Anticipation

For decades, the relationship between USF faculty and the USF Administration had been regulated by a contract. But the USF Administration insisted that the reorganization prevented them from agreeing to extend the contract, and also from recognizing the union. This was the contract which UFF contended that the university was violating in its treatment of Al-Arian. And now things were coming to a head.

USF had sued Al-Arian, asking for a declaratory ruling that its proposed letter of termination did not violate Al-Arian's First Amendment rights. In December, a federal court dismissed the suit, leaving the Administration with the choice of appealing or ... doing something else. Meanwhile, everyone prepared for Jan. 7, when the reorganization had been supposed to be finalized, and when USF insisted that the contract expired.

Support from Colleagues out West

On Nov. 15, the Faculty Senate of the Albuquerque Technical Vocational Institute adopted a Resolution by the Albuquerque TVI Faculty Senate in Support of the Faculty at the University of South Florida in Tampa resolving ``that the Faculty Senate of the Albuquerque Technical Vocational Institute in New Mexico, as proud citizens of the United States, join in solidarity with the faculty organizations of the University of South Florida in Tampa in their work for preservation of academic freedom, due process, the just rule of law, and our proud American heritage of free expression as guaranteed by the Constitution of United States of America and its Amendments.'' At the same meeting the Senate approved a Statement in Support of Due Process, Academic Freedom and Responsibility.

• The AAUP doesn't appear pleased about being used in USF's lawsuit against Al-Arian. On Nov. 2, Committee A issued a statement, quoted in a Nov. 7 press release, stating that the lawsuit's reference to the First Amendment was inappropriate because the AAUP is not bound by legal precedents on academic freedom, but instead the AAUP has its own professional standards, which it will use to make its own determination.
• On Wednesday, Nov. 13, about fifty people staged a mock funeral of academic freedom in the courtyard of the Allen Administration building. On Nov. 14, the USF Oracle reported that A funeral for freedom, extensively quoting former USF employee Mary Poole on several issues, including Al-Arian, and her own dismissal, which she claimed was the result of her `strong views against the administration and the war on terrorism.' (See the Oct. 17 USF Oracle article A job lost, but why? A USF employee said she was laid off because of her opinions. But USF President Judy Genshaft said that isn't so for an account of Poole's dismissal.)

• On Nov. 18, the USF Oracle covered the Nov. 2 AAUP Press release: AAUP says USF court case will have no effect. USF Spokesman Michael Riech said that the USF Administration is currently concerned with Al-Arian's constitutional rights, not with the AAUP's concerns, even though the AAUP is prominently mentioned in the lawsuit against Al-Arian. USF General Counsel R. B. Friedlander said that the lawsuit could last into 2003 or 2004.
• On Nov. 19, the USF Oracle editorialized, Take censure most seriously, in which the editors say that ``Genshaft should be as concerned with the possibility of a censure as she has been with kicking the Al-Arian case around for more than a year.''

• The Nov. 20 AP reported that Lawsuit against professor to stay in federal court which the St. Petersburg Times ran.
• The Nov. 20 USF Oracle reported that Al-Arian case moves to Federal court, and quoted from the decision: ``It appears from the complaint that the Court will be unable to resolve the issues in the Plaintiff's complaint without addressing the Defendant's potential First Amendment claim, a claim that would unquestionably fall within this Court's federal question jurisdiction.'' Incidentally, it was the plaintiff (ie, the USF Administration) that brought up the First Amendment in this case.
• The Nov. 20 Tampa Tribune reported that Al-Arian To Get Hearing In Federal Court. Al-Arian's attorney and one of USF's attorney agreed that this was not a big deal, but Bruce Jacob, a former dean at Stetson University's law school, said that: ``Federal judges are ... more independent ... . [If] a state judge ... hands down a decision that upholds Al-Arian and goes against USF, [he] might face public outrage. If I were USF, I would want to go where you knew the judge was going to be under a lot of pressure.''

Once again, a reminder that the dispute over Al-Arian is but one facet of the dispute over the contract which protects Al-Arian's rights. If the contract between USF faculty and the (agent of) the State of Florida expires on Jan. 7, 2003, what will replace it? The first concrete indication was a proposal for a revision of section 6C-10 (on personnel) of the USF Rules: the proposed revisions extend the rules into areas historically covered by the Collective Bargaining Agreement (CBA), even though the CBA is supposed to preempt all rules. UFF is very protective of the contract ...

• Copies of the rules could be obtained from the General Counsel's Office, and as a result, there were rumors floating around all October. Nevertheless, niether UFF nor the Faculty Senate were ever informed (much less asked for input). An electronic draft was given to a senior faculty member in mid-November.
• The UFF responded on Nov. 18 by issuing a press release condemning both the rules and the process by which they were developed, and announcing a press conference on Nov. 19.

• The Nov. 19 USF Oracle reported that UFF concerned as trustees' decision looms. UFF/USF Chapter President Weatherford is quoted saying, ``Evidently, the board is charging ahead with the assumption that (the faculty will be) governed by rules instead of a contract.'' USF Spokesman Michael Reich is quoted: ``...the university fully hopes and expects we will have an amicable collective bargaining process.''
• The Nov. 19 Tampa Tribune reported that USF Faculty Worry Trustees Will Weaken Worker Rights Weatherford is quoted saying, ``...if this is a clear sign that they intend to break the contract, then everything that is guaranteed by that contract is legally at risk.'' To Weatherford's suggestion that USF agree that the contract be extended (so that the immediate need for any new rules is reduced), USF Board of Trustees chair Dick Beard said, ``We're not going to do anything like that.''

• The Nov. 20 USF Oracle reported that UFF has Grave Concerns, and quoted Weatherford saying, ``It now appears that this managerial reorganization will be used against the faculty. It seems to be their intention to break the collective bargaining agreement ...,'' and ``The board apparently wants us to be less like Harvard and more like Wal-Mart.'' USF Spokesman Michael Reich said that the new rules were only supposed to last 90 days until a new contract could be negotiated, saying, ``The board's intentions are to do what's in the best interest of the university, to support the research, teaching and service missions of the university.''

• USF General Counsel R. B. Friedlander said that as of Jan. 7, under the School Code, the Board of Trustees becomes the employer of USF faculty. She said that the old personnel rules will no longer be enforceable, so new rules are necessary, and that it the process of generating the new rules were the responsibility of her office. She said that on September 5, her office sent notices to 98 interested parties (including AFSCME, but not including UFF or the Faculty Senate), and sent out another notice on Nov. 14: hence her office followed the law. Successive drafts were developed after receiving input from administrators and trustees.
  When asked if it might just be simpler for UFF and the Board to agree to extend the contract (as UFF is willing), Friedlander said that because the Board does not have the authority to declare itself the successor employer (i.e., that in becoming the employer of USF faculty the Board assumes all the rights and obligations that the prior employer --- the Florida Board of Education --- had), that the Board therefore could not commit to extending the contract.
• USF Vice Provost Phil Smith said that both the contract and major components of the State Rules both expire on Jan. 7, 2003, and therefore new personnel rules are required. He said that the issue between the Board of Trustees and UFF is whether the Board of Trustees will be the successor employer, and that that question is now before the Public Employee's Relations Commission. Smith also asserted that the language in the new rules for academic freedom had been lifted from the contract, while the language for misconduct had been so vague as to require definition, and thus new language had been added. He also said that some of the language was different from that in the contract because the contract reflected ``compromises'' made in the negotiating process.
  When a senator observed that the contractual language (in Section 5.1) that An employee engaged in such activities shall be free to cultivate a spirit of inquiry and scholarly criticism and to examine ideas in an atmosphere of freedom and confidence had effectively been replaced by (in proposed Rule 6C-4-10.109 (1)(a .doc file) by an extended statement of faculty responsibilities, Smith asserted that the essence of the contractual language was present in the proposed rule, an apparent reference to: Faculty must be free to ... [c]ultivate a spirit of inquiry and scholarly criticism, and present and examine their own academic subjects and ideas frankly and forthrightly, with freedom and confidence without fear of censorship (bolds added).
• Associate Vice President Trudie Frecker reiterated the ephemerality of the proposed rules, saying that there will be feedback hearings, committees, etc., to work on permanent rules: work on permanent rules would start by January, but effective immediately, feedback on the rules would be read by her office if sent to cfsurvey@admin.usf.edu.

• That the Board of Trustees could agree to extend the life of the current contract if they want to. He noted that Board of Trustees Chairman Richard Beard was quoted saying that the Board would not agree to recognize UFF as the bargaining agent and, in effect, that the Board would not agree to extend the contract.
• That if the Board succeeds in having the contract expire on Jan. 7, they will have greatly strengthened their position in subsequent negotiations. He strongly stated that that was a major motivation in refusing to extend the contract, and in proposing rules inconsistent with the contract.
• He concluded by stating that the reassurances of the USF Administration were insincere, stating, ``They're deceiving us, they're lying to us, and they're trying to screw us.''

• Those that supported the amendment said that the Senate cannot remain silent on this issue.
• Those that opposed it said that if the USF Administration refused to extend the contract, the Board would only consider a different alternative to the proposed rules, and there was less than 24 hours to compose such an alternative.

• The lead story was 'They're going to screw us' Union president warns forthcoming rule changes could mean 25 years of bargaining down the drain. The Oracle quoted Friedlander saying, ``If we don't have rules in place, we don't have the authority to do any of the positive things as well as what some people would perceive as the negative things.''
• The accompanying analysis was Who knows what will happen next, in which the writer said that many senators wondered why the precise language of the contract could not have been used for the rules, many wondered why the rules had to be rushed into place, and why they weren't consulted.
• Then there was an editorial, USF is failing academics, which laid the blame at USF President Genshaft's feet, complaining that the controversy seems to be Beard v. Weatherford, and that Genshaft ``has made it quite clear that she prefers to stay barricaded in her office.''

• At the beginning of the meeting, USF Faculty President Greg Paveza presented the Senate Resolution on the rules to the Board and asked the Board to postpone action on the rules so that faculty could be consulted on them. ``My concern is not around the fact that these rules and rule changes are needed, because they clearly are, but rather because of the lack of faculty involvement.''
• USF/UFF Membership co-chair Sherman Dorn, standing in for Roy Weatherford, said that adopting these rules could constitute a violation of the contract, and that there were serious differences between the language of the proposed rules and that of the contract, and he handed out a table of discrepancies.
• In subsequent discussion, Trustee John Ramil asked if the new rules would put USF at a disadvantage in recruitment, and Friedlander assured him that they would not. Friedlander also reiterated that the process of composing the new rules had been consistent with Florida State Law.

• The Nov. 22 St. Petersburg Times reported that USF board mulls raise for Genshaft: A consultant says the current pay is "way, way" below market. She could get around $50,000, and quoted Trustee Ann Duncan saying: ``It has been a very tough time, and she has handled it very well.''
• The Nov. 22 Tampa Tribune reported that Genshaft Vastly Underpaid, Consultant Tells USF Board, and quoted USF Faculty Senate President Greg Paveza saying: ``I have no difficulty with the president being paid a competitive, comparable salary ... But my hope is that the board of trustees recognizes we have a faculty ... [that is] grossly underpaid.''

Various

Back at the front ...

• On Nov. 21, the Israeli newspaper Ha'aretz reported that ``FBI seeks Israeli help in prosecuting Islamic Jihad men.'' The story was picked up in the Nov. 25 Tampa Tribune, which reported that FBI Follows Tampa Case To Israel. Since the article mentioned Palestinian Islamic Jihad without mentioning Al-Arian, the Tampa Tribune reminded readers that on Nov. 21, in the story ``Ashcroft Defends New Wiretap Powers,'' USF Attorney General John Ashcroft responded to a question about interim US Attorney Mac Cauley's February statement that Al-Arian was the subject of a ``active and ongoing investigation'' FBI investigation, by saying that it ``was true and is true.''
• On Saturday, Dec. 14, Al-Arian spoke at a rally covered by AP, which reported (via the Gainesville Sun) that Muslims say they've been under attack in Florida. His case was one of the examples listed of recent hostility actions towards Muslims.

• The Dec. 12 AP reported that *Professor argues university's lawsuit against him be dismissed, and that Al-Arian's attorney Robert McKee said that the USF counsel is trying to circumvent Al-Arian's right to a jury trial should he sue for violation of his First Amendment rights.
• On Dec. 12, McKee appeared on the *O'Reilly Factor, and predicted that the suit would be dismissed. After asking if that was wishful thinking, O'Reilly concentrated on a letter Al-Arian wrote but did not send in 1995, asking someone for a donation to ``... support to the jihad effort ....'' Like all previous discussions of this letter, the results were unconclusive.
• The Dec. 13 St. Petersburg Times reported that Judge to decide next step for Al-Arian: She will decide when the court should rule on the constitutionality of firing him, and that Bucklew would issue her ruling early next week. Nevertheless, McKee said that he expected the case to take a long time.
• The Dec. 13 Tampa Tribune reported that Judge Set To Decide On Court's Role In USF's Al-Arian Suit, and that McKee warned that this suit would lead to employers suing employees: ``Talk about the proverbial floodgates of litigation ... You will have to set up another branch of government to deal with all those cases.'' Admitting that the case is unusual, Rogow said ``Is it unique? Yes ... But it doesn't open the floodgates. It shows there's a public employer who is sensitive to First Amendment rights.''
  The Tribune also ran a Q & A article Al-Arian History: A USF Connection Since 1986. Important note: contrary to what was said in the article, UFF is not on Al-Arian's side; UFF is on the contract's side.

• The court should hear the case only if USF has no alternative route for relief. Then the court noted that there were alternatives.
• The court should hear the case only if a declaratory judgement would resolve the issues brought to the court. Then the court noted that a declaratory ruling would not resolve the issues. (In particular, the court could not help USF with the AAUP.)
• Since Al-Arian is accused of violating the Collective Bargaining Agreement, the appropriate route if USF fires Al-Arian is to go through the grievance process. In particular, ``A party to a contract may generally not turn to litigation to circumvent the arbitration clause of the contract.''

• The Dec. 16 AP reported (via The Ledger) that Federal Judge Rejects USF Professor Lawsuit, and quoted Al-Arian's attorney Robert McKee saying, ``The ball's in their court ... If USF is, as they represented to the court, uncertain whether firing Dr. Al-Arian violates his constitutional rights, then we suggest they shouldn't fire him.''
• The Dec. 16 UPI reported that *Judge declines to hear university case, and quoted Judge Bucklew saying, ``This court finds that a declaratory judgment in this case would not be a wise and practical use of judicial resources.'' Defending the use of a lawsuit to deal with a First Amendment issue, USF external counsel Bruce Rogow said, ``This is different. This is the most sensitive area of the law, the most sensitive area of constitutional law.''
• The Dec. 17 Agence France Presse reported that *US judge dismisses lawsuit against Palestinian professor, and quoted Al-Arian's attorney Robert McKee saying, ``What is significant here is that the university itself has admitted in open court that it really doesn't have a case.''
• The Dec. 17 Chronicle of Higher Education reported that **Federal Judge Declines to Rule on University's Plan to Fire Professor It Accuses of Terrorism, and quoted UFF Chapter President Roy Weatherford saying, ``We're back where we started a couple hundred thousand dollars ago,'' and noted Weatherford's comment that UFF is not defending Al-Arian: UFF is defending Al-Arian's contractual rights.
• The Dec. 17 St. Petersburg Times reported that Judge: Don't ask advice on Al-Arian; USF asked if firing the professor would violate his rights. A judge says giving advice isn't the court's job. USF Spokesman Michael Riech said, ``We do not believe that terminating him would violate his rights, but this was an effort to make absolutely sure,'' and that he did not know how long it would take the USF Administration to decide what to do next.
• The Dec. 17 Tampa Tribune reported that Judge Tosses USF Suit Against Al-Arian, and quoted BOT Chairman Dick Beard on AL-Arian returning to the classroom: ``I'm not even sure that's an option ... It's not an option in my view.'' They also quoted Al-Arian saying, ``Today's ruling confirms our deep conviction that the system does work for the little guy.''

• The Dec. 18 St. Petersburg Times reported that Al-Arian vows to fight until he wins: If USF fires him, the tenured computer science professor might keep his appeal alive for a year or more. The Times quoted Al-Arian saying, ``Nobody is going to force me to leave because somehow they don't like me or like my politics,'' and mentioned that no one seems to know what effect the Jan. 7 transition will have on the case. The Times also ran an editorial on USF's judicial rebuff, claiming that the lawsuit had ``revealed her [Genshaft's] own misgivings about the case,'' contending that ``If Genshaft believed her own party line ... then ... [she] simply would have fired Al-Arian and trusted the outcome to the courts.''
• The Dec. 18 Tampa Tribune reported that Al-Arian Pressures USF To Back Down, quoting Al-Arian attorney McKee saying that if USF appeals, it would show ``... disrespect to the taxpayers. These hundreds of thousands of dollars could be better put to use for scholarships or research projects, or even to help pay for President Genshaft's pay increase.'' The Tribune also quoted BOT Chair Beard saying, ``It's not a matter of money. It's a matter of what this guy's been doing to the university.''

• On Dec. 19, St. Petersburg Times columnist Mary Jo Melone wrote in her column USF president's new contract: an outrageous fortune, indeed that ``Genshaft is being rewarded for threatening academic freedom and for failing to make hard decisions in the case of professor Sami Al-Arian.''
• On Dec. 20, the Tampa Tribune editorialized that *USF Should Now Drop The Hammer On Al-Arian, stating that despited Al-Arian's claims to innocence and the fact that Al-Arian has not been charged with any crime, ``...he has not been cleared, and early this year federal authorities acknowledged that an investigation of his activities is ongoing.''
• On Dec. 23, St. Petersburg Times columnist Howard Troxler wrote that Maybe now is the time to reassess Judy Genshaft's score card, and suggested that Genshaft's problem was that she was serving on a sequence of one-year contracts, and that nos that she is going on a five-year contract, she will be able to act more decisively: ``The yardstick is not how her predecessor Betty Castor (a hardened insider in Florida politics) would have fared, but how any other newcomer would have fared in her place.''

• The Dec. 20 Tallahassee Democrat reported that AFSCME sues over campus contracts, and that the AFSCME lawsuit says that the new Board of Governors will be ultimately responsible for employee contracts, so in trying to eliminate the contracts, ``Should the boards of trustees and board of education continue to move forward in this unlawful, unconstitutional manner, it would be the biggest waste of resources ... It will all be for naught and it will all be undone.'' UFF has joined the suit.
• On Dec. 23, the Governor's Office announced that Governor Bush Appoints Florida Board Of Governors. Bush was to appoint 14 of the 17 governors. Of the fourteen new appointees, eight are businesspeople, three are attorneys, one is a financial trustee, one is an academic administrator, and one is a physician. As AP observed on Dec. 24 in Gov. Bush appoints 14 to university board, most of the appointees were from the local Boards of Trustees.

• On Dec. 18, USF Vice Provost Phil Smith informed UFF that USF would discontinue the practice, stating that ``...we have been informed that section 447.501(1)(e), Florida Statutes, prevents the University from granting release time for union activity after the current collective bargaining agreement expires. This is because after the contract expires, there will be no certified bargaining agent acting on behalf of the faculty.'' Notice the explicit refusal to recognize UFF as the faculty union: this rationale could be used in many other issues as well.
• On Dec. 24, the St. Petersburg Times reported that Union assails USF over ending contract: The faculty union says the pact that USF has decided to stop honoring Jan. 7 is valid until the academic year ends. Addressing the rationale that USF is acting because, in the Administration's opinion, UFF will not represent the faculty, Weatherford said, ``This is not the way things work in labor law ... People don't lose their rights, their protection, just because the employer refuses to negotiate.''