A federal judge in Baton Rouge has denied a request by research geologist and marine scientist Ivor van Heerden for a temporary restraining order to require Louisiana State University to rehire him when his one-year contract with the university expires on May 21.
But U.S. District Judge James Brady also agreed to hear a related motion on a preliminary injunction requiring LSU to rehire van Heerden on May 19, following a telephone conference this morning with attorneys representing van Heerden and LSU.
Van Heerden contends he is being fired for his role as a whistleblower in publicly saying the Army Corps of Engineers was at fault for levee failures that caused flooding of much of New Orleans during Hurricane Katrina.
In court papers filed Monday challenging the temporary restraining order request, LSU officials said van Heerden’s firing was not related to his critiques of the corps, and was allowed under university policies.
In other words, the Judge decided not to impose a Temporary Restraining Order that would have prevented von Heerden’s May 21 termination but, on May 19, the Judge may decide to impose an injunction that would prevent LSU from terminating von Heerden. According to an earlier Schleifstein story, the May 19 hearing” will…decide if and when van Heerden’s lawsuit against the university will go to court. Schleifstein also provides an interesting background summary.
Van Heerden has contended that senior LSU officials attempted to muzzle him after those statements for fear of losing financial support from the corps for research.
But in Monday’s court filings, LSU officials say the decision not to rehire van Heerden was made by an official not involved in the alleged attempts to muzzle him and was not connected to his public comments.
In an affidavit, former College of Engineering interim dean David Constant said his “decision regarding non-renewal was made without cause and was not performance-based,” and was allowed under the bylaws and regulations of the LSU Board of Supervisors.
Constant is now interim dean of LSU’s graduate school.
Constant also said that “Van Heerden was not the only term-appointed contract employee in the College of Engineering whose contract was not renewed. Several other term-appointed contract employees were also not renewed by the College of Engineering both before and after Van Heerden.”
Constant also said the decision not to renew van Heerden’s contract “had nothing to do with van Heerden’s criticisms of the U.S. Army Corps of Engineers, any purported loss of any funding from the Corps of Engineers, or any of the other matters claimed by van Heerden in the above captioned suit.”
According to an affidavit by LSU vice provost for academic affairs Chuck Wilson, LSU received less than $100,000 from the corps from 2005 to the present, compared with an estimated $130 million to $150 million a year it received from all outside funding sources during those years.
The court filing said if the court ordered van Heerden reinstated, it would be harmful to the university “where van Heerden is clearly dissatisfied with the environment at LSU and his state of mind would likely negatively affect LSU and the research programs.”
Such a decision also would require the university to surrender its autonomy to the court, the filing said.
As a non-tenured associate professor for research, the university argued, van Heerden did not enjoy the same rights as a tenured professor, and was hired under a series of one-year contracts.
It said that in 2008, the faculty of LSU’s Civil and Environmental Engineering department voted 7 to 7, with 1 abstention, on whether van Heerden should be reappointed. Department Chairman George Voyiadjis, a defendant in van Heerden’s suit, decided to rehire him for a year. The next year, Constant agreed to grant him a “terminal year” of employment.
“If van Heerden has failed to use this one year opportunity to find other employment, he should not be permitted to use his own failure as an excuse to compel LSU to continue to employ him beyond the expiration of his contract,” the LSU filing said.
The filing also challenges statements van Heerden has made that former LSU Chancellor Sean O’Keefe told attorneys in a lawsuit filed by New Orleans area residents against the Army Corps of Engineers that van Heerden would be fired if he agreed to work for the attorneys.
The filing said it sent a memorandum to van Heerden in August 2007 asking for more information on his request to work with the attorneys, “and van Heerden failed to even respond to LSU’s request for additional information.”
In his motion for the rehiring order, van Heerden said his removal from the university strips the state of an expert in hurricane computer modeling, a reference to his oversight of storm surge modeling conducted by the LSU Hurricane Center in advance of Hurricane Katrina.
He said his rehiring would not cost the university any additional money, as the position remains funded and has not been eliminated.
The Reveille, LSU’s campus paper, added this additional perspective in an editorial published yesterday:
Whether the accusations are true or not, this debacle further contributes to the image of a draconian administration willing to cut corners and censor professors for the sake of political expediency. And it casts a negative light on this institution, which — given the damage of budget cuts and other lawsuits — is already suffering in the court of public opinion.
Thus far, no one has mentioned what LSU plans to do with the money van Heerden says is still there to support his position. Sandy, Editilla, any clues?