseminated his views using the
district’s web servers and email list, providing such resources on a content-neutral basis
to facilitate campus discussion does not suggest official endorsement of the resulting
speech.”).
Second, plaintiff overlooks the Rodriguez Court’s observation that the college
could have chosen to suppress the professor’s speech by limiting discussion on its email
list and web servers to official school business. Id. at 710 (“We assume the First
Amendment would not prevent the district from restricting use in that manner.”). That is
precisely what the university chose to do here.
Finally, the Court rejects plaintiff’s alternative argument that it can succeed under
Memorandum Decision and Order - 13

the Pickering balancing analysis as modified in United States v. National Treasury
Employees Union, 513 U.S. 454 (1995). Broadly speaking, both Pickering and National
Treasury concern the scope of free-speech rights enjoyed by public employees. To
greatly oversimplify, Pickering applies to speech that has already taken place, while
National Treasury applies when a prior restraint is placed on employee speech.
National Treasury imposes a significantly greater burden on the government. In a
traditional Pickering analysis, the government need only prove that its interest, as an
employer, in promoting the efficiency of the public services it performs outweighs
plaintiff’s interest in speaking. If National Treasury applies, the government must show
its restriction is necessary to prevent the actual disruption of its operations as an
employer.
The problem with plaintiff’s argument is that National Treasury and Pickering
share the same threshold test. To reach the balancing part of either test, plaintiffs must
first demonstrate that they spoke (or wished to speak) as citizens on matters of public
concern. See, e.g., Nat’l Treasury, 513 U.S. at 465-66. Here, plaintiff concedes that its
members wished to speak as public employees. As the Supreme Court has held, “when
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). Plaintiff’s National Treasury argument thus fails at the outset. See also City
of San Diego v. Roe, 543 U.S. 77, 81 (2004) (lower court’s reliance on National Treasury
was “seriously misplaced” because plaintiff’s speech was related to his employment);
Dible v. City of Chandler, 515 F.3d 918, 927 (9th Cir. 2008) (National Treasury
Memorandum Decision and Order - 14

inapplicable because police officer’s speech was employment-related).
For all the above reasons, the Court concludes that there has been no violation of
the First Amendment in this case.
C.

Plaintiff’s Due Process Claim
Plaintiff alleges that defendants violated its members’ procedural due

process rights because their “access to ISU’s mail system has been terminated without
any process.” Reply, at 9. This is not entirely accurate, however. The university is
allegedly refusing to allow some professors to send particular messages through a
particular listserv; there is no allegation that members’ “network and Internet” privileges
have been revoked. See ISU Policies & Procedures, Dkt. 2-2, at 10 (paragraph 5.b).
The procedural due process guarantees of the Fourteenth Amendment apply only
when a constitutionally protected liberty or property interest is at stake. See, e.g., Bd. of
Regents v. Roth, 408 U.S. 564, 569 (1972). Constitutionally protected property interests
“are created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law.” Id. at 577. Yet “not all state-created
rights rise to the level of a constitutionally protected interest.” Brady v. Gebbie, 859 F.2d
1543, 1548 n.3 (9th Cir. 1988). The question whether a state-created right triggers
constitutional protections is a question of federal constitutional law. Id.
Here, plaintiff has failed to show its members have a protected property interest in
the right to use facultymemos. As noted, the applicable policies speak broadly to
“providing access” to information technology services, and they “encourage” those who
“regularly send messages to groups of ten or more to use the mailman mailing list
Memorandum Decision and Order - 15

utility.” ISU Policies & Procedures, Dkt. 2-2, at 10-11 (¶¶ 5.b. and 6a.(3)). It is not
clear, however, that revoking the right to use a particular Mailman list invokes the “due
process procedures” referenced in the policies. This is particularly true here, given that
facultymemos is a moderated list, and the university chooses which messages it will (and
will not) convey through the list..
For the above reasons, the Court concludes that there has been no violation of
Due Process in this case.
CONCLUSION
In accordance with the Memorandum Decision set forth above, the Court
concludes that, under the facts stipulated to by the parties in this matter, there has been no
violation of either the First Amendment or the Due Process Clause. The Court will enter
a separate judgment in accordance with Fed. R. Civ. P. 58.
DATED: April 17, 2012

_____________________________________
Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision and Order - 16