Most of the debate about why the firing of Steven Salaita by the University of Illinois was wrong has centered on three areas: contract law (he already had an effective contract), Constitutional law (he was punished for his political views by a government entity), and the principles of academic freedom (he was punished for his extramural utterances in violation of AAUP principles). But there is also a fourth area where the University of Illinois infringed upon Salaita’s rights: the firing also violated the University of Illinois Statutes. To understand why, it’s useful to examine some misunderstandings of the AAUP principles and then explain how the University of Illinois Statutes are even more protective of extramural utterances than the AAUP.
In its 1940 Statement of Principles on Academic Freedom, the American Association of University Professors said there should be some limits, in particular that professors should not introduce into their classes “controversial matter which has no relation to his subject” and when speaking as a citizen, showing “appropriate restraint” and “respect for the opinions of others.” But many professors have taken advantage of the perceived lack of boundaries, behaving like children eager to see how much they could get away with.
This is not a “perceived” lack of boundaries, but a very real lack of boundaries (otherwise known as “freedom”) for speech as a citizen. The only perception problem here is that some people, like Leef, mistakenly think that professors can be punished for a lack of “restraint” or “respect” under AAUP standards. This is an incorrect interpretation even of the original document. The 1940 Statement declares, “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.” Note that the “special obligations” part is in the very same sentence as “free from” censorship or discipline, which means that these “obligations” cannot be used to justify firing (or not hiring) a professor. Instead, the “obligations” are moral ideals for professors rather than disciplinary rules.
To clarify this, the 1940 Statement was immediately accompanied by an “interpretation” stating that discipline could only be justified if there were “grave doubts concerning the teacher’s fitness,” and not merely for showing lack of respect. Then the section was overruled by the 1970 Interpretive Comments, which effectively amended the original 1940 Statement of Principles. The 1970 Interpretive Comments declare that this “obligations” section must be interpreted by incorporating the 1964 Statement on Extramural Utterances, which has the line that any extramural utterance, to be punishable, “clearly demonstrates the faculty member’s unfitness” for the position and also take into account the professor’s “entire record as a teacher and scholar,” which is an extraordinarily high standard.
Unfortunately, many universities still use the language of the 1940 Statement of Principles as their enforceable rules. But because the 1970 Interpretive Comments are a formal interpretation of the 1940 language, and not simply an amendment, these 1970 comments are binding upon universities that enforce the 1940 words even without any mention of the 1970 language. However, we don’t need to go down that interpretive rabbit hole in this case because the University of Illinois provides a very clear-cut definition of academic freedom that fully protects extramural utterances.
According to the University of Illinois Statutes on Academic Freedom (Section X):
2b. 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.
2c. 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.
Here we notice some very important differences from the 1940 Statement, and the University of Illinois Statutes are in fact much better written than the AAUP statement. Instead of the ambiguous “should,” the University of Illinois says “should be mindful” which removes any confusion about whether it is an enforceable directive, as does the fact that accuracy, honesty, and dignity “befit association” rather than being compelled. In fact, the University of Illinois Statutes contain no mention of the AAUP’s exceptions for an extramural utterance that “clearly demonstrates” a professor’s “unfitness”; they provide an absolute protection for speech as a citizen.
Then, the University of Illinois Statutes go even further to protect extramural utterances by declaring that the only allowed response to a violation of “dignity” is criticism by the administration. It is very clear from these Statutes that the University of Illinois does not allow formal punishment for faculty “freedom of expression as a citizen,” and strictly limits the power of the administration to being only able to “disassociate” the University from those comments and “express their disapproval.”
Of course, some defenders of the administration will be quick to claim that these rules only apply to faculty members, and Salaita was not yet a faculty member (which is a matter of dispute). But it would be an absolutely bizarre interpretation to assert that even though the University of Illinois Statutes contain a complete prohibition on using extramural utterances to evaluate current faculty, these Statutes would allow extramural utterances to be the sole basis for evaluating a professor who had been formally hired except for the routine, final approval of his contract by the Board. The only reason why the section for extramural utterances mentions “faculty members” is that no one imagined that the administration would need to disassociate themselves from someone who wasn’t employed by the university, not because anyone thought that completely different criteria would be used for hiring a tenured professor than would be utilized for granting tenure to an existing professor.
But the University of Illinois Statutes also make it clear that they are not limited to existing faculty members. The section of the Statutes on academic freedom begins, “It is the policy of the University to maintain and encourage full freedom within the law of inquiry, discourse, teaching, research, and publication” and only then mentions the protections for academic staff. So the University of Illinois policy is to “maintain” complete “freedom” of “discourse,” without regard to employment status, and that is the guiding principle of its Statutes. That first section of the Statutes applies to Salaita because it applies to all actions by the University. And the other sections clarify that extramural utterances cannot be punished by the University of Illinois without violating freedom of discourse. In firing Salaita, the administration was not only breaking a contract, infringing upon the First Amendment, and breaching the core principles of academic freedom, it was also violating the fundamental Statutes of the University of Illinois.