Tampabay: Judge to decide next step for Al-Arian

Judge to decide next step for Al-Arian

She will decide when the court should rule on the constitutionality of firing him.

By GRAHAM BRINK, Times Staff Writer

TAMPA -- One thing seems clear in professor Sami Al-Arian's employment dispute with the University of South Florida: A final resolution is a long way off.

However, U.S. District Judge Susan Bucklew said at a hearing Thursday that she would make one preliminary decision by early next week. By Monday or Tuesday, the judge said, she will decide whether to answer a question from USF: Would firing the tenured professor violate his First Amendment rights?

If the judge grants the request to answer that question, the two sides will proceed with legal procedures leading up to a non-jury trial.

If she decides not to take up the case, the school could move to fire Al-Arian, which would likely result in a protracted lawsuit.

Either way, arbitration proceedings and potential appeals will keep the issue of Al-Arian's professional future alive for months, if not years.

"I would not expect the overall issue of Dr. Al-Arian's employment to be resolved quickly," said Al-Arian's attorney, Robert McKee. "The way USF wants things done will stretch things out even longer."

USF president Judy Genshaft suspended Al-Arian with pay last year and has said she would move to fire the computer engineering professor. She has given various reasons, the most recent being his alleged ties to terrorism and the damage those alleged ties have done to the school's reputation.

Al-Arian has denied any terrorist activities.

Federal prosecutors announced earlier this year that Al-Arian was under investigation, although no charges have ever been filed.

Al-Arian and his attorney have argued that termination would violate his free speech rights and said they would sue if that happened. In an unusual move, lawyers for USF filed a lawsuit in August asking for a judge's determination as to whether firing Al-Arian for his alleged ties to international terrorism would violate his constitutional rights.

In court Thursday, USF's attorney, Bruce Rogow, admitted that the request was unusual. However, the question about constitutional rights in this case was the "quintessential" way to use the declaratory relief act, which allows parties to ask judges for advance rulings on specific questions in certain cases.

Rogow argued that USF should be allowed to know in advance what a firing would mean, because it could affect the university's reputation and finances. Among other worries, school officials think the American Association of University Professors may censure USF if it makes the wrong move.

Rogow said Al-Arian, too, could benefit from USF's request for a ruling on the constitutional rights question. If the judge ruled that firing Al-Arian would violate his rights, the university would be bound to follow that decision, he said.

"In that situation, the university would not be able to fire him on those grounds," Rogow said. "This is a situation in which a public employer is trying to be sensitive to an employee's constitutional rights."

After the hearing, Al-Arian smiled at the prospect that USF's team of high-powered lawyers were trying to help him.

"I cannot believe they would pay $1,000 an hour out of the public pocket for my benefit," he said.

Al-Arian's attorney argued that the judge should dismiss USF's lawsuit. He said the dispute boiled down to a "garden-variety employment dispute" for which well-established procedures should be followed.

If USF officials are determined to fire Al-Arian, they should do it and take their chances with the arbitration procedures laid out in the faculty's collective bargaining agreement, he said.

Al-Arian also has a right to sue in federal court for wrongful termination, have the case heard before a jury and, if successful, collect damages and attorneys' fees, McKee said.

An adverse advanced ruling, "would prevent Dr. Al-Arian from exercising some of the rights granted to him in the law," McKee said. "That wouldn't be right."