This essay - from a forthcoming symposium on “teaching from the left” in the NYU Review of Law & Social Change - offers an account of the successful union organizing campaign among custodial and landscaping workers at the University of Miami during the 2005-06 academic year, focusing in particular on the role played by faculty during the course of the campaign. It examines a fractious debate generated by faculty who held classes off campus in order to support the striking workers and the author’s own decision to put the question of whether to honor the picket line to a vote of his students. It offers an analysis of the pattern of argument that emerged - with opponents of off-campus classes invoking the rhetoric of contract and supporters invoking the rhetoric of democracy - and of what that pattern may reveal about the nature of ideological conflict in contemporary campus culture.

An engaging and thoughtful essay that will be of interest to contracts teachers, labor lawyers, and union supporters generally.

Also of interest is the post-posting history of this article, in which anti-union Google ads appeared automagically on SSRN alongside the article. See Google Ads on SSRN—and Some Odd (shall we say) Juxtapositions for details.

The 400 Unicco workers at University of Miami would be guaranteed minimum hourly rates ranging from $8.55 to $10.80 as part of their union-negotiated contract, which runs from Sept. 1 through Aug. 31, 2010. They would also get:

• Raises: Sept. 1, 25 cents an hour. In September 2007, 40 cents an hour. In 2008 and 2009, 50 cents an hour each year.
• Healthcare: VISTA Healthcare program will cost employees $13 for individual coverage. Family coverage will cost more than $500 a month.
• Other: One to three weeks of vacation, three personal days, nine holidays.

The bad news is that we're learning more about how UM handled student discipline cases arising out of strike support activities, and the allegations are not pretty. Prof. Jane Connolly has written two open letters describing what she knows about the process in two cases. They're available at picketline blog, but I'm going to reprint them in full because they claims of self-dealing and fundamental unfairness by the UM administration are serious -- and reflect what I've head elsewhere. I hope the UM administration has a good response to these charges, other than the oft-repeated claim that its rules give it the discretion to do what it did, but I have yet to hear such a response.

august 18:

Dear Colleagues,

I met this morning with Katharine Westaway, a graduate student who has been subjected to disciplinary action by the administration. She shared with me her concerns about the status of free speech for students on campus and the significance of this summer's disciplinary actions for students in the future. With Ms Westaway's permission, I share with you her experiences and concerns.

Ms Westaway, an MA student in English, is a senator in the Graduate Student Association. A week before receiving her summons, she was informed by James Fatzinger, Assistant Dean of Students, that she had been selected to serve on the honor council. (Does anyone besides Ms Westaway and me find this appointment ironic, given that she would soon face disciplinary charges at the time and that Mr. Fatzinger would subsequently serve as the judge for her hearing?) Since she would be away from campus for the entire summer and traveling for a portion of it, Ms. Westaway requested that her hearing be postponed until the fall. In this way, she could attend, present witnesses and be judged by a jury of her peers. As with all such requests, she was denied. On 29 June, while attending a program at Johns Hopkins, Ms Westaway participated in a "hearing" telephonically. I use quotation marks as it is clear that very little was actually *heard* by the administration in this or any other case.

Although she was asked if she wished to present witnesses, Ms Westaway wondered just how she would do this in the middle of summer when everyone had scattered and she herself wasn't present. The hearing was presided by Mr. Fatzinger who had also been present at the events where Ms Westaway's alleged violations occurred. Indeed, Mr. Fatzinger took photos of Ms Westaway in front of Ashe that she was asked to identify during her proceeding, as can be seen in a window reflection of Mr. Fatzinger seen in one of these photos. Can anyone say "conflict of interest"? (BTW: in all the photos, Ms Westaway is seated on the ground reading with tape over her mouth. How disorderly and disruptive is that?) The administration's case was presented by Gregory Singleton, Associate Dean of Students and therefore of higher rank than Mr. Fatzinger. It seems odd to have the judge have less power than the prosecutor/investigator, no? The hearing lasted about 45 mins. with a guilty verdict given immediately at the conclusion. Nothing like thoughtful reflection. Ms Westaway's punishment: 2 semesters of probation, 10 hrs. of community service, and a 500-word reflection. The relatively low number of hours of community service was because Mr. Singleton had only seen her in front of Ashe on one day. So, the prosecutor decides the severity of the punishment based on his own eyewitness experience? Again, can anyone say "conflict of interest"? Ms Westaway learned this week in an email from Mr. Singleton that she was late in completing the community service and the reflection. According to the email I saw, he said he sent a letter to her "about July 7" which informed her that the deadline for completion was 29 July. Mind you, he had been told that she was traveling for most of the summer, yet somehow expected her to receive this letter (which she still has not received) and
complete two-thirds of her punishment in three weeks.

Ms Westaway felt that she had virtually no rights in facing these disciplinary proceedings. She was not given a real opportunity to present her case with witnesses before her peers, nor could she have counsel (legal or academic) present to aid her. Quite simply, she was not accorded an impartial, democratic process. She is gravely concerned, as am I, that these hearings will set precedents for future disciplinary actions and that students will routinely be accorded no rights. She asks that we work to prevent this, for the sake of free speech and student rights.

Cordially,

Jane Connolly

august 21

Dear Colleagues,

On 7 July, a "hearing" was held for the disciplinary charges against Alyssa Cundari, a first-year student. With Ms Cundari's permission, I share with you some details from that hearing.

Dayle Wilson, Assistant Dean of Students, presided the case which Gregory Singleton, Associate Dean of Students, investigated and prosecuted. (I have already commented on this uneven power structure elsewhere.) The two witnesses for the prosecution were Richard Walker, Assistant Vice President for Student Affairs, and Keith Fletcher, Director of Butler Volunteer Services. The judge, investigator/prosecutor and two witnesses are all under the Student Affairs umbrella. Ms Cundari presented as witnesses two professors (Frank Palmeri and me) and a graduate student (Shelly Stromoski). I leave it to Dr. Palmeri and Ms Stromoski to tell you of their experiences, if the choose. I will share mine as they supplement Ms. Westaway's experience.

As with other students, Ms Cundari was not allowed to have her hearing postponed until the fall. She returned to Miami the day before the hearing to present her case, finding what witnesses she could in July. I was very impressed with Ms Cundari's composure, maturity and determination against the odds. In response to her questions, I attested to the following:

1. The students all behaved in an orderly fashion. It's hard to call a group of students disorderly when they stand with tape over their mouths and hum "We Shall Overcome," pray, or sit reading books on poverty. I noted that I grew up in Oakland in the 60s, during the rise of the Black Panthers and the Free Speech/Anti War movements, attended Berkeley as an undergraduate and taught at Wisconsin-Madison. I've seen disorderly conduct, and our students were always peaceful, orderly and respectful.

2. The students did not block access to Ashe. Following the initial demonstration, which Charles Steele and many clergy attended, they always made sure that doors were accessible. The administration took the decision to lock those doors, and thus obstructed access. I also witnessed the students helping people (students trying to get advising before registration, potential students and parents, etc.) find their way into Ashe since the administration simply locked the doors and provided no assistance to those wishing to enter to do business there.

3. As an administrator in Ashe at the time of Ms Cundari's alleged misconduct, I attested to the fact that the only complaints I received regarding access and disorderly conduct related to the administration. Faculty were especially disturbed by the way they were treated by security personnel, students found it difficult to get in to see advisors, and everyone (including the cops I spoke to) found the decision to turn on the sprinklers absurd. Indeed, the students were going to move from the entry of Ashe to the lawn until the sprinklers came on and eliminated that possibility.

4. Ms Cundari presented photographs of herself, asking me to identify what she was doing: she was sitting in front of Ashe reading. I further testified that I had seen her on other occasions studying for a Chemistry exam. I don't think that reading and studying are considered disorderly activities on most campuses.

5. I was present when Dean Sandler delivered many of his warnings. He simply told the students that they had to leave, but never said that a warning was final, never gave a deadline, never stated possible consequences. In other words, he never said: "If you do not leave by X hour, the following disciplinary charges will be brought." From my point of view, this was a mistake. I know from my discussions with students during the events in question that they were prepared to leave if they were given a final warning, something that Ms Westaway reconfirmed in my discussion with her last week. They simply weren't given that warning.

Mr. Singleton asked me only two questions. The first was about my familiarity with the students' rights and responsibilities handbook. Yes, and I'm appalled by the way it's being construed. (OK, I only said yes, not wanting to prejudice Ms Cundari's case.) The second was how familiar I was with the office of the Dean of Students and whether I had found that office to be fair in the past. I noted that I have been involved with issues ranging from academic dishonesty to inappropriate conduct, and had dealt almost exclusively with Dean Sandler, whom I always found to be fair. I had little experience with the other members of the office and therefore could not judge their fairness. He asked me no questions about Ms Cundari's conduct.

The independent testimony of two professors and a student did little to persuade Ms Wilson or Mr. Singleton. As in the case of Ms Westaway, Ms Cundari was found guilty at the conclusion of the hearing, with the same punishments as Ms Westaway. I have little doubt that the findings in both cases were predetermined. Do we really want students to be subjected to pro forma justice? If we tolerate this, who will be next?

Cordially,

Jane Connolly

According to the column, the other students subject to (secret) disciplinary proceedings over the summer have thrown in the towel, in part, I suspect, because most of their punishments were not as severe as the outrageous sanctions the University originally threatened.

I have not seen the complaint, but cases like this generally face two roadblocks: first, universities often write themselves a lot of discretion into their rules in part because they hate to tie their own hands, in part to avoid suits like this. The second problem is that it's a contract case, not a tort case, so the possible damages are limited to the value of the contract. Mr. Lemmerman is claiming $15K, which I presume is based on some computation involving tuition, but I'd expect UM's lawyers to press hard on the damages part of the claim.

Background on student discipline issue: Lessons and Faculty Sign Open Letter to Administration.

Dear Vice President Whitely and Dean Sandler,

It is with a mixture of indignation, sadness, embarrassment and weariness that we find ourselves forced to write another letter to advocate for justice at the University of Miami.

In the course of the last few months, our students have shown an array of human and civic virtues that one does not see often these days. Through peaceful and respectful demonstrations and with minimal disruption to campus life, they supported the fight for justice and dignity of people they barely knew. Anyone who has spent any time with these young people knows that they are gentle and respectful, that they care deeply about their academic careers, and that they have a keen sense of justice. These are qualities we all unequivocally encourage in our students. As former President Tad Foote told one professor, there was something noble in what these students did and he was proud of them. We agree.

The university administration has responded to the students’ actions on behalf of the janitors and groundskeepers first with harshness, and now with underhanded and petty strategies aimed at thwarting their right to an unbiased and fair hearing. We find this behavior deeply reprehensible and unacceptable at a university. A university is first and foremost about its students. These are our students. These are the people to whom we dedicate the largest part of our professional lives. These young people are the raison d’etre of what we do as faculty, staff, and administrators of this university.

The administration has used some deplorable tactics with the students. They served summonses to them in class, a violation of federal law (the Buckley amendment guarantees a student’s privacy) and of faculty rights as well as a disruption of the academic mission. They called students to “preliminary hearings” about potential serious charges, leaving the possibility of these charges hanging over them through commencement. They also were told that they had an “administrative stop” placed on their registration (in the middle of registration period) and they would have to see Associate Dean Singleton to register for classes. He is not an academic dean. He is their prosecutor and ought not to have anything to do with their registration. Along with the students and their lawyers, we see all of this as intimidation, something that should never take place at a university.

We deeply regret that these students have been targeted for disciplinary action for acting on the principles we teach regarding democracy and social justice. As currently implemented, the process by which they are being judged is profoundly flawed and characterized by arbitrary and unfair decisions. Specifically:

1) Students who pleaded not guilty were denied postponement of their hearings to the Fall, at which time they would appear before a University Disciplinary Hearing Panel including their peers. Instead, Associate Dean Singleton, who is a witness in some of the cases, now serves simultaneously as investigator, prosecutor, judge and jury. There are clearly multiple conflicts of interest here, and the students cannot possibly have an impartial hearing. Moreover, by holding the hearings in the summer, the students are deprived of valued advisors and witnesses to support their cases who are out of town. The first summonses were delivered on 21 April, which allowed sufficient time for hearings to take place with a full panel to adjudicate the cases and with supporting witnesses and advisors still on campus. This was not done, however, because the Dean of Students granted his own office a continuance to do additional investigation. How is it possible that the Dean of Students grant one side a continuance to be able to present its best case but not the other? The cards are clearly and purposefully stacked against the students and they cannot possibly have a fair hearing in these circumstances.

2) Some students have now seen added to their previous charges the further charge of unauthorized distribution of printed material. The violation cited from Students’ Rights and Responsibilities Handbook is B.16, which references the Poster Distribution and Advertising policy on p. 47. The policy refers specifically to advertising, and requires the approval of the Vice President for Business Services. The materials distributed by the students were not advertisements but statements relating to social justice. They were acts of free speech and therefore not covered by any advertising policy.

3) The students who pleaded guilty or no contest to the charges brought against them were given absurd and even insulting penalties, including community service. They are being punished precisely because they did hundreds of hours of community service to improve the University and South Florida’s communities by assuring that workers at UM have freedom of choice, the right to work with dignity and respect, and to earn a living wage. Moreover, these students regularly do other community service, working at clinics and homeless shelters, for various environmental and civic groups, etc. And now you are going to punish them by making them do such work? How inappropriate! Adding to this absurdity, students who have graduated or will graduate this summer or fall have been given two semesters of probation. When asked how this affects them, Associate Dean Singleton told these students that this punishment means nothing for them. Then why give it, except to be vindictive? Finally, two students have been singled out for a particularly spiteful punishment: the loss of campus housing in the fall at University Village.

We ask that all students who have been charged with offenses in relation to their peaceful and respectful protests during the janitors’ and groundskeepers’ strike be granted amnesty. We need to be a model of openness and dialogue, a beacon for the free exchange of ideas and true learning. To punish these students is to undercut these fundamental goals.

Respectfully,

But you don't have to be a Republican to abuse your power. And you certainly don't have to be in government. It may even be easier in the private sector. Consider the behavior of the University of Miami, led by Donna Shalala, no Republican she (although she is paid over half a million a year and lives like one): according to the Miami Herald, her university is manipulating the process in its academic disciplines case against students charged with misbehavior during a quite well-behaved protest in favor of the unionization effort.

And the terms on which the University is settling the cases seem harsh: several students -- the exact number isn't clear -- are being kicked out of university housing, which means they'll probably be paying more to live somewhere less convenient. Here's how Herald columnist Ana Menendez characterized the state of play:

Faced with a rigged system -- lawyers say administrators were to function as witness, prosecutor, judge and jury -- students began settling their cases with the university at about the same time the union announced a majority of janitors had voted to join.

The settlements continue. Punishments have included academic probation, a 500-word essay and, most ironically of all, community service.

''Here we are being sentenced to community service when we're being tried for a service we did to the community,'' said Amy Sun, 21, a psychology major who pleaded no contest.

...

Far more troubling than anything the students did is the way UM administrators have chosen to deal with it, going after students with a zeal that seems to have more to do with retribution than justice.

First, administrators threatened students with major charges that could get them expelled or suspended. When a who's-who of Miami's legal talent stepped forward to defend the students, UM quickly retreated, downgrading the complaint to "university offenses.''

''Under their own rules, a student who is charged with a university offense is not entitled to right of counsel,'' said attorney Lida Rodriguez, who is advising Jacob Coker-Dukowitz, one of the student leaders. "They did it not out of kindness but out of trying to deprive them of the assistance of an advisor.''

...

Late Tuesday, Coker-Dukowitz, who had been one of the hold-outs, joined the others in settling his case. He, too, loses his housing at the coveted University Village, punishment that also imposes a financial burden.

[UM attorney Eric ] Isicoff maintains that the case against the students is not about free speech. UM, he said, is simply "representing the right of a whole other group of people who do not wish to engage in this manner.''

The kindest take on the administration's position that I can construct is this: it wanted to send students a message that if they make life hard for the administration, and disrupt its operations, they will pay. And to the extent that the administration is worried about the long-run consequences one can see why it might be afraid to look as if it were setting a precedent that administrative offices can be occupied with no penalty. In fact, I think I'd be worried about that issue in their shoes too.

So if we're going to see it that way -- and remember that is the kindest construction I can put on what the administration is up to -- then we have to also admit that the actual proceedings, none of which involve the actual occupation, are a complete abuse of process. (Not to mention that it's unclear to me to what extent the two groups of students overlap.) The ostensible charges, failing to disperse from a peaceful gathering and leafleting with non-commercial political tracts, are NOT the sort of things that universities should punish. They are the signs of engaged citizens in a community. We should value and celebrate them.

For if we don't encourage the creation of engaged citizens, then the engine that would keep the Great Experiment from collapsing will lose an essential mainspring.

Fortunately, my sense is that the students involved have not been cowed. Instead, they've been radicalized. And we may well reap the harvest when they come back in the fall.

I said at the start of the strike that it presented a teaching moment. At the time, many law students who wanted more than anything just to get on with their lives hated this characterization (and some of their reactions taught me something). But I still think it was a good description. It just turns out that the lessons were a little different than I expected.

A majority of janitors and other contract workers at the University of Miami decided to join the Service Employees International Union, the organization announced Thursday, capping a battle with their private employer that included a walkout and hunger strike by some employees.

More than 60 percent of the 425 workers with Unicco Service Co. favored joining the union, organizers said. The results were certified by the American Arbitration Association.

"We are invisible no more. It is an incredible feeling to finally have a voice and the strength to improve our lives," said Maritza Paz, a janitor.

Unicco spokesman Doug Bailey said the two sides will now begin collective bargaining.

Recall that the settlement of the strike requires the unionizers to get a 60% super-majority in order to be recognized. But it gave them until Aug. 1 to achieve this total.

I have no inside information as to what this early announcement means, but logically it must mean either that they got the 60% or that so many people have voted that 60% is no longer possible. I'll bet on the former.

Incidentally, the strike-related student discipline cases grind on. Because the formal charges were not filed until the summer term, the cases will be heard in camera by a single dean, acting as judge and jury; had charges been filed before the end of the school year, the students would have been entitled to much more process, to students as members of the tribunal, and to representation before the tribunal. So that's not so great, unless the administration were to use this as an occasion for clemency -- something for which I hope, but I'm not holding my breath.

This is a very positive development!

The piece's thesis is clearly stated right at the top:

Universities have traditionally been places where debate and the free exchange of ideas have been welcomed. But after 9/11, that may be changing -- as some recent, troubling incidents suggest.

In this column, I'll survey some recent incidents suggesting free speech on campus is in peril, ...

Exhibit A for this thesis is the UM administration's reaction to the strike. And Ms. van Bergen, described elsewhere as a south Florida resident, appears to be serious.

I don't get it.

Please don't misunderstand: I am not here to defend the UM administration's appalling conduct during and after the strike. If students were hauled in on charges and asked to identify each other from photos while being treated in an intimidating manner, that's a violation of our rules (and would be without the intimidating manner, too).

Threatening students with serious consequences for their failure to disperse when ordered is petty and mean, not to mention disproportionate and stupid. Leaving the charges hanging after the strike, instead of resolving them with an amnesty or a wrist slap is unwise (from the administration's viewpoint): so far it has only martyrized them, and will probably radicalize them.

But all this reflexive administrative behavior has nothing to do with 9/11. It has rather more to do with the flawed temperament of our leadership (either the Board of Trustees or President Shalala, or conceivably both) and the poor judgment and limited capacities of certain mid-ranking administrators. In short, your standard story of people in power unable to transcend petty impulses for revenge, and people in a bureaucracy displaying some really lousy judgment during a pressure situation -- then digging in their heels when tempers should have cooled.

But this is the way of the world. People are imperfect. Academic authorities don't like being forced to do stuff by uppity kids, and they never have. And the fact that the kids are right, and that they enlist noble outsiders to say they are right and to force it down the authorities' throats, well, that doesn't help.

But all this has nothing to do with 9/11. UM was like this ten years ago -- indeed, arguably, it may have been substantially worse.

If anything -- and I admit this is reaching a little -- the UM experience with the recent strike proves the reverse of the van Bergen thesis. At one point the administration here tried to float the idea that students protesting were anarchists, or colluding with anarchists, or at least inviting in anarchists, who we were no doubt supposed to believe would in short order turn this pristine tropical campus into some Beirut on the Biscayne.

To the extent anyone paid attention to this silly idea, we just laughed, and it hasn't been heard from since.

Free speech is not in peril on this campus, and we won't let it be. At worst, its ankle is being bitten. Whether that bite turns out to be by a mosquito or a Doberman will turn on what sort of treatment the administration administers to the students it has up on charges. And that remains to be seen.