Update on the Salaita Case, and a Sept. 11 Board (Non?) Vote

UPDATE: This report may not be accurate. English professor Ted Underwood just tweeted:

Regret to say that last night’s report from students appears premature. Faculty have since met with Wise, & report no change in position.

 

University of Illinois student Stephanie Skora reports back on a meeting that a group of students had with Chancellor Phyllis Wise today:

We have discovered that the Chancellor HAS FORWARDED Professor Salaita’s appointment to the Board of Trustees, and they will be voting on his appointment during the Board of Trustees Meeting on September 11th, on the UIUC campus!

Corey Robin has an interesting (by which I mean, wrong) interpretation of this:

If the UIUC is thinking politically, it would be an absolute disaster for them to open this can of worms, to act as if Salaita’s appointment is now a real possibility, to raise expectations for two weeks or so, to encourage all the organizing this will encourage (I can imagine the phone calls and emails that will now start pouring into the Board of Trustees), only to have the Board vote Salaita down. From a political perspective, this would be a disaster for the university. The strongest weapon the UIUC has always had is the sense that this is a done deal, that they will not budge, that we can raise all the ruckus we want, but they simply don’t care. Opening the decision up again calls that into question. Where does this line of reasoning lead us? To the possibility that the UIUC Trustees will vote to appoint Salaita on September 11, throw Chancellor Wise under the bus (remember, the Executive Committee that upheld her decision is only comprised of three Trustees, not the full Board), and say it was all a misunderstanding wrought by an incompetent chancellor.

There is not a chance in hell that this will happen. I can see only two explanations for this decision: 1) Wise wants to head off criticism (and, as Robin points out, Wise wants to prevent a possible legal challenge) that she violated a procedural rule by failing to forward the appointment to the Board of Trustees. 2) The trustees are upset that she removed the opportunity for them to vote against Salaita, and they want the chance to publicly double fire Salaita.

Considering that all of the trustees signed a letter embracing Salaita’s firing, it would be shocking if even a single trustee voted for Salaita. The Sept. 11 Board of Trustees meeting will obviously be the center of considerable attention, but it ultimately will not change the decision.

35 thoughts on “Update on the Salaita Case, and a Sept. 11 Board (Non?) Vote

  1. Well, as I said in my post, there is a different interpretation, the one you entertain here as an alternative to mine (which it’s not since I said there were two interpretations), so you may be right. But a legalistic question for you: How can Wise now forward an appointment that she has declared in writing, not once but several times, is no longer an appointment? If she forwards it on, doesn’t that mean she had no authority to do what she did in sending Salaita the firing letter? Or that what she did do was a nullity of sorts? Doesn’t that give him some sort of claim?

    • No, this really doesn’t give Salaita any kind of claim. The University’s position is that an appointment is not real until the Board approves it. It doesn’t follow that the appointment is real unless the Board votes it down. Maybe Wise is admitting that she should have forwarded the appointment to the Board, but that won’t change the outcome or any legal interpretation of what happened before. Of course, a formal Board vote doesn’t provide any additional legitimacy to the firing, either.

      • Maybe Wise is admitting that she should have forwarded the appointment to the Board, but that won’t change the outcome or any legal interpretation of what happened before.

        I’m not so sure. Assuming Saliata sues for First Amendment retaliation, I suspect Wise may have a hard time explaining and justifying her reasons for deviating from UIUC’s standard employment procedures in the first place, as well as all the machinations and deliberations that led to this sequence of events.

        In employment law, a deviation from standard hiring procedures is evidence of pretext, i.e., evidence demonstrating that the employer’s claims–here, that UIUC wasn’t denying Salaita employment because of his speech–are false. It’s too early to speculate, but the sequence of events in Salaita’s case could play a critical role down the road, as it might make the difference between whether he gets a jury trial or has his case thrown out beforehand for lack of evidence.

  2. Pingback: Breaking News! Wise to Forward Salaita Appointment to Trustees! | Corey Robin

  3. Once the Board of Trustees votes Salaita down (as I agree is probable), the UIUC will have officially endorsed a decision that will compromise its academic credibility, nationally and internationally, for many years to come. It may never entirely recover.

  4. Pingback: Salaita Appointment to Be Forwarded to Board - Lawyers, Guns & Money : Lawyers, Guns & Money

  5. On the one hand, I am guessing that the legal implications of any element of this case are open to all sorts of interpretations, even among practicing attorneys.

    On the other hand, this is such a public-relations disaster for this university, that I am guessing that the main legal question will ultimately be the size of the settlement that will be given to Steven Salaita to remove the case from public attention as quickly and painlessly as possible. In fact, given what I know about institutional politics (which may not be all that much but is still much more than what I know about the law), I am guessing that a donor is already being lined up to provide the settlement so that there is no issue with public funds or tuition dollars being used for that purpose. And I wouldn’t be at all surprised if it turns out to be a pro-Israeli donor.

    What will be of more interest to me than the legal resolution of this case is whether another institution will step up and hire Steven Salaita–because of his academic credentials and because that institution wishes to make a statement about how much value it places on academic freedom.

    Regardless of the size of any settlement that Salaita receives, it will be a hollow victory for him personally and for our profession as a whole if controversial academics keep being banished to the wilderness.

    • Yes, I think martinkich has it entirely right. They will unanimously vote him down, pretend as though it was all a very carefully considered decision, and then rush like hell to give him two or three million dollars to settle out of court. The last thing they want is a trial, both because it may end up with the University *forced* to hire him in any case, and more importantly because in the process of discovery we will find out all sorts of interesting things about how the trustees, zionist donors, and the upper administration colluded to undermine the first amendment, faculty governance, and academic freedom. If that all comes to light, we are looking at a very big mess indeed. But with a settlement, it all goes away in six months or so. That’s why I’m hoping Salaita doesn’t settle; though, were I in his shoes, I would probably want the whole thing to be over with, so as to get back to my work and family. The bastards.

      • “…we will find out all sorts of interesting things about how the trustees, zionist donors, and the upper administration colluded to undermine the first amendment, faculty governance, and academic freedom.”

        Yes. It looks like one or more major donors gave the University its orders. Donors whose names are redacted, even though they seem to be able to give those orders.

  6. I have been wondering since this thing began how closely the Board is in communication with the Governor regarding what to do. For those of you outside of the state of Illinois, the Governor appoints the Board of Trustee members, plus he is an ex-officio member. And our Governor is in the fight of his life for re-election against an opponent with unlimited personal funds. The Governor is trailing in every poll right now.
    If the Board decides to be the one to “fire” Salaita, it then becomes an issue that is laid on the Governor. I wonder to what extent they’ve thought this through? It is very possible that the Gov (or his advisors) have calculated that rejecting Salaita will win him favor with the Chicago-area Jewish voters, a group he MUST carry if he has any chance of winning.
    Just me connecting the dots here, which I always do!

  7. I think the board will reject Salaita and that any out of court settlement will be much less than what has been suggested here. I have a hard time imagining it would be greater than $300,000 total. Which is still an incredibly huge amount of money, about 30 times what I earn in a year as a full time lecturer at a flagship university.

    • Low out-of-court settlements occur generally under the conditions where the plaintiff wants out of the suit (health reasons, change of attorney, lack of money to continue the suit, new evidence showing the suit might not end favorably, etc.). The defendant — especially one with deep pockets like the state of Illinois — doesn’t usually get away with low-balling a settlement offer unless the plaintiff is willing to accept it, again, usually for personal reasons to simply end the case.

      When a plaintiff may argue that the damages done to his reputation, future hirability, etc. might be significant, then a plaintiff would be a fool to accept a low-balled amount.

      Something obvious that enters into settlement discussions is the salary, of course, and the offer to Prof. Salaita was mid-eighties, if memory serves correctly. Interestingly enough, this is significantly lower than that of the average UIUC associate professor (cf. http://chronicle.com/article/2013-14-AAUP-Faculty-Salary/145679/#id=145637) but would be the average associate professor salary at Virginia Tech, his “home” institution (cf, http://chronicle.com/article/2013-14-AAUP-Faculty-Salary/145679/#id=233921). So it doesn’t look as though UIUC had bargained hard to get him in the first place and/or that the salaries in the UIUC department may be discriminatory in the first place.

      • Most wrongful termination suits I know of that have been settled out of court have resulted in about two years salary being paid out. So $300,000 is actually quite high. As noted it is 30 times what I earn in a year.

      • “When a plaintiff may argue that the damages done to his reputation, future hirability, etc. might be significant, then a plaintiff would be a fool to accept a low-balled amount.”

        In this case, he lost his prior tenured job, and is going to have trouble getting another.

      • Actually, Salaita’s salary is in line with the humanities. UIUC average salaries appear artificially high primarily because of the large (highly ranked) Engineering college. It’s well know that in order to compete with the private sector and maintain their standing, Engineering offers significantly higher salaries. Understandably, this has zero impact on salary levels in the humanities, but it does make it appear as if salaries across the university are higher than they actually are.

    • If this were just a wrongful termination suit, perhaps. But add a few state and Federal anti-discrimination statutes and the U.S. Constitution and the stakes are higher.

      While damages may be capped in the case of some Federal statutes, often the state anti-discrimination statutes provide for uncapped damages. That would make this a whole different ball game, altogether. Remember: this professor has potential ethnic and religious discrimination claims as well as First Amendment, etc.

      Inside Higher Ed reported today that that another venue cited the board chair Kennedy as indicating that Prof. Salaita had just changed lawyers — he may be suiting up for the big leagues. Kennedy’s apparently stated willingness to settle the case does make one wonder just what he wants to cap besides damages.

  8. In an earlier comment at another Academe posting on the Salaita case, this commenter asked whether any other candidate at UIUC had ever not had their appointment brought formally before the trustees after the offer letter had been accepted. Differential treatment of this professor would appear to have made him a clearly aggrieved plaintiff under contract law and discrimination statutes as well as the Constitution.

    Now the question is: Has there ever been any other candidate whose appointment was not voted on before the semester started but who had nonetheless been permitted to begin the semester teaching and enjoying other rights and privileges of appointment?

    The differential treatment doesn’t end with the trustees’ delay in formally considering the appointment — but this was likely the very least that a law firm likely advising the university has insisted upon to minimize legal exposure.

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  10. While the fact that the case has been forwarded to the Trustees came out when protesting students demanded it, I would be very surprised if this had not been gamed out exactly this way in late July, when the decision was first made. The Chancellor was made to send her letter to avoid the further legal complications that may have occurred had he begun working on August 16th. At the same time, though it went unmentioned, the plan was undoubtedly in the works to then ‘clean this up’ with a Trustee vote later. Reading the earlier statements, it was never said the case would not go forward; it was only said that the outcome of the vote was not in doubt. As it would not seem to be today, either, though I suppose protest could matter. That said, I think it’s important to not get caught on this side of the information bubble. There are enough counter-petitioners, both open and closed, both in and outside the University, to provide significant cover, especially since this is a University that does not, fundamentally, care about the units most significantly affected, e.g. the humanities and liberal arts and sciences more generally. It’ll be another argument for eliminating the College of LAS or schoolifying it into “The Program for Mutual Global Understanding for Tomorrow’s Job Challenges” when the time comes.

  11. I recognize and respect the fact that this blog concerned with threats to academic freedom regardless of one’s stance on the underlying political issues that generate such threats. But there is no issue in American politics, no matter how divisive (abortion, gun control, urban policing, acceptance of evolution), that has so captured legislative and executive governmental functions, in so one-sided and distorting a fashion, as the Israel lobby. Now the lobby is moving to inluence hiring policy and the limits of acceptable speech in major institutions of civil society, such as public universities. The question of how Prof. Salaita might be compensated if he decides to withdraw his employment claim against UIUC is of course an important one, but much more important is the actual postion he advocates and the academic and other national consequences of its suppression.

    • Stuart, while I’m not sure if Prof. Salaita got his first tenured position before or after releasing his book Israel’s Dead Soul, he most certainly advanced through the hiring process at UIUC well after. All this somehow slipped under the radar of The Lobby. It appears that a lot of people have little trouble believing, “They’re everywhere, they’re connected, they’re rich and they’re powerful” simultaneous with “They failed to suppress a known belligerent early and quietly in a hiring process — apparently they’re not good at maintaining lists — and subsequently launched a suppressive action at a time and in a manner that resulted in a major backlash.” Of course both might be true, but, to believe that they’re both likely takes a bit of conjuring.

      • Neil, I certainly don’t think the political advocates of Israel in the U.S. are all “connected” (other than by ideology), and I thus don’t capitalize “lobby.” (I know you were characterizing a position you don’t hold, but when I see that formulation I get uncomfortable.) Once a cause is identified by the relevant pro-Israel interest group or individuals, they can quickly attract a lot of resources and be highly effective. Interested alumni groups at Columbia and Barnard failed to get some faculty members fired or denied tenure a few years ago. But the stakes seem higher now, and the Zionist activists’ tactics more aggressive, as Israel’s actions have become less and less defensible. Connie Bruck’s recent article in “The New Yorker” about AIPAC was headlined as being about the latter’s loss of influence. But what really struck me was the extent to which this is due to the organization being seen as too concilliatory by some of the best-positioned of Israel’s “defenders.”

  12. Just to clarify: you may want to update this whole discussion. Either the students misinterpreted their discussion with the Chancellor, or they were misled. In a meeting with faculty this morning she said that the state of affairs has not changed and they are not likely to discuss his case at the Sept 11 board meeting. What’s really going on at this point is anyone’s guess, frankly. The leadership may not be acting in a super-coordinated way, but also there seems to be a lot of slippery discourse coming out of the campus and university administration.

  13. Am I the only one a little skeptical about this news? I find it bizarre that the chancellor would decide after all this to go ahead and forward the appointment to the BoT after all, and doubly bizarre that she would allow the beans to be spilled by an undergraduate student angrily making demands on the administration.

    I’m predicting that the student misinterpreted something the chancellor said in the meeting, and that the chancellor has not forwarded the recommendation to the BoT. If I’m wrong (wouldn’t be the first time), then I think that the chancellor has just made a huge PR mistake. Perhaps (as some here have suggested) she’s covering her legal tracks on the advice of counsel, but even if that’s the case, why would she allow a student to break the news?

    • “Am I the only one a little skeptical about this news? I find it bizarre that the chancellor would decide after all this to go ahead and forward the appointment to the BoT after all, and doubly bizarre that she would allow the beans to be spilled by an undergraduate student angrily making demands on the administration.”

      The theory as to why she’d have forwarded the appointment is that if she didn’t, the university would be in deep trouble under contract law, because it clearly didn’t try to approve his appointment – it didn’t act in good faith. The other theory is that the university is trying to patch what was obviously an unstandard act.

      • Article IX, Section 3a of the Statutes would seem to have the university covered in this regard (note the last part): “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.”

  14. Oh great! Now the bogeymen are “zionist donors” and Zionists and Israel’s supporters and “Zionist activists’ tactics” or “The Lobby” or “Jewish voters”. Does not anyone here realize that courts have consistently ruled that there are limits to free speech and hate speech? Does anyone not realize that Salaita is a hater and that his beyond the pale comments should not be tolerated in a university? Were his hate directed toward women, or Gays or Muslims, the same people now claiming there is some kind of conspiracy or “Zionist” orchestrated clampdown on free speech would be demanding that Salaita NOT be allowed to teach. The imagined power of Jews is just absurd but if there is any one group in America that as a group has done more to promote and protect civil rights and free speech it is the American Jewish community–but now they are called Zionists! Shame. Shame. Shame.

    • “Does not anyone here realize that courts have consistently ruled that there are limits to free speech and hate speech?” – No, that is not true, Mr. Foer. Courts in the United States have held exactly the opposite. You really ought to check your facts before posting. Also, it is rather absurd to claim that being anti-Zionist is somehow bigoted or anti-semetic. It is like claiming that someone is anti-Islam just because they oppose the Islamic Republic. Many Jews oppose Zionism.

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    • Mr. Foer, nothing on that link even remotely proves that court (in the US) have limited hate speech. Our courts have allowed Nazis to march, anti-gay groups to protest funerals, and flag burning. You should consider yourself lucky that the courts haven’t limited hate speech. In some countries, your comments about Islam on other forums would land you in the dock. So take a deep breath, relax, and leave the law to the experts. I’m not a hater (even of you) but people have a Constitutional right to hate and express unpopular or even wrong ideas.

      • I’d be pleased to read other comments you have posted (as wcooke or otherwise) but there are literally dozens of William H Cookes so I cannot snoop around to make claims about your other speech as you did to me. In regards to your insistence that US courts have never upheld any limits or restrictions of freedom of speech or specifically of hate speech, you continue to be wrong–and only prove your ignorance, so why keep going on?. I provided one link which you brushed off, but there are millions of others that will prove my point–if you are willing to consider that just maybe you are incorrect–but that might take a miracle.. You patronizingly tell me to “take a deep breath, relax, and leave the law to the experts” but I already provided one cite that you disregarded, so shall I appeal to yet more experts? How about Oliver Wendell Holmes who referred to a “clear and present danger or what about “fighting words” or screaming fire in a crowded theater? I don’t claim to be an expert but when I received my MA in journalism and communications, in part by taking graduate level classes in media law, communications history and in censorship, it might have made me a bit more educated in this respect than yourself. I don’t know whether you are a “hater” or not, but my suspicions linger.

  16. Sir, what bothers me about you is that you opine on matters you know little about, but pretend to do so as if you are some sort of authority. You initial comment was “Oh great! Now the bogeymen are ‘zionist donors’ and Zionists and Israel’s supporters and ‘Zionist activists’ tactics’ or ‘The Lobby’ or ‘Jewish voters’. Does not anyone here realize that courts have consistently ruled that there are limits to free speech and hate speech?” The clear implication of your comment was that the courts are moving in a direction to ban or punish such speech. You backed up this claim by citing an article from the respected legal journal “yoexpert.com” which addressed issues involving obscenity, child porn, fighting words, and “incitement to imminent violent action, such as threats to kill an individual.” None of those examples apply here. You then go on to say well “how about” the “clear and present danger” of Holmes. Well about that, see Brandenburg v. Ohio which did away with that test in favor the imminent lawless action test. https://www.law.cornell.edu/supremecourt/text/395/444 . For example, see “I agree with the views expressed by MR. JUSTICE DOUGLAS in his concurring opinion in this case that the ‘clear and present danger’ doctrine should have no place in the interpretation of the First Amendment.”

    I’m not sure what any of this has to do with Steven Salaita who merely taught and advocated positions that you disagree with. Could you explain to me how what anything he has advocated is illegal. Please cite specific examples.

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