Univ. of Washington Faculty Members File Class Action Over Allegedly Unconstitutional Email Searches [DISMISSED]

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Two University of Washington (UW) faculty members claim in a proposed class action that the state’s Executive Ethics Board (EEB) has infringed on their constitutional right to academic freedom by rummaging through their faculty email accounts in search of ethical violations. 

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The 25-page lawsuit—which names as defendants Washington Attorney General Bob Ferguson and the ethics board’s executive director, Kate Reynolds—says the plaintiffs have in the past two years been the targets of three anonymous complaints claiming that they violated the state’s Ethics in Public Service Act. 

Specifically, the filing relays, the complaints centered around emails the employees forwarded to a “Faculty Issues and Concerns” mailing list that purportedly promoted political campaigns or were for private gain—both of which are prohibited uses of public resources under the Washington statute, per the suit. The case notes that the plaintiffs serve as the two primary volunteer moderators of the “Faculty Issues and Concerns” mailing list, tasked with guarding against “trolling” and minimizing back-and-forth exchanges, and aim to foster an “open and effective public forum” that encourages discussion.

The lawsuit asserts that the plaintiffs have not knowingly approved any post to the list that “they perceived as engaging in partisan electoral politics,” nor any post they perceived as “an attempt to use the list for private gain.”

As part of its investigations into these accusations, the EEB conducted “unfettered” examinations of the plaintiffs’ faculty emails, the complaint says. Although the board is authorized to search for any potential violations of the Ethics in Public Service Act once it receives a complaint, the proposed class action argues that the board had no legitimate basis to conduct such an expansive search when each respective tip took issue with a single email that could be easily obtained from the mailing list’s archives.

Moreover, the EEB’s “boundless” inspection of their email accounts interfered with the plaintiffs’ and other mailing list subscribers’ right to privacy in these communications, the case contends.

“Plaintiffs, like other faculty members, use email to develop and share their thoughts with one another,” the complaint says. “The confidentiality of such discussions is vital to scholarship and fostering an atmosphere for learning.”

The filing further contends that the board’s expansive search of the plaintiffs’ emails interfered with privacy rights established by the Family Educational Rights and Privacy Act, a federal law that protects the confidentiality of students’ education records.

The case goes on to argue that the three emails in question were forwarded to the mailing list to encourage discussion of topics of interest to the community, and that nothing in the emails could be viewed as using state resources for “the purpose of assisting a campaign for election of a person to an office,” “the promotion of or opposition to a ballot proposition” or “the private benefit or gain of the officer, employee, or another,” as specified in the Ethics in Public Service Act. 

What’s more, the filing says that sending a message to each mailing list member “does not involve any actual, measurable expenditure of public funds.”

However, the plaintiffs allege that the EEB has applied the ethics statute “to restrict, without any compelling state interest, the content of statements that may be shared on the ‘Faculty Issues and Concerns’ mailing list.”

One plaintiff, an associate professor of global health at UW’s Institute for Health Metrics and Evaluation, was the subject of an anonymous complaint in December 2022 claiming that he violated state law by forwarding to the mailing list an email from an individual volunteering with Whole Washington, a grassroots campaign working to win universal healthcare in the state, the complaint says. The message suggested that those concerned about the issue might be interested in supporting the campaign, and offered a link to the group’s website for more information and provided details about how supporters can gather endorsements, the suit relays.

In his request to the EEB to dismiss the complaint, the plaintiff stated that “the email message is about getting a proposition on the ballot, without taking any position on whether any proposition that may in the future be placed on the ballot should be rejected or adopted,” and called the complaint a “prank” that was “intended to harass and to misuse state resources to investigate imaginary wrongdoing,” the filing says.

After rejecting the plaintiff’s request, the EEB gained access to all of the emails sent and received by the man over the course of several months, the case states. The board subsequently found “reasonable cause” to believe he had violated state law by forwarding the email, stating that the transgression penalty “may be more than $500,” the lawsuit shares. The filing notes that the plaintiff’s request to dismiss the complaint was ultimately reconsidered, and the EEB terminated the matter in October 2023.

The second plaintiff, a professor emeritus in the UW School of Public Health, was also subject to an anonymous complaint in December 2022 after she emailed the mailing list to pass along a message about the University of California labor strike, the case says. Per the complaint, the forwarded email provides information about the strikers’ demands, urges people to raise awareness about the issue and asks readers to consider donating to a strike fund.

The case contends that although the forwarded email merely contains “an inconsequential solicitation for contributions,” the EEB nevertheless rejected the plaintiff’s request to dismiss the complaint and then gained access to her UW email account.

The EEB identified 27 emails in which the woman purportedly used her state email for her private benefit, in violation of Washington’s Ethics in Public Service Act, and concluded that the appropriate sanction would be more than $500, the filing shares. These emails included an electronic boarding pass, promotional offers sent by various internet vendors and alerts about breaking news stories from the Seattle Times, the New York Times and the New Yorker, the case says.

The lawsuit looks to represent anyone—roughly 2,185 people, per the suit—currently subscribed to UW’s Faculty Issues and Concerns mailing list.

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