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A decision to fire the USF professor this month might lead to costly arbitration and a federal lawsuit.
By ANITA KUMAR, Times Staff Writer
© St. Petersburg Times, published August 12, 2002
TAMPA -- Any day now, University of South Florida president Judy Genshaft is expected to fire controversial professor Sami Al-Arian. But that won't end what already has been a nearly year-long campus drama.
Instead, it will likely trigger a long legal fight that could cost taxpayers tens of thousands of dollars.
It also will stir more controversy for USF, already the target of anger from both sides of a debate that has focused attention on the fine line between academic freedom and the consequences of free speech.
If Genshaft makes good on the threat she made eight months ago to fire the tenured computer science professor, it won't be for accusations that he has ties to terrorists, which federal authorities are investigating.
Bay News 9 reported over the weekend that the FBI had called the station seeking evidence that agents said was part of a federal grand jury investigation into Al-Arian. A spokesman for the U.S. Attorney's Office would not comment on the report. Al-Arian, who denies any connections to terrorists, said he had no knowledge of a grand jury investigation.
When Genshaft makes her decision on Al-Arian, she is expected to stick to the contractual issues her lawyers have laid out. The most important issue deals with the disruption that USF says continues today.
Al-Arian instigated the disruption by appearing on a national TV show after the Sept. 11 attacks and then continued to make similar public statements, said USF spokesman Michael Reich.
The disruptions cited by USF include threats that led an academic department to shut down for half a day; changes in security; a flood of e-mail and letters; administrators spending countless hours on the case for months; an increase in the workload of other professors, postponement of recruitment in engineering; a possible impact in obtaining grants; and an overall climate of fear.
Three students left USF last year because of the conflict, and one employee switched jobs, Reich said.
USF's legal fees for the case total $29,000 so far.
Al-Arian and his supporters, including professors from across the nation, say he is a victim of troublemakers.
"Dr. Al-Arian's exercise of his constitutionally protected rights cannot be curtailed because a mindless few have chosen to retaliate against him and against the university because he has spoken out about matters with which they disagree," his attorney, Robert McKee, wrote to USF.
While Al-Arian's case has drawn national attention, including from the New York Times and Washington Post, dozens of tenured professors are fired in the nation every year.
Tenure is supposed to guarantee faculty the freedom to teach and conduct research about even unpopular subjects without fear of reprisal. About 50 tenured professors are fired nationwide each year, most for misconduct such as sexual harassment, plagiarism or embezzlement. Many others resign or negotiate a settlement before they are fired.
Sal DeMarco was fired from East Carolina University in 1997 for outrageous and disruptive behavior, including shouting obscenities in meetings. John Lammers was fired from the University of Central Arkansas in 1998 for disruptive and unprofessional behavior.
Many such firings occur at small universities, not major research schools like USF. No one has been fired at USF in at least six years, though there have been some negotiated settlements. USF has 1,454 teaching faculty members; 802 of them are tenured.
Al-Arian's case most resembles that of Angela Davis, a University of California professor who was fired three decades ago for being a communist. She sued and returned to the classroom after a court ruling that she could not be discharged for being a communist. She was fired a second time, sued and is back in the classroom.
A few years later in 1972, Stanford University fired professor H. Bruce Franklin for his role in a rally the year before that protested the U.S. invasion of Laos. The California Supreme Court later denied Franklin's claim his free speech rights had been violated.
Teachers are free to express unpopular views, the court said, unless it can be shown their statements seriously disrupted class work or created "substantial disorder or invasion of the rights of others."
Some experts say the Franklin case differs from Al-Arian's because Franklin incited students and others to riot.
The employment contract used by Florida's 11 public universities include standard clauses about academic freedom, disruption and conflict of interest, though it is vague and open to interpretation. But the American Association of University Professors, a respected group that has threatened to censure USF if it fires Al-Arian, said Florida's contracts are weaker than other states' in terms of academic freedom, said Jordan Kurland, the group's associate general secretary.
For example, other states protect professors' rights to speak freely about subjects outside their field, as Al-Arian did when speaking about the Middle East. Florida's contract doesn't address that.
Craig Wood, a University of Florida education professor who studies contracts, said USF has to prove Al-Arian was at fault and that the school actually suffered specific, serious disruptions. "They would have to prove it's real and not just musings," he said.
Wood said USF's case would be much stronger if Al-Arian had made controversial comments on campus.
Al-Arian made national headlines after his alleged ties to terrorists were aired on Fox News Channel's The O'Reilly Factor a few weeks after the Sept. 11 attacks. Genshaft put him on paid leave and later announced that she intended to fire him after the USF board of trustees recommended it.
In June, board Chairman Dick Beard replied to an e-mail about Al-Arian: "I hope soon he will be gone from the university."
Last month, Beard told the St. Petersburg Times that security was just one reason Al-Arian was put on leave. "The real reason is he's a terrorist," he said.
Trustees are appointed by Gov. Jeb Bush, who has said he supports Genshaft's decision to fire him.
Genshaft refused to comment on the case last week, saying through her spokesman that the decision was too close. USF General Counsel R.B. Friedlander and Tom Gonzalez, hired to help with the case, also refused to comment.
An announcement is expected before classes start Aug. 26. Genshaft has continued to receive solicited and unsolicited advice about the issue and has given no indication she has changed her mind. McKee, Al-Arian's attorney, said last week he expects his client to be fired.
Genshaft has a few options. She can fire Al-Arian, reinstate him or keep him on leave with or without pay.
Al-Arian already has made about $50,000 on leave.
If she reinstates him, she could postpone his return to campus to give people time to calm down or allow him to use off-campus computers and closed-circuit TV to teach classes.
If she fires him, Al-Arian says he will file a grievance against USF, a move that would trigger months of meetings and reviews at the university before a hearing that would be presided over by an arbitrator agreed upon by both sides.
The process could take nine to 12 months just to get to arbitration, and another one to two months for a decision.
The decision is binding, but McKee said Al-Arian might file a federal lawsuit against USF to argue his First Amendment rights were violated, regardless of the outcome of arbitration.
Though professors from around the world have written to Genshaft, opposing any decision to fire Al-Arian and supporting academic freedom, some also have supported her.
"It is clear to me that as professors we have certain responsibilities, which place entirely reasonable constraints on our academic freedom," USF professor Gene Ness wrote in an e-mail.
"Do you want the University of South Florida to protect people who preach hatred and destruction?" asked A.W. Goodman, a retired math professor in Tampa.
-- Times staff writer Ron Matus and researchers Kitty Bennett and Caryn Baird contributed to this report.