Open Letter to North Carolina Supreme Court: Ginsberg vs. North Carolina State University

Summary

At North Carolina State University, shortly after Dr. Terri Ginsberg made supportive political comments at a screening of a Palestinian film in 2007, she went from being the favored candidate for a tenure-track position to being denied even an interview. Her efforts at redress were summarily rejected by NCSU and two courts.

A jury should be permitted to decide whether NCSU's real reason for firing Dr. Ginsberg was its hostility to her political views, but this legal right has been denied. We urge the Supreme Court of North Carolina to review Dr. Ginsberg's case and to reverse the lower courts' decisions to dismiss it. On this basis, the Court would help set a precedent upon which contingent faculty at NCSU and elsewhere may exercise their right to academic free speech on the topic of Palestine/Israel.

Grievance Petition rejected

In March 2008, Dr. Terri Ginsberg filed a Grievance Petition with the NCSU Faculty Senate for violations of First Amendment rights and other rights guaranteed under the University Code that were perpetrated by senior, administrative colleagues during her employment there as a one-year, non-tenure-track Assistant Professor with possibility of renewal. These violations constituted concerted attacks on Dr. Ginsberg's academic speech supporting Palestinian rights and legitimacy and criticizing U.S. and Israeli policy in the Middle East, and they culminated in her non-reappointment to her position at NSCU.

Despite strong, legally grounded recommendations on the part of James Martin, NCSU Faculty Chair, that Dr. Ginsberg's case should have been given a fair hearing on campus, NCSU Chancellor James L. Oblinger chose in June 2008 to dismiss her Grievance upon the basis of an Appeal he was sent by the Grievance Petition's named respondents which argued, erroneously, that the Petition was filed too late, and that, moreover, as contingent faculty, Dr. Ginsberg had no right to grieve under the University Code. Subsequently both the University of North Carolina (UNC) Board of Trustees and, later, a local North Carolina circuit court upheld Oblinger's decision.

North Carolina Superior Court: dismissal of case

In October of 2009, Dr. Ginsberg filed a lawsuit in the North Carolina Superior Court against the UNC Board of Governors alleging First Amendment speech and right to conscience violations. A week of depositions followed, during which NCSU admitted that it suppressed her speech critical of Zionism and supportive of the Palestine liberation struggle while she was under its employ as a visiting professor, and that it chose not to interview or hire her for a tenure-track position because of her scholarship focusing on Palestine/Israel, the Middle East, and the "Jewish." For example, 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 Dr. Ginsberg's supportive statements at a screening of a Palestinian film, Ticket to Jerusalem (dir. Rashid Masharawi), during which she thanked the audience for attending and thereby supporting the airing of Palestinian liberation perspectives such as the views displayed in the film. Orgeron and Khater stated that Dr. Ginsberg's comments caused them to worry that members of the audience would perceive the Film Studies and Middle East Studies programs as "biased." Shortly thereafter, Dr. Ginsberg was forced to resign from the Middle East screening series that she had helped curate; she also went from being the favored candidate for a tenure-track position to being denied so much as an interview. Palestinian films were not purchased for her Spring 2008 course on Israeli–Palestinian conflict cinema, and she was shunned from further extra-curricular and departmental activities.

Unfortunately, the North Carolina Superior Court and, subsequently, the North Carolina Court of Appeals dismissed Dr. Ginsberg's case on summary judgment. Despite finding that several University officials were indeed very uncomfortable with Dr. Ginsberg's speech concerning the Palestinian-Israeli conflict, the Court of Appeals held that there was no causal link between that speech and the University's sudden decision not to retain her on faculty as a tenure-track professor days later. Both courts ignored Dr. Ginsberg's voluminous evidence calling into question the University's claims about its stated reasons for her non-renewal, as well as valid circumstantial evidence suggesting that hostility to Dr. Ginsberg's "pro-Palestinian" speech motivated the decision. In fact the courts mis-stated, overstepped, and decontextualized that evidence while completely neglecting to consider the legal arguments and precedents cited in her attorneys' briefs, concluding flimsily that her claims against NCSU were merely "speculative" and thus undeserving of formal hearing.

We believe, on the basis of the evidence, that the "bias" of which Dr. Ginsberg was accused was clearly demonstrated and admitted by the several colleagues involved in the negative actions against her, rather than by Dr. Ginsberg, who was merely exercising her constitutional right to academic speech. Insofar as substantial discrepancies exist with respect to the parties' interpretation of this and other evidence, furthermore, Dr. Ginsberg should be permitted to present her case before a jury, which is the proper and rightful avenue by which to adjudicate the validity of her allegations.

Supreme Court of North Carolina: Petition for Review

In December 2011 Dr. Ginsberg filed a Petition for Discretionary Review of her case with the Supreme Court of North Carolina. The petition argues that the Appellate Court decision, like that of the lower court before it, changes the standard of proof in summary judgment employment decisions, wrongfully denying Dr. Ginsberg a hearing before a jury. It argues in turn that the ruling eviscerates the academic freedom protections which North Carolina's constitution provides, and gives employers carte blanche to discriminate on employment decisions. Finally, it stipulates that the NC decision also sets 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.

Dr. Ginsberg's case is but the most recent in a spate of similar cases that have been neglected, ignored, or refused by the courts. Ideological predispositions and other unrelated, political sensitivities have been allowed to interfere with the interpretation of obvious violations of the principles of academic speech and association. As a result, alleged perpetrators of campus discrimination and academic speech violations against scholars whose research entails support for Palestinian rights and legitimacy and that criticizes U.S. and Israeli policy in the Middle East have gotten away scott-free, as the increasing marginalization and super-exploitation of contingent faculty have been allowed to continue unimpeded. Such rights and legitimacy are supported by numerous United Nations and Security Council resolutions as well as by those of the International Court of Justice, and by many Israeli scholars.

Specifically in Dr. Ginsberg's case, not only have the North Carolina courts essentially decided, in ignoring her evidence and legal arguments, 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. Especially in light of the perfunctory and superficial explanations which the courts have supplied for dismissing her case, Dr. Ginsberg should be entitled to submit to a jury evidence that, among other things, NCSU was caving in to pressure from North Carolina's political Right, epitomized by the influential, ultra-conservative Pope Foundation, which has gifted large sums to UNC and is an explicit supporter of hard-line Zionism. Such donations have silenced discourse about Palestinian rights and diminished debate and discussion on campuses. Caving in to such pressures, whether on campus or in court, is neither in the interests of free speech nor proper academic research, nor indeed of the U.S. and Israel/Palestine, much less a stable and prosperous Middle East.

Role for the North Carolina Supreme Court

We, the Undersigned, strongly urge the Supreme Court of North Carolina to review Dr. Ginsberg's case and, upon consideration, reverse the lower courts' decisions to dismiss it. Across-the-board punishment and suppression of speech critical of violations of basic Palestinian rights or critical of Zionism, Israel, and U.S. Middle East policy is unacceptable in an institution committed to academic freedom and serving as a role model for democracy to its students. Academic faculty should not become intimidated from speaking on "controversial" subjects for fear of being disciplined or losing their jobs, nor should the U.S. justice system fail to remedy the silencing of academic speech in order to protect opposing views, whatever may be the reasons.

Dr. Ginsberg deserves, and is entitled legally, to a fair trial by a jury of her peers, and thus to an opportunity to be heard and clear her name against those who would consider it tainted for its association with Palestine solidarity. Given NCSU's sudden change of heart in denying Dr. Ginsberg a tenure-track position, a jury should be permitted to decide whether NCSU's real reason for firing her was its hostility to her views on "Jewish/Israel," as one search committee report actually puts it--or rather because she is "overqualified" and no longer working in the area of specialization, European film, called for in the position announcement, which NCSU has falsely claimed are the reasons for her non-hire. In addition to her work on Palestinian/Israeli cinema, Dr. Ginsberg is in fact an internationally acclaimed expert in German cinema.

We respectfully put it to you that, in reversing the lower courts' decisions to dismiss the case, the North Carolina Supreme Court would be helping to restore the First Amendment right to academic free speech, whereupon contingent faculty at NCSU and elsewhere might begin once again to exercise their legal right to speech on the topic of Palestine/Israel and, as such, to their full rights as scholars, teachers, and intellectuals in the academic community.

Respectfully submitted,
(organizations listed for identification purposes only)

[To view signatories, please click on the "Signatures" link below.]