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BOARD OF TRUSTEES
MEETING INFORMATION

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Thomas M. Gonzalez Legal Opinion

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December 17, 2001

R. B. Friedlander
Interim General Counsel,
The University of South Florida
Office of the General Counsel
4202 East Fowler Avenue
Tampa, Florida 33620-8250

Re: Request for legal opinion

Dear Ms. Friedlander:

Pursuant to your request that I do so, I write to answer the legal question of whether the University of South Florida may lawfully take disciplinary action against Dr. Sami Al-Arian, a tenured associate professor in the University's College of Engineering, based on the actual or potential disruption of the University's operations caused or threatened by Dr. Al-Arian's off-campus conduct. For the reasons I will discuss below, it is my opinion that the University has strong and compelling grounds for taking disciplinary action against Dr. Al-Arian, up to and including dismissal from his employment.

Dr. Al-Arian is subject to discipline because he has failed to fulfill contractual obligations made incumbent upon him by the collective bargaining agreement between the University and the United Faculty of Florida, specifically that part of the agreement which guarantees academic freedom but also provides that "[a]cademic freedom is accompanied by the corresponding responsibility to," inter alia:

(d) Indicate when appropriate that one is not an institutional representative unless specifically authorized as such; and

(e) Contribute to the orderly and effective functioning of the employee's academic unit (program, department, school, and/or college) and/or the university.


The cited responsibilities are based on the recognized obligations of all members of university faculties. The factual materials I have reviewed establish that Dr. Al-Arian has failed to comply with either of these duties.

I hasten to add, and emphasize, that I offer this opinion with full awareness of the fact that the "conduct" to which I refer above, and which violates the sections of the collective bargaining agreement just quoted, involves speech that is entitled to the protection of the First Amendment to the Constitution of the United States of America. Your charge to me was that I was to review Dr. Al-Arian's employment status in the context of all applicable laws, but that I was to place overriding emphasis on Dr. Al-Arian's unquestionable right to engage in protected free speech on matters of public concern. I have taken the assignment seriously, and based on my analysis of the facts known to this date, I conclude, after considering controlling law and weighing the factors identified in that law, that the University is under no obligation to ignore Dr. Al-Arian's disregard for the University's policies and the lawful directives of its administrators, the University's right to operate without fear or threat of disruption, and the safety of the University's students, its faculty, and staff. The Constitution guarantees Dr. Al-Arian's right to speak. It does not insulate him from the consequences of his speech which impede the ability of USF to carry out its mission and fulfill the objectives assigned to it by the State of Florida in a safe and efficient manner.

My opinion is based on my understanding of the following facts. Dr. Al-Arian was employed by USF in 1986, as an Assistant Professor of Computer Engineering. He obtained tenure in 1992, and has been continuously employed since that time. Dr. Al-Arian for some time has been actively and openly involved in activities supportive of Palestinians and the several legal and political issues relevant to them. These activities are unrelated to Dr. Al-Arian's University duties. In the course of these activities, Dr. Al-Arian has publicly spoken on several occasions, including times after September11, 2001.


On September 26, 2001, Dr. Al-Arian appeared on a nationally televised cable program. As a result of that appearance, or to be more precise the public reaction to what Dr. Al-Arian said during his appearance, USF suffered immediate consequences, which included but by no means were limited to a substantial number of credible threats of harm to Dr. Al-Arian, including twelve death threats which were telephoned to USF. The impact on the employees who took those calls, as well as other communications which, while not threatening violence, were abusive in tone and content, was so great that it required the College of Engineering to close its departmental offices on the day following Dr. Al-Arian's televised appearance.

The disruption to the University's operations was substantial and real, so much so that Dr. Al-Arian agreed with the assessment of the University's Provost and its Police Department that USF could not guarantee the safety of Dr. Al-Arian, or USF faculty, staff or students, should Dr. Al-Arian remain on campus. Based on these shared concerns, on September 27, 2001, the day after his televised appearance, Dr. Al-Arian was placed on a paid leave of absence "pending investigation of the events that have created concerns for the safety of you and other members of the University Community." Dr. Al-Arian remains in this paid status as of today.

This leave is not the first time that USF has attempted to accommodate Dr. Al-Arian and the effects of his conduct on University operations. In 1996 the University placed Dr. Al-Arian on paid leave, following a one year sabbatical, because of concerns caused by his off-duty conduct. As a result of the University's actions, Dr. Al-Arian was provided with paid leave for two full years, in addition to his sabbatical year..

I note that in 1996 USF also became concerned with the possibility that several members of the USF faculty might be involved with terrorist activities or organizations. As a result of that concern, the University's then president, Betty Castor, asked William Reece Smith to conduct an investigation of the events and allegations giving rise to these concerns. Mr. Smith, a renowned and prominent attorney, former president of the American Bar Association, and former interim president of USF, provided a comprehensive report. I note specifically Mr. Smith's conclusion that the University's 1996 action to place Dr. Al-Arian on indefinite leave was "appropriate and [in] the best interest of both the university and Dr. Al-Arian." I note also that Mr. Smith found that there were substantial reasons to be concerned with the organizations and activities with which Dr. Al-Arian and others had associated themselves, but these findings do not form any part of the basis for my opinion.

When Dr. Al-Arian was placed on leave in 2001, he was directed not to come on to the USF campus. He was also reminded of the University's commitment to the principles of free speech and academic freedom, but expressly reminded him of his obligation to insure that he not identify himself, and that he in fact take affirmative steps to insure that he not be perceived, as a representative of USF when he made any public statement of his personal beliefs. Dr. Al-Arian failed to comply with either directive.

In early October of 2001, Dr. Al-Arian appeared on the USF main campus. Moreover, Dr. Al-Arian made a public statement in which he said that the decision to put him on leave had been made without consulting him and, in fact he did not agree with that decision. The University Provost wrote to Dr. Al-Arian recounting the fact that Dr. Al-Arian had in fact agreed with the decision to place him on leave, and emphasizing that Dr. Al-Arian was not to appear on campus in any capacity whatsoever.

Less than two weeks ago, Dr. Al-Arian made another public appearance, which was reported in the print and electronic media with the identification of him as a University of South Florida professor.

The disruption to the University's operations continues, and is manifested in a variety of ways, which include:

1. Continuing concern for the security of the campus. There are currently several investigations being conducted by the USF Police Department into threats and communications related to Dr. Al-Arian. There has been no abatement of the concern for the safety of USF faculty, staff and students. All of the factors which led to Dr. Al-Arian's removal from the campus remain today. The Police Department maintains its opinion that, given its staffing and resources, it could not guarantee the safety of Dr. Al-Arian, or others, should he return to campus.

2. Hundreds of communications, in virtually every form imaginable, have been received by the University, expressing thoughts which run the gamut from discussions of possible harm to Dr. Al-Arian to strongly held feelings that USF is harboring a terrorist. Many of these communications contain statements to the effect that the writer will not support USF or allow members of the writer's family to attend the school. The USF Alumni Association reports that its most recent annual direct mail solicitation for Association membership produced only a .5% response rate, which is a substantial decline from the historical rate of 2%. The renewal rate for the Association has dropped, from 78% last year to 68% this year. Association revenue is down $11,000 at this point, and is projected to be as much as $50,000 by year end. Alumni continue to discuss the effect of Dr. Al-Arian's statements, and they continue to express opinions indicating that his presence on the USF faculty will affect their support of the University.

3. Fund raising has been substantially affected. The University's fund drives have experienced decreased giving. The USF Foundation reports that its staff has spent countless hours responding to the concerns of donors and potential donors related to Dr. Al-Arian's conduct. The Foundation's telefund continues to receive multiple gift declines each night, from alumni who cite the "Al-Arian situation" as the cause for retracting support. Pledges have been revoked, citing the University's relationship with Dr. Al-Arian. High level volunteers and corporate donors report pressure from peers and clients to curtail involvement with the University. Direct mail solicitations have been returned with angry and negative comments indicating an intention of the writer to disassociate himself or herself from the University.

4. The University in general, and the College of Engineering specifically, have experienced difficulty in recruiting plans and efforts.

In short, there have been and there continue to be substantial consequences which have flowed directly from, or are threatened by, Dr. Al-Arian's off-campus activities. Dr. Al-Arian has failed or refused to ameliorate these impacts, by his continuing failure to insure that he be known as a private person speaking out on personally held conviction as opposed to a University representative. As I have noted, however, Dr. Al-Arian is entitled to express his views. No action should or may be taken against him on account of the content of his speech. But at the same time, Dr. Al-Arian's rights under the First Amendment must be balanced against the recognized right of USF, as Dr. Al-Arian's employer, to achieve its purpose of education.

The most relevant law which informs any decision involving the speech of public employers begins with the Supreme Court's opinion in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). In that case, the Court wrote that:

The problem in any case is to arrive at balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. [1]

[1] The Court used the word “citizen.” Dr. Al-Arian is not a citizen, but the principles espoused in Pickering, as well as the First Amendment itself, apply equally to speech uttered by a non-citizen.

To be protected by the First Amendment, a public employees speech must relate to a matter of public concern:

and the employee's interest in expressing himself must not be outweighed by any injury the speech could cause to 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'

Waters v. Churchill, 511 U.S. 661, 667 (1994).

In Pickering, the Court found that an employer did not have cause to discipline a teacher who had expressed opinions which the employer deemed to be detrimental to its operations. The Court based its opinion on the fact that the expressed opinion was not, by itself, sufficiently disruptive to allow a presumption of harm to the employer's operations, and the employer had made no showing of actual harm. This finding illustrates the point that an employer's ability to discipline an employee who has engaged in protected activity is largely a question of fact, namely whether there is evidence of an impact on the employer' operations. The burden is on the employer to establish this impact, but the employer is not required to await actual harm, as has been made clear by later pronouncements of the Supreme Court..

The specific type of impact which justifies employer action, or more correctly stated, the potential impact which justifies such action, was discussed in Waters, cited above. There was no majority opinion in that case, but four of the nine justices were able to agree on certain principles and were joined by three other justices who concurred in the result of the case. This plurality opinion has been widely used by courts addressing the issue which USF faces now. In Waters, the plurality instructed that an employer may act before the employee's speech has actually been disruptive. In other words, the employer may act on its belief that the speech, albeit protected, threatens disruption to the employer's operations. The employer my act on the evidence which it has, even if that evidence consists of hearsay. But the belief must be reasonable. As noted, this principle has been part of the required analysis since Pickering. The Court provided several examples of what kind of evidence would support a conclusion that an employee's speech, while protected, was disruptive enough to support dismissal.


The justices concluded that the fact that an employee's speech had "substantially dampened" the interest of another employee in working in a particular department was disruption. The fact that the speech may have "undermined" managerial authority was disruption, as was the management's perception that the employee's speech may have cast doubt on the speaker's effectiveness. Based on this instruction, I conclude that USF is possessed of sufficient evidence of disruption to its operations to justify action against Dr. Al-Arian for his disregard of the University's legitimate interests and his own obligations as a member of the University's faculty.

In another decision by the Supreme Court, Rankin v. McPherson, 483 U.S. 378 (1987), the Court summarized its prior holding in Pickering with respect to the factors that a public employer may consider in evaluating the impact of the protected speech of its operations. The Court wrote:

We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. 483 U.S., at 388.

The factual material I have reviewed leads me to conclude that Dr. Al-Arian has caused a substantial disruption to the University's operations. The University is entitled to act on that disruption. In short, the Constitution allows public employers to manage their operations. It allows them to take into account the security of their operations, as well as the safety of employees and the constituents the employers serve. They may insist on efficiency, and may consider the impact on its operations of even the most protected of speech.

I will of course be happy to discuss this with in as much detail as you would like. I hope this letter is responsive to your request.

Very truly yours,


Thomas M. Gonzalez

TMG/hs

 

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