FIRE Letter to USF President Judy Genshaft

By January 29, 2002

January 29, 2002

Dr. Judy Genshaft, President
University of South Florida
Office of the President
4202 E. Fowler Avenue, ADM 241
Tampa, FL 33620

RE: Professor Sami Al-Arian

Dear President Genshaft:

As you can see from the list of our Directors and Board of Advisors, FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, academic freedom, and—in the case of Professor Sami Al-Arian—freedom of speech and academic freedom on America’s college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

I write to express our gravest concern about the threat to free speech and academic freedom posed by your intention to terminate Professor Sami Al-Arian. The primary reason that you offer for the termination of Dr. Al-Arian is the alleged disruption of University functioning due to a public outcry against his views on a matter of public debate and concern. You assert that there were terroristic threats against this tenured member of the faculty and his students. I assume that you called in the FBI and the Florida State Police to investigate the crimes that you allege. It is of course preposterous to believe that you may dismiss Dr. Al-Arian because of the response by a group of criminals—if your descriptions are correct—to his constitutionally protected political opinions and activities. Such a view would devastate free speech and academic freedom on university campuses and obliterate constitutional protections at public campuses, which are bound, of course, by the United States Constitution. It would establish the rule that real or feigned thugs and criminals may secure the dismissal of any controversial faculty member—or, indeed, of any faculty member—by threatening a violent response to his or her protected speech and activities. Does someone want to have a faculty member fired—right, left, or center; hawk or dove; pro-Israeli or pro-Palestinian? Well, that’s easy: phone in a threat of violence, and you will be rewarded. In light of the current national crisis, it is crucially important, now more than ever, that we affirm our cherished Constitution and ideals and not abandon them in the face of controversy, public outcry, or terroristic threats against faculty and students.

On September 26, 2001, Dr. Al-Arian appeared on the television program The O’Reilly Factor, where the host represented him as sympathetic to (and possibly involved with) terrorist activity. Dr. Al-Arian’s repeatedly denied such charges. More to the point, no charges ever had or have been brought against Dr. Al-Arian for such alleged activity, after extensive governmental and university investigations. In the wake of the interview, the University claims that it began to receive hate mail, death threats, and negative media attention. On December 19, Provost S. David Stamps sent a termination letter to Dr. Al-Arian, and you issued a statement that sought to justify the termination of this tenured and, by your account, threatened member of your faculty.

USF’s position relies entirely on its bizarre interpretation of its collective bargaining agreement with its faculty. It should be obvious, of course, that no collective bargaining agreement may circumvent (or override the supremacy of) the U.S. Constitution, which protects from governmental interference the rights of citizens, in this case professors, to comment on matters of public interest.

The letter of termination states: “Since September 26, 2001 and continuing to the present, your off campus conduct has caused disruption to the University.” There are three profound problems raised by this attempt to justify an unconstitutional, illegal, and immoral dismissal of Dr. Al-Arian. First, of course, the “conduct” referred to is Dr. Al-Arian’s speech, or more precisely, the political beliefs and affiliations attributed to him by a television personality, all of which enjoy constitutional protection. Indeed, even the letter of December 11, 2001 written by the outside counsel hired by USF, Thomas Gonzalez, to the Board of Trustees, concedes that the “conduct” that he discusses “involves speech that is entitled to the protection of the First Amendment to the Constitution of the United States of America [emphasis added].” That ought to have settled the matter then and there. Secondly, of course, Dr. Al-Arian himself has “caused” no “disruption” whatsoever. The alleged disruption was caused by some angry individuals outside of the University, who wish to see Al-Arian sanctioned, fired, or harmed for his protected beliefs and affiliations. Third, there is no indication or evidence whatsoever of Dr. Al-Arian “continuing” to present a disruption by his activities. In all the public documents, it is clear that this case began with the appearance on The O’Reilly Factor and would not be happening had it not been for the alleged reaction of private individuals to this appearance.

USF cannot claim to understand the value of free speech and then fire a professor because the unpopularity of his purported ideas and associations are too disruptive to the University. Dr. Al-Arian has spoken on political topics before, as is his right. In this instance, however, resulting in his termination, he merely appeared on television and found himself accused of various suspicious and unpopular activities, associations, and statements in the past (in fact, the most inflammatory statements “made” on the show were quotations from the 1980s that were read by the host). Even if we presume that the resultant outcry was bothersome to USF, the University may not and must not remove a professor because some portion of the public demands it on the basis of his purported political beliefs, his protected associations, and other wholly unproven suspicions. To do so would allow a “heckler’s veto” and would open the floodgates to the arbitrary firing of all professors when some individuals, especially those individuals willing to portray themselves as criminals, decide that they do not like the way that a professor talks, thinks, or appears. Indeed, it would create a new category, the “USF thug’s veto,” which actively encourages the threat of violence to accomplish the dismissal of professors disliked by any portion of the public. This is not only unconstitutional, but, indeed, endangers the core of freedom at any institution of higher learning and the very rule of civilized law itself. Assuming that you are sincere in your claims that it is not the content of Dr. Al-Arian’s speech that led to his dismissal, but simply the threat of disruption caused by a criminal response to his opinions, then you would have to dismiss every single member of the faculty against whom such threats were made. How many threats might that take? Are you yourself dismissible upon such grounds?

The letter of termination accuses Dr. Al-Arian of “failing to contribute to the orderly and effective functioning of your department, of your college and of the University.” In your own statement of December 19, you also point to the threat to safety-and the general harm and disruption-Dr. Al-Arian has “caused.” Dr. Al-Arian, in fact, has “caused” none of this. His alleged detractors have done so. The threats to safety, while possibly real, likely came from either provocateurs or from angry and potentially violent criminals who believe in threats and intimidation to get their way. Why would you empower such criminals and terrorists? Why would you reward them for their illegal acts? In punishing Dr. Al-Arian, you place those who made criminal threats on the same level as your Board of Trustees and above your faculty. If need be, you should demand assistance from the authorities to prevent hecklers and threat-makers from running your University. Authorities, from the police to the National Guard, have been called in the past, and often in the South, to guarantee constitutional rights. You are well within the law to demand the utmost help from both the state and federal government. By contrast, you are well outside both law and morality to offer a professor up to the will of criminals.

USF’s letters and memoranda on the dismissal of Dr. Al-Arian cite losses in donations, the need to answer telephone calls, and the general disruption of calm life occasioned by public response to his protected views. Last year, FIRE defended the right of a professor at the University of Oklahoma after his outspoken defense of the Second Amendment led to a public outcry. The University reprimanded him for the onerous disruption of its normal activities occasioned by its obligation to defend his constitutional rights. As FIRE wrote to the University of Oklahoma, “In fact, of course, the protection of freedom at a public university is an honor and an essential obligation; it is not an annoyance and a distraction.” We say the same to you. You may not put an individual’s free speech rights, civil rights, and constitutional protections to a vote, whether that vote occurs through the ballot box, public opinion, or donations. To do so would mean the death of the First Amendment. The defense of fundamental freedoms has always required fortitude and sacrifice. Our bravest men and women understand that. It is your duty to defend, vigorously, free speech, the First Amendment, and the U.S. Constitution.

The letter of termination further accuses Dr. Al-Arian of breaching his duty to academic responsibility by “failing to appropriately indicate that [he was] not a representative of the University in [his] various public pronouncements on issues of terrorism and world conflict.” This argument comes from the language in the collective bargaining agreement that “requires faculty to: ‘Indicate when appropriate that one is not an institutional representative unless one is specifically authorized as such.'” The only time it would be “appropriate” to make this distinction would be when one could reasonably construe Dr. Al-Arian to be an “institutional representative.” No reasonable person would presume that a professor of computer science, identified by a third party, The O’Reilly Factor, as a professor at USF, spoke for the University of South Florida in political statements about the Middle East made fourteen years ago (the “speech” in question on the O’Reilly appearance). Dr. Al-Arian’s appearance on The O’Reilly Factor consisted almost entirely of allegations and innuendo against the person and past of Dr. Al-Arian. Anyone watching had unlimited evidence that this show was not about USF, but, rather, about an individual’s personal life, acquaintances, and statements. There was no need for him to explain that he was not a University representative. This provision is being used in a discriminatory and selective manner. There is no indication that USF professors are required to state that they are not “institutional representatives” every time they comment on matters of public interest. Indeed, the USF website itself carries many news accounts of statements made by members of the faculty, none of which bears such a disclaimer. It also includes praise of your leadership by a professor of English that does not bear such a disclaimer. Are these faculty members in the midst of being fired?

The letter of termination alleges that Dr. Al-Arian was “told by University administrators as of September 27, 2001 not to come back to campus due to the significant safety concerns regarding [his] presence, yet [he] returned to campus after that date.” Dr. Al-Arian denies that this ever was discussed when, initially, he voluntarily agreed to stay off campus in the face of outside threats to him. There is no written evidence of an imposition so awesome that its alleged violation merits Dr. Al-Arian’s dismissal. In any event, his appearance on campus to defend himself would be a tiny infraction and scarcely would provide the “just cause” required to fire a tenured USF professor. We are far more concerned about your failure to honor your explicit commitment to the Constitution of the United States.

The most bizarre claim in the letter of termination is the accusation that Dr. Al-Arian was “engaging in activities that place [his] private interest in conflict with the public interests of the University.” This interpretation runs contrary to the collective bargaining agreement’s own language that “nothing in this article is intended to discourage an employee from engaging in outside activity.” Dr. Al-Arian merely appeared on a television program to discuss politics. If this fits within the definition of “conflict of interest,” then the collective bargaining language just cited is devoid of meaning, in violation of the U.S. Constitution, and, if applied to all members of the faculty who engage in public political activity, would leave you with a tiny teaching corps of civically detached souls. Furthermore, the “public function” of a university, any university, is, ultimately, the search for truth. This search is accomplished through rigorous debate, research, discussion, arguments, and counter-arguments. Dr. Al-Arian is the center of public debate concerning matters at the forefront of public and scholarly interest. These topics are not just of scholarly, moral, and intellectual interest to Dr. Al-Arian, but indeed to every faculty member at USF who studies politics, religion, criminal justice, moral philosophy, international relations, law, or virtually any other topic. The letter of termination itself defines the question at hand in terms of its most profound implications: “What are the limits of freedom of speech and academic freedom, and should a professor be sacrificed in the name of an orderly campus?” The idea that a professor could be fired for being too effective at educing debate and discussion of the most pressing issues facing society is what is “in conflict with the public interests of the University.” USF, if sincere about its mission, should welcome intensive debate on timely and controversial matters. Instead, USF has deviated from both law and morality in order to silence debate.

If USF were truly interested in safety, it should be cooperating day and night with authorities to secure the arrest of those who allegedly made death threats against Dr. Al-Arian. If you had reason to fear for safety and if you recognized your obligation to defy the thugs and sustain the Constitution, you could have arranged for Dr. Al-Arian to teach off-site, or by closed circuit television. At the absolute worst, and with real evidence, satisfying to a court, of clear and present danger, USF could have gone so far as to keep Dr. Al-Arian on paid leave, until the controversy subsided. With so many options available short of lawless termination, the appearance is precisely that Dr. Al-Arian was fired for the content of his views.

The letter of termination concludes by saying that USF “must exercise the right of the institution to terminate [Al-Arian's] employment with the University immediately as [his] actions have adversely affected its functioning.” The breadth of any standard that allows termination when a university claims that a professor has “adversely affected its functioning” is truly chilling and would spell the end of free universities and, indeed, of the Constitution itself.

This case, I note with alarm, involves the dismissal of a tenured faculty member. Tenure was devised in order to aid academic freedom-to give faculty members assurance that they will not be dismissed because of their expression of unpopular views, or of other outside political factors, including the imputation of political beliefs or associations by outside parties. It is especially important in situations where the reason given for the dismissal-here, campus security-might be a cover for the real reason, which may simply be the expression of unpopular views. Of course, either reason would be unacceptable from the point of view of academic freedom. Ultimately, it does not matter whether the University is vetoing Dr. Al-Arian’s views, or whether outside violent thugs are doing so. The result is equally devastating for free speech, the First Amendment, and academic freedom.

The case law on which USF’s outside counsel, Thomas Gonzalez, relies in his December 19 “Legal Opinion,” in support of the termination of Dr. Al-Arian, does not support the position that a University professor may be fired because of the negative reaction of outside parties to his purported views on matters of public concern. Both US Supreme Court cases to which Gonzalez refers—Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968) and Waters v. Churchill, 511 U.S. 661 (1994)—involve criticism by a public employee of his immediate employer, which is not the case here. In both of these cases, the only “disruption” discussed is the disruption directly created by an employee who criticizes his employers, not the disruption caused by angry outside parties. Neither of these cases, of course, involved universities, where free speech and robust debate are vital to the goals of the institution. Note, however, that the holding of Pickering itself is that “absent proof of false statements knowingly or recklessly made by [Pickering], a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment [emphasis added].” All of the topics relating to Dr. Al-Arian’s dismissal are exclusively of the highest public concern, are expressed in his capacity as a private citizen, and take place entirely outside the University-as-employer context. Thus, Pickering is a case that compellingly supports Dr. Al-Arian in the exercise of his constitutionally protected rights of free speech.

In the eloquent and infinitely patriotic U.S. Supreme Court decision in West Virginia Board of Education v. Barnette (1943), a case decided in the darkest days of World War II, Justice Robert H. Jackson wrote for the Court, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not occur to us.” The officials of a state university are precisely officials, high or petty, covered by that eloquent decision. FIRE asks that Professor Sami Al-Arian be made whole and secure in his constitutional protections.

Do not overturn the Bill of Rights and the canons of academic freedom by which you are legally and morally bound. Reverse this decision. As we all have learned immeasurably in these recent times, a free society is a precious thing, not at any cost to be abandoned. To abandon it so callously is unforgivable.

Sincerely,
Alan Charles Kors
President

CC:
S. David Stamps, USF Provost
Thomas Gonzalez, USF Legal Counsel
R. B. Friedlander, USF Interim General Counsel
Jonathan Katz, Attorney for Dr. Sami Al-Arian
Lee E. Arnold, Jr., USF Board of Trustees
Richard A. “Dick” Beard, III, USF Board of Trustees
Steven G. Burton, USF Board of Trustees
Margarita R. Cancio, M.D., USF Board of Trustees
Ann Wilkins Duncan, USF Board of Trustees
Michael Eugene Griffin, USF Board of Trustees
Rhea F. Law, USF Board of Trustees
Senator Connie Mack, USF Board of Trustees
John B. Ramil, USF Board of Trustees
Robert L. Soran, USF Board of Trustees
Gus A. Stavros, USF Board of Trustees
Chris T. Sullivan, USF Board of Trustees
H. Patrick Swygert, USF Board of Trustees

Schools: University of South Florida Cases: University of South Florida: The ‘Heckler’s Veto’