by Jamie Hale
Idaho State University scored an early win in their First Amendment fight with a group of faculty Tuesday, after a federal judge denied a temporary restraining order filed by the faculty group.
The fight started when the university blocked access to a previously-used “facultymemos” email listserv from the heads of the Provisional Faculty Senate. The university didn’t want the group circulating their draft of the faculty constitution on an ISU-controlled listserv, so the group sued for what they are calling a violation of their First and 14th Amendment rights.
The temporary restraining order would have forced ISU to return access to the listserv until the full case is heard.
But Judge B. Lynn Winmill said in his decision that the faculty group failed to prove that their speech deserves to be treated as that of private citizens, rather than that of ISU employees.
In the March 2 hearing, the group admitted that the speech at issue is related to their job, an admission that when coupled with the university’s control of the listserv, basically defeats the argument, said Judge Winmill in his ruling.
But the lawyers for the faculty group are staying optimistic, in their minds the ruling actually helped their case quite a bit, thanks to footnote nine.
Footnote nine is buried in the ruling, but it has become the new arguing point against ISU, said Ron Coulter, lawyer for the faculty group. It states:
“As noted, the Court’s findings are not final in the injunction setting. Given defendants’ representations, the Court expects ISU and its IT department to cooperate fully with the plaintiff’s members should they wish to send mass emails through an un-moderated listserv.”
To Coulter, the interpretation is simple. “You may not be able to use the facultymemos listserv, but the real issue here is you need a way to communicate with the faculty that is unmoderated,” he said. “I think [Judge Winmill] is really telling the parties to do something. ‘I expect you to do something.'”
Coulter said while he’s reserving all their legal rights, this footnote now opens the door to finding a solution out of court that allows the Senate to send emails to the rest of the faculty, free from university oversight.
The university, however, issued a one-sentence response to the case, saying they are pleased with the judge’s decision. Beyond that they don’t comment on ongoing litigation, said Kent Tingey, vice president for university advancement.
While the temporary restraining order was denied, Judge Winmill also denied the university’s motions to dismiss the case. Although he has sided with ISU initially, the judge made it clear in his ruling that this case is far from over.
Contact Jamie at JHaleTBA@gmail.com.