Ginsberg vs. NCSU - November 6, 2012 update

Journalist Kourosh Ziabari has published an interview with me about my case against NCSU and related political and cultural issues, including the BDS Movement, Palestinian cinema, and U.S. Middle East policy.  The interview appears in the November 6, 2012 issue of the Iran Review.  I hope you will peruse it at your convenience.

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On June 13, 2012, the Supreme Court of of North Carolina decided to deny the Petition for Discretionary Review filed by my attorneys on December 20, 2011.  The legal case, Ginsberg vs. NCSU, is now officially closed, and unfortunately, we have not prevailed in this instance:  justice has not been served.  To paraphrase Prof. David Klein’s recent letter of protest, if the University had been confident that its actions in this matter were justified, then there should have been no reason to deny me due process. If, on the other hand, it supposed that the facts of the case indeed justified my allegations, “then censorship followed by denial of due process is the path of choice for punishing the apostate and shielding the apartheid regime from scholarly analysis. Actions determine the narrative.” We have issued a formal Press Release announcing the Court’s decision, and the Electronic Intifada has published a follow-up article.  In addition California Scholars for Academic Freedom has written a letter to NCSU Chancellor Randy Woodson requesting that he reconsider NCSU’s 2008 denial to me of a campus grievance hearing. (Woodson has recently participated in an American Jewish Committee-sponsored U.S. university presidents’ delegation to Israel.)  We wish to thank everyone who contributed to my case morally, financially, and through relentless activism.  We could not have made it this far without you.  Please keep up the larger struggle!!

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Thanks to all of you who signed the Open Letter to the Supreme Court of North Carolina sponsored by the British Committee for the Universities of Palestine, the Center for Constitutional Rights, the U.S. Campaign for the Academic and Cultural Boycott of Israel, Jewish Voice for Peace-Westchester, WESPAC Foundation, Committee for Open Discussion of Zionism, and Association des Universitaires pour le Respect du Droit International en Palestine.   This Open Letter was delivered to the Supreme Court of North Carolina and to NCSU Chancellor Woodson on February 7, 2012.  The Letter remained open for signatures until the Court issued its decision, and garnered a grand total of 1274 names.  Thank you to all who signed on!

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As some of you may know, my lawsuit against North Carolina State University underwent a great deal of development over the past several years. Below is information of which you should be aware. On the sidebar is a set of links to pertinent articles, blogs, interviews, letters and petitions of support, and legal documents (including the original charge).  On the “About” page is a summary of the case and a chronology of the proceedings.

Some background: This lawsuit began as a grievance case at NCSU. On false grounds that my claim of speech violations and discrimination was untimely filed, NCSU refused to grant me a campus hearing. After thrice appealing the perfunctory dismissal of my grievance, I had exhausted all campus remedies, whereupon I decided to file a lawsuit in the Superior Court of North Carolina.

The case entered litigation in December 2009. In May 2010, the parties underwent a mediation hearing mandated by the State of North Carolina at which no settlement was reached. A week of depositions followed, during which NCSU admitted that it suppressed my speech critical of Zionism and supportive of the Palestine liberation struggle while I was under its employ as a visiting professor, and that it chose not to interview or hire me for a tenure-track position because of my scholarship focusing on Palestine/Israel, the Middle East, and the “Jewish.” Amazingly, the University claimed that it had the right to suppress, refuse and reject on the basis of these considerations!  Throughout the case, we argued vociferously against such claims.

When the discovery period ended in September 2010, NCSU filed a Motion for Summary Judgment.  In the wake of the ensuing summary judgment hearing held on October 25, the case was dismissed perfunctorily and without reason; the judge, Shannon Joseph, simply issued a boilerplate “decision” that basically “just says no.”  Some of the questions which Judge Joseph asked at the hearing seemed to indicate that she did not understand or wish to recognize the standard of proof in First Amendment cases; she was apparently only looking for direct evidence of discrimination and speech suppression, as though mine were a criminal rather than a civil case.  Although we had a mountain of circumstantial evidence, as well as direct evidence, and were able to rebut NCSU’s stated reasons for its actions against me (see our Motion against Summary Judgment posted in the sidebar), the judge ignored it all without explanation. In April 2011, we filed our Record on Appeal; and on June 24, 2011, we filed an Appellate Brief with the North Carolina Court of Appeals (also linked in the sidebar). NCSU filed its Response on August 26. The Court of Appeals subsequently decided to consider my case without oral argument.  The Appeal Hearing was held on October 26, 2011, where an appellate panel–Judges Linda Stephens, Wanda Bryant, and  Rick Elmore–conferred and deliberated the case.

On November 15, 2011, the appellate panel issued a decision, authored by Judge Elmore, to affirm the lower court’s decision to dismiss the case, despite the fact that, according to both the law and the facts, summary judgment was inappropriate, and the case should therefore have been permitted to proceed to jury trial. The appellate decision misstated, overstepped, and decontextualized facts of my case while uncharacteristically, for this court, completely ignoring the legal arguments and precedents cited in my Appellate Brief, concluding flimsily that my claims against NCSU are merely “speculative” and thus undeserving of a formal hearing.  See: Press Release – Appellate Decision; see also: article in the Israeli newspaper, Ha’aretz [click here for English translation]; and follow-up article in Electronic Intifada.

On December 20, 2011, we filed a Petition for Discretionary Review with the North Carolina Supreme Court of this outrageously cursory and dismissive  opinion (see article in the Associated Press; TV-spot on NC Time-Warner affiliate). The petition argued that the Appellate Court decision, like that of the lower court before it, changed the standard of proof in summary judgment employment decisions, wrongfully preventing the case from a hearing before a jury. The ruling thereby eviscerated the academic freedom protections which North Carolina’s constitution provides, and gave employers carte blanche to discriminate on employment decisions. It also set a bad example for other states in failing to protect the academic freedom of professors and, in effect, narrowing the scope of speech to which students may be exposed.

We strongly believe that my case was improperly dismissed all throughout this process.  In determining that there was not sufficient evidence in the record to allow a jury to decide whether my non-hire was because of my speech, that is, the courts actually misapplied the law; they refused to allow the case to be tried before a jury, holding that my right to free speech was not violated as a matter of law.  The trial court, subsequently seconded by the Appellate Court, came to this conclusion despite the fact that there were numerous points in the record in which NCSU faculty exhibited clear and unabashed symptoms of discomfort with my published writings, political views, and public statements regarding Zionism, Israel, and the Palestinian struggle.

For example, during depositions, NCSU’s witnesses, including Marsha Orgeron, the director of the Film Studies Program and chair of the Film Studies faculty search committee, and Akram Khater, the director of the Middle East Studies Program, admitted to having reacted negatively to the introductory statements I made at a screening of a Palestinian film, during which I thanked the audience for attending and thereby supporting the airing of Palestinian liberation perspectives such as the views displayed in the film we were about to screen.  Orgeron and Khater stated that my statements caused them to worry that members of the audience would perceive the Film Studies and Middle East Studies programs as biased.  Shortly thereafter, I went from being the favored candidate for a tenure-track position to being denied so much as an interview.

NCSU would later claim that I was “overqualified” for the position and that the focus of my scholarship was shifting to Middle Eastern interests such that I was not an appropriate candidate for a position in European film (“too much focus on Jewish/Israel” and “now working with Palestinian/Israeli” is how one member of the search committee put it in a committee report) despite my voluminous publication record and ongoing work in European (especially German) cinema that far exceeded those of the prevailing candidate.

In light of the facts,  that is, a jury should have been permitted to decide whether NCSU’s reason for its sudden change of heart in denying me the tenure-track position was because of its hostility to my views on “Jewish/Israel,” or because I was “overqualified” and no longer an expert in European film, which NCSU claimed, falsely, were the actual reasons for my non-hire.

Clearly, Judge Joseph’s and the Appellate Court’s decisions are tremendously weighty and carry nationwide ramifications in addition to raising serious concerns about the future of First Amendment provisions in the U.S. It is probably safe to assume, for example, that by upholding Judge Joseph’s decision, the Appellate Court caved in to pressure from North Carolina’s political Right, epitomized by the influential neoconservative Pope Foundation, which has gifted millions if not billions of dollars to the University of North Carolina system and is an explicit supporter of hard-line Zionism along with other right-wing, including anti-labor, causes. Moreover, NCSU has a prior history of anti-Palestinian practice. In effect, the court has essentially decided that academic speech critical of Zionism and supportive of Palestinian, Arab and Muslim perspectives is not protected by the free speech provision (Article I, section 14) of the North Carolina Constitution.

In turn these judicial decisions stand to jeopardize further the diminishing labor rights of contingent academic workers across the U.S., who are increasingly intimidated by the specter of retaliation and unemployment if they take critical risks in their teaching, research, and public speech.  It was in fact because I was a non-tenure-track faculty member at the time I was dismissed from my visiting professor position, not because my grievance was untimely filed, that I was denied the campus grievance hearing that probably would have been granted had I been a tenure-track/tenured faculty member.  Contingent labor presently comprises approximately 70% of academic faculty in the U.S.

Both the appellate and Supreme Court decisions should set off alarm bells for those who abhor racism and inequality and strive for the protection of constitutional rights for all citizens, regardless of religion, ethnicity, or class status.  Our justice system should not be allowed to get away with silencing critical academic speech in order to protect opposing views, not least those which reflect wealthy and powerful interests, for whatever reason, nor should academic faculty become intimidated from  speaking critically for fear of being disciplined or losing their jobs. 

The fact that I was consistently denied a formal hearing, either on the NCSU campus or within the court system, resonates clearly with the history of the Palestinian struggle. Palestinians are seldom given the opportunity to air their views freely—without, that is, interference from dominant ideological interests calling for “balanced” or “neutral” discussion. Nor has the longtime suffering of Palestinians been acknowledged by its primary instigator, the State of Israel, which to this day officially refuses to admit having committed the Nakba (the ethnic cleansing of Palestine), and in fact has moved recently to criminalize any discussion of that event within Israeli society.  Similarly the Israel Lobby in the U.S. has tried repeatedly to introduce congressional legislation which, in the name of “combating anti-Semitism,” would criminalize speech critical of Israel, thereby travestying not only the First Amendment but the entire spirit of the Bill of Rights.

My attorneys and I have been inspired by the public attention and support that many of you have given my case.  These have enabled us to continue to challenge openly the negative precedents set by the North Carolina courts and by NCSU regarding academic freedom and other constitutionally guaranteed rights, such as those promulgated by the Fourteenth Amendment.  The court of public opinion, including a petition containing nearly 600 signatures, compelled an initially and otherwise reluctant American Association of University Professors (AAUP) to issue a letter in support of my ultimately unsuccessful request for a campus grievance hearing.

As we put this case behind us, I plan to take an even wider and more far-reaching public stance, by pursuing opportunities to speak on campuses and in communities across the country and around the world about the larger issues the case holds at stake for all of us, and by connecting further with the growing class of academic scholars, students, and public intellectuals whose speech has been violated by faculty, administrations, and political actors enthralled to Zionist interests and the inequitable social and political structures they serve to reinforce.

Please leave a comment below if you have questions or would like further information or details about my case.

Thank you,
Terri  Ginsberg                                                                                                                                    Get Cited Author’s Page                                                                                                                      Academia.edu Author’s Page                                                                                                            Amazon.com Author’s Page

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