by Jamie Hale
The motion hearing in the case of Idaho State University vs. a group of university faculty is looming and, right on schedule, the arguments in the spat are heating up.
When we last heard about the case, the faculty group, The Idaho State Faculty Association of the First Amendment, had filed a federal suit against ISU, alleging violations of their First and 14th Amendment rights. The complaint was that the university had revoked the Provisional Faculty Senate’s access to a faculty-wide email listserv, facultymemos, all because they disagreed with the Senate’s faculty constitution draft.
At that time, the university had only released a short statement saying they would respond in due time. That due time came Friday, when ISU issued an official opposition response to the lawsuit. So up against allegations of revoking First Amendment rights, how would the university administration respond?
Well, the basis of their argument is that the Faculty Senate, as a university-sanctioned body, has no inherent right to use the listserv, which they point out is actually called a “Mailman.” The communications on the facultymemos Mailman are thought of to be university-sanctioned emails, but since they university didn’t approve of them, they revoked permission, they say.
And since the group is made up of government employees, their free speech rights should be analyzed differently than private citizens. Under that analysis, they argue, there was no First Amendment violation. Furthermore, the opposition argues that the Senate could have made their own Mailman, outside the approval of the administration, to distribute information, or could have even put it on an ISU website.
The document goes so far as to accuse the Senate of trying to use the facultymemos Mailman just to imply the university approved of their draft of the constitution when they didn’t. What’s really made clear here is that ISU does NOT approve of the Senate’s draft of the constitution.
In fact, a look at ISU’s proposed changes to that draft show some stark opposition to almost everything in it. The issues are too numerous to point out, but they include changes that make it more difficult for Faculty Senate to vote or oppose actions by the Senate or the University President, by increasing the number of faculty members that must vote.
While it broadens the power of the faculty in general, it devastates the power of the Senate. The changes even limit the very functions of the Senate. In other words, ISU administration isn’t exactly making any friends over at the Provisional Faculty Senate.
In response to Friday’s opposition, the lawyers for the faculty group released a comeback of their own.
In their response, the group argues that by allowing access to the listserv (or Mailman, take your pick) from the election of the Provisional Senate until November 8, ISU already gave permission to use it, revoking access because they disagreed with the Senate’s viewpoint.
From their point of view, the case is a matter of “viewpoint discrimination.” Once ISU revoked use of the listserv, the other forms of communication became irrelevant. This case isn’t about use of other listservs or websites, it’s about the facultymemos listserv, they argue.
On Friday, the U.S. District Court in Pocatello will hear a motion hearing that will simply decide whether or not ISU has to give back access to facultymemos until the bigger hearing happens. It’s not a decision about the violation of rights per se, but it could have some serious implications about how this case will go from here.
Contact Jamie at JHaleTBA@gmail.com.