Nearly 300 Scholars Declare They Will Not Engage With the University of Illinois

by Corey Robin on August 13, 2014

In the last week, the campaign for the University of Illinois to reinstate Steven Salaita has gained momentum. Over 14,000 men and women have signed a petition demanding his reinstatement. Many have sent emails and letters of protest to Chancellor Phyllis Wise.

And over the weekend, scholars began to organize discipline-specific campaigns of refusing to engage with the University of Illinois until Salaita is reinstated.

Philosophers have organized their own statement of refusing to come to the University of Illinois; political scientists have organized a similar statement. English Department faculty across the country have upped the ante, saying they will not “engage with the University of Illinois at Urbana Champaign as speakers, as participants in conferences or other events, or as reviewers for the tenure and promotion of your faculty.” Finally, just this morning, historians, scholars of composition/rhetoric, and sociologists organized their own campaigns of refusal to engage.

All told, nearly 300 faculty—including Michael Bérubé, Jacob Levy, Paul Boghossian, Jeff Goodwin, Adolph Reed, Bruce Robbins, Judith Butler, Bonnie Honig, William Connolly, Jason Stanley—are refusing to engage with the University of Illinois until Salaita is reinstated.

If you are a historian, and wish to sign a historians’ statement, go here.

If you are a political scientist, and wish to sign a political scientists’ statement, go here.

If you are a sociologist, and wish to sign a sociologists’ statement, go here.

If you are an English professor, and wish to sign an English professors’ statement, go here.

If you are a philosopher, and wish to sign a philosophers’ statement, go here.

If you are a rhetoric/composition professor, and wish to sign a rhetoric/composition professors’ statement, go here.

Meanwhile, Cornell Law Professor Michael Dorf has an excellent analysis of the legal and constitutional aspects of Salaita’s dehiring.

Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.


But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.


Salaita has an almost-classic case of promissory estoppel.



Yet even in the unlikely event that Virginia rather than Illinois law governs the contractual issues, Salaita could still have a valid claim, under federal constitutional law.



Does that conclusion make sense? Putting aside the freestanding First Amendment issues, one might think that academic freedom should only extend to a faculty member’s speech in an academic capacity. After all, the point of academic freedom is to encourage free inquiry within the academic environment.


But in fact academic freedom has generally been seen to be much broader. The American Association of University Professors (AAUP) 1940 Statement of Principles of Academic Freedom and Tenure sets out the general understanding of academic freedom. It proclaims that when professors “speak or write as citizens, they should be free from institutional censorship or discipline.”



Thus, it is possible in an extreme case for a faculty member’s external statements to render him or her unfit to teach. Overtly insensitive and repeated racist, sexist, or homophobic statements might fall into this category. But in order for the concern for student sensitivities not to swallow up academic freedom, the threshold must be very high.


Did Salaita cross that threshold? In short, no.

Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel.

– See more at: http://verdict.justia.com/2014/08/13/academic-freedom-salaita-case?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Verdict+%28Verdict+%7C+Legal+Analysis+and+Commentary+from+Justia%29#sthash.q7aR0FLF.NmoIoVOt.dpuf


Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel.

– See more at: http://verdict.justia.com/2014/08/13/academic-freedom-salaita-case?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Verdict+%28Verdict+%7C+Legal+Analysis+and+Commentary+from+Justia%29#sthash.q7aR0FLF.NmoIoVOt.dpuf


Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel.

– See more at: http://verdict.justia.com/2014/08/13/academic-freedom-salaita-case?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Verdict+%28Verdict+%7C+Legal+Analysis+and+Commentary+from+Justia%29#sthash.q7aR0FLF.NmoIoVOt.dpuf


Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel.

– See more at: http://verdict.justia.com/2014/08/13/academic-freedom-salaita-case?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Verdict+%28Verdict+%7C+Legal+Analysis+and+Commentary+from+Justia%29#sthash.q7aR0FLF.NmoIoVOt.dpuf


Some ​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel.

– See more at: http://verdict.justia.com/2014/08/13/academic-freedom-salaita-case?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Verdict+%28Verdict+%7C+Legal+Analysis+and+Commentary+from+Justia%29#sthash.q7aR0FLF.NmoIoVOt.dpuf

{ 164 comments }

1

Layman 08.13.14 at 5:30 pm

I’m in favor of academic freedom, of course, and I applaud efforts to protect it, but I can’t help but compare the employment safeguards afforded to academics with those of everyone else. I think most people work under ‘at-will’ conditions, and they can be fired without any designation of cause. Employers might find themselves defending their choice to fire someone, but so long as they don’t make the mistake of citing a cause which violates the very few protections available under they law (e.g. age, disability) they can effectively fire anyone they want for any reason they want. Employers now review the social media communications of their employees, and they certainly fire some employees on the basis of their expressed views.

2

Mike Huben 08.13.14 at 5:41 pm

Layman, the logical consequence of your observation is that we need employment safeguards for non-academics to be extended. Perhaps an Employee’s Bill Of Rights. Managerial abuse by employers is rampant: it is not necessary to good business any more than sexual abuse is.

Pointing out that academics have it better than others can be taken as implying that academics should have less, when instead everybody else could have more.

3

erichwwk 08.13.14 at 5:50 pm

“Pointing out that academics have it better than others can be taken as implying that academics should have less, when instead everybody else could have more.”

Point well taken. But perhaps more important as to WHY academics should have more [speech protection] is the fact that their livelihood is BASED on their speech, whether in the classroom or in published output.

4

alkali 08.13.14 at 6:15 pm

Note that in a number of states, employees have statutory protection for certain outside-of-work activities:

New York Labor Law § 201-d( 2):

Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
a. an individual’s political activities [defined elsewhere] outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal …;
b. an individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property;
c. an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property …

California Labor Code § 1101:

No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

Colo. Rev. Stat. § 24-34-402.5(1):

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:
(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

5

Chaz 08.13.14 at 6:22 pm

#3 And not just their livelihood (as in their income), their contribution to society. One of the key reasons we even hire professors in the first place is to comment on society and challenge orthodoxy from a position of expertise. Challenging the Pro-Israel, Anti-Palestine orthodoxy is a perfect example. By suppressing opposing viewpoints Illinois is not just harming Salaita, they are harming society. It is one step toward turning the American professorship into the Russian media.

6

Layman 08.13.14 at 6:24 pm

@2 & 3

Indeed I think everyone else could have more. And in fact, my livelihood is quite dependent on my speech, to the extent that it enhances / detracts from my credibility; or creates opportunities for or obstacles to good relationships with co-workers and industry peers. I’m sure that’s true of lots of people. Why should burger-slingers be afraid of professing political views in public, while university professors are free to say what they will? This particular example is especially pointed, because burger-slingers are arguably much less able to defend what rights they do have than are university professors, and of course much more at risk economically.

7

Layman 08.13.14 at 6:27 pm

alkali @ 4

If a state is an at-will state, the presence of these protections is essentially meaningless, as the employer can discharge an employee at will.

8

novakant 08.13.14 at 6:35 pm

And not just their livelihood (as in their income), their contribution to society. One of the key reasons we even hire professors in the first place is to comment on society and challenge orthodoxy from a position of expertise.

Have you read Salaita’s Twitter messages?

9

AcademicLurker 08.13.14 at 6:54 pm

I await the arrival of a libertarian to explain why the laws cited in 4 constitute an oppression worse than slavery in the antebellum US.

10

Anderson 08.13.14 at 6:59 pm

The notion that posting something off-the-cuff, vulgar, and vicious on Twitter is a breach of social decorum … well, maybe I’m just following the wrong peeps, but I find it laughable, as I do anyone arguing that notion.

It’s possible to go too far – had Salaita been posting personal, harassing attacks on female students, say, this story might be less egregious – but the general notion of “fuck Israel and every Jew who supports it,” which not one I personally concur with, is not particularly shocking.

11

Anderson 08.13.14 at 7:09 pm

… and, leaving aside whether Twitter messages are a legit cause for going back on a contract, as Dorf says, what they did was likely still a breach of contract. It’s not Salaita’s fault, presumably, that they didn’t check out his tweets before extending an offer.

Academic freedom aside, they’re likely liable for detrimental reliance, and they should have to pay up. Because what the university did is wrong, whether it’s a professor or the head of the outdoor-maintenance department.

12

SamChevre 08.13.14 at 7:11 pm

The notion that posting something off-the-cuff, vulgar, and vicious on Twitter is a breach of social decorum

Well, I’ll suggest an experiment. Try posting about African-Americans in the same way (frequently, hostilely, with heavy reference to historic racist tropes) as Salaita posted about Jews, and let me know how that works out for you.

13

harry b 08.13.14 at 7:17 pm

Layman

there’s no real connection between academic freedom and tenure. Tenure was developed by Harvard as a mechanism for firing people; up to that point there had been a practice of jobs for life, and a major disruption around the laying off of Alan Sweezy (Paul’s brother) prompted the invention of this system. Anyway, the protections you are concerned about are irrelevant to this particular case, at least according to Dorf’s analysis.

I don’t see why professors should have any more protection than anyone else, though, and I also doubt very much that those who speak out in a way that triggers those protections, on average, make more contribution to society than loads of other much less well-protected and lower-status (and lower paid) people.

14

Anderson 08.13.14 at 7:17 pm

People do it all the time, Sam.

But I will follow with interest links to Salaita’s attacking Jews qua Jews, without any context limiting his ire to Israel and its policies.

15

Anderson 08.13.14 at 7:20 pm

… I assume, for instance, that Sam has something better to show than these tweets.

16

djw 08.13.14 at 7:31 pm

SamChevre’s equivalence could work only if there was a country in which A) African-Americans were in power and B) they violated the rights of and/or committed atrocities against non-African-Americans, and C) criticisms of African-American rule were routinely met with accusations of anti-African American racism.

I suppose one could argue Liberia at times has met conditions A and B, although not C. A statement along the lines of “If objecting to Charles Taylor’s rule makes me a racist, I’m proud to be a racist” would get you some funny looks, but I think you’d be able to get by OK.

17

Bruce Wilder 08.13.14 at 7:32 pm

SamChevre @ 12

Something alone these lines, perhaps?
https://www.nationalreview.com/nrd/articles/383587/where-sidewalk-ends

18

SamChevre 08.13.14 at 8:00 pm

Actually, I was thinking of something along these lines; or these; or these; or these.

19

SamChevre 08.13.14 at 8:02 pm

Actually, I was thinking of something along these lines; or these.

I’m reposting with fewer links-have a multi-link post caught in moderation.

20

Anderson 08.13.14 at 8:09 pm

18: Uh, wait – I thought we were talking about Salaita?

Regardless: judges have a canon of judicial conduct, and NBA owners sign a contract obliging them to meet certain arbitrary standards.

But now I see that you were simply changing the subject.

21

Colin Danby 08.13.14 at 8:43 pm

Also a good statement here: http://cfaillinois.org/2014/08/07/cfa-statement-on-steven-salaita-and-u-of-illinois/

… and folks, just above, can we possibly resist the temptation to fling poo? There are multiple grave questions about responsibility that this raises, not least around antisemitism. It would be nice to be able to think about them carefully.

22

Anderson 08.13.14 at 8:45 pm

“There are multiple grave questions about responsibility that this raises …”

That is not, I thought, the subject of Robin’s post. The subject of the post is advocacy for the professor’s having been done wrong by the university.

23

Chaz 08.13.14 at 9:16 pm

@8 Yes, I have, though I doubt you care about the answer. You are trying to derail this discussion. Please piss off and take Sam Chevre with you. Bye.

24

Andrew F. 08.13.14 at 9:18 pm

I’m not so sure Salaita acted in “reasonable reliance” on the offer as expressed. Essentially Dorf seems to be claiming that Salaita was told that Board approval is a “rubber stamp”, and that therefore Salaita reasonably quit his job and prepared to move in reliance on the offer.

The idea that it’s reasonable to rely on such a statement is not as obvious to me as Dorf seems to think. And matters may become even more complicated in considering what Salaita is entitled to even if he did reasonably rely on what was, clearly, a false statement by someone (an authorized someone?) at Illinois. Incidentally, has Salaita attempted to rescind his resignation from Virginia Tech?

Even assuming that this is an instance where Salaita would be entitled to compensation under a promissory estoppel theory, it’s a true stretch to claim that the Board’s decision not to hire Salaita violated his First Amendment rights given the nature of some of those tweets.

In short, I’m unwilling to sign a petition in support of two dubious legal theories (which no one could verify as credible without a fair amount of research or pre-existing background in the applicable areas of Illinois and federal caselaw) applied to a set of facts of which key details appear to be unverified.

It’s a bit remarkable to me that so many others are willing to make such a leap of faith.

25

djw 08.13.14 at 9:39 pm

Andrew F.:

The petitions don’t endorse Dorf’s legal analysis or any specific legal claims at all. They assert that Wise acted wrongly and in violation of the shared values and norms of academic freedom.

26

LFC 08.13.14 at 9:42 pm

Andrew F. @23
Essentially Dorf seems to be claiming that Salaita was told that Board approval is a “rubber stamp”, and that therefore Salaita reasonably quit his job and prepared to move in reliance on the offer.

Well, his start date, as js. pointed out on a previous thread, was *before* the date of the Board mtg. Does that sound like the Bd approval might have been a rubber stamp or prof forma? In a word, yes.

In short, I’m unwilling to sign a petition in support of two dubious legal theories (which no one could verify as credible without a fair amount of research or pre-existing background in the applicable areas of Illinois and federal caselaw) applied to a set of facts of which key details appear to be unverified.

Who cares whether the rescission violated contract law or the First Amendment? I really don’t. Let’s stipulate purely for the sake of argument that it violated neither. The question then becomes, apart from legalities, whether it was justifiable to rescind the offer b.c of what he wrote on twitter. Though I haven’t read the whole twitter feed, I have seen what I believe are the most controversial tweets, and I am far from convinced that someone shd be ‘dehired’ for writing what he wrote on twitter. There is simply no good justification for it — a good justification wd have to be rooted in a claim that this affects his teaching and/or performance of his other academic duties. But presumably his entire prior record ie at VTech (or wherever he was) is a better indication of how he wd act than an intemperate twitter feed.

27

LFC 08.13.14 at 9:49 pm

Djw @24 said it better and shorter than I did.

Andrew F’s misconstruction of the core issues is especially annoying, because it wd have taken Andrew F about 10 seconds to determine that the question, as phrased in most discussions, is not primarily a legal one. Although I went to law school a long time ago, I really don’t give a sh*t what some law professor writes about promissory estoppel. This wd be unjustified even if promissory estoppel and the First Am. did not exist. Andrew F’s apparently willful misconstruction of the question is hard to view in a benign light.

28

Corey Robin 08.13.14 at 10:05 pm

23: “In short, I’m unwilling to sign a petition in support of two dubious legal theories (which no one could verify as credible without a fair amount of research or pre-existing background in the applicable areas of Illinois and federal caselaw) applied to a set of facts of which key details appear to be unverified.”

As others have pointed, none of these petitions make any mention of Dorf’s account; most of them were begun before Dorf came out with his piece. What’s funny here is that you make such a big to do about people not verifying the credibility of a legal argument when you didn’t even bother reading the petitions before you claimed that they were in support of that legal argument. Physician, heal thyself.

29

J Thomas 08.13.14 at 10:13 pm

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S Slt’s pnnns vry wll mght ffct hs tchng dts.

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[] Sr, w wnt cdmc frdm, bt ds tht mn w shld hv plstnn fclty? Thy prch mssg f ht. f w wr gng t llw Plstnn t b tnrd fclty t S nvrsty, shldn’t t b Plstnn wh dsn’t prch ht, wh sys tht Plstnns shld gv p htng srls nd shld mv t sm plc tht wll ccpt thm nd thn lv n pc wth thr nw nghbrs? Why shld h b llwd t sy bd thngs bt srl whn t mks hs stdnts frd f hm nd dmgs th nvrsty?

30

LFC 08.13.14 at 10:27 pm

J Thomas,
This (your 28) is either intended to be taken somewhat tongue-in-cheek or, more likely, you’ve descended to the level of trolling reached by someone who is simply determined to have an argument b.c he thinks it’s fun, or something.

Salaita is not someone newly entering the academy. He has been a professor. He has a record. Is there evidence of his having discriminated, in terms of grading or otherwise, against students who disagree with him? Not that I’ve seen mentioned. That’s why I said his record is a better indication of how he would act than a Twitter feed. Nothing you’ve said persuades me otherwise.

31

Corey Robin 08.13.14 at 10:48 pm

J Thomas: I’ve disemvowelled your last comment as it involved some rancid generalizations and statements about Palestinian professors. Anything further like that will get you banned from any thread on my posts.

32

JimV 08.13.14 at 11:14 pm

After reading three posts here on this issue, I can no longer resist adding my anecdote, about the only time I tried to blackball a person interviewing for a job at General Electric.

The applicant had been interviewed by JW in the morning, and given a tour of the factory. My friend Mario and I were assigned to baby-sit him through lunch at a local restaurant, then deliver him back to a manager’s office in the plant. We didn’t consider ourselves a formal part of the interview process and just made casual conversation and answered any questions he had. Still there was a one-page assessment form which we had to fill out afterwards. Without conferring at all with each other, we both put down, “Don’t hire this guy!” and walked the form to the hiring manager’s office.

A couple weeks later, to our surprise, he showed up at work (and within about six months was subject to disciplinary action). Meanwhile, Mario and I had discussed our conclusions (we each noticed something different at the lunch) so I asked the manager why in the world he hired the guy. He replied, “JW had already given him an okay and we had made him an offer, before I saw your forms. We couldn’t take it back.”

Whether that was due to NYS law, GE policy, or just the right thing to do, I don’t know.

33

J Thomas 08.13.14 at 11:48 pm

Corey, I apologize.

I like to try to look at things from the other guy’s point of view when I can. But when I tried that this time, it came out very much, as you said, rancid. I went ahead and posted it wondering if somebody might provide a better way to see the other guys’ point of view that didn’t look so bad.

But as you say, it was better not to. I will do my best to avoid doing this again.

34

Main Street Muse 08.13.14 at 11:49 pm

I don’t think Salaita should have been fired.

I do wish academics would elevate the social media discourse by avoiding “#f*ck…” whatever it is they’re angry about… that kind of social media activity does tend to get anyone in any other professional field fired. Israel/Hamas/Gaza is a very complicated issue; micro-blogging probably not the best way to communicate the nuances.

Bruce Wilder @ 17, that NR writer will likely be promoted, alas.

35

Andrew F. 08.14.14 at 12:39 am

I don’t agree that legal theories are irrelevant to the petition I read (the first one cited in the post). It relies on the characterization that Salaita was fired. I’ve also heard, and read, many other arguments that rely on propositions (as to what it means for an offer to have been extended, the implications of it having been accepted, the consequences of that sequence having been relied upon) that depend upon legal theories.

Suppose that the University had read over Salaita’s tweets before any offer was ever extended, and decided on that basis not to extend an offer. “Not a good fit for the University” might have been the rationale. Would this be the subject of as much attention and protest? I doubt it. What kindles that attention and protest is the sense that the University had an agreement with Salaita, that he was as good as hired, and that the Board then broke the deal under pressure from those who are vehemently opposed to Salaita’s viewpoints.

But we have a framework of rules in place for determining if there ever was an agreement to be broken in the first place. If according to those rules the agreement did not exist, then there was nothing for the Board to break. Salaita was merely “not hired”, as opposed to “fired” (or “dehired”, a term the invention and use of which seems to indicate some awareness of the importance of the distinction).

I don’t doubt that the distinction makes no difference to some. However I think it makes significant difference to many.

36

Corey Robin 08.14.14 at 12:51 am

Again, nothing in the petitions is dependent upon Dorf’s account or any legal theory more generally. Whether “legal theories are irrelevant to the petition” or not is in itself irrelevant to the original claims you made. You want to have an argument over whether he was hired or not, fine. But that’s not the claim you made.

37

Corey Robin 08.14.14 at 12:52 am

Incidentally, some new factual revelations (I’ll leave it to “theorists” in this thread to debate the implications) obtained by the Chicago Tribune through a public records request:

First, Salaita’s offer letter was dated October 3, 2013; he signed it six days later, on October 9.

Second, the offer letter, which was signed by the Interim Dean of the College of Arts and Sciences, states: “The University of Illinois at Urbana-Champaign offers a wonderfully supportive community, and it has always taken a high interest in its newcomers. I feel sure that your career can flourish here, and I hope earnestly that you will accept our invitation.”

Third, the job was originally slated to begin in January 2014, but the start date was postponed to August so that Salaita could finish the spring semester at Virginia Tech.

http://www.chicagotribune.com/news/local/breaking/chi-illinois-professor-israel-20140813-story.html#page=1

38

john in california 08.14.14 at 12:59 am

I don’t comment much on the political blogs I read anymore because the emotional sense of right and wrong always dominates and is really only consistent with the commenters’ own experiences and closely held ( learned?) beliefs , but some things are just obvious. Killing non-combatants at a ratio of easily 10 to 1 then telling the world it was their fault because “yada yada yada (supply some bullshit excuse)” is depraved, despicable and indefensible. This, quite apart from the occupation of Gaza to start with.
If the prof had expressed himself as I have instead of this less temperate and more directly emotional tweets, I don’t think the U of Ill would have thought they could rescind w/o consequences. However… he was mad as hell and hit the send button so what would have once been the kind of thing he would have exclaimed to whoever was at hand and not a out-to-the-world pronouncement has put him in hot water. Happens to athletes all the time.
I believe he is absolutely right in sentiments about Israel but he is teacher ,and I think a teacher is a better teacher if he is temperate and deliberate in his passion. It is less easy for truth to siderailed by arguments that really are about delivery.
(And I, once an Obama supporter, remember commenting all over the place “Fuck Obama!!” after his reversible on FISA, so , it happens …)

39

Colin Danby 08.14.14 at 1:02 am

Andrew F: I take it you have no experience with academic hiring.

40

Andrew F. 08.14.14 at 1:08 am

Corey, yes, I see what you mean about my original comment. I wrote it thinking about both Dorf’s arguments and the legal issues surrounding the Board’s action generally, and at best I did not clearly communicate my thoughts. Fair enough. So let me clarify that I’m unwilling to sign a petition which relies on a legal characterization of facts when both the merits of any legal theories in support of that characterization, and certain key facts themselves, are unclear. And I continue to find it remarkable that many would make such a leap.

LFC re: “pro forma” in this case though may really mean “usually the Board approves, but they have the final word.” And in that case, Board approval isn’t “just a formality.” Nor am I trying to misconstrue any of the issues here; I’m merely attempting to explain my perspective.

41

LFC 08.14.14 at 1:59 am

Andrew F. @39:
I’ve noted your comment. Perhaps “misconstrue” was not the right word choice on my part. In any case, having expressed my views on the issue in previous threads I’ve decided not to make any further comments on any threads dealing with the Salaita matter (reserving, of course, the right to reply to any personal attacks).

42

mark 08.14.14 at 4:14 am

@4: Thanks for posting those, as someone who supervises people in California I’m a bit embarrassed to say I didn’t know we had protections for politics in state law. (Most people assume they are there in federal law, which is not the case.)

Layman @7: I’d disagree these are moot points in at will employment situations. If anything, that’s where they are most useful–they prevent you from signing away all protections and your employer from getting cases dismissed out of hand. In larger corporations, these exceptions to “at will” makes senior people realize some mid-level manager with delusions of grandeur could cost them money by firing on a whim, and leads to formal termination policies.

43

Collin Street 08.14.14 at 4:53 am

The idea that it’s reasonable to rely on such a statement is not as obvious to me as Dorf seems to think.

That’s probably because you don’t know a lot about the structure of your legal system: promissory estoppal is as central and as clear a part of the law as the concept of going to court to get someone to carry out their obligations under a contract.

[If you don’t immediately know why I picked that specific example, then your understanding of legal fundamentals is almost certainly not good enough to usefully comment on what the law is.]

44

novakant 08.14.14 at 8:24 am

What Main Street Muse said.

45

Andrew F. 08.14.14 at 2:50 pm

Here is a copy of the University’s correspondence with Salaita, including the offer letter and general terms of employment.

While not dispositive, it’s noteworthy that the letter states [t]his recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois.

In addition, the first numbered section of the General Terms reiterates as much in the first sentence: The University of Illinois Statutes (Article IX, Section 3.a.) provide that only the Board of Trustees has the authority to make formal appointments to the academic staff.

Nothing in the letter or terms indicates that such approval is merely a formality or that such approval should be assumed. Indeed the offer letter explicitly notes that it is a recommendation for appointment (both start dates, moreover, occur after the Board would have met).

@Collin Street: if you scroll back you’ll see why I am unclear as to the merits of a claim here based on promissory estoppel. The correspondence deepens my doubts.

46

AcademicLurker 08.14.14 at 3:15 pm

Andrew F.@44: As several people have been pointing out, academic hiring has some special issues. The schedule of the board of trustees doesn’t match up with the academic schedule. If a university hires someone, it generally needs them to be there at the beginning of the academic year in order to start teaching. They can’t generally wait for one of the board’s infrequent meetings. That’s why board approval is considered pro forma. The board isn’t tied to the day to day schedule of the university, and in return they keep their hands out of day to day keep-the-university-running issues.

47

Gator90 08.14.14 at 4:01 pm

“Thus, it is possible in an extreme case for a faculty member’s external statements to render him or her unfit to teach. Overtly insensitive and repeated racist, sexist, or homophobic statements might fall into this category.”

Apparently the University of Illinois believes that anti-semitic statements also fall into this category. Kudos to it.

48

Corey Robin 08.14.14 at 4:29 pm

Since Andrew F. is such a fetishist for the fine print, he might observe that the phrase he’s quoting says, “is subject to approval by the Board of Trustees.” The Chancellor never sent the appointment to the Trustees for their approval. So the Trustees did not in fact withhold their approval; they were never given the formal opportunity to vote one way or another. Nothing in Salaita’s offer letter says his appointment “is subject to the decision of the Chancellor to put the appointment forward for the approval by the Board of Trustees.”

49

Andrew F. 08.14.14 at 5:45 pm

Corey, unfortunately the General Terms specifies at the outset that it is only providing excerpts, and directs the reader to the cited Statutes for complete information.

When one turns to the statute cited in this case, Article IX, Section 3.a, one reads:
a. All appointments, reappointments, and promotions of the academic staff, as defined in Article IX, Section 4a, shall be made by the Board of Trustees on the recommendation of the chancellor/vice president concerned and the president.

If you read further to 3.d, you’ll see what the Dean’s letter was actually referring to:

Recommendation to positions on the academic staff shall ordinarily originate with the department or in groups not organized as departments with the officers in charge of the work concerned and shall be presented to the dean of the college for transmission with the dean’s recommendation to the chancellor/vice president.

So if you read the fine print, as one should, the letter confirmed that the Dean had recommended the appointment to the Chancellor; the Chancellor must then recommend the appointment to the Board; and the Board must then ultimately approve it.

This procedure does not appear unique to the University of Illinois. Nor is the problem of coordinating appointments with Board meetings unique to the University of Illinois. Nor, so far as I can tell based on an extremely quick glance, do other institutions with such procedures determine Board approval to be a mere formality.

Here, for example, is an excerpt from Cornell University’s policies:

While it is generally understood that departments are not authorized to confer tenure, at times there is the feeling that the de facto power is at the department level. There have been instances where department chairpersons, in discussions with candidates or appointees, have minimized the possibility of a negative decision at levels beyond the department. While it is true that the majority of departmental decisions are approved, there is a significant fraction which are not. Thus, caution is advised in any discussions of the probability of the approval of a recommendation.

See Cornell University Academic Titles and Appointments Policy, 56-57.

I don’t think the University of Illinois’s letter was as clear as might be desired with respect to the conditions of Salaita’s appointment or the University’s process for making the appointment. I’d sign a petition urging the University to reform its hiring practices. I’d also sign a petition urging Virginia Tech to reinstate Salaita if, in fact, his resignation was ever given effect by VT.

But I haven’t seen a persuasive (to me) argument that the Board of Trustees and the Chancellor should not consider Salaita’s tweets; nor have I seen a persuasive argument that the nature of the tweets doesn’t furnish acceptable grounds for not hiring someone as a tenured professor; nor, in light of all the above, do I see a good argument that the University should be bound by Salaita’s misunderstanding of the terms of the offer.

50

J Thomas 08.14.14 at 5:51 pm

#48 Andrew F.

But I haven’t seen a persuasive (to me) argument that the Board of Trustees and the Chancellor should not consider Salaita’s tweets; nor have I seen a persuasive argument that the nature of the tweets doesn’t furnish acceptable grounds for not hiring someone as a tenured professor

Ah. Well, basicly, he should have academic freedom and he didn’t say anything wrong or anything he shouldn’t say.

How’s that?

51

Consumatopia 08.14.14 at 6:13 pm

both start dates, moreover, occur after the Board would have met

Where are you getting that? The attachment to the letter states that the semesters start on 8/16 and 01/01. August 16 is handwritten on the first letter. The second letter states that the board meeting in question would be in September. What did I miss?

52

Andrew F. 08.14.14 at 6:23 pm

@Consum: See University of Illinois Board of Trustees Schedule for specifics. In general, apparently, the Board of Trustees meets every other month, generally on a Thursday, at one of the three University of Illinois campuses, according to the Board’s website.

53

T 08.14.14 at 6:27 pm

@46 and @47

It appears that the Salaita offer was a recommendation subject to Board approval. The questions of whether that language is pro forma or whether the failure of the Chancellor to forward the recommendation to the Board affects the status of the offer will be settled by the courts if it gets that far. However, in other academic employment decisions, particularly tenure, Board approval is required and there are many (in)famous incidents where the Board or President failed to act on the recommendation of the department and college to approve the tenure decision. I’m not a labor lawyer, but the notion that examining the Salaita contract means you’re “a fetishist for fine print” is ill-considered. It’s also kind of odd. Many of this blogs original posts are based on fine reading and parsing of all kinds of statements. A significant portion of the comments in the Salaita threads are efforts to parse Salaita’s tweets, including efforts by Corey. Unless this is completely settled law, interpreting the labor contract is anything but fetishism.

54

Consumatopia 08.14.14 at 6:46 pm

@51, So why did whoever made the decision here wait until August to decide they weren’t going to recommend Salaita to the meeting in September, when apparently the Board met plenty of times before that? This makes UI look worse, not better.

55

Colin Danby 08.14.14 at 10:59 pm

This is about norms – about how faculty treat each other, about what you can and can’t be fired for, about how hiring works including how administration and faculty interact during the hiring process. These norms are what Phyllis Wise violated, and why folks are signing on to various statements – this is not a gray area. In particular it’s unbelievable to hire a tenured person away from another institution, and then change your mind shortly before the start date and nine months after the formal offer. You don’t do that to people.

What will happen if this gets to the courts I don’t know. This is why God made lawyers. But it’s massively sad that we’re even at that point.

56

J Thomas 08.14.14 at 11:49 pm

These norms are what Phyllis Wise violated, and why folks are signing on to various statements – this is not a gray area. In particular it’s unbelievable to hire a tenured person away from another institution, and then change your mind shortly before the start date and nine months after the formal offer. You don’t do that to people.

But they did.

Probably the Chancellor got rattled because she was suddenly up against a strong Zionist presence that would call her an antisemite if she didn’t retract the offer.

57

PatrickinIowa 08.15.14 at 12:04 am

I hope Harvard doesn’t fire Alan Dershowitz for this: “Here is an interesting admission from Dershowitz, concerning his successful defense of a Jewish Defense League bomb-maker: “This was the first time I had used my legal talents to help free guilty murderers. It would not be the last.””

But it would seem that defending members of a terrorist organization, knowing that they were guilty of murder might get the attention of a university president.

It would also seem that calling your clients “guilty” after you got them off might violate a canon of ethics or two, at least at a leading law school.

But let’s read the fine print of his contract, by all means.

58

PatrickinIowa 08.15.14 at 12:05 am

59

T 08.15.14 at 12:11 am

@54
The old norms are under a lot of stress if they haven’t already changed. The stakeholders not only include the faculty and administration but the parents, public, and politicians.

The old norms had a year of college costing $8K and the students taught by tenured and tenure-track faculty. Today, it’s $30K ($50K out-of-state) and adjuncts. The old norms were adamant against academic boycotts (see South Africa and the AAUP), recognizing how it would undercut academic freedom. Today we have academic boycotts under BDS. In the old days, English departments didn’t accept 15 grad students knowing that maybe 1 or 2 might land a tenure track job. In the old days, people admired the academy and academics. Today they feel less sympathy for scholars and many don’t understand the field of American Indian/Palestinian American Comparative Studies or accept its validity.

A lot of this is sad. But this decision has become a grey area. You might not like the views of the former head of the AAUP, a UIUC English professor, but my guess is that he speaks for more than himself in supporting the UIUC decision not to hire Salaita.

60

Corey Robin 08.15.14 at 1:02 am

The logic here is cockamamie. By the standards of some on this thread, had the chancellor forwarded the Salaita position to the Trustees for their vote in September, he still should not have shown up at his start date, indeed should not have shown up at his first class, because the appointment was not yet real. I get the feeling most of the people making these sorts of claims are not themselves a part of academia so have very little sense of how it works.

As for this: “However, in other academic employment decisions, particularly tenure, Board approval is required and there are many (in)famous incidents where the Board or President failed to act on the recommendation of the department and college to approve the tenure decision.”

How many incidents, famous or otherwise, can you cite where a hiring offer to an academic was made, signed, and then, after nearly a year, at the very last possible minute, overturned, not by a decision of the Board of Trustees but by a chancellor’s decision not to forward the appointment to the Trustees? Wherein nothing changed in the realm of finances that would at least suggest it was a budgetary decision or something like that?

61

Colin Danby 08.15.14 at 1:29 am

http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html#tweet1

I see you blogged this at your own place, but it’s worth mentioning here as it helps to see just how unfair the attack is.

62

T 08.15.14 at 1:52 am

Most academics I know are very careful before they get tenure and are holding their breath until the last t is crossed — usually by the Board or President. And then they act like they have tenure. I’m not a mind reader, but Salaita acted like he had tenure when, at least from UIUC’s perspective, he didn’t. People assume stuff all the time. Is there some implicit agreement that once he had signed the offer letter that the execution by the Board was pro forma? A lot of people on the thread think so. You do. But we’ll have to wait and see what the courts say if this isn’t settled outside of court. I do think once the Board had signed off, he’d be hard to touch. And the U probably thinks so too.

63

Collin Street 08.15.14 at 2:30 am

Is there some implicit agreement that once he had signed the offer letter that the execution by the Board was pro forma?

This is a misunderstanding: from a legal perspective, a contract exists — and breeches of it are actionable — from the moment an offer is accepted, and “execution” doesn’t enter into it.

[although the terms of the contract itself might set out some effect that “execution” might have on the obligations of the parties.]

64

bxg 08.15.14 at 2:44 am

> That’s probably because you don’t know a lot about the structure of your legal system: promissory estoppal is as central and as clear a part of the law as the concept of going to court to get someone to carry out their obligations under a contract.

Are you a lawyer? I’m not, but have always thought that promissory estoppal was far less entrenched in time (since the 30’s, maybe), jurisdiction (i.e. not even all U.S), and interpretation (what’s a promise? When is reliance significant enough?). And to be entrenched as the basic idea of getting a court to enforce performance under a contract?!? I’d defer to a real lawyer’s opinion but this sounds astoundingly just-made-up to me.

65

stubydoo 08.15.14 at 1:26 pm

Is this a case about academic freedom or about promissory estoppel?

An employer extends an offer which is accepted, then before the start date discovers information about the person which in the employer’s (possibly flawed) judgment, makes employing the guy a bad idea.

You might say that’s too bad because blah blah academic freedom.

Or you might say too bad because promissory estoppel.

If you’re using the estoppel one, you can’t say it depends on how reasonable your new judgment is. Estoppel works like pregnancy – you don’t get a little bit estopped. If he gets estopped, then you later find out he sexually harassed students at his last four positions, too bad he’s still estopped – meaning per the law you have a contract. If you want to declare that there should be a high threshold for avoiding such a (quasi-) contract, you have to reject the concept of estoppel in the case at hand, because estoppel compels you to apply no threshold.

It’s good to see so many non-Illinoisan non-lawyers* so concerned about ensuring the proper application of contract law in the State of Illinois. No doubt all of these people have carefully researched the applicable laws.

* note: I am also a non-Illinoisan non-lawyer. I am most certainly not giving legal advice here.

66

js. 08.15.14 at 1:53 pm

Is there some implicit agreement that once he had signed the offer letter that the execution by the Board was pro forma?

Oh my. Look, I get that arguing with someone being as deliberately obtuse as you is certainly an exercise in futility, but which part of the scheduled start date was before the Board meeting are you having so much difficulty with? Or to put the point another way, how many times in your life have you started working someplace before you actually had a job there? CR’s @59 more than covers this, of course, but that seems to have whizzed right by you (as I imagine this will too).

67

J Thomas 08.15.14 at 2:08 pm

#65

Is this a case about academic freedom or about promissory estoppel?

For me, it’s particularly a case where a Palestinian was about to switch from one tenured job to another, and Zionists managed to stop it in a way that may have left him with no tenure anywhere and his career wrecked.

He made some tweets that didn’t say anything particularly wrong, but that looked HORRIBLE to zionists. They want him to go missing. They do not want anti-zionist positions to be expressed.

Academic freedom.

However, I had to admit that when the time comes that Israel has as much popularity in the USA as the palestinian cause does now, if an exactly analogous situation comes up with a zionist in place of Salaita, I won’t be as concerned. It would still be an academic freedom issue and I would still support him. But we have *lots* of tenured zionist professors already and it will take a long time for them to die off. Just as our tenured male-supremacist professors are slowly dying off.

68

Andrew F. 08.15.14 at 2:32 pm

Corey, I’m not sure what the University of Illinois’s procedures are for such cases. Presumably he’s given an interim appointment, receiving compensation in accordance with the terms. If he did not receive tenure while there, then I would guess that his employment would end at the close of the year. But these are all questions someone should ask in those circumstances, rather than merely assuming that he will be granted tenure.

I’d add that nothing was “overturned.” That phrasing indicates that an effective decision was made to grant tenure, and that the decision was then later reversed. But in fact that’s not what happened.

The continued use of phrasing like that, and Colin Danby’s comment, indicate to me that outrage about this affair hinges on a conception of events in which Salaita was effectively hired, and then fired; that a deal was struck, and then was by the University broken.

But none of these things is the case here. The tenure process seems to vary by institution – I wonder if Virginia Tech has a different process, which may have contributed to Salaita’s misunderstanding – but the process at the University of Illinois seems clear enough to be understood by anyone who reads the relevant material.

69

bianca steele 08.15.14 at 2:46 pm

Corey Robin @ 30

The logic appears to be fairly simple, in fact:

If you don’t have a solid job offer, you really should not quit your job and move to another state, hoping you’ll get one. This is perfectly true.

If you want a professorial position, you will have to be willing to quit your job and move to another state, whether or not you have a solid job offer. This also seems perfectly true (though of course I’m not an expert in either law or academic employment and I’m going from what people on the Internet say).

So, the burden is on the individual to choose. Where’s the illogic?

(facetiousness off)

(I did think part of the outrageousness of the first post involved the outrageousness of a concept like “hirefire,” but the other issues remain regardless.)

70

T 08.15.14 at 2:54 pm

We’re going around in circles. The question is whether the offer is contingent on Board approval and whether that approval is pro forma. Board approval is required as stated in the letter. Board approval for tenure is not pro forma. It remains an open question for new hires, esp. w/tenure. whether Board approval is pro forma. Unless someone shows up with a definitive legal interpretation, the legal status of the offer is an open question.

As to whether people move and accept jobs without final approval, the answer is yes, all the time, at least back in the day. Federal gov’t agencies and commissions often made offers for temp positions with the understanding that they would become permanent but the hire was w/o guarantees. (This is NOT the fed one year tenure requirement for permanent employees — there’s that too.) These were positions for PhDs. People took these jobs all the time.

This is no doubt an awful situation for Salaita since he already had tenure before he resigned his position. But he thought he had a job he may not have had. And my guess is that AAUP will work very hard to make sure this doesn’t happen again or at least the membership is aware that hiring decisions can be like tenure decisions.

A lot of the discussion on the thread involves the conflict between Salaita and the UIUC administration which is not a surprise given the academic nature of the hosts. I think you need to go beyond that in the context of a flagship public university. And not just some general Zionist blah blah blah, but the relationship of the school and regents to the governor, legislature, alumni, parents, etc. As noted, above, the norms are in flux.

71

bianca steele 08.15.14 at 2:57 pm

Andrew F. @ 68

Who sends out a letter offering a position, if the position still has to be approved by management, before that’s happened? What if college admissions worked that way? (I’ve heard of places being rescinded–and not rescinded–after it turned out the applicant was, say, a felon, but if colleges felt entitled to take away a place after a student accepted the offer and declined others, students and their families would be incensed.

I said the other day on LGM that this is almost literally incredible. It simply does not seem to be conceivable. (Where, if Salaita hadn’t been made an offer, or had been up for tenure and had been denied it, Corey and a few others might be writing about it, but it wouldn’t be consuming the Internet the way it is.)

72

js. 08.15.14 at 3:14 pm

Colin Danby @61:

That’s a great piece — thanks.

73

js. 08.15.14 at 7:51 pm

As to whether people move and accept jobs without final approval, the answer is yes, all the time, at least back in the day.

Leaving aside the fact that this sounds suspiciously like something pulled straight out of T’s ass, it is entirely and completely irrelevant. (Note that you yourself, in the next sentence, talk about “temporary hires.”) So, to repeat:

how many times in your life have you [or for that matter, anyone you know] started working someplace before you [or they] actually had a job there?

74

T 08.15.14 at 9:15 pm

js.

The last sentence of the first paragraph of the Salaita letter states:

“This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois.”

I guess UIUC just threw that whole “recommendation for appointment” thing in there for color. Obviously doesn’t mean a thing. Just sounded kind of snappy. How many job offers have you received that say you’ve been recommended rather than hired?

So hold your breath until you turn blue, disparage the integrity of those you disagree with, and wallow in your own self-righteousness. Cause, of course, that’s the appropriate response to an unsettled legal question in Illinois labor law. I’m sure AAUP will be making the best legal arguments on behalf of Salaita if it gets that far. I’m sure that the UIUC will do the same. My guess is that it settles.

75

js. 08.15.14 at 9:21 pm

Good to see you admit the irrelevance of your previous line of reasoning, or at least to entirely drop it. But you still haven’t answered my question.

76

J Thomas 08.15.14 at 9:33 pm

how many times in your life have you [or for that matter, anyone you know] started working someplace before you [or they] actually had a job there?

I did.

I was at loose ends, and a friend who was working on her doctorate found it wouldn’t be ready in time for the start of the school year. She asked me to take her teaching job at a small college for a year while she finished up. The job would start almost immediately. I interviewed with them, and they wanted me, but the president was out of town. The first day of school their brand-new department chairman did not show up. He had taken a better-paying job somewhere else and did not tell them until they called and asked. So without me there were only two teachers in the whole department. I started teaching, and after a week or so the president arrived and signed the contract. I wasn’t particularly worried that he wouldn’t. I wouldn’t have minded that much either — it wasn’t all that much money and I might have done better to look for something different.

77

T 08.15.14 at 9:44 pm

And, back in the day, I took a temp job at the gov’t with with assurances but no guarantee of a permanent position. So, I guess your question has been answered twice — @76 and @77. Notice you didn’t answer mine.

78

J Thomas 08.15.14 at 9:54 pm

And, back in the day, I took a temp job at the gov’t with with assurances but no guarantee of a permanent position.

Not the same thing. You knew you had a temp job, and you knew you might or might not get a “permanent” job. (Which usually doesn’t mean that much any more.)

In my case the college president could theoretically have decided not to hire me, and had campus security escort me off the property with the warning never to come back, without paying me for the week of teaching I’d already done. Of course he wouldn’t, but probably legally he *could* have. And that did happen to Salaita, though he didn’t actually start teaching first. But if it worked the way everybody (probably) expected it to when they offered him the job, he would have.

On the other hand it’s possible that he was offered the job with no actual intention that he would get it, entirely so he would lose the job he already had at Virginia Tech. To make sure people know they can’t get away with criticizing Israel.

79

Colin Danby 08.15.14 at 10:13 pm

1.Normally senior hire offers – that is hires with tenure – get especially close scrutiny by the admin person above the chair of the hiring unit, typically a Dean. This is before the written offer goes out. Point is, *that’s* the moment for administration to step in and say, nope, sorry, the faculty are nuts, we’re not making this offer.

The written offer, which Salaita, got, is a moral commitment by the institution.

And if it’s not, academic hiring is gonna get a whole lot harder. Why should a job candidate take *any* offer seriously? Suppose you’re in the happy position of weighing two offers in February. In addition to the normal stuff, do you have to research the politics of the trustees of both places, and figure out where you’re less likely to be the victim of an end run? The implication is that a Dean’s backing means nothing. Deans everywhere should be organizing, rising up.

Anyway, I notice that Corey’s challenge to find other end-run examples like this has not been ignored.

2. My initial reaction to this case drew on a summary of Salaita’s tweets, but the fuller picture I linked to above (http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html#tweet1) shows Salaita as a more thoughtful figure. It certainly undermines the claims by Cary Nelson and co. that they based their actions on a careful reviewed of the whole record.

80

Collin Street 08.15.14 at 10:42 pm

Obviously doesn’t mean a thing.

It may well not, you know. There’s lots of stuff that people put into contracts that the courts — for various reasons — simply ignore.

81

Andrew F. 08.16.14 at 12:24 am

Bianca @71: I would guess that they want the potential hire’s agreement on the terms before it’s presented to the Board for approval.

Collin @79: It’s rather likely that the fact that the Board must approve the proposed appointment, something which is stated in the Dean’s letter, which is reiterated in the accompanying materials, and which is explicitly provided in the governing statutes cited by those materials as part of the terms of any employment, won’t be simply ignored. I use “rather likely” here in the same sense that I think it rather likely that the sun will rise tomorrow morning.

And if you really want to push the idea that a contract was created here, then unfortunately it’s essentially an option contract, with the Board in the position of choosing whether to exercise it. The answer to the question of whether an option contract exists, though, would require knowledge of Illinois or Virginia law concerning the formation of such contracts, particularly with respect to the question of consideration. Personally I doubt one was formed here. Salaita was free to walk away before the Board approved, just as the Board was free not to approve.

I would guess that Virginia Tech will agree to reinstate Salaita, if they haven’t offered already, and that the University of Illinois will offer to pay for any expenses Salaita has incurred in preparing to move.

82

bianca steele 08.16.14 at 1:00 am

Bianca @71: I would guess that they want the potential hire’s agreement on the terms before it’s presented to the Board for approval.

That may be so. It may even be the case that there are other industries where it’s usual to send people letters that say they’ve been offered a position, when in fact the offer hasn’t yet happened. In my experience, an offer will not be made until everyone from HR to Legal to the CEO has signed off, if it’s felt that’s necessary. Contingent on a reference check, in some places, maybe, where credit checks and so on are becoming customary–I could see that, you wouldn’t want to do credit checks until the very last minute. But if there’s a gap of months between the offer and when he was supposed to start work, this wasn’t a last-minute situation like @76, anyone would expect the university to plan to have the offer considered in that time. But in this case they waited almost a year, until only a few weeks before classes were to start (and apparently if the board had considered the offer, it would have been several weeks after classes started). Presumably they printed a course catalog, assigned a classroom, and let students register. Presumably there was correspondence between Salaita and his department in the past year, discussing his courses and administrative matters. Presumably he got budget line-items and an office and a mailbox. Was all of that activity unauthorized by the Board and thus not actually done by the University? (No matter how disorganized the university is, there’s a limit to how much they can decline to solidify once students are actually on campus.)

OTOH the only issue I see that’s affected by whether or not he was “hired”–other than whether he can sue, like a normal person–is whether he had tenure at UIUC before all this happened.

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js. 08.16.14 at 1:27 am

back in the day, I took a temp job at the gov’t with with assurances but no guarantee of a permanent position.

J Thomas has this covered, but obviously, you were hired! For a temp position. If at the end of the first week, you’d been told not to come back, you’d have been fired/terminated at will/laid-off or whatever. It certainly wouldn’t have been the case that you’d never been hired! It’s ridiculous even to have to note this absurdity.

Notice you didn’t answer mine.

I didn’t answer your dumbass question because it’s question-begging, and I wanted to wait a bit before pointing this out to you.

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T 08.16.14 at 1:41 am

@80 & @81
I think that he can sue and let the courts decide if he was hired with tenure. My guess is that both parties will want to settle. The language in the letter looks pretty strong and the need for final Board approval might be in the charter or by-laws of the U. On the other hand, the timing of the decision may cut against the U. The circumstances of this case were idiosyncratic to say the least. However, I’m not sanguine that VT will rehire Salaita given both the school and state politics. That’s the rub.

I was being sarcastic in @74. Upon rereading @75, it seems that the the sarcasm was lost on js. Just to be clear, the letter plainly said that the offer was contingent on Board approval, that language was not there for “color”, it obviously meant something, i.e. what it said, and it wasn’t included to be snappy. So much for sarcasm on the internet. I should have known better…

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Branko Collin 08.16.14 at 7:13 am

Showing up at a place of a work without having a job there sounds like trespass to me.

Now that I think of it, there is an area in which workers hold off actually going to work until the binding offer (often in the form of an SMS) has been made, which is professional football. Then again, football players don’t have course materials to prepare and clubs are perfectly fine with players not playing in competitive matches for the team for which they’ve been hired until the players are ready.

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Andrew F. 08.16.14 at 11:58 am

bianca @81 and T@83:

bianca, if there were additional communications between Salaita and the University that would change a reasonable person’s beliefs as to whether Board approval was required, then Salaita might have a case for compensation in some form.

I’d be curious to know when he sent in the various forms required for processing, and any additional communications he had with the University regarding the upcoming year.

I’d also be curious to know if the University of Illinois actually allows someone to join the faculty at all, interim basis or not, without Board approval. Depending on that answer, the “effective date” of his hire would be contingent on Board action as well.

Obviously there’s a lot that we don’t know.

T, I’d think there would be a lot of pressure on VT to reinstate him. And actually that would be a petition I’d be willing to sign (which I’m sure makes all the difference to VT).

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J Thomas 08.16.14 at 1:09 pm

#84 Andrew F

T, I’d think there would be a lot of pressure on VT to reinstate him. And actually that would be a petition I’d be willing to sign (which I’m sure makes all the difference to VT).

Why would there be pressure on VT to reinstate him? The other place folded to intense pressure from zionists. “Look at the horrible, horrible antisemitic things he said! You don’t want somebody like that to be a professor!” Would VT be less susceptible to that pressure?

And I’d expect you to argue that VT has absolutely no obligation to take him back. “He resigned of his own free will. That’s clear and definitive. No obligation to give him tenure again, starting fresh.”

I just don’t see it.

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Consumatopia 08.16.14 at 1:21 pm

bianca, if there were additional communications between Salaita and the University that would change a reasonable person’s beliefs as to whether Board approval was required, then Salaita might have a case for compensation in some form.

Prevailing academic norms (which might alter what it’s reasonable for Salaita to expect or rely on), UI’s status as a public university, and the timing might also give Salaita a legal case for compensation. Maybe.

Of course, if that legal case is never brought forward or fails, that would have nothing to do with the question of whether this is the way a school should act, and how other members of the community should treat this school for acting this way. A T said, “norms are in flux” (when aren’t they?), and that’s exactly the time to fight hardest for what the norms should be.

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Barry 08.16.14 at 1:37 pm

T:”And, back in the day, I took a temp job at the gov’t with with assurances but no guarantee of a permanent position. So, I guess your question has been answered twice — @76 and @77. Notice you didn’t answer mine.”

I’ll pile on – that is so not the same.

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Collin Street 08.16.14 at 2:02 pm

Prevailing academic norms (which might alter what it’s reasonable for Salaita to expect or rely on), UI’s status as a public university, and the timing might also give Salaita a legal case for compensation. Maybe.

Andrew F has it arse-backwards. http://www.hg.org/agency-law.html Random google [but this is pretty standard and uncontroversial]

If the principal either knowingly or mistakenly, authorizes the agent or others to assume that the agent holds authority to carry out specific actions when such authority does not exist, this is known as apparent authority. If other persons believe in good faith that such right exists, the principal remains liable for the agent’s actions and is unable to rely on the defense that no actual authority was established. […] If it so happens that the agent exceeded his or her authority by entering into the contract, the agent is then financially responsible to the principal for failing to uphold the fiduciary duty.

For extra irony I looked for the equivalent page on uni of illinois website, but it took longer than 30sec so I got bored.

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T 08.16.14 at 2:58 pm

Andrew@84 C@86 Barry@87

@84 All points well taken. There is a lot we don’t know about the facts that could strengthen either position. I haven’t heard anything about VT, but the mainstream press and politics in the VT area would not be sympathetic to Salaita. The “support the troops” article in particular was not helpful in that part of the state. I don’t know much about the VT administration and the governor-appointed Board of Visitors, but they would be responsible for inviting him back. The VT administration has confirmed that Salaita has resigned and he is no longer an employee. We agree that his social media comments would not likely have affected his status at either VT or UIUC.

@86 — the various norms are not independent of each other. The humanities professoriate has become more politicized. It recruits scores of graduate students for 7 years of additional schooling when they have no job prospects. There will be no return to affordable higher education. These and other changes to existing norms have put much more public scrutiny on the perceived benefits afforded faculty, esp. tenured faculty. And a lot of people see them as interconnected.

Barry @87 you’re right, that is not the Salaita situation although @76 seems much closer. I don’t consider it piling on.

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Consumatopia 08.16.14 at 3:11 pm

@89 You might be right that those things make the norms weaker, and the prevailing norms might not actually prevail in this case, but I don’t think any of those things can actually change the content of the norm. The norm of Academic Freedom still is what it is, it’s just a question of whether enough people follow it or not. It doesn’t make logical sense to say “professors are lefties now, therefore it’s okay to send them (conditional) offer letters then dismiss them weeks before the term starts”.

I do concede that that might be exactly what ends up happening, de jure. However, whatever UI ultimately does the norm is already somewhat reinforced by all the scholars signing non-engagement letters–other schools now have to consider whether they want to find themselves in a situation like UI finds itself in.

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T 08.16.14 at 3:56 pm

@90

The norm of academic freedom was seen as enhancing the public good — for tenured faculty that meant lifetime employment and freedom to say almost anything — extraordinary protection in today’s employment environment. If the norm is seen as no longer in the public interest then it will be weakened and, some may argue, that losing the public interest aspect actually changes its content. It certainly changes it’s context.

There is no question the professoriate is passionate about defending and retaining the old norm. Who wouldn’t want a lifetime employment guarantee? Their actions are completely unsurprising. But it’s not in their hands. Or the administration. Ultimately the norm is much broader. And many in the public see academic freedom — something they don’t have — as benefiting only the privileged few, with no spillover benefits to the public at large. (And they see academics themselves only selectively supporting academic freedom — see BDS and the reaction of the AUPP (and the like of Stanley Fish) who saw the slippery slope.)

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Andrew F. 08.16.14 at 4:00 pm

Collin Street: I linked to the correspondence between Salaita and the University @45, and I then further quoted the relevant part of the Illinois statute @49. You may want to take a look at those.

The problem they pose isn’t that the Dean didn’t have actual authority. The problem is that the need for Board approval is stated in:

(1) the letter itself,
(2) the excerpts of the general terms that were enclosed with the letter, and
(3) the statutes that those general terms explicitly direct the potential employee to.

They all clearly state that the Board of Trustees must approve any appointment. They were all communicated to Salaita, and he further indicated by signature that he agreed with them.

So to the extent Salaita entered into any contract at all, he entered into one with those terms – which would make this an option contract (again, assuming a contract was formed at all, which for various reasons I doubt).

J Thomas@85: The pressure would largely be out of sympathy for Salaita’s situation. If he did resign over a misunderstanding of the terms of Illinois’s proposed appointment, and if Illinois’s handling exacerbated the consequences of that misunderstanding, then the decent thing to do would be to allow him to be reinstated. It would be a terrible thing for him and his family were he to lose a tenured position over this.

I’m someone who thinks Salaita’s tweets were sometimes childish and sometimes disgusting; and I think Israel’s military actions against Hamas probably were within the bounds of proportionality. But I’d also encourage VT to reinstate him, and I suspect that if I feel that way, I’m not alone.

T @89: I agree re politics, but I also think there would be a lot of sympathy for Salaita at all levels of the administration. My hunch is that they would want to reinstate him. No idea as to what the politics of this would be to the governor or members of the board of visitors, but it may be an issue of little importance.

It may be best that the whole thing happen quietly, or that, perhaps, VT were to just discover that Salaita’s resignation wasn’t “fully finalized.” Perhaps a key individual or entity hasn’t yet had a chance to review and acknowledge the resignation (there being so many other pressing matters, of course), giving Salaita time to rescind it. No one need stick his neck out for him, in that case. No one need take responsibility for reinstating him. Just a bureaucratic quirk, a strange but implacable result of lots of rules and procedures. These things happen. Nothing anyone can do I’m afraid. Oh well.

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T 08.16.14 at 4:19 pm

@92
I raised the VT Board issue only to the extent that the Board may be needed to approve his reinstatement. VT has acknowledged that he resigned. I believe that Boards need to sign off on tenure in VA public Us. Hopefully this can be sorted out.

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Consumatopia 08.16.14 at 4:41 pm

(And they see academics themselves only selectively supporting academic freedom — see BDS and the reaction of the AUPP (and the like of Stanley Fish) who saw the slippery slope.)

I would agree with most of your post, but it’s certainly not a matter of logic that because a norm permits boycotting an institution because of the politics of the country the university resides in, it must also permit an institution to fire (or to do what UI did) to a professor because of political statements the professor made. (Ultimately, how exactly is academia supposed to uphold these norms, when they extend beyond law, other than by disengagement with those who violate them?)

A good way to weaken a norm is to let Stanley Fish define it. I don’t know what Fish has to say about Salaita, but it seems by the logic of this piece back in 2006, http://www.nytimes.com/2006/07/23/opinion/23fish.html , firing Salaita for offensive tweets would have nothing to do with academic freedom, whether or not Salaita had tenure.

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Consumatopia 08.16.14 at 4:41 pm

Sorry, only the first line should be a blockquote.

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T 08.16.14 at 6:29 pm

@94

I will take issue with with the notion that an academic boycott as opposed to an economic boycott is consistent with the past norm of “academic freedom.” I thought, for example, the South African boycott excluded an academic boycott. (I recall from reading AAUP materials about BDS)

Fish’s discussion regarding academic freedom is linked below. He is a very strong defender of the norm and worries that that BDS is yet another problem undermining the norm in the public’s eye. (I did not give it a very close reading but one his main points is that nothing is more important to a professor qua professor than the norm of academic freedom.)

I don’t want to turn this thread into a BDS discussion and my parenthetical reference was one point among several. But I think it contributes to the changing context of how the public views “academic freedom” who who receives the benefits. And it’s not good.

http://opinionator.blogs.nytimes.com/2013/10/28/academic-freedom-against-itself-boycotting-israeli-universities/

http://www.nytimes.com/2013/11/12/opinion/fish-boycotting-israeli-universities-part-two.html?pagewanted=all

Ultimately, how exactly is academia supposed to uphold these norms, when they extend
beyond law, other than by disengagement with those who violate them?

That is the question, isn’t it? Shouldn’t disengagement be a last resort, especially in the context of the broader society? Ultimately, it’s society’s support that’s needed to uphold a norm that extends beyond the law. And in an era where primary school teachers are being striped of tenure, getting the public’s support is key. First they came for the kindergarten teachers…

And while I know the philosopher’s, poly sci, etc. boycott of UIUC is to put pressure on the UIUC administration to hire Salaita, boycotting the innocents in the targeted UIUC departments has some awful parallels.

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J Thomas 08.16.14 at 6:59 pm

“Ultimately, how exactly is academia supposed to uphold these norms, when they extend
beyond law, other than by disengagement with those who violate them?”

That is the question, isn’t it? Shouldn’t disengagement be a last resort, especially in the context of the broader society?

I am not an expert on BDS, but to the extent it’s a voluntary arrangement among universities etc, it seems like they would make it proportional. Like, if one Israeli university is known for supporting bad Israeli government practices it might get mostly boycotted, but if a professor from there can point to things he’s done to oppose bad government policies then why wouldn’t he be given the chance to present papers in the USA on his specialty, and get job offers from US universities, etc?

Similarly, a university that makes a big deal of its cooperation with palestinian universities, giving them supplies and teaching materials and arranging for palestinian students to come into Israel to study, that should get some mileage.

And when departments in Israeli universities or whole universities come out in public opposition to government policies, that would help.

So each time some big issue of cooperation with Israeli universities comes up, we could discuss just how much public opposition to the Israeli government they’ve displayed, and the more good they do, the more it can be publicised in the USA and also in Israel.

It just seems like the obvious way for it to go, and not unfair to anybody.

100

js. 08.16.14 at 7:44 pm

I was being sarcastic in @74. Upon rereading @75, it seems that the the sarcasm was lost on js.

The sarcasm’s fine. It’s the fact that your argument is question-begging that’s the problem.

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Consumatopia 08.16.14 at 9:46 pm

And while I know the philosopher’s, poly sci, etc. boycott of UIUC is to put pressure on the UIUC administration to hire Salaita, boycotting the innocents in the targeted UIUC departments has some awful parallels.

You know, I was gonna ask as a reductio ad absurdum whether professors disengaging from a university for violating the bounds of academic freedom was itself a violation of academic freedom, because that’s plainly absurd, but it looks like you went there by yourself. But you can’t really avoid going there. If you aren’t willing to recognize that academics are permitted to associate with whichever colleagues and institutions they choose for arbitrary reasons, you end up with a regime in which collaboration is mandatory–which isn’t consistent with freedom at all. (It wouldn’t be the first time Fish advocated something inconsistent with freedom, academic or otherwise.)

I’m pretty sure the many holes in boycotts-violate-academic-freedom arguments have been gone over at length in earlier threads. I’ll just say that as a non-academic, Stanley Fish’s transparently bad logic always incurs my resentment more than any boycott regime ever could, so if academics should be afraid of the public resentment then they should stay the heck away from Fish.

102

Consumatopia 08.16.14 at 9:57 pm

Oh, I don’t doubt that lots of professors use their academic freedom in ways that make the academy less popular. But it doesn’t make sense to give up academic freedom in order to preserve academic freedom.

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T 08.17.14 at 4:57 am

@101/102

Do you see a distinction between individual academics and academic associations? The individual action is voluntary unless coerced. Not so for the minority in the association.

When groups of academics collectively use their power to limit others academic freedom that invites forces outside the academy to do the same. It changes the norm of what academic freedom means. Academic boycotts can do that I think the reaction of AAUP to the BDS academic boycott reflects that fact. And AAUP seems to be is doing everything it can to help Salaita.

‘But it doesn’t make sense to give up academic freedom in order to preserve academic freedom.”

Many freedoms are self-regulated, group-regulated, or state-regulated. They have limits. You can’t scream fire in a theater, you can’t own automatic weapons, you can’t fix prices, you can’t marry more than one person even when voluntary, and on and on. How the group uses their freedom affects the norm and the perception of the group. Academics are relying on the goodwill of society to grant very special privileges — lifetime employment being one. And a lot of society is getting more hostile.

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J Thomas 08.17.14 at 12:23 pm

When groups of academics collectively use their power to limit others academic freedom that invites forces outside the academy to do the same.

Well, no. Academics basicly have a union, and they want their employers not to limit the freedom of members of the union. Their unions have a right to take a stand on international relations if they can agree enough to do that. It does not violate anybody’s academic freedom when universities do BDS against Israel.

If a union takes a stand on a political issue, does that invite people who aren’t part of the union to attack the union? I guess maybe. I guess people who disagree with the unions’ politics will try to get unions shut down, change the laws so unions can’t function. If it becomes illegal for academics to take any collective action, that would certainly affect their relations with administration.

It changes the norm of what academic freedom means. Academic boycotts can do that I think the reaction of AAUP to the BDS academic boycott reflects that fact.

I dunno.

And AAUP seems to be is doing everything it can to help Salaita.

What I’ve seen, is Cary Nelson has done everything he personally can do against BDS, and he’s done everything he personally can do against Salaita. AAUP looks like it’s breaking against him on Salaita, and it probably hasn’t made up its mind about BDS one way or another.

UIUC might be on more solid ground if they actually do present Salaita’s appointment to the Board and then watch the Board vote it down. But that would give them even more bad publicity. At this point anything they do is wrong. If they change their minds and accept Salaita, it will outrage zionists. But if they don’t it will enrage everybody else who’s paying attention. So their obvious goal is to try to get fewer people to pay attention.

105

Consumatopia 08.17.14 at 3:00 pm

“Do you see a distinction between individual academics and academic associations? The individual action is voluntary unless coerced. Not so for the minority in the association.”

No, there is no distinction between an individual who refuses to do business with Israeli universities, and a group of people making the same decision. “Collective” is not the right word, as no association tried to coerce individuals into going along with the boycott.

“When groups of academics collectively use their power to limit others academic freedom”

No academic freedom was limited. BDS did not target academics for what they were publishing or studying. It targeted institutions for cooperating with Israel.

“Many freedoms are self-regulated, group-regulated, or state-regulated.”

Academic freedom should not be self, group, or state regulated so that the pursuit of truth is inhibited by concern for the perception of the group. That’s not to say that no academics should work to improve the perception of the academia. But, again, it doesn’t make sense to give up academic freedom to preserve academic freedom.

“You can’t scream fire in a theater, you can’t own automatic weapons, you can’t fix prices, you can’t marry more than one person even when voluntary, and on and on”

None of these are an example of giving up on a right for sole purpose of protecting that right. We don’t tell people “Stop saying that, you’re making free speech look bad!”

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Bloix 08.17.14 at 4:47 pm

#104 – “Academics basicly have a union, and they want their employers not to limit the freedom of members of the union.”

No union of professors could ever be powerful enough to impose the norm of academic freedom on any university.

AF is a norm because there’s a broad consensus among elites that it’s a social good. We believe that more AF means more knowledge. So when professors act like juvenile hotheads in a way that contributes nothing to the dissemination of knowledge, they erode support for AF.

The AAUP used to recognize this, as in the 1940 Statement of Principles on Academic Freedom and Tenure (still the bedrock document on AF):

“College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.”

Did Salaita “remember” these things? He didn’t come close. He ranted without restraint in a way that showed no respect for the opinions of others. He embarrassed the hell out his new institution and caused it no end of difficulty.

And for what? Did he discover Michael Mann’s hockey stick? Did he make an important and controversial contribution to our historical understanding of Israel/Palestine, like Segev’s One Palestine, Complete or Shlaim’s The Iron Wall? No, he spent 10 seconds tweeting some stuff that’s no different from what thousands of other people are tweeting. Society gets plenty of this level of debate without the need to give academics special protection for it.

But what about tenure? Unlike AF, tenure is a contractual right. Which is why this debate is turning on whether Salaita had a job or only the prospect of a job. If I had to bet based on what I know now, I’d bet he will lose – courts are extremely deferential to written disclaimers even when faced with sympathetic plaintiffs, and he isn’t one. I think a court will look at Salaita and say (1) he had no contract, and (2) thank God the university got rid of this hothead.

And then there’s the 1st A issue. Because UI is a public university, the 1st A protects its employees. So Salaita can claim that the withdrawal of the offer – even if he didn’t have a job yet – is illegal retribution for his exercise of free speech. I expect he’ll lose this argument, too – the court will decide the tweets demonstrate his unfitness for teaching and evaluating the work of students (his “awful human being” tweet will sink him) and that he is not being punished for his views but due to a decision that he is not qualified for the job.

It’s a shame that Salaita has become the poster boy for AF. True scholars like Mann could not do their brilliant work without it. Fools like Salaita are hurting AF and helping its enemies.

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Consumatopia 08.17.14 at 5:36 pm

“When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. “

The only consistent way to read that sentence is that while academics have moral obligations, those obligations should not be enforced by institutional censorship or discipline.

So Salaita might indeed be weakening the norm of AF, but the norm of AF should still protect him.

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Bloix 08.17.14 at 6:32 pm

I agree that the norms of academic freedom make it impossible to prevent academics from undermining the norms of academic freedom.

Linus Pauling was free to make chemists look like idiots with his vitamin C quackery. Michael Levin is free to argue that African-Americans are genetically inferior. Etc. But the point of academic freedom is not to protect stupidity, racism, and boorishness.

AF is a supremely important social norm. There are a lot of academics whose work wouldn’t be possible if it weren’t for AF’s protections from powerful forces – people working in climate change, and in fields like the effectiveness of drugs and medical devices; health insurance and health care delivery; primary and secondary education and testing; and, without doubt, Israel/Palestine (e.g., Juan Cole).

And sometimes a norm requires you to protect an undeserving person for the greater good. But every time that happens, the norm is weakened, and at some point people will say, this norm is not working.

Salaita had the full protection of academic freedom for his academic work. His book “Israel’s Dead Soul” is incredibly provocative, and UI didn’t mind that. But the tweets are not academic work. They’re just ranting.

I feel the same way about the biology professor PZ Myers, who teaches at a public liberal arts university in Minnesota and spends a lot of time on atheism advocacy. He would probably lose his job if it weren’t for AF. I believe that his atheism work is a public good, but I think that sometimes when he’s intentionally offensive (for example when he gleefully destroyed a consecrated Roman Catholic host – a cracker, as he put it) he’s stepping over a line. Not one that should have consequences for him, but one that damages the norm of academic freedom.

If the Gaza events had happened three months from now, Salaita’s contract would have been final, his tweets would have been protected, and UI would have had to put up with him. But I expect what will happen is that they will manage to cut him loose. He will have destroyed his own career and damaged the norm of AF in the process. He’s a fool, and it’s a shame that the protection of his stupidity and arrogance is the focus of a protest in favor of academic freedom.

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Consumatopia 08.17.14 at 6:38 pm

I’ll admit, that’s a view of the situation I have a hard time disagreeing with.

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T 08.17.14 at 9:17 pm

105/108/109

Yes to 109 where several commentators, including myself, have concluded that Salaita would be fine if he already had tenure.

No to 106. BDS as voted by the ASA prevents Israeli gov’t associated academics (deans, institute head, other scholar/administrators, cental bankers, etc.) from participating in ASA events, prevents joint conferences, etc. This is no small issue in the natural sciences and medicine where Nobel-winning and similar distinguished academics head gov’t sponsored institutes participate in research and speak at conferences. That can be a big deal and an academic burden for scholars in that area. From what I’ve seen, most of the sentiments in that community are strongly against an academic boycott as a matter of academic freedom. The ASA has added language that exempts the boycott against individual scholar-to-scholar research such ASA think their boycott is purely symbolic, with the ASA recognizing, in my view, that if it did involuntarily stop academic cooperation between members of the association and Israeli scholars it would be a restraint of academic freedom. Well it would do that and it is a restraint. So, I think there is a difference between an individual and collective boycott (where collective includes minority opposition.) And it appears that is recognized by the some of the folks that actually interact with Israeli scholars — scientists and doctors.

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T 08.17.14 at 9:31 pm

Make hat No to 105.

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Consumatopia 08.17.14 at 9:50 pm

I would agree that a collective shouldn’t prohibit voluntary cooperation between any two individuals, but I don’t think that implies that the collective is obligated by AF to invite everyone to events, conference, etc. They shouldn’t block it, but they aren’t obligated to facilitate it.

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T 08.17.14 at 10:19 pm

112. We’re on the same page. And, of course, I have no issue with 300 academics refusing to associate w/UIUC. It’s just if they drag in their colleagues who don’t agree. This might matter less in professions less collaborative. But there are huge spillovers in academia that affect AF.

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js. 08.17.14 at 10:39 pm

An open letter to Phyllis Wise signed by a bunch of law professors.

An excerpt:

Even as a technical legal matter, Professor Salaita was already a de facto member of the University of Illinois faculty under the principle of promissory estoppel as articulated by the Illinois Supreme Court. Moreover, the timing and manner of Professor Salaita’s dismissal strongly indicate the sort of viewpoint discrimination that would violate the First Amendment even at the hiring stage.

(linked at Corey’s blog, for which, thanks.)

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js. 08.17.14 at 10:59 pm

I have no issue with 300 academics refusing to associate w/UIUC.

I do hope you realize that you’re off by an order of magnitude.

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Bloix 08.17.14 at 11:33 pm

Law professors have an interest in expanding the protections afforded to professors. This is not to say that they’re wrong, just that the letter is advocacy, not impartial review.

On the substantive issues (as opposed to policy) the law professors make two substantive claims:

1) UIUC, as a government entity, cannot lawfully make hiring decisions based on political beliefs. I acknowledged this (see #106, 2d last para) and I predicted that the University will prevail in spite of it by arguing that the tweets show that Salaita can’t be trusted to be a fair teacher. The law professors don’t acknowledge the possibility that the U has an argument.

2) that Salaita was actually hired regardless of the formal need for trustee approval – see p. 4, n. 19. The only case they cite is the Newton Tractor promissory estoppel case, and I continue to feel that (based on the facts that we know) this argument has no legs. As I said in 106, courts take written disclaimers seriously. Salaita got one. The plaintiff in Newton Tractor didn’t.

A more credible source than an anonymous screen name on promissory estoppel may be:

http://www.concurringopinions.com/archives/2014/08/steven-salaitas-promissory-estoppel-claim-is-weak.html

That post reviews the elements of a promissory estoppel claim under Newton Tractor and concludes that Salaita can’t show them. There’s some back-and-forth with a professor who takes the other side and a number of informed comments, for people who care about the legal issue.

117

Collin Street 08.17.14 at 11:48 pm

Bloix, consider how the situation would look like to a person who had the same opinions that you have but was also an idiot, specifically someone who rated the strength of arguments others presented based largely on how said arguments were congruent with their own unthinking opinions/prejudices.

How, if at all, would the facts-viewed-from-that-person’s-perspective differ from what you see currently from your perspective?

118

J Thomas 08.18.14 at 12:47 am

Did he discover Michael Mann’s hockey stick? Did he make an important and controversial contribution to our historical understanding of Israel/Palestine, like Segev’s One Palestine, Complete or Shlaim’s The Iron Wall? No, he spent 10 seconds tweeting some stuff that’s no different from what thousands of other people are tweeting. Society gets plenty of this level of debate without the need to give academics special protection for it.

So, the other thousands of people lost their jobs over it? Is the Zionist lobby perhaps more powerful than it ought to be?

See, a whole lot of Americans said intemperate things about arabs on 9/11 and 9/12 and 9/13 etc. More than 3000 Americans were killed, and we were upset. So Salaita, a Palestinian, has less right to be upset when 2000 Palestinians get wrongly killed? A much bigger percentage….

Some people keep talking like Salaita did something wrong that got him fired. But where’s the argument that he actually did anything wrong at all? They just assume it, with no justification whatsoever. What did he say that’s so terrible?

He’s a Palestinian who has come out against Zionism, so people try to come up with some sort of argument why he does not deserve academic freedom. And failing at that, then they come up with semi-legal arguments why academic freedom doesn’t apply because he kinda-sorta wasn’t hired so it’s OK to fire him for talking against Zionism.

“Oh, we want to grant him his academic freedom to say whatever he wants to. It’s perfectly legal for him to speak out against Israel. It’s just that he said it the wrong *way*. He was too *intemperate*. If he just spoke out against Israel the right, way, the way we Zionists approve of, then we would have no objection at all.” Yeah, sure.

#110
BDS as voted by the ASA prevents Israeli gov’t associated academics (deans, institute head, other scholar/administrators, cental bankers, etc.) from participating in ASA events, prevents joint conferences, etc. This is no small issue in the natural sciences and medicine where Nobel-winning and similar distinguished academics head gov’t sponsored institutes participate in research and speak at conferences. That can be a big deal and an academic burden for scholars in that area.

So, do any Israeli universities have a de facto BDS against Palestinian universities, like the University of Palestine in Gaza? Do they object to the government of Israel restricting academic freedom by closing the university, bombing it, etc?

Sauce for the goose….

119

Andrew F. 08.18.14 at 1:09 am

The letter signed by the group of law professors is extraordinarily weak from a legal perspective. After spending many precious paragraphs preaching (to the choir, no doubt) about the importance of the First Amendment and its application to educators, it finally comes to the point:

We recognize that universities may consider a wider range of factors in deciding whether to hire a potential faculty member than in deciding whether to dismiss a current faculty member. However, that principle is irrelevant here. Even as a technical legal matter, Professor Salaita was already a de facto member of the University of Illinois faculty under the principle of promissory estoppel as articulated by the Illinois Supreme Court. Moreover, the timing and manner of Professor Salaita’s dismissal strongly indicate the sort of viewpoint discrimination that would violate the First Amendment even at the hiring stage.

The letter cites to a recent case in Illinois in which the Illinois Supreme Court affirms that the doctrine of promissory estoppel is recognized in the state. Unfortunately, for reasons explained at length above, that doctrine is unlikely to apply here given the actual terms communicated to Salaita.

Nowhere in the letter is any mention made of the actual terms communicated to Salaita. Instead there are many references to “the offer”, which is merely an admirably concise way of begging the question. Would that such brevity had been applied to the rest of the letter!

I’m shocked and disappointed that any professor of law would sign such an opinion without taking reasonable steps to avail herself of the relevant facts in Salaita’s case.

Of all persons, surely those privileged enough to enjoy employment as professors of law ought also to be the most cautious in lending their names to legal arguments and conclusions.

120

ifthethunderdontgetya™³²®© 08.18.14 at 1:37 am

No one is determined to miss the point as much as Andrew F.

Would you like a prize, Andrew?
~

121

Bloix 08.18.14 at 2:58 am

#117- Collin Street, I’m flattered at your implication that I am not an idiot. But I’m having difficulty – how would a person who holds my views but IS an idiot view the situation? I don’t get what you’re asking. Or suggesting, if your question is rhetorical.

122

Happy Jack 08.18.14 at 3:12 am

I’d also be curious to know if the University of Illinois actually allows someone to join the faculty at all, interim basis or not, without Board approval.

Good question. It appears that Salaita was scheduled to teach a class before the Board met. This would mean that if he hadn’t officially joined the faculty, and he grabbed a cup of coffee in the faculty lounge, he would be committing an act of larceny. They dodged a bullet by not hiring a thief.

123

Colin Danby 08.18.14 at 7:21 am

Dorf’s blog “Dorf on Law” (I won’t link for fear of moderation limbo) has a great followup, with a comment from Ben Alpers that makes nicely one point I tried to signal @79 above: the offer letter as moral commitment is deeply embedded in the mechanics of academic hiring. Even aside from the academic freedom consequences of running every hire past the political filters of the trustees/regents, think about how it would harm your ability to recruit faculty.

Re 119, I suggest that the legal scholars are writing as scholars first, in defense of freedom of debate and expression, *because that is what is under threat here.* If we get to litigation it’s a sign of institutional failure.

124

bianca steele 08.18.14 at 2:10 pm

If we get to litigation it’s a sign of institutional failure.

Wait, what? Law professors think litigation is a mistake? Seriously, there’s a legal theory that incorporates a belief in social structure like that into what the law should be, prior to legislation and courtrooms and things, and expects that to be how society is actually run?

Anyway, it begs the question whether Salaita is part of the institution (the UIUC).

If he’s not, if he counted as at best a contingent temp like in the situation @76, same as the armies of adjuncts, then–I’d think there would be tons of defenders of this concept on CT, given past history–as Layman mentioned a couple of times–he’s at best an at-will employee. And as CT’ers like to remind us, the concept of “at-will” trumps, forever and always, all statutory, constitutional, or customary restrictions on the rights of employers to fire people. (Tenure, and for those below staff level, unions, being the only thing that can give employees rights.)

125

bianca steele 08.18.14 at 3:34 pm

Also, Ben Alpers’ comment refers to “due diligence”: I’m not sure that someone who would see litigation as a sign of institutional failure, and thus to be avoided at any cost, by both parties, would see performing due diligence as any different. It might be prudent for academics to run their hiring letters past attorneys, but where’s the difference, in terms of harm to the relationship, between “this is what I think you mean, and if you disagree I’ll sue,” and “I would like to trust you, but my attorney says I should make all these demands on you to be much more specific about what you intend to do, and I can’t work with you unless you give me more details”?

126

T 08.18.14 at 3:43 pm

123

I found the Hoffman-Dorf exchange is a pretty good start at understanding the legal issues. It’s plain that both authors think that the issues are far from open and shut. Hoffman is very skeptical about Salaita (or anyone) wining a promissory estoppel claim and Doff thinks (at least from what he said a couple days ago) that the First Amendment argument is stronger than the promissory estoppel claim. The comments are generally excellent. More light, less heat. Contrast that discussion with the legal academics’ letter which, I’m afraid to say, is an embarrassment. If they wanted to make a general defense of academic freedom, they should have stayed far away from the particulars of this matter which seem more familiar to readers of this thread (off all persuasions and views) than to the distinguished legal authors.

I think the tenured professoriate should take solace that pretty much all commentators thought Salaita would be fine if he actually had tenure. That differs considerably from cases in the academics’ letter where tenured faculty were fired. So massive progress from the blacklist days but below the high points between then and now. And that might well track the regard the public has for the professoriate over the period, especially the humanities professoriate. Norms, again.

Also, while the Chancellor is the focal point of a lot of controversy, it would seem that word came may have down from the Trustees to pull the plug on Salaita. They are appointed by the governor for 6 year terms. http://www.bot.uillinois.edu/meet-the-trustees You’d have thought they ran this by the UIUC general counsel before acting.

127

J Thomas 08.18.14 at 3:53 pm

Independent of lawsuits, the issue is being judged in the court of public opinion already.

If UIUC in any way backs down, they will look very bad to Zionists.

If they don’t, they will look very bad to anybody else who is paying attention.

They are firing somebody over some harmless tweets, because they are caving in to pressure from a special interest group.

128

J Thomas 08.18.14 at 4:01 pm

You’d have thought they ran this by the UIUC general counsel before acting.

Probably when he was first approved it didn’t look important and the people who might have stopped it instead rubber-stamped it.

But then somebody noticed his tweets, and noticed he was at UIUC. They called the Trustees to tell them to fire him. All of a sudden it was important. Nobody was ready for it to all-of-a-sudden be important to do something fast, and they reacted without thinking out all the details ahead of time.

That’s just a guess, but it fits what I’ve heard so far.

129

Corey Robin 08.19.14 at 4:53 am

One of the claims that David Hoffman, whose blog post some folks here have been positively citing, repeatedly makes, not only in his post, but also in his follow-up post, is that the past practices of the University matter in terms of deciding whether or not Salaita could have had a legitimate expectation that the Trustees’ vote was a foregone conclusion. (Hoffman’s post and follow-up are here: http://www.concurringopinions.com/archives/2014/08/steven-salaitas-promissory-estoppel-claim-is-weak.html)

Here’s Hoffman in his first post: “Here, I think a court would focus heavily on the language in the letter and inquire about relevant practices at the University. How many times have job offers been extended only to have met board resistance?”

And then in response to Dorf’s claim that “given the apparently standard University of Illinois practice of faculty beginning teaching and working for the university before board approval of their appointments, the board had to be aware that prospective faculty would rely on board approval as a rubber stamp,” Hoffman replies thus: “I agree, and said in the post, that standard University practices matter to the analysis….”

So according to Hoffman, who many have rightly cited as a skeptic of Salaita’s claims, university past practices matter to this case. It’s not just the fine print of the offer letter that matters to the courts; it’s what a reasonable person might interpret that fine print to mean, based on the university’s history.

So how many times has the Chancellor or the Board ever vetoed the decision of a hiring committee, a dean, and everybody up through the Chancellor? Unless the UI is unlike most universities, the answer has to be very very few. And how could it not be? What faculty member in her right mind would ever serve on a hiring committee, where you sometimes have to read upward of a thousand applications, if at the end of her deliberations and hard work, there was a real possibility that the chancellor or the trustees were likely to overturn her decision?

That’s why Ben Alpers’s comment on Dorf’s follow-up post, which some folks have also cited, is so right on: “If faculty are forced to see regents’ approval of hires as something other than pro forma, either hiring schools will have to wait an extra semester or year to bring faculty aboard or schools from which faculty are hired will be faced with tons of last minute course cancellations. The point is that this is not simply about a single letter sent to single faculty member: the academic employment system as currently constituted is absolutely reliant on what are widely seen as rubber-stamp stages of the hiring process being rubber-stamp stages of the hiring process.”

Anyone who’s an academic, who’s been on the job market, has been hired, has served on a hiring committee, knows this is true (most of the comments here to the contrary are from people who, I gather, aren’t academics and who seem to have almost no experience with or knowledge of academic hiring.)

The only empirical question remaining is whether or not UIUC is so radically out of step with standard practices in academia that it manages to conscript seemingly sane and nationally recognized scholars in the annual ritual of presuming that they have some control over the hiring process in their departments only to learn that at the end of that process, it was all a farce, that in fact, the chancellor or the Board is going to step in and overturn their decision.

Judging by the reaction of the faculty at the UIUC, they view this move by the chancellor as almost entirely without precedent. As the chair of the English department posted on Facebook (this is from a letter he had sent to the chancellor): “This decision has had an immediate and dire impact on the morale of faculty in the humanities and social sciences. Speaking personally, I can say that I have spent the last decade in administrative positions and in the creation of scholarly programs and opportunities for our faculty and students. A vital intellectual community is what has made being in Champaign-Urbana so rewarding. I now fear that the effort it took to create that community has been wasted. Like many colleagues I have heard from, I find myself forced to ask whether my professional future should remain tied to this campus where I have happily spent the last thirteen years.”

Again, it’s an empirical question. But the likelihood that the overturning of faculty decisions on hires is anything other than very rare is, well, very small.

130

Corey Robin 08.19.14 at 5:04 am

It’s worth noting that on July 22, before this story broke nationally, when the University was first publicly confronted with the issue of Salaita’s tweets, when its initial stance was to defend the hiring of Salaita, the University had this to say, according to the local news report: “‘Faculty have a wide range of scholarly and political views, and we recognize the freedom-of-speech rights of all of our employees,’ Kaler said in response to the tweets.”

The rights of all of our EMPLOYEES. It’s a strange sort of usage to refer to someone as one of your employees when he is not in fact one of your employees.

http://coreyrobin.com/2014/08/15/what-is-an-employee/

131

Collin Street 08.19.14 at 5:35 am

It’s a strange sort of usage to refer to someone as one of your employees when he is not in fact one of your employees.

Estoppel, again.

[“estoppel” -> “getting trapped into an obligation despite your best efforts” -> “body-horror for libertarians”. It boggles me that apparently promissory estoppel isn’t clearly and unambiguously the law throughout the US, since the theoretical underpinning of contract enforcement under the common law is precisely the logic behind estoppel: “you said X, and people trusted you, and now they’re out of pocket and you gotta fix it”. But the US traditions of contract law often seem incomprehensible to me: how can you enforce the arbitration provision of a contract without examining the validity of the contract? Seriously, wtf??

132

T 08.19.14 at 1:48 pm

@129 -@131

Just want to make sure I understand your position. So when an interim dean sends a offer letter subject to Board approval, the Board not only has no say over the potential hiring, but no say over lifetime tenure as well? Where in all other cases the Board must approve tenure decisions as mandated by statute? And occasionally they don’t approve tenure? That’s one powerful interim dean.

I agree that past practice matters as does the language of he letter, the relevant statute, and the relevant precedent. Both sides have arguments.

133

Bloix 08.19.14 at 4:29 pm

#131 – “the University” didn’t say that. Robin Kaler, director of public affairs, said that. Doubtless she considered him an employee. But she didn’t have the power of making it so by saying it.

134

Colin Danby 08.19.14 at 5:24 pm

132

1. A senior hire is a hire with tenure. Those aren’t separable decisions. You would be right in saying that a senior hire has higher stakes than a junior hire. The analogy to turning back tenure is interesting, but you supply no examples. Plus there’s an added dimension of bad behavior in wooing someone away from a tenured job only to leave them at the altar.

2. “Interim” refers to the nature of the appointment, but doesn’t make you less Deanly. Already implicit in your position is that the Dean did the wrong thing.

3. I don’t think the argument is that the board has *no* say, only that their ability to intervene is a special power that ought not be abused. Using it because of a political disagreement is abuse. Hence the law profs letter’s focus on free inquiry and debate.

4. Again, “T,” I ask you: if it’s really standard practice for Boards to reject senior hires at this stage, give us examples.

135

T 08.19.14 at 8:33 pm

@134
Points addressed in no particular order:

So your view is that the Board has to approve, by statute, all internal promotions for tenure but that the Board does not have to approve any lateral hires with or without tenure so long as they have a contingent offer letter from the dean? And given the realities of academic hiring process, no lateral hires anywhere would require Board approval regardless of statutes, by-laws or charters of the university? I think that a whole lot of Us would weigh in on the side of UIUC on this point. (Your “I don’t think the board has *no* say” statement in 3 makes me believe this is not what you’re arguing but I’m not sure given your whole comment.)

2. My point is that it might be stretch to think the power to grant tenure was given to an interim dean when that power was expressly given by statute to Board members appointed by the governor of Illinois and confirmed by the Illinois Senate. Doesn’t seem like that “interim dean” thing was in the plan.

3. So the Board has a “special” power in the case of hiring but their other powers aren’t so special? Their powers are granted by the State of Illinois and constrained by the courts. Once again, I’m not sure if you’re arguing that Salaita has arguments, good arguments or an open and shut case. Many of the posters on this thread think it’s open and shut. What about you?

1. Your claim that the contingent offer is indivisible between hiring and tenure isn’t referenced/supported. Is that your legal interpretation, one from a legal expert, or a definitive precedent? (Maybe you’re a legal expert?) Is there an Illinois labor lawyer around? As several commentators have suggested here and elsewhere, Salaita may have a case for damages for the upcoming academic year but no claim to permanent employment or tenure. Their view is that you can split the baby. Why are they wrong?

4. No doubt, this is an usual set of facts. If Gaza had happened ten months earlier or three months later, the discussion would be different. But lots of cases have unusual or unique facts. Right now, the matter seems related to contract law, academic freedom, and First Amendment issues.

136

Colin Danby 08.19.14 at 9:53 pm

“T” @ 135: This is a cloud of mischievous mis-characterizations.

Someone else may have patience for you; mine’s exhausted.

137

Collin Street 08.19.14 at 11:15 pm

> “T” @ 135: This is a cloud of mischievous mis-characterizations.

Autism. Estoppel and [this particular area of] agency law are both about the impression you form in the minds of others: people with autism-spectrum conditions are going to have some pretty severe problems even recognising the existence of the problems these legal principles are supposed to prevent/solve.

The agency law problem in particular. The estoppel is just “what did Salaita think”, which is… still something that someone with an autism-spectrum condition is going to have difficulty with, but the agency-law problem, whether the agent’s actions should bind, is “what did [or rather, might] Salaita think the Board thought”. Empathy-of-empathy, no?

[IME, pretty much anyone who says words equivalent to “the law can’t expect us to work out what other people are thinking” can be safely presumed to have significant impairment of the sort you’d expect from autism-spectrum conditions. The law, of course, relies on working out what other people are thinking.]

138

Bloix 08.19.14 at 11:50 pm

#134 – “I don’t think the argument is that the board has *no* say, only that their ability to intervene is a special power that ought not be abused.”

The argument is precisely that the board has *no* say. See #130. Our host on this blog believes that Salaita is an employee, that is, that the Dean hired him and that the board’s approval is not necessary.

139

Colin Danby 08.20.14 at 12:00 am

Hence the words “I don’t think.” Perhaps you should be arguing with Corey.

140

J Thomas 08.20.14 at 12:05 am

#138 Bloix

The argument is precisely that the board has *no* say.

I don’t think that’s it.

Presumably the board at the last minute noticed that Salaita is a Palestinian who doesn’t like Zionists, and at least one of them sent an emotional message to the Chancellor saying not to bother sending in the appointment for confirmation because it would not be confirmed.

And the argument is that this is a bad thing, that the board has interfered with academic freedom to satisfy a narrow political interest. Whether or not they have the legal right to do it this time because of some loophole, they are wrong to do it.

By firing, “unhiring” whatever-they-call-it a researcher who has done nothing wrong, to satisfy bigots who want to interfere with academic research, the board is doing precisely what it should not do.

That’s the issue.

It’s like, if you argued that one particular time somebody committed armed robbery it was OK because of some technical details, I mostly wouldn’t have a lot of respect for the argument. Armed robbery is as wrong the day before Christmas as it is any other day, and if there’s a law that says you can get away with it sometimes, it’s still wrong.

141

Collin Street 08.20.14 at 12:10 am

See #130. Our host on this blog believes that Salaita is an employee, that is, that the Dean hired him and that the board’s approval is not necessary.

Because of the acts and omissions by the dean and the board in this particular case, the formal board approval process is rendered irrelevant for the purposes of any dispute between the board and Salaita, yes. If the board doesn’t ensure that the dean follows the board’s preferred procedure… well, that’s the board’s problem, innit. The board does have a legal claim, yes… but it’s against the Dean, not Salaita.

Read the law. Two points:
+ agency: if someone working for you takes some action in your name, you are bound by the consequences unless you communicate beforehand that the action is unauthorised
+ estoppel: if you communicate — words or silence, deeds or omissions — that something is the case, and someone acts in accordance with that something being the case to their detriment, you cannot later argue that you did not believe that that was the case.
[minor quibbles on both, but not so as to affect conclusions here].

142

js. 08.20.14 at 12:43 am

“the University” didn’t say that. Robin Kaler, director of public affairs, said that.

And Kaler said that as the director of public affairs for the university, not as a private person, and so she said it on behalf of the university. But fine, Kaler said that. Now why might she say such a thing? Is she delusional? Is it just standard practice for directors of public affairs at universities to refer to candidates as “employees”? Did she just wish to have “the power to make it so by saying it”? I’m sure there must be other possibilities, but they seem to be escaping me just now. Perhaps you could enlighten us.

143

T 08.20.14 at 1:17 am

@137 (and @136 further down)
Colin Street — Lawyer/Psychologist/Mentalist/Clairvoyant

That’s a big help. And it explains all the negative rulings on promissory estoppel in cases involving academics. I guess those folks didn’t think they had a contract and decided to waste their time and money on bringing a case for the hell of it. Because if they actually believed they had a contract — The estoppel is just “what did Salaita think” — they would have won. Nothing more to it than that. (sarcasm.)

Plainly, there is only one side to this argument. No complications here. Move along.

I admire your certainty.

@136
Given the timing of the UIUC/Salaita e-mail, the situation is a mess, especially for him. I’m not happy about that. I think there can be a real tension between the people’s/gov’t’s right to have board control of a university, including hiring and tenure decisions, and faculty rights. I don’t think reaching that balance is easy especially in the context of changing norms. I differ with some on this thread on that point — they think it’s easy and obvious. I don’t include you in that group. My earlier response had the tone of addressing someone who did.

144

LFC 08.20.14 at 2:38 am

J Thomas @140
I said I was not going to comment further on this thread, but J Thomas’s comments along this line are bothering me:
Presumably the board at the last minute noticed that Salaita is a Palestinian who doesn’t like Zionists, and at least one of them sent an emotional message to the Chancellor saying not to bother sending in the appointment for confirmation because it would not be confirmed.

(1) “Presumably”?!! You’re presuming rather a lot. From what I’ve read about this, which is admittedly not a great deal, the Chancellor received some communications from persons and/or orgs. outside the university who were concerned and/or angry and/or horrified (or pick your word) about Salaita’s tweets. The Chancellor then did the “dehire.” The matter never formally reached the Board, and although I suppose members of the Board might have been in communication with the Chancellor, that, I think, is pure speculation on your part. So why even speculate along these lines?

(2) I oppose the “dehire”/rescission/whatever-you-want-to-call-it, but the issue here is not that Salaita is, as you put it, “a Palestinian who doesn’t like Zionists.” The issue is how he chose to express that ‘dislike’ in a public medium, and what the consequences of that expression were. (That’s why the case has, at least according to some, a freedom-of-speech angle.) It’s mainly about what Salaita said, not mainly about, as your comment incorrectly suggests, who he is.

145

LFC 08.20.14 at 2:49 am

P.s. Also, the focus of his tweets, at least the ones I’ve read, was the IDF’s actions in Gaza. He made references to Zionists etc., but in that context. He obvs. (and to some extent understandably) has v. strong feelings and views, but this is not a question of “like” or “dislike,” the way somebody might not like yogurt or science-fiction movies or the color orange (or whatever). I think your (J Thomas’s) use of the word “like” here is not apt. It’s trivializing.

146

Corey Robin 08.20.14 at 2:50 am

Here are several arguments that have been made that no one here has yet to offer a rebuttal of:

1. Under normal conditions, Salaita would have started working in mid to late August. He would have received a paycheck. All before the Trustees ever voted to approve his appointment. (This, by the way, was exactly my experience at CUNY as well. I began working in the last week of August 1999, and the CUNY Board didn’t approve my appointment until late October or early November of that year.) If Salaita is not an employee until he receives Board approval, what is he while receives a paycheck for work performed?

2. If Board approval is anything other than a pro-forma affair, how does this not throw the entire academic hiring process, per Ben Alpers above, into total disarray? How do you explain the fact that most academics actually do this incredibly time-consuming work if the operating assumption is in fact that there is a very real possibility that a Board will overturn their decision?

3. What empirical evidence do any of you have — and I know I keep on harping on this, but it is telling that all this speculation is coming from people who, best I can see, have zero experience or knowledge of, or familiarity with, how academia works — that Board approval of hires is anything other than pro-forma? Can any of you demonstrate a consistent pattern of Boards vetoing the hiring decisions of all the duly authorized academic hiring committees and officials?

I haven’t wanted to get much into the normative dimension of all this, but has any of you looked at the qualifications of the UIUC Board of Trustees? What on God’s green earth makes any of you think any of these individuals is qualified to pass judgment on the expertise of a scholar or his/her credentials as a teacher? (And if any of you think how someone acts on Twitter demonstrates anything about their capacity as a teacher — particularly when in this case, Salaita actually has a demonstrated track record as an actual teacher, which would be the logical basis for consulting his fitness in the classroom; it’s amazing to me that some of you would point to a few tweets as the basis for a completely hypothetical speculation re his teaching without even bothering to ask what his record was as a teacher at Virginia Tech, where he taught for many years and got tenure — you know as little about teaching as the Board does. Or are as politically motivated in your claims as some of the Board’s defenders are. How most of us who are academics respond and engage online is completely different from how we engage in the classroom. I’m completely different here than I am in my class, as are most people I know from both the classroom and from their online persona. It’s just an absurd conclusion.) Anyway, this isn’t a legal point; just an empirical claim that someone who runs an energy company or who is a hired legal gun for energy companies is not in a good position to make these assessments. That anyone here would entertain the opposite is surprising to me. Even by Crooked Timber comment thread standards.

147

LFC 08.20.14 at 3:03 am

Salaita actually has a demonstrated track record as an actual teacher, which would be the logical basis for consulting his fitness in the classroom

Indeed. (I think I made this point in my own comments more than once in these threads.)

148

T 08.20.14 at 3:13 am

Corey –
Tenure seems to be turned down relatively rarely when recommended by the department so the faculty has an expectation that their work is not a waste of time. The department faculty sometimes recommend against tenure and they don’t consider that a waste of time. And higher levels of review within the faculty know less about the subject than the department itself. Nonetheless sometimes tenure is denied by the college, by the dean, or by the board. Academics seem to have more control of their future colleagues than almost any other profession except professional partnerships. And those guys have direct financial interests. In a public institution, you’re being paid (partly) by the public. Maybe I’m missing something…

149

Bloix 08.20.14 at 3:16 am

#142 – The world is full of people who are not interested in the world as it is. They care only about the world as it should be, which is inside their heads. Anything that is outside their heads that differs from what is inside their heads can’t be so. You appear to be one of those persons whose world is illuminated only by your inner light, dim as it may be. However, I will humor myself and answer your question, and perhaps a glimmer of understanding will penetrate.

1) There are two separate questions that we can ask regarding what Kaler said- whether what she said binds the University to recognize Salaita as an employee, and whether what she said is evidence that he is employee.

2) As to the first question, there are certain statements that are performative: they create or alter legal relationships (with this ring I thee wed, I quit, you can take the car). Kaler’s statement is not one of those. She could not make him employee by saying it. What Kaler said is not binding. It does not “estop” (that is, bar) the University from taking a contrary position. This isn’t up for argument, except from people who aren’t entitled to have an opinion.

(There is a question about whether Salaita has a promissory estoppel argument based on the letter that he received and signed, long before Kaler’s statement. I think not, others disagree. That is not the question we are talking about now.)

2) The second question is whether Kaler’s statement is evidence that will help him establish a promissory estoppel theory. I doubt it, although on this question I may be incorrect.

Prof. Robin says, in a sarcastic way, that it is “strange” that Kaler said “employee” when Salaita “was not in fact an employee.” Of course he doesn’t mean that it is strange. He means that it was the most natural thing in world for Kaler to say “employee.” In his view, Salaita was an employee, and the University’s current position is a lie. His sarcasm implies at a minimum that he believes that Kaler’s statement is evidence of Salaita’s status. He may go further and believe that it is proof of Salaita’s status.

Prof. Robin implies a question – why did Kaler say Salaita was an employee if he wasn’t one. But Robin doesn’t ask the question. He snarkily assumes that there is one answer and that he knows it. That’s a mistake. There are many possible answers.

My suspicion is that the answer is that Kaler said it because thought it was true, and that she was mistaken.

I suspect that Kaler (and Wise, if she asked her) did not realize at that time that Salaita had not yet legally been hired. They may have thought he was an employee, and only later were informed (perhaps by the general counsel, who presumably was looking hard for a way to dump him) that he was not. How lucky for them, you sneer, and I say, yes, and how unlucky for Salaita. He caught a bullet. One inch to the left, and he has a job for life. One inch to the right, and he becomes a free-lance journalist. That’s how the law works.

Even if Wise and Kaler were mistaken, however, Kaler’s statement might still be relevant. It goes to the University’s hiring practices, presumably. Salaita’s lawyers will argue that Kaler and Wise could be mistaken about such an important detail because it really wasn’t important – that regardless of the legal requirement of Board approval the practice was to treat people in Salaita’s position as employees. But I think that argument will fail – I think that the court will say, fine, in ordinary circumstances it would be appropriate to treat him as an employee, but these are not ordinary circumstances. The law recognizes that there are extraordinary circumstances, and in such cases – in this case – I think the written and statutory authority of the Board will trump daily practice. That’s my opinion, nothing more.

I apologize for being so literal and long-winded, but these things have to be unpacked if you want to understand them (as opposed to feeling good about how clever you are). Perhaps a bit of light has penetrated a chink in that thick armor of self-righteous ignorance you wear.

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Bloix 08.20.14 at 3:33 am

# 146 – Jesus H. Christ. More.

1) He would have been an at-will employee entitled to be paid for services rendered. Of course, you are proposing a counterfactual. Perhaps alternatively he would have become a tenured professor as of mid-August. I doubt it, but so what? That didn’t happen.

2) The system works because most tenured professors who change jobs are not juvenile hotheads and know how to stay out of trouble for a few months. Some people manage to get themselves run over by running out into the street. That doesn’t mean that laws against jay-walking make it impossible to be a pedestrian.

3) Of course there’s no pattern of Board disapproval. That’s because it’s a rare person up for tenure who is stupid enough to fuck it up. The whole point of Board approval is that it’s for the special case. He was given a writing that he needed Board approval. You have been told over and over that past practice doesn’t trump a writing, but you refuse to understand.

Lastly, I am not a Board defender. I am trying to explain to you that the earth is round, and you keep saying, how awful that anyone could think that, what about the poor Australians who would fall off.

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js. 08.20.14 at 3:45 am

I suspect that Kaler (and Wise, if she asked her) did not realize at that time that Salaita had not yet legally been hired.

It’s a funny mistake to make, isn’t it? For the director of public affairs, and indeed the chancellor!, not to be able to distinguish a candidate from an employee. Almost makes one think they’re not fit for their jobs. Unless of course they had damn good reason to consider Salaita to be a de facto employee, and so to treat him as such.

You know, generally, I’m a big fan of your comments. And generally, I think, you wouldn’t have so much difficulty with the concept of pro forma approval. But then again, what do I know.

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Bloix 08.20.14 at 3:47 am

#141 – what the hell.

“Read the law.”
I am a commercial lawyer. I have been litigating contract disputes for 29 years. Don’t condescend to me.

+ agency: if someone working for you takes some action in your name, you are bound by the consequences unless you communicate beforehand that the action is unauthorized

Salaita was given a written statement that the agent (the Dean) could not bind the principal (the University) only the board could. There was no unauthorized action. The University is not bound. Next?

+ estoppel: if you communicate — words or silence, deeds or omissions — that something is the case, and someone acts in accordance with that something being the case to their detriment, you cannot later argue that you did not believe that that was the case.

The communication to Salaita was that the university was not bound and could not be bound except by the action of the board. Promissory estoppel by the statement of an agent does not apply where the counter-party was told in writing that the agent had no authority. Find a case to the contrary and I’ll read it. The law professors who sent that letter couldn’t find one.

Are we done here?

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Collin Street 08.20.14 at 4:02 am

I think I see the problem here, Bloix. Your professional training is kicking in and you’re arguing this as you would a case, with you representing the uni.

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Corey Robin 08.20.14 at 4:21 am

“You have been told over and over that past practice doesn’t trump a writing, but you refuse to understand.”

The very legal expert that *you* introduced into this thread as a “more credible” authority says that past practice, along with the language of the letter itself, is actually quite relevant to this case.

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T 08.20.14 at 10:03 am

Corey

Question 1 is a good question. But I also have one for you and it is not snark. Given the typical timing of the board meeting as you described, have most university boards ceded their statutory or other legal obligation to review the tenure decision of laterals? Since boards sometimes act against a tenure recommendation for current faculty, it seems that board’s tenure reviews are not pro forma. Under this reasoning, the board’s employment-for-life authority applies only to internal promotions and not to laterals. At least given when boards currently meet. Do you think that is correct? If so, it certainly wasn’t anticipated by the statutes or the boards. But that’s what courts are for.

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J Thomas 08.20.14 at 12:22 pm

J Thomas @140

“Presumably the board at the last minute noticed that Salaita is a Palestinian who doesn’t like Zionists, and at least one of them sent an emotional message to the Chancellor saying not to bother sending in the appointment for confirmation because it would not be confirmed.”

(1) “Presumably”?!! You’re presuming rather a lot. From what I’ve read about this, which is admittedly not a great deal, the Chancellor received some communications from persons and/or orgs. outside the university who were concerned and/or angry and/or horrified (or pick your word) about Salaita’s tweets. The Chancellor then did the “dehire.”

Yes, I agree with you about these probably facts. I remember reading that Chancellor Wise sent Salaita a message that said she would not submit his appointment to the board because she was sure the board would not approve it. So I presume somebody on the board told her the board would not approve it, because otherwise she would be making a big presumption herself.

Would she dehire him entirely on her own authority? If that’s what’s going on, the authority of the board not to vote him in would be irrelevant. It’s her authority to fire him herself that’s at issue.

(2) I oppose the “dehire”/rescission/whatever-you-want-to-call-it, but the issue here is not that Salaita is, as you put it, “a Palestinian who doesn’t like Zionists.” The issue is how he chose to express that ‘dislike’ in a public medium, and what the consequences of that expression were.

No, that’s silly. What he did was entirely harmless. There is no excuse to make a big deal of it.

The issue is that there were “persons and/or orgs. outside the university who were concerned and/or angry and/or horrified”.

They pressured her to fire him, because they didn’t want him teaching.

(That’s why the case has, at least according to some, a freedom-of-speech angle.) It’s mainly about what Salaita said, not mainly about, as your comment incorrectly suggests, who he is.

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LFC 08.20.14 at 2:01 pm

J Thomas:
So I presume somebody on the board told her the board would not approve it, because otherwise she would be making a big presumption herself.

Maybe that’s what happened. Or maybe she decided she didn’t want to submit his name to the Board, and the univ’s general counsel told her she could send the letter saying “I will not submit your name.” (I don’t remember the precise wording of the letter or even if it’s been made public.) This is not an issue of all that much importance, ISTM, but I think one should be careful about presuming what happened and who said what to whom when one doesn’t know.

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Corey Robin 08.20.14 at 9:02 pm

A long article on Salaita’s teaching record. Anyone who brought that issue up here — claiming that his tweets raise legitimate questions about how he would act in the classroom or that the Board of Trustees, made up of hacks from corporate America, would have legitimate concerns — ought to be embarrassed. If not ashamed.

http://mondoweiss.net/2014/08/teaching-political-motivation.html?utm_source=dlvr.it&utm_medium=twitter

Everything that follows here is a quote from the piece; since I can’t figure out how to block quotes, I won’t. But these are not my words:

*********

The student evaluations for Steven Salaita are stunning.

In Fall 2009, 29 of 30 students responding rated Salaita’s “knowledge of subject” as “Excellent”. In the same course, 93 percent of students rated Professor Salaita’s “overall rating” as “excellent,” and 2 as “good.”

In the same term, another group of students gave Salaita nearly identical—though even better —marks: 29 of 30 rated him “excellent” for knowledge of subject, 30 of 30 graded him excellent for grading fairness, and 93 percent rated him “excellent” for overall rating, 1 good.

These numbers repeat consistently over all six of the courses Professor Salaita submitted for review. The lowest rating he received in the “excellent” category for “overall rating” was 86 percent. Salaita never received, in any of the six courses evaluated, a single rating of “poor” for any of ten categories of teaching reviewed. In his lone graduate seminar, he scored a perfect 100 percent rating of “excellence” in the category of “overall rating.”

But for purposes of our argument, it is especially important to note student evaluations of Professor Salaita in the category of “concern and respect” for students. Here is where students evaluate their professor for professional empathy, respect for diverse points of view, and sensitivity to student opinion and student lives.

In the six courses reviewed Professor Salaita scored as follows in this category:

# of Students

30 Total: 28 Excellent 2 Good

30 Total: 30 out of 30 Excellent

10 Total: 10 out of 10 Excellent

29 Total: 28 Excellent 1 Good

28 Total: 28 out of 28 excellent

28 Total: 25 out of 28 excellent, 2 good, one No Response

In addition to these metrics, Professor Salaita submitted a peer review letter of his teaching by a Virginia Tech colleague in English. This colleague visited Salaita’s classes to provide the department an assessment of Salaita’s teaching.

The letter cites Salaita’s numerical excellence in student evaluations, but goes on to praise his teaching in terms that would be the envy of Professors everywhere:

While the numbers are impressive, the student comments bear out in detail how deserving Steven is of the high ratings. The students are acutely aware that they are privileged to be studying with a well-regarded scholar, who draws his knowledge from years of study and experience. Steven is perceived as being knowledgeable and accessible—he takes time to talk with students and to encourage them in preparing their writing assignments… When asked questions in class, Steve gives factual and thoughtful replies. It is clear to all that the teacher has mastery of his field.

Salaita’s colleague goes on to say:

The classes I visited focused on several very contemporary bodies of literature, most specifically Arab-American literature. These works are difficult to understand and appreciate fully without the help of a good guide who knows the turf. Professor Salaita is extremely well-informed on the history and current status of the many nations, political parties and religious sects of the Middle East. This subject matter is urgently important not only for specialists in international affairs, but for anyone seeking to better understand the violent and volatile contemporary world.

This record shows only one thing: that Steven Salaita is an outstanding classroom teacher.

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Bloix 08.20.14 at 10:49 pm

#153 – So now actually knowing something is grounds for disqualification.

#154 -“The very legal expert that *you* introduced into this thread as a “more credible” authority says that past practice, along with the language of the letter itself, is actually quite relevant to this case.”

Hoffman says that past practice is relevant to the third part of a three-part test, and he’s already shown that Salaita fails parts 1 and 2. This isn’t baseball. Salaita needs to win all three or he’s out. He loses 1 & 2 on the basis of the letter. So, as I said, and as Hoffman wrote, and as you keep trying to misunderstand, past practice doesn’t trump a writing.

The reason past practice is irrelevant is that whole point of a veto power is that you don’t need to use it. The administrators don’t send up candidates that they know will be shot down. You argue that because the administrators have kept the board happy for lo these many decades, the board has lost the power to be unhappy. That’s like saying that because the cop has never fired the gun that’s been on his hip for 20 years, it must be loaded with blanks.

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J Thomas 08.21.14 at 12:16 am

#157 LFC

“So I presume somebody on the board told her the board would not approve it, because otherwise she would be making a big presumption herself.”

Maybe that’s what happened. Or maybe she decided she didn’t want to submit his name to the Board, and the univ’s general counsel told her she could send the letter saying “I will not submit your name.” (I don’t remember the precise wording of the letter or even if it’s been made public.) This is not an issue of all that much importance, ISTM, but I think one should be careful about presuming what happened and who said what to whom when one doesn’t know.

I pointed out that I was guessing about it.

But it could easily be an issue of great importance. People are continually arguing whether the board has the right to “dehire” a professor because they want to restrict his academic freedom, based on tweets that stirred up opposition from outsiders who object to academic freedom.

But it may be that the board was not involved at all. I haven’t heard any evidence yet that the board was involved at all. It might turn out that the argument is actually about whether the Chancellor has the right to de-hire new hires, entirely on her own judgement about whether it will be offensive to outsiders who object to academic freedom. The board was never given the opportunity to object, she did it entirely herself.

IANAL, so I don’t know whether that has any legal significance. But it would seem to say that the question about what the board has a right to do may have nothing to do with the case.

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Andrew F. 08.21.14 at 6:15 pm

Bloix is correct re past practice and written terms, generally. Without getting into too much detail, course of conduct may be used to help decide how certain terms of a contract were understood by the parties (or should have been understood) in some circumstances. Here, though, there’s nothing ambiguous. The condition is stated in the letter, in the accompanying material (which contains many material terms and conditions), and in the Illinois statutes (which are cited).

As Bloix also points out, that the Board has granted approval in many other cases doesn’t mean that the Board is thereby surrendering the power to disapprove in future cases.

The only viable legal argument Salaita has is that, even though the Chancellor had the power to not recommend him, and even though the Board had the power not to approve him, the Chancellor did not recommend him because of his political viewpoint, and that this is illegal.

In other words, he doesn’t have a leg to stand on when it comes to the question of whether the Chancellor can recommend him or not or whether the Board can approve him. But he can argue that their disapproval was illegitimate.

He’s extremely unlikely to succeed on this ground. Judgment as to whether an individual ought become a tenured professor is highly subjective and includes a wide array of factors. It is also a high honor, entails enormous commitment by the University, and is never given lightly.

Among the factors reasonably considered would be Salaita’s collegiality and his ability to foster an atmosphere of free but respectful discussion and inquiry. The nature of the tweets certainly furnish reasonable grounds for doubt, and doubt provides reasonable ground for denial of tenure. It’s good that he has excellent student evaluations, but his effect upon the community will depend in part on what he does outside the classroom as well.

So Salaita must argue that these grounds are merely pretense, that the real reason is his actual viewpoint.

Would he succeed? Absent a damning email by the Chancellor or Board members, no.

Would he get to discovery? I’d have to say yes.

However… these are questions that the University’s counsel would have considered when consulted. I suspect there’s little email traffic about this, and that the University would little problem allowing the case to proceed to discovery. Discovery may be quite fast.

If that is true, then Salaita stands a good chance of losing at trial or earlier.

But what about the real ethical question here: was Salaita not recommended because of his viewpoint (whether because the Chancellor disliked it or because enough of the Board disliked it that they indicated there’s no need for the application to even be raised to them), or was he not recommended because of how he expressed it?

The only people who know the answer to that are possibly the Chancellor and Vice President, and some members of the Board.

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T 08.21.14 at 6:56 pm

@161

Tenure: So you think the promissory estoppel claim would fail but a First Amendment claim or academic freedom claim might have grounds depending on discovery?

Teaching: I would think he would have a claim for damages given the timing of the letter and the fact he resigned his position. Would he have a further claim for compensation since he resigned w/tenure at VT and future tenure is not guaranteed?

It appears that you think the tenure offer and the teaching offer can be handled as separate issues. Is this novel or typical as a general matter?

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Bloix 08.21.14 at 7:52 pm

#161. I mostly agree with Andrew F, but I on reflection I’m not so sure we can conclude yet that Salaita’s 1st A claim is hopeless. Up at 106, I said that I thought he would lose his 1st A argument, and I still think that based on what we know to date, but as Andrew F. points out, he’ll be entitled to see the email traffic between the trustees, the admin, and outsiders.

Andrew thinks that this traffic isn’t likely to help Salaita, but I’m not so sure. Andrew is presuming that the Board and the admin act like they have lawyers at their shoulders. But we saw in the U Va dust-up a couple of years ago that Trustees say stupid things. There may be a “damning email” – one that shows that Wise was reacting to political pressure and not due to concerns about Salaita’s ability to be fair in the classroom.

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J Thomas 08.21.14 at 10:25 pm

#161 Andrew F.

But what about the real ethical question here: was Salaita not recommended because of his viewpoint (whether because the Chancellor disliked it or because enough of the Board disliked it that they indicated there’s no need for the application to even be raised to them), or was he not recommended because of how he expressed it?

Can you truly separate those? Can you say “Professors have the right to say what they want, but only if they say it in just the right way”?

If they have the right to free speech sometimes, but the administration gets to decide afterward which speech is protected and which is not, isn’t that the same thing exactly as no free speech?

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