February 23, 2011.

Questions asked of the IA Legal council, regarding the draft proposal being presented.

(1)  With regard to IIa, the draft proposal declares all school grounds as "public forums".  Currently, our district does not consider school grounds as as ”public forums”, although past practice may demonstrate otherwise.

(2)  With regard to IIe, our school considers faculty offices and computers as property owned by the school.  On what legal grounds do faculty have the right to “freedom of expression” in their offices and in their computers.

(3)  With regard to III (first two * items), the draft proposal declares our faculty mailboxes and email systems as "public forums".  Currently, our school does not consider our faculty mailboxes and email systems as "public forums", although past practice may demonstrate otherwise.

IA Legal Council response to above questions.

Please allow me to help with these questions. 

1. First, regardless of what the District may assert, there is substantial case law and precedent stating that large aspects of a college campus are public forums. This is based on an objective analysis of the nature of your campus, and is irrespective of the District's claims about what is or is not a public forum.

Most districts (based on advice from the Community College League of CA) are asserting that their campuses are not forums, so it might be hard to find a counter-example for you, but this position is not borne out by the First Amendment analysis performed by the courts. We are assisting numerous unions fight on this position, and demand negotiations over forum policies.

I attached the letter our office wrote on behalf of IA on this subject for your reference. It includes a forum analysis and section on electronic communications, and may be helpful to review prior to negotiations. In response to the letter, District legal counsel maintained the District's position that the campus is not a public forum. This may be a big fight in negotiations, but there is strong legal support for our position.

2. Even if the District owns the rooms where there are faculty offices, and owns faculty work computers, it does not mean that it has a right to control speech in these areas, or that faculty members have no expectation of privacy. Even in a district-owned office, a faculty member has a right to free speech (such as hanging posters, asserting his or her political views, wearing political buttons, etc.). Further, it is important to remember that as a public institution, the District owns its property in trust for the community, and has an obligation to protect speech and expression. In that way it is different from a entirely private employer, running a private enterprise.

As for the amount of privacy that a faculty member (or any employee) may have in his or her offices and computer is determined in large part by his or her expectation of privacy. If the District has a draconian policy that it may search faculty computers or email at any time, a court may uphold such a search. If, on the other hand, the District has a policy respecting faculty privacy, and then later does such a search, a court will be more likely to hold that the search violated the Constitutional privacy rights of the faculty member. Even at work, employees may have a right to privacy, depending on large part on the work rules at their place of employment. That is why it is extremely important to negotiate a policy where faculty might have an expectation of privacy.

3. Here, there is the same problem as with #1. The CCL of California has drafted model policies restricting access to mailboxes and email for political, or non-work purposes. That does not mean, however, that these are not public forums, or that the parties' are prescribed from negotiating rules for faculty access. There is limited case law on the forum-status of email, but it should be easy to apply a common-sense argument on why it must be treated as a public forum, and open to faculty.

First, the District's existing board policies on Academic Freedom and computer use already allow faculty to use this resource almost without any restrictions, and the policy provides for protections for political speech (as long as the speaker does not assert that he or she is speaking on behalf of the District). This new proposed policy, therefore, would only augment and add clarification to those policies, and explicitly emphasize the special protected nature of political speech.

Second, email and listservs are a common and marginal cost-free means for faculty, or anyone, to communicate, and are central to how many people work today, especially in academics. It would be unreasonable for the District to prohibit faculty from free speech on email while at the same time expecting them to constantly be available via email to communicate with students and the District.

I hope this helps -- I know it would be better to simply provide a model policy currently in operation at a district in California, but unfortunately the California community college districts are taking a concerted, hard line in this area. I believe it is best to emphasize the Constitutional characteristics of the campus, and practical realities of how faculty communicate, rather than what other districts are doing. 

David Conway
Law Offices of Robert J. Bezemek