On the One-Year Anniversary of the Steven Salaita Story, Some Good News

by Corey Robin on August 7, 2015

Big news out of the University of Illinois at Urbana-Champaign today.

First, a federal judge firmly rejected UIUC’s argument that it never hired Steven Salaita because the Board of Trustees hadn’t yet given its final seal of approval at the time of his firing last year. According to Judge Henry Leinenweber of the US District Court for the Northern District of Illinois (a Reagan appointee):

If the court accepted the university’s argument, the entire American academic hiring process as it now operates would cease to exist, because no professor would resign a tenure position, move states, and start teaching at a new college based on an ‘offer’ that was absolutely meaningless until after the semester already started.

As the Chronicle of Higher Education goes onto report:
If the university truly regarded such job contracts as hinging on board approval, he said, it would have the board vote on them much earlier in the hiring process, before paying a prospective faculty member’s moving expenses and offering that professor an office and classes. “Simply put, the university cannot argue with a straight face that it engaged in all these actions in the absence of any obligation or agreement,” he said.

The university’s board actually might have undermined itself legally in deciding to hold a formal vote on Mr. Salaita’s employment after Phyllis M. Wise, the campus’s chancellor,attempted to rescind the job by not forwarding it for board approval, the ruling indicated. If the university had not made some sort of offer to Mr. Salaita, the judge asked, “why hold a vote at all?”

Based heavily upon his determination that such an agreement existed, Judge Leinenweber said Mr. Salaita can proceed in trying to prove that university administrators and board members conspired to breach his contract, violate his free-speech rights under the First Amendment, and deny him academic due process.


Last summer, at just about this time, many defenders of Chancellor Wise’s decision to fire Salaita, including many readers of and commenters on this blog, tried to make the case that the UIUC proceeded to make in federal court and that has now been firmly rejected by that court. Indeed, Judge Leinenweber makes many of the same arguments against UIUC’s claim that many of us made against that claim last summer (see especially, pp. 13-19). While it was depressing and exhausting to have to make these arguments over and over again—arguments that were plain as day to most of us in academia—it’s nice to see them vindicated in court.

Second, Chancellor Wise resigned today. With, to my mind, an unprecedented statement admitting to the costs this controversy has imposed upon her and her administration.

External issues have arisen over the past year that have distracted us from the important tasks at hand. I have concluded that these issues are diverting much needed energy and attention from our goals. I therefore believe the time is right for me to step aside.

While Wise was battling critics on an array of issues, the Chicago Tribune reports that it was the Salaita case that was truly taking the greatest toll.
But the harshest criticism against Wise focused on the decision last summer to withdraw a job offer to professor Steven Salaita after he made a series of critical and profane comments about Israel on social media. U. of I. rescinded Salaita’s offer for a tenured faculty position in the American Indian studies department weeks before he was scheduled to start teaching.

That decision led to much fallout, including a recent censure by the American Association of University Professors, a prominent professors group, which said U. of I. violated the principles of academic freedom. More than a dozen U. of I. academic departments voted no confidence in Wise’s leadership, and faculty across the country have boycotted the campus and canceled events there. Salaita has filed a federal lawsuit alleging breach of contract and violation of his free speech rights.

Those controversies apparently came to a head this week, and Wise submitted a one-sentence resignation letter Thursday.

“It is the right thing for her to step down. I wish that I could be more supportive of her, but unfortunately during the last year, she has made so many missteps that have cost the university so many hundreds of thousands of dollars in legal fees,” said U. of I. religion professor Bruce Rosenstock, president of the Campus Faculty Association, a faculty advocacy group.


It was exactly one year ago today that the Salaita story broke nationally. It’s been a grueling year for Steven, which he discusses in Uncivil Rites, a terrific little book that I read and blurbed not long ago and that I heartily recommend to all of you. But on this, the one-year anniversary of the breaking of his story, I hope he can take some solace in these bits of good news.

Update (11:15 pm)

After reading Leinenweber’s opinion, Brian Leiter affirms a point I’ve long been making about the threat of discovery:

Thus, the court asked the question:  if the facts are as Salaita alleges, does he have a valid breach of contract claim, and the court gave that a resoundingly affirmative answer (coming pretty close to ridiculing the university’s position that there wasn’t really a contract).  The breach of contract and the First Amendment claims are Salaita’s most potent in terms of damages.  It was obviously agreed in advance that Chancellor Wise would step down given an adverse decision, presumably because the University knows that the outrageousness of her conduct will be exposed to view once discovery begins and presumably also thinking that it will be easier to settle with Salaita once they are rid of the University official who said, “We will not hire him.”  My bet is that, in order to block discovery, which would throw open to public view the bad behavior of many actors behind the scenes, and in order to avoid the damages attached to losing the breach of contract and First Amendment claims (which they would almost certainly lose, and for which the damages could easily amount to compensation for his entire career, i.e., 35 years of salary and benefits, plus additional damages for the constitutional claims), the University will now try to reach a settlement in which he is reinstated (subject to some face-saving terms for the University, like Salaita promising not to scare students in the classroom), and compensation is limited to damages for the last year plus his attorney fees.  This is a very good day for tenure, for contracts, and for free speech.

{ 33 comments }

1

Anderson 08.07.15 at 2:57 am

Both very good news.

2

js. 08.07.15 at 4:20 am

Already replied to you on Twitter about this, but this is fantastic news! Thanks for the update.

3

Sebastian H 08.07.15 at 4:33 am

I think even if the contract case hadn’t been won, he had an open and shut detrimental reliance case, so they were screwed anyway.

4

Meredith 08.07.15 at 5:02 am

I think the lesson here is simple: Do the right thing.

5

Collin Street 08.07.15 at 5:37 am

Were that the pleading standard, no plaintiff could state a conspiracy claim if the conspiracy was formed behind closed doors, as conspiracies often are.

Brilliant.

6

Tabasco 08.07.15 at 6:46 am

the University will now try to reach a settlement in which he is reinstated … and compensation is limited to damages for the last year plus his attorney fees.

Seems reasonable, provided damages includes: his salary, compensation for damage to his reputation, compensation for the stress, and compensation for having his life messed about by such a bunch of dicks. All times five.

7

Henry Farrell 08.07.15 at 9:16 am

I’d be surprised if Leiter’s prediction turns out to be correct – the veto players are less university officials (Wise clearly had second thoughts early on) than the board of trustees, whom I suspect will double down, even if it risks a very expensive settlement.

8

Z 08.07.15 at 9:59 am

Excellent news, and thanks for keeping us posted!

If the court accepted the university’s argument, the entire American academic hiring process as it now operates would cease to exist

Precisely.

9

otto 08.07.15 at 10:23 am

“discovery, which would throw open to public view the bad behavior of many actors behind the scenes”

Public revelation of any “behind the scenes” behavior in this case might make for interesting reading.

10

TM 08.07.15 at 1:08 pm

This is good news. I wouldn’t be surprised however if the University prevailed in the end. Courts have accepted ridiculously formalistic arguments of this type before. In this case, an appeals court ruled that denial of a professor’s tenure application by the dean and provost of the university did not constitute adverse employment action. According to the court, she “was never officially denied tenure by the University” because, according to the university policies, to which the judges said they had to defer (because academia is so special), only the president gets to formally deny tenure. Never mind that in academic reality, no chancellor or president ever overturned a tenure denial by the dean and provost.
http://openjurist.org/395/f3d/872/okruhlik-v-university-of-arkansas-o

11

Lynne 08.07.15 at 1:44 pm

This is wonderful news. Thanks for keeping us posted. How has Salaita been supporting himself? I think if he settles with the university compensation is due to his family as well as to him. Also, do you know the probable timeline of his case, now that the court has ruled so decisively in his favour? I gather there is a next step, but why can’t this be the end?

12

LFC 08.07.15 at 2:00 pm

Lynne
How has Salaita been supporting himself?

I don’t know, but it might be worth noting that Salaita’s bio at the Haymarket Books link provided by Corey in the OP says that Salaita holds the Edward Said Chair in American Studies at the American Univ. of Beirut.

13

Anderson 08.07.15 at 2:24 pm

Whether Leiter’s guess is correct may depend on what e-mails & such are subject to disclosure.

14

Lynne 08.07.15 at 2:54 pm

LFC, yes, I noticed that but wasn’t sure what it meant in $. Is that always a paid position? His wife gave up her position, too, when he was hired by UIUC, so I’ve been very aware of the family’s predicament.

15

CJColucci 08.07.15 at 3:10 pm

Tobasco @6

A settlement seems like the smart way to go, but what you propose is probably more than Salaita gets if he wins outright, and nobody sane settles at 100%-plus on the dollar.

16

LFC 08.07.15 at 3:53 pm

Lynne @14:
Is that always a paid position?

Well, it definitely sounds like one, sounds like an endowed chair. (But I’m not 100% sure.)

17

Eli Rabett 08.07.15 at 5:02 pm

IL now has a Republican governor. That will play into the theater piece

18

An American Anthropologist in Germany 08.07.15 at 5:30 pm

Colin Street @ 5

Were that the pleading standard, no plaintiff could state a conspiracy claim if the conspiracy was formed behind closed doors, as conspiracies often are.

What is the source of this quote. I couldn’t find it in the OP.

19

Robert the Red 08.07.15 at 5:42 pm

@18 What is the source of this quote. I couldn’t find it in the OP.

It is in the court’s opinion.

20

Snarki, child of Loki 08.07.15 at 5:50 pm

Well, it’s always possible that the UIUC Trustees will appeal this case up to the Supreme Court, where the Roberts/Scalia axis of Derp will apply their well-used “argle bargle whatevs” standard of jurisprudence, and Salaita loses.

21

Waiting for Gadot 08.07.15 at 6:36 pm

I’m surprised that so many readers here think that the case is won. Does anyone really think that this will not drag on for a couple a years and then hit the Supremes and put an end to contract law and the first amendment for good?

22

LFC 08.07.15 at 7:24 pm

Well, it’s always possible that the UIUC Trustees will appeal this case up to the Supreme Court, where the Roberts/Scalia axis of Derp will [etc.]

Assuming there’s no settlement and the Trustees lose at all the prior stages (we don’t know yet whether the case will settle or go to trial), the Trustees can file a petition asking the Sup Ct to hear the case but the Sup Ct doesn’t have to take it — it takes only a tiny fraction of the cases appealed to it — and I doubt the Sup Ct would take it. Anyway it’s likely only the First Amendment issues, not the breach of contract ones, that the Trustees would have at that stage, since the contract issues afaik don’t raise any questions w/in SCOTUS’s remit. (Though I guess there cd be some arcane twist or other, I don’t know.)

23

Corey Robin 08.07.15 at 10:33 pm

LFC at 12: That Edward Said Chair is a one-year visiting appointment that begins in the fall.

24

dbp 08.08.15 at 12:17 am

So, it looks like Wise was trying to dodge open record laws on this and other matters.

25

LFC 08.08.15 at 12:37 am

ok, thks for clarifying it.

26

marcel proust 08.08.15 at 12:58 am

CJColluci @ 15:

A settlement seems like the smart way to go, but what you propose is probably more than Salaita gets if he wins outright, and nobody sane settles at 100%-plus on the dollar.

They do if they want to avoid embarrassment (like discovery).

27

CJColucci 08.08.15 at 2:10 am

marcel proust @24

Far too many plaintiffs think that. And blow up settlement chances as a result.

28

Barry 08.08.15 at 12:56 pm

Henry Farrell 08.07.15 at 9:16 am
“I’d be surprised if Leiter’s prediction turns out to be correct – the veto players are less university officials (Wise clearly had second thoughts early on) than the board of trustees, whom I suspect will double down, even if it risks a very expensive settlement.”

That’s important, because the trustees can (and have) thrown Wise under the bus[1], but they’ll happily burn the university down to prevent their own embarrassment.

[1] For CEO values of ‘under the bus’, meaning hit her with a large sack of money and send her to a cushy retirement.

29

Lynne 08.08.15 at 2:33 pm

In the e-mails Corey links to in the Chancellor Wise thread, Wise doesn’t express any second thoughts. On the contrary, she and her correspondents are adamant that Salaita has disqualified himself from the position they offered by his speech, which they believed went beyond free speech to hate speech.

30

AF 08.08.15 at 3:51 pm

The argument that there was no contract was absurd and as the judge said, the University should be embarrassed for making it. If the University wanted to stand behind its decision (a decision I disagree with) the coherent argument would have been to admit that there was a contract but to argue that there was an implicit condition that Salaita keep his nose clean until the Board of Trustees’ vote and that he violated this condition. This argument would fail because Salaita’s tweets don’t rise to the level of violating any such implicit condition but at least it could be made “with a straight face.”

31

Mike Schilling 08.09.15 at 5:06 pm

compensation for damage to his reputation

Instead of an obscure professor at a med-tier university, known if anything for his poorly judged tweets, he’s now a famous martyr. He should pay them.

32

Mike Schilling 08.09.15 at 5:10 pm

the celebrated Belgian historian Henri Pirenne wrote in his landmark book Mohammed and Charlemagne (1939), shattered once and for all the ancient unity of the Mediterranean, destroyed the Christian-Roman synthesis and gave rise to a new civilization dominated by northern powers (Germany and Carolingian France) whose mission, he seemed to be saying, is to resume defense of the “West” against its historical-cultural enemies.

I presume the Edward Said Chair is for distinguished mischaracterizations of books you’re apparently never read (or at least never understood.)

33

Barry 08.10.15 at 2:15 am

Um, context please?

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