Tampabay: Judge: Don't ask advice on Al-Arian

U.S. District Judge Susan Bucklew refused Monday to rule on whether the university's plan to fire Al-Arian would violate his constitutional right to free speech.

The decision puts the ball firmly back in the court of USF, which has several options on what do with Al-Arian, a computer science professor who has been on paid leave for more than a year.

The university could appeal Bucklew's ruling, further delaying the case.

It could fire Al-Arian, likely triggering the arbitration laid out in the university's collective bargaining agreement with its faculty. Al-Arian has said he will file a First Amendment lawsuit if fired.

The university also could delay a decision, pending the outcome of a federal investigation into Al-Arian.

Al-Arian said he was happy with Monday's events, though acknowledging the case is far from over.

"The judge agreed that I should not be deprived of my rights and choices, which is what USF was trying to do to me," Al-Arian said. "I'm proud of the legal system today."

Genshaft would not comment Monday. Her spokesman, Michael Reich, said he did not know how long it would take her to decide the university's next move. It could be weeks or months, he said.

"We do not believe that terminating him would violate his rights, but this was an effort to make absolutely sure," Reich said.

Attorney Bruce Rogow, who argued the case for USF, said he wasn't surprised by the judge's ruling. He acknowledged that the request for her comments was unique.

"I still think it would have been helpful for both sides to know the answer to that question," he said.

Genshaft suspended Al-Arian with pay last year when controversy erupted after he appeared on the Fox News show The O'Reilly Factor.

The show rehashed his alleged ties to terrorism and controversial statements he made in the late 1980s and early 1990s.

Genshaft then moved 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 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.

The lawyers said they needed an answer because Al-Arian had threatened a lawsuit and the American Association of University Professors had threatened to censure the school for violating free speech and academic freedom.

The law states that a judge should consider such a request only if it is the sole remedy available and an answer would end the controversy. Bucklew wrote that USF's request fulfilled neither requirement.

For instance, the parties could enter into the arbitration process laid out in the collective bargaining agreement, she wrote. The arbitrator could determine that the terrorism allegations were unfounded, or that they did not constitute cause to terminate him under the contract, she said.

Either one of those scenarios would preclude USF from firing Al-Arian, pre-empting a claim for First Amendment violations, the judge wrote.

As for the university's concerns about the AAUP, Bucklew wrote that she could do nothing to preclude the organization from censuring USF.

The results of going forward with the case would have been more advisory and less judicial in nature, she said.

"The court system was not designed to dispense such advice but was intended to decide cases and controversies under the jurisdiction granted by the Constitution," she wrote. "This is not such a case or controversy."

Roy Weatherford, president of USF's faculty union, said it was a favorable ruling but not nearly as good as if the judge had ruled that Al-Arian could not be fired.

"We're right back to where we were before we spent $100,000," he said. USF has doled out $81,676 for lawyers fees so far in the Al-Arian case.

Dick Beard, chairman of the USF board of trustees, has publicly stated many times that he wants Genshaft to fire Al-Arian. He called the decision "no big deal."

"We're disappointed that she didn't hear the case," he said. "It would have made things simpler for the university."

Al-Arian, who still draws his $66,175 annual salary, said he is prepared to be fired and will continue to fight on unless he is reinstated.

He said he thinks the legal and moral arguments are on his side.

"God has taken care of me all these years," he said. "He won't let me down."

-- Graham Brink can be reached at (813) 226-3365 or brink@sptimes.com .

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