The Salaita Case: A Legal Analysis

Readers of this blog who have been following developments in the case of Professor Steven Salaita, whose appointment to a tenured position at the University of Illinois, Champaign-Urbana was revoked, apparently in response to his controversial Twitter postings about the Israeli-Palestinian conflict, may find a recent analysis of the case by Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell University Law School, enlightening.  Here’s a brief excerpt:

The case is rich in irony and apparent hypocrisy on both sides. Less than a year ago, Illinois Chancellor Phyllis Wise reaffirmed the university’s commitment to academic freedom as a “core principle” in touting “the critical importance of the ability of faculty to pursue learning, discovery and engagement without regard to political considerations.” That statement was issued to explain why the university opposed an academic boycott of Israeli institutions. Salaita, for his part, has been an outspoken supporter of that boycott.

Nonetheless, Salaita’s case is—or should be—relatively easy. Academic freedom and freedom of speech protect all viewpoints, even those that are hostile to academic freedom or freedom of speech. Moreover, as I explain below, none of the peculiarities of Salaita’s case justifies the university’s revocation of its offer.

The entire piece, which provides a nuanced and clear discussion of the legal context, is well worth reading.  It is available here: 

UPDATE: Here’s another fine piece on the implications of the Salaita case, focusing on how the case provides further evidence of the corporatization of the university, by Lennard Davis of the University of Illinois, Chicago:

One thought on “The Salaita Case: A Legal Analysis

  1. Cross-posted from the blog:

    Taking a page out of the 6th Circuit’s ruling in Parate v. Isibor, an academic freedom case where the court relied in part upon Board of Regents policies cited in several other Circuit and SCOTUS rulings, we should also examine any such controlling document in Illinois. Thus, if we consult Article X of the University of Illinois’ Board of Trustees Policies on academic freedom we see that, given the arguments made in the blog that Prof. Saita was subject to Illinois state law, then that same state law would require that Prof. Saita have access to a hearing on this matter (has he requested such — we do not know):

    “Section 2. Academic Freedom

    “a. It is the policy of the University to maintain and encourage full freedom within the law of inquiry, discourse, teaching, research, and publication and to protect any member of the academic staff against influences, from within or without the University, which would restrict the member’s exercise of these freedoms in the member’s area of scholarly interest. The right to the protection of the University shall not, however, include any right to the services of the university counsel or the counsel’s assistants in any governmental or judicial proceedings in which the academic freedom of the staff member may be in issue.

    “b. As a citizen, a faculty member may exercise the same freedoms as other citizens without institutional censorship or discipline. A faculty member should be mindful, however, that accuracy, forthrightness, and dignity befit association with the University and a person of learning and that the public may judge that person’s profession and the University by the individual’s conduct and utterances.

    “c. If, in the president’s judgment, a faculty member exercises freedom of expression as a citizen and fails to heed the admonitions of Article X, Section 2b, the president may publicly disassociate the Board of Trustees and the University from and express their disapproval of such objectionable expressions.

    “d. A staff member who believes that he or she does not enjoy the academic freedom which it is the policy of the University to maintain and encourage shall be entitled to a hearing on written request before the Committee on Academic Freedom and Tenure of the appropriate campus senate. Such hearing shall be conducted in accordance with established rules of procedure. The committee shall make findings of facts and recommendations to the president and, at its discretion, may make an appropriate report to the senate. The several committees may from time to time establish their own rules of procedure.”

    Of course, so far Prof. Salaita has not made public the terms of his offer, but many institutions do not grant tenure until the completion of one or more semesters of the appointment. If the appointment offered to Prof. Salaita was not with immediate tenure, then it is noteworthy that the courts have often sided with the right of the institution to terminate the contract of a non-tenured faculty member for almost any reason, as the court indicated in Parate v. Isibor. In short, the same tenets of academic freedom have been used by courts to defend universities’ rights and not just the rights of professors.

    With respect to the Virginia law wrinkle, is it not most likely the case that Prof. Salaita exercised his acceptance of the U of Illinois offer by means of either a letter via the US Postal Service or an email? In either case, can it be said that his action of acceptance was solely an action taken and completed within the state of Virginia inasmuch as an integral part of the action, the written acceptance, occurred only upon the receipt of the document in Illinois?

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