In response to Steven Salaita’s lawsuit yesterday, the University of Illinois administration issued a statement (copied in full below).
Many claims in the U of I statement are incorrect, and others seem to confess to precisely the punishment of political speech that Salaita’s lawsuit is based upon.
The U of I statement claims that Salaita’s tweets “demonstrate that Dr. Salaita lacks the judgment, temperament and thoughtfulness to serve as a member of our faculty in any capacity, but particularly to teach courses related to the Middle East.”
This is a highly unusual claim: that scholars who teach courses related to the Middle East must meet higher standards of “temperament” than other scholars. Why is this? Obviously, it’s because the Middle East is a politically controversial topic. So, the University of Illinois is essentially admitting that it refused to hire Salaita due to worries about his viewpoint on a politically controversial issue, and that it subjected his appointment to greater scrutiny due to his politics. This kind of admission in a carefully prepared statement is a serious blow to their legal case, since it undermines any assertion that Salaita was treated fairly like any other hire.
The U of I statement also invokes the final board approval needed for any faculty appointment and claims, “Dr. Salaita was well aware of the importance of this final approval.” Actually, he wasn’t. Salaita assumed, like everybody else, that Board approval of contracts was a mere formality, which is why it was scheduled to happen after he started teaching classes. If final approval of contracts by the Board is so important, why doesn’t it happen before a potentially evil professor starts teaching students?
According to the U of I statement, “the Committee on Academic Freedom and Tenure concurred that ‘donor influence’ was not a basis for the decision.” That’s not true. The CAFT report found “no evidence” of donor influence, but of course the subcommittee never saw the thousands of emails that the U of I is trying to keep secret in defiance of an FOIA request. A statement that no evidence was found is not the same as evidence proving that donor influence did not exist.
The U of I statement concluded, “As a private citizen, Dr. Salaita has the constitutional right to make any public statement he chooses. Dr. Salaita, however, does not have a constitutional right to a faculty position at the University of Illinois.” That’s not true. You do have a constitutional right to a faculty position, if you were fairly chosen for the position and then had it taken away for illegitimate reasons, such as your political views.
The U of I statement declares that all of Salaita’s claims are “meritless” and adds, “The University has attempted to negotiate a settlement for his reasonable losses and expenses, but he has refused those offers.” If Salaita’s claims are all meritless, why is the University offering a settlement? You can’t admit that Salaita suffered “losses” caused by the University and then assert his lawsuit is completely meritless.
The University of Illinois is facing a huge problem: the administration is likely to be censured by the AAUP, there are likely to be embarrassing revelations in the emails the administration is trying to keep secret, and a lawsuit could hang over the institution for years, culminating in a court order to reinstate Salaita as a tenured professor and pay him a million dollars in legal fees and losses. The only alternative might be for the U of I to pay Salaita about $4 million he would have earned over the next 40 years, and hope that he is willing to take the money. But if the University is unwilling to make a serious settlement offer, the Salaita case won’t disappear anytime soon.
Below is the entire U of I statement on the Salaita lawsuit:
A statement by the University re Steven Salaita complaint
University to vigorously defend against meritless claimsJanuary 29, 2015
The University of Illinois must balance all of the interests of its campuses and the institution in reaching any decision, particularly one as important as granting a positon as a member of our faculty.
Last summer, while Steven Salaita was still under consideration for a tenured position to teach courses comparing issues related to the experiences of Native Americans to issues related to Palestinians and the Middle East, Dr. Salaita began demonstrating that he lacked the professional fitness to serve on the faculty of the University of Illinois at Urbana-Champaign.
Specifically, Dr. Salaita began making a series of statements via social media on precisely the subject matter that he proposed to teach at our University. For example, on June 19, 2014, after three Israeli teenagers were reported kidnapped and presumed dead, Dr. Salaita posted a statement on Twitter which read: “You may be too refined to say it, but I’m not: I wish all the f**king West Bank settlers would go missing.” Dr. Salaita continued to post this comment even after the three teens were found murdered later that month.
Dr. Salaita also posted statements such as:
“Zionist uplift in America: every little Jewish boy and girl can grow up to be the leader of a monstrous colonial regime.”
“If #Israel affirms life, then why do so many Zionists celebrate the slaughter of children? What’s that? Oh, I see JEWISH life.”
“Zionists: transforming antisemitism [sic] from something horrible into something honorable since 1948.”
“Let’s cut to the chase: If you’re defending #Israel right now you’re an awful human being.”
These statements and many more like them demonstrate that Dr. Salaita lacks the judgment, temperament and thoughtfulness to serve as a member of our faculty in any capacity, but particularly to teach courses related to the Middle East.
As Dr. Salaita admits in the complaint he filed today, the offer he received in October 2013 from the American Indian Studies Program was at all times subject to the ultimate approval of the Board of Trustees. This is consistent with the Statutes of the University of Illinois and the past precedent of the University. Dr. Salaita was well aware of the importance of this final approval. At no time was Dr. Salaita hired as a faculty member. His appointment was always subject to approval by the Board of Trustees.
On September 11, 2014, after carefully considering all of the issues related to Dr. Salaita’s proposed appointment, the Board of Trustees voted 8-1 not to approve Dr. Salaita for a position on the faculty. Two weeks ago, the Board emphatically reiterated that its decision is final and will not be reconsidered.
The Board’s decision concerning Dr. Salaita was not reached hastily. Nor was it the result of external pressures. Indeed, the Committee on Academic Freedom and Tenure concurred that “donor influence” was not a basis for the decision. The decision did not present a “new approach” to the consideration of proposed faculty appointments. It represented the careful exercise of each Board member’s fiduciary duty and a balancing of all of the interests of the University of Illinois. In the end, this is a responsibility that cannot be delegated nor abdicated.
Today, Dr. Salaita has filed a complaint in federal court. Among other accusations, he contends that the individual trustees and administrators of the University of Illinois are liable for intentionally inflicting emotional distress by refusing to provide him with a faculty position. The University of Illinois intends to vigorously defend against these and each of Dr. Salaita’s other meritless claims. The University has attempted to negotiate a settlement for his reasonable losses and expenses, but he has refused those offers.
As a private citizen, Dr. Salaita has the constitutional right to make any public statement he chooses. Dr. Salaita, however, does not have a constitutional right to a faculty position at the University of Illinois.
I’m still interested in the Chancellor’s announcement in the face of the FOIA by Ali Abuminah that a document couldn’t be found. How can a Chancellor lose an email or emails? I can’t imagine anyone at my university losing such a document in such an important controversial situation. This is why some are using words like “cover up.” I’m not saying it is, but you definitely don’t want to go anywhere near not turning over any kind of record, document, regardless if it’s personal correspondence or might make you look poorly in the eyes of faculty, the AAUP or whoever. You turn over all documents requested in a FOIA at the earliest possible date. That’s just commonsense. I honestly don’t get why she didn’t do so.
Possible excuses for not turning over the solicited document:
1) The dog ate my homework.
2) Hamas militants raided my office and destroyed the document in order to make me look bad.
3) Isis militants raided my office and destroyed the document in order to make me look bad.
3) Hezbollah militants raided my office and destroyed the document in order to make me look bad.
4) Aliens from the Kepler 438b planet invaded my office and swiped the document because their faulty translators led them to believe it contained plans for the Earth to invade their world.
Good one. LOL
Seems like a long time since we were playing chess in my dingy apartment on Drexel Ave.
I think the claim is not that teachers who teach about the Mideast are held to higher standards but rather that Salaita’s tweets were indicative of how he might think and teach about the Mideast (as opposed to astronomy, or Russian studies). Had he been applying for a position in neurology and tweeted insupportable statements about the benefits of bleeding as a migraine cure, one might say that he raised concerns about his professional fitness, *especially* with respect to teaching neurology. that would not imply that neurologists are held to a higher standard but rather that someone who is going to teach neurology should be held to a higher standard when it comes to utterances about neurology.
Although extramural speech cannot be ground for dismissal according to the AAUP unless it indicates “unfitness,” the CAFT report, signed onto by Finkin, who knows a thing or two about academic freedom, says that Salaita’s speech (especially because it bears on his area of alleged professional expertise) can be held to a “professional standard of care,” where it seems as if the committee thinks that if Salaita’s utterances were found to violate such standards egregiously enough, the U of I would then be shown to have been justified in withdrawing the offer, had the administration and board gone about it differently. While I’m not sure what an investigation would reveal that is not already known, I assume the Committee wants the investigation to involve faculty members.
I suppose the committee is backed into this position because it takes it that Salaita was hired. If he wasn’t, then it seems to me all the more plausible that the tweets could be grounds for not going through with the appointment. All things considered, I don’t think I would have pulled the plug as late as August and it seems possible to me–though I know of at least one knower of Illinois contract law who disputes it–that U of I created an expectation on which Salaita reasonably acted (at least with respect to his move, if not with respect to the resignation) and so is liable (promissory estoppel). I also think it may have been imprudent to withdraw the offer (one unprofessional blowhard, even one whose specialty is saying vile things, can only do so much damage to a university). And finally, it seems as if Chancellor Wise failed to adhere to some extent to the university’s own procedures re: the hiring process. But I don’t think the academic freedom case is nearly as clear cut as you make it out to be.
Although U of I’s practice of having the Board meet after the semester begins seems very problematic to me, I do not think, based on my own experience, that I would take it that the Board approval provision was meaningless. I certainly never did in my own case, though I also knew it was unlikely in the extreme that the Board would disapprove. To think otherwise is to think–and I don’t know what the grounds would be–that the Board has given up the authority it is invested with. Although I think it was reasonable to be 99+ percent certain that the appointment would be completed, I myself probably would not have taken the risk of resigning my tenured position. It’s my understanding that Virginia Tech does not as a matter of policy offer a leave of absence to someone leaving for a new job. In that case, I think I would have either a) stayed at VT; b) left, but been anxious about it because I would have understood it to be a risk; c) saw if there was anything U of I could do on its end to do the board approval before I arrived (U of I had no problem delaying Salaita’s start date, so perhaps that was a possibility).
Finally, as I said, I there may be merit to some of Salaita’s claims, but I think you’re grasping at straws when you take the university to task for trying to settle a case it regards as meritless. Going to court is risky and I am sure many have settled cases they regarded as meritless to avoid that risk. Salaita surely thinks his own case for reinstatement is airtight and just, yet I would not be at all surprised if he settled the case in the end for less than reinstatement, and perhaps even less than 4 mill (depends on how embarrassing the university thinks discovery will be, where embarrassing may fall short of revealing things that are wrongful in the eyes of the law but nonetheless be worth some money to keep out of the public eye).
Re-reading the statement, I now think you are correct that the U of I is saying that Salaita is particularly unsuited to teach about the Middle East, and not that the university has a different standard for teaching about the Middle East (although obviously it does). There are several problems with this stand, though. First, Salaita was hired to teach Native American Studies, not Middle East politics. Everyone expected him to include the Middle East in his comparative colonialism courses, but that’s not what he was hired explicitly to do. So even if there was an expertise exception to extramural utterances, it wouldn’t apply in this case. But there is no expertise exception to the protections for extramural utterances, under either AAUP rules or U of I statutes, despite what Matt Finkin thinks. “Unfitness” is an extremely high standard, and it doesn’t apply here. The fact that the judgments are being made by trustees who understand nothing about professional fitness, in contradiction to faculty experts who do, further undermines any such claim.
The neurology analogy doesn’t work in the Salaita case because nothing about Salaita’s tweets indicates any incompetence in this field. The complaints about Salaita were that he’s mean and intolerant, not that his statements are incompetent. When the complaints are about tone rather than content, you can’t support an expertise exception (which, as I keep saying, doesn’t exist anyway).
The academic freedom argument is very strong, at least to the AAUP, because it regards Salaita as already hired. But even if you think Salaita was not already hired, academic freedom and the First Amendment means that the Board of Trustees cannot refuse to hire faculty because of their political speech.
Finally, you are absolutely right that it is common to settle lawsuits regarded as meritless. However, it is extremely unusual for a university to admit that it caused losses and expenses, while asserting that all claims are “meritless.”
I’m curious as to your opinion about the Chancellor and the potential “cover up” by the Chancellor-i.e. her sudden “loss” of a document requested via FOIA. Doesn’t the state of Illinois require state officials to disclose those documents of public interest from state officials?
BTW, you may be right, but your view of the university and academic freedom is awfully pedestrian. But then U of I seems to me as a very pedestrian institution, sort of boring. I can see where the Indigenous Studies program would have been appealing to Salaita, given his scholarship, and maybe that’s actually an intellectually interesting program, which is also perhaps why, it was treated in the manner it was. Privatization of public universities, for all of the rhetoric about “innovation,” breeds a lot of political conformity and pedestrian research and scholarship. I think Salaita was mistaken to think that U of I would have been much better than Va. Tech, but he couldn’t have known that when he accepted the job.
Universities who have to keep out dissenters tend to be academically boring, if not stultifying in their mind-numbing conformity.
They also make inane comments like Salaita “lacked the professional fitness to serve on the faculty of the University of Illinois at Urbana-Champaign.” This is funny. He’s a much better scholar than many people there, and the pomposity of the “faculty of the University of Illinois at Urbana-Champaign” seems like U of I “doth protest to much,” like its language belies how uncertain and groping in the dark it was as it lost emails, didn’t turn over docs, etc. If there is a scandal here, it’s one of those “banality of evil” ones, where the administration and trustees, and ignorant faculty members just decided to not think for themselves and conform. And then they deployed really dumb rhetoric to try and make up for their closing of their minds.
From marksjo1, above: “it seems possible to me–though I know of at least one knower of Illinois contract law who disputes it–that U of I created an expectation on which Salaita reasonably acted (at least with respect to his move, if not with respect to the resignation)”
I am curious to know why the knower of Illinois contract law disputes the idea that this would create expectations on which Salaita reasonably acted. Can you elaborate on your friend’s reasoning? Is it only that the promise was contingent on Board approval, or is there some other explanation?
For my part, I’m a little surprised that U of I seems to be so ready to acknowledge that Salaita’s speech is protected political speech. Granted, it would be a pretty significant uphill battle to argue otherwise, but given the level of protection afforded to political speech, I’m surprised they aren’t even trying.
I said “know of”–I can’t claim him as a friend. Here is Dave Hoffman’s piece (including a response from another law professor, Michael Dorf), which needs some minor adjusting, since the case will be heard in federal court, but most of which still applies. http://concurringopinions.com/archives/2014/08/steven-salaitas-promissory-estoppel-claim-is-weak.html
Very interesting; thank you for the link, marksjo1. The debate between Dorf and Hoffman makes me wonder whether U of I will introduce evidence of previous Board of Trustee actions on faculty hires. My understanding of academic hiring processes is that it is quite reasonable to rely on a promise of employment that has cleared every level except the Trustees, but I am not familiar with U of I specifically.
“This is a highly unusual claim: that scholars who teach courses related to the Middle East must meet higher standards of “temperament” than other scholars. ”
You are misreading the statement. If he said: “Anyone who defends the view that Oxford was the true author of Shakespere’s works is a horrible person” then he’d be equally unsuited to each Shakespere classes. Of course, it wasn’t just this statement.
This and many other tweets show an intense malice towards *the people* who disagree with him on the Middle East, not just their ideas, and are the basis for UI’s statement.
“never saw the thousands of emails that the U of I is trying to keep secret”
UI has released a huge number of e-mails related to the Salaita matter. They have refused to engage in the absolutely massive and costly campus-wide search that Salaita demanded.
Salaita himself, however, essentially conceded his initial requests were excessive, and sent revised requests that were partially narrowed.
“You do have a constitutional right to a faculty position, if you were fairly chosen for the position and then had it taken away for illegitimate reasons, such as your political views.”
He wasn’t “chosen” for a position, rather he was nominated for it by faculty who lack the power to finalize a tenured hire, and rejected by those who do have that power.
“You can’t admit that Salaita suffered “losses” caused by the University and then assert his lawsuit is completely meritless.”
Yes, you absolutely can. The concept is called damnum absque injuria.
If I say to a plumber: I’d probably like you to come install a sink on Tuesday, and he keeps that day clear, and then I don’t, the plumber has losses, but no legal claim against me. On the other hand, he has a moral claim I may recognize with a partial payment.
There is also obvious nuisance value to getting rid of the case. And in public statements, Salaita’s lawyers have stated they intend to make the case costly to litigate.
“there are likely to be embarrassing revelations in the emails”
I really doubt that. They knew they were subject to a potential suit, and likely said anything they wanted to keep private via telephone.
“a lawsuit could hang over the institution for years”
I think the most likely outcome is that it will be dismissed entirely early on. He’ll probably be given a chance to amend after the first dismissal, but not the second one. All of his claims except promissory estoppel and “emotional distress” hinge on the false assertion there was an enforceable contract that was broken. For those last two, even his defender Brian Leiter admits the emotional distress claim is extremely weak. And promissory estoppel claims are very hard to win, and involve limited damages.
“pay Salaita about $4 million he would have earned over the next 40 years”
No, the contract was to teach for 40 years and collect $4 million, not $4 million in free money. That’s like saying that if you break your agreement to buy my house for $500,000, I get to keep your $500,000 and keep my house.
Just getting $4 million would be a punitive windfall, and a court would not be permitted to award it. Rather, he’d get the difference between what UI would have paid him, and his next best employment, a number he has the burden of calculating and proving with reasonable certainty.
Your comment that Dr. Salaita’s “…tweets show an intense malice towards *the people* who disagree with him on the Middle East [and] not just their ideas…” is the most insightful comment that I have read on all these Salaita posts.
To me, your statement identifies the real issue: Whether or not Salaita’s screeds against people – and not their ideas – provided a legitimate basis for UI BoT to question Salaita’s professional fitness and to disapprove his hiring.
Others here seem to ignore or downplay the professional fitness aspect and are quick to characterize the sole issue as one of academic freedom. In fairness to those who hold this view, it is easy to understand how they came to their position considering the initial communication that the University put out. The Chancellor’s remarks were poorly crafted and easily gave rise to an inference that the principle of academic freedom was being violated.
But subsequent to some early communications, others have explained UI’s position with improved clarity and, to me, the academic freedom position now appears more akin to a straw man argument than to reality. Your excellent comment makes this very point.
Let me respond to this “fitness” argument. As the AAUP notes, it is extremely rare that extramural comments ever have anything to do with “fitness.” Alleged “malice” has nothing to do with “fitness.” For example, if you tweet, “creationism is idiotic” (which it is), you are not unfit to teach even if some of your students are creationists, and even though this is obviously malice toward a viewpoint. If you tweet, “If I find out a student is a creationist, I make sure they get a lower grade, even if they conceal their beliefs,” then that would be relevant to a finding of unfitness. Expressing opinions is not evidence of unfitness. Unfair discrimination is. But expressing malice toward certain viewpoints in one’s extramural utterances is not proof that a professor will engage in unfair discrimination (it’s not even evidence, let alone proof). Most fundamentalist Christians will have to admit, “Devout Jews will spend eternity suffering in Hell.” Most people would regard eternity in Hell as malice, but that doesn’t mean fundamentalist Christians can be banned from teaching.
Considering that Salaita has a long record of teaching with absolutely zero evidence of unfair discrimination, the “malice is unfitness” argument is even more untenable. Even Cary Nelson says that Salaita should not have been fired if he were already hired, which means he didn’t meet a standard of unfitness. If “malice is unfitness,” then anyone with a strong opinion can be fired, and that’s an enormous threat to academic freedom.
WHERE are my smelling salts?
I would like to respectfully address your dismissive treatment of the “fitness” argument.
To me, the assertion that “malice” has nothing to do with “fitness” logically “begs the question” and assumes the conclusion of the very issue in debate.
Perhaps the problem lies in the definition of “malice.” My dictionary defines malice as “an intention or desire to do evil or ill will.”
Your example of a professor who thinks creationism is idiotic does not exhibit “malice” toward a viewpoint as you assert. Rather, he exhibits a different position. Now, if he tweeted “Believers in creationism should die.”, then one might be able to infer malice from his tweet and question his stability.
You note that “Expressing opinions is not evidence of unfitness.” I agree completely and I certainly hope that I never implied that. Indeed, we are both expressing opinions now and, I am sure, we are both “fit.” However, if one expresses opinions that are replete with malice – as defined above – then it is certainly reasonable to question that person’s fitness.
You also note that “Expressing malice towards certain viewpoints in extramural utterances is not proof that a professor will engage in unfair discrimination…” Again, I agree completely. However, “proof” of future behavioral wrongdoing is not a necessary criterion for the BofT to take the action it did. The mere uncertainty about a person’s character and fitness – brought on by that person’s malicious screeds – is sufficient grounds for the BoT to act as it did.
Your last statement that, “If ‘malice is unfitness,’ then anyone with a strong opinion can be fired…” is a total non-sequester. While “malice” equals a “strong opinion”, the converse is not true. A “strong opinion” does not equal “malice.”
Final thought: While academic freedom and free speech are rights that share the highest priority in our society, they are not absolute rights. They both have their limitations. Hate speech (malice) is one of several such limitations.
It wasn’t dismissive. It was disagreement. He doesn’t agree with you, and he offers argument as to why. Also, in the US as distinct from European countries, we don’t have “hate speech,” except as a rhetorical device. We have “hate crimes,” which are acts of a criminal nature, but not the former. There’s a reason for it, and it’s called the First Amendment which is about as close to an absolute as possible. That’s why it’s always odd when people try to smear other people by calling them “civil liberties absolutists.” Civil liberties are absolute, they broach no ambiguity, at least in American jurisprudence. That’s one reason why there is such strong defense of Salaita by people who wouldn’t have “tweeted” what he did. It’s why many don’t even get into the content of those tweets. It’s why when a hackneyed instructor from UC Santa Cruz tried to charge the University of California with discriminating against Jewish students, because the speech and assembly of Students for Justice in Palestine as well as the speech from on campus speakers at UC Santa Cruz bugged the crap out of her, the Office of Civil Rights said “No. There’s no civil rights violations here. Universities have to be places where robust speech, speech that some may abhor, occur.”
What I don’t understand is why Salaita’s lawyers do not add to his law suit discrimination on the grounds of his ethnicity and national origin to political viewpoint discrimination. That’s a charge that his lawyers shouldn’t definitely explore, because if anyone has been discriminated against her, it’s not Jewish students or donors connected to U of I, it’s Salaita based on his Palestinianness, which is his ethnicity.
That’s not rocket science, so I hope his lawyers consider it.
Thank you for your response. I appreciate your comments. For purposes of clarity, I need to state the big picture, as I see it, before I address you points.
To begin, there is no question that UI grossly mishandled the entire hiring process and does not have “clean hands” here. I certainly think that the case should settle, but if it does not, then everything will turn on a jury resolving the issue of whether or not Dr. Salaita was an employee of UI.
If a jury determines that Dr. Salita was, indeed, an employee – and there are compelling arguments to support that position – then all the free speech rights and academic freedom principles – that you, I, and others support – will unquestionably apply to him. That is a “no-brainer.”
But on the other hand, if a jury determines that he was not an employee and that BoT approval was a legally sufficient escape clause that the university could use, then the contents of Dr. Salaita’s extramural speech can most assuredly be used by the BoT to determine his professional fitness. Remember, despite the multitude of opinions asserting that Dr. Salaita was absolutely an employee; this issue has yet to be litigated. And jury outcomes are far from certain.
Now, the points I made in my post were directed to this latter (albeit remote) possibility that that Dr. Salaita was not a UI employee. I certainly wasn’t taking the position that an employed tenured professor has no protection to speak his mind. He certainly does, no matter how offensive. Rather, my position defending the BoT decision finding Dr. Salaita unfit and not hiring him is predicated solely on the assumption that Dr. Salaita was never a UI employee.
There can be consequences to speech. And if Dr. Salaita was not yet a UI employee, then it was altogether appropriate for the BoT to judge his state of mind, character, and stability on his speech.
Some quick comments on your points:
1. “It wasn’t dismissive. It was disagreement.”
My dictionary defines the word “dismissive” as “feeling or showing that something is unworthy of consideration.” I used that word in a strictly clinical sense. I felt that it accurately described the arguments in the post that I was responding to.
2. “…we don’t have “hate speech,” except as a rhetorical device.” You are correct. And I should not have gone there without noting the context (Dr. Salaita as a non-employee possibility). But, on a side note, I can point out that malice may – at times – help pierce the veil of protection that the First Amendment provides to speech.
3. “…the First Amendment which is about as close to an absolute as possible…..Civil liberties are absolute, they broach no ambiguity, at least in American jurisprudence.”
The Supreme Court recognizes many limitations on the liberties that you assert “broach no ambiguities.” Here is a small and incomplete sampling of some exceptions to protected free speech: “clear and present danger”; libel and slander; “fighting words”; obscenity; and false advertising.
4. “Universities have to be places where robust speech, speech that some may abhor, occur.”
I absolutely agree.
5. “What I don’t understand is why Salaita’s lawyers do not add to his law suit discrimination on the grounds of his ethnicity and national origin…”
While lawyers do tend to throw everything in a lawsuit but the “kitchen sink,” there should be – at the very least – some support for the claim. From what I have read, I do not believe that there is a scintilla of evidence to back up the assertion that ethnic discrimination played a role. He was let go, not because of ethnicity or national origin, but solely because the BoT found him unfit – based, as we all know, upon his speech.
My apologies for the length of this post.
You are correct, the fact that the UIUC specifies that the settlement offer was for “losses and expenses”, as opposed to just stating something generic such as “we attempted to negotiate with him”, is an implicit admission that Salaita incurred these losses based on the clear and correct understanding that an employment offer had been extended. In any case it would be preposterous to think otherwise since it is common for newly hired professors to start teaching before the “formal” board approval.
As far as damages, I’m not sure they will be determined by formula (although that may be a starting point), but rather by what each party has to lose. Every day the lawsuit continues is another day that UIUC gets unfavorable publicity, and that even before any further revelations about the internal dynamics that led to the firing.
Yeah, and U of I is responsible for its loss of reputation, since it seems to have a history of corruption and problems following its own written and unwritten policies. Poor UC Davis inherited a Chancellor from Illinois-she was the one who did not make clear to UC Davis police what they should and shouldn’t have done during student sit ins on campus. This led to the pepper-spraying incident. Dr. Pepper…
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I’m seeing a bloodless discussion of academic freedom vs. fitness to teach and the vagaries of implied contract…
Many are conveniently forgetting that Salaita’s near and distant relatives, friends and acquaintances were under intense bombardment. We don’t know if any were killed or maimed while some folks safely in Sderot were openly cheering as bombs struck. Those who survived without injury had homes reduced to rubble.
If your hometown was similarly attacked, what would you be tweeting about the attackers?
It turns out that there is contract law showing that in such cases a contract really is formed, and I am surprised that contract professors would not even realize this, and that it was not more obvious to me. I was surprised to find this Georgia Appeals case, which matches the question at hand on the legal condition in a college employment contract about “subject to board approval”. The court backed up its decision with numerous case precedents and was itself in agreement with a lower court ruling on the case at hand.
The court found that:
1. The requirement of board approval was only “perfunctory”, because the professor was a good candidate, had been repeatedly treated as if he had been hired, and because no one else had ever been rejected from the college by the board after being given an offer.
Can offer conditions really just be “perfunctory” and practically ignored by courts as an obstacle? It looks like it!!
2. Not only is that condition perfunctory, but the condition of board approval is not actually a condition for an employment offer to be made. In fact, it is an “implied duty” placed upon the parties. The college in effect made an offer, formed a contract on acceptance, and then had the duty to attempt to acquire the board’s approval.
The court pointed to previous case law where a sales contract requiring financing in fact made it an IMPLIED duty that the party would seek financing. Likewise, when another contract required a business to first join a business association, this in fact IMPLIED that the business would seek to do so.
So the Georgia appellate court decided in the college employment case that a contract had been formed and that “subject to board approval” were not the words of a condition on contract formation, but in fact meant that a contract was formed and that there was an implied duty to get the board’s approval. The court said that the next question became not whether there was a contract, but whether in retracting employment, the board was justified in breaching the contract.
Personally, I found this all a bit surprising, because the boilerplate-style language in the letter itself didn’t talk about the board’s approval like it was perfunctory or an implied duty. But it turns out that such concepts in contract law as perfunctory conditions and implied duties to fulfill conditions exist!