UIUC Chancellor Wise Comments on AAUP Censure

Yesterday evening, UIUC Chancellor Phyllis Wise sent out the following mass email:

Dear Colleagues:

I write to address the June 13 vote by the American Association of University Professors to censure the University of Illinois at Urbana-Champaign administration. The censure is focused on the hiring decisions and processes involving Professor Salaita, as well as AAUP concerns about the application of a civility standard as a restriction on academic freedom. The full text of the resolution can be found on the AAUP web site.

This decision, while disappointing, was not unexpected. The AAUP committee that formulated the resolution had announced several weeks ago that it would be putting the resolution forward for this vote.

We take this decision by the AAUP seriously. We understand that it will have repercussions on the scholarly activities of many in our community, and we intend to address both the censure and the underlying concerns through our established processes of shared governance.

In the past year, we have taken several steps to move our campus forward and reaffirm our commitment to principles of academic freedom and shared governance. We have engaged in repeated and substantive attempts to reach a settlement with Professor Salaita. And throughout this time, we have also been in regular communication with the leadership of the national and local AAUP regarding these steps. We will continue that active engagement with them to determine avenues and actions to clear this censure as quickly as possible, and to minimize its impact on our educational and scholarly missions.

As I have said many times, my August 2014 massmail was not intended to establish a policy on speech or a campus speech code. I believe any such code would be an unacceptable restriction on the academic freedom of our faculty. It was not my intention to make our campus a focal point for the complicated, nuanced and ongoing national debate on the nature of civility and higher education, and I sincerely regret that my message did so.

As we move forward, I am committed to working with everyone on this campus to continue to support the outstanding level of scholarship, teaching and engagement that our state, nation and world expect of the University of Illinois at Urbana-Champaign.

Sincerely,
Phyllis M. Wise
Chancellor

16 thoughts on “UIUC Chancellor Wise Comments on AAUP Censure

  1. Students and faculty successfully denied Ayaan Hirsi Ali the opportunity to speak at Brandeis because of public statements she has made.

    Don’t the Trustees and Chancellor have the same rights to successfully disinvite Steven Salaita from coming to the UICU campus because of revulsion on their part to public statements he has made?

    • The AAUP, unfortunately, doesn’t have the resources to deal with every campus free speech controversy. But it should be noted that nobody sought to ban Ayaan Hirsi Ali from speaking at Brandeis. The issue was whether she would be given an honorary degree (she wasn’t going to speak, and critics of the honor did not call for her to be banned). I strongly disagree with what Brandeis did; even though they didn’t censor Ali, and didn’t sign a contract to hire her, it does have a chilling effect. Now, UIUC, unlike Brandeis, is a public university, and cannot engage in political discrimination. UIUC, unlike Brandeis, made a written agreement to hire Salaita and led him to quit his job. And certainly, if you think what happened to Ali was wrong, two wrongs don’t make a right.

      • @John

        — UIUC, unlike Brandeis, made a written agreement to hire Salaita

        No John they didn’t. The assistant dean made a written agreement to present Salaita to the board. Neither the University nor the assistant dean agreed to hire him. The written agreement said precisely the opposite of what you claim and was unambiguous that it was not an offer of employment.

        There is a legal term called “letter of intent” which is an indication that you currently intend to enter into a contract but falls short of a contract. It is designed specifically for the sort of situation where X wants Y to incur costs associated with a contract to be signed on a future date between X and Y. That’s a letter of intent, not a contract and an intent to employee is not a promise to employee.

        ____

        Chancellor Wise in her public comments should have made Salaita’s legal status more unambiguous, particularly since UIUC has agreed since then to tighten their procedures. It may be that the legal team is waiting for trial and they in reality don’t care about what the AAUP. It may be that she is just a terrible press spokesperson and is getting her university in trouble needlessly.

        • There’s absolutely no doubt that UIUC made a written agreement to hire Salaita. There is only a debate over whether it was a legally binding agreement. Whether it was or not, AAUP policy is that universities have to follow their written agreements.

  2. @John

    — There’s absolutely no doubt that UIUC made a written agreement to hire Salaita.

    Of course there is doubt. The very first paragraph of the letter says this is not a job offer but a recommendation for appointment from an acting Dean. The letter is unambiguous in the first paragraph than an actual job requires Board approval.

    http://www.news-gazette.com/sites/all/files/pdf/2014/08/13/14-529.Documents.pdf

    The fourth paragraph again presents a clear context that the university in their opinion hadn’t done full due diligence on Salaita. In particular they didn’t know if they could legally employ him.

    Then there is an entire attachment 3 which describes at length that only the board and thus not deans are authorized to offer employment.

    UIUC never offered him a job. They were quite unambiguous they were not making a job offer in the letter.

    — AAUP policy is that universities have to follow their written agreements.

    UIUC did follow their written agreement. UIUC agreed to present him to the board, he was presented the board. The dean never said the board would concur with his recommendation.

  3. Contracts are often followed or not followed based on the circumstances around them. In the Salaita case, the argument for a binding contract even in the absence of the explicit requirement of board approval is that 1) usual UIUC practice was to make such approval automatically, and 2) top UIUC people made statements that support there having thought Salaita was hired (Adesida’s statement on the 22nd “it is final” being an example).

    However, the likely stronger legal case here is for estoppel, which is a remedy of “even if the actual terms of the contract weren’t fulfilled, equity demands a remedy.” So even if they didn’t do the board thing (or did it as an afterthought), given that Salaita reasonably relied on the offer as being final to his detriment, he has a remedy.

    The real question would be WHAT remedy. Can he get his job back? Or does he just get compensation instead? Huge difference, clearly he’s been offered $, he could push for more, but no court would award a liftetime’s accumulated salary, because there’s a duty on Salaita’s part to mitigate the damages, in this case by GETTING ANOTHER JOB.

    But, it is correct that the bare-language terms of the offer letter weren’t satisfied, board didn’t see it originally and, when they did, they didn’t approve.

    ***

    But again, isn’t the issue for AAUP whether UIUC follows AAUP guidelines? Because then the question is what’s the step forward for UIUC to comply? More back-room discussions between Wise, Burbules, Tolliver and the other usual suspects?

    Or, perhaps, an actually OPEN process?

    Just saying.

    AOS

    • @Andrew

      UIUC’s hiring process is grossly unfair The create a letter of intent and ask the professor to take on tremendous risks based on this letter of intent. The appropriate thing for AAUP to do is work with UIUC (and other universities) to revise the process so that the board meeting to happen sooner in the process, before the faculty member is asked to resign their current position or to fully delegate and remove themselves from the process.

      As for Salaita

      — usual UIUC practice was to make such approval automatically

      No one is arguing that this wasn’t the usual process. The disputed fact is whether it was it was always the case that everyone got approved, are there other cases where that approval was rejected. It may turn out (and I suspect it will be the case) that other faculty members had embezzlement problems, hidden criminal records, student rape allegations that come to light, questionable immigration status… and didn’t get board approved. Given 2500 academic employees and looking at the record over the last 50 years they have probably done tens of thousands of these hires. I seriously doubt none have gone off without the administration objecting to the hire. There is no reason to embarrass someone who in 1986 got offered a faculty appointment then while drunk ran over a student at his current campus. And by bringing the case up to the media they would be needlessly shaming him. But statistically we have to assume that something like that has happened and under seal of the court I suspect UIUC will be able to prove that.

      — top UIUC people made statements that support [their] having thought Salaita was hired

      I don’t see how that matters. A bunch of non lawyers not involved in the hiring process didn’t understand the state of the contract. Why would the courts care much less see that as definitive?

      — The real question would be WHAT remedy.

      Typically when people move for a job based on a letter of intent and then don’t get it the courts award moving expenses. He might not even get salary. Say something like a 6% fee for selling his house, plus moving cost plus incidentals. Courts don’t want to create a situation where no one puts anything in writing for fear of huge fines based on letters of intent. That makes contracts that break down impossible to successfully litigate because the facts become too nebulous. So IMHO the courts are going to lean towards a low number below what the University likely offered.

      _______

      As I’ve said before the AAUP is going to have a very tough time when

      a) The court finds that Salaita was never an employee
      b) If a board member asserts under oath or penalty of perjury in a deposition that Twitter was not the reason he voted against Salaita.

      Then the AAUP is going to have an official report that contradicts the findings of the court.

      • There are four questions:

        1) Does Salaita have a case under breach of contract?
        2) Does he have a case under equity (estoppel)?
        3) Is the remedy going to be anything other than $?
        4) How does the court case alter the analysis of the AAUP/CAFT?

        1) Case under Breach of Contract. Contract terms are subject to interpretation, how much interpretation depends on the terms, their clear meaning, the circumstances surrounding those terms etc. See the “what is chicken” case for a classic example (Corp. at e.g., http://www.lawnix.com/cases/frigaliment-bns-international.html). And you thought lawyers had no sense of humor!

        Here the plain language of the hire letter was that hiring was subject to board approval. So the court will weigh that heavily, and may well find no breach of contract based on the clear language of the hire letter that board approval is required.

        On the other hand, if that approval was always a formality since time immemorial and if top UIUC officials (Adesida) believed it was binding, those factors weigh against the plain language interpretation.

        2) Estoppel. Estoppel is a remedy that can be enforced even when there’s no breach of contract — the simple idea here would be the guy got screwed because he quit his job, started moving etc, and that he deserves to be made whole even if the contract wasn’t enforceable.

        Estoppel requires two parts a) showing of reasonable reliance by Salaita on the hire letter, even though that letter says it has to be board approved, and b) damages.

        As I said, the question is whether the damages will be merely $, or if they’d make UIUC hire him. $-damages are usual, specific performance damages (hire him) are not usual.

        3) Remedy. Again it’s hard to imagine the court will force Salaita to be re-hired. We generally believe in $ as a cure-all, or at least the courts do.

        4) Court case and AAUP. I don’t see that one really relates to the other. The CAFT didn’t do a good job investigating, nor did the AAUP. The bottom line in either case is that, regardless of anything else, CAFT/AAUP say that what was done didn’t comport with the AAUP rules … that’s a claim that isn’t negated by any finding of the court.

        The question again is what UIUC is going to do to become nicely compliant with AAUP policies. HA HA HA.

  4. @Andrew

    Seems like we mostly. Agree. I think we agree the contract claim is weak. Don’t forget the letter mentions the board multiple times in multiple places and specifically states that a dean isn’t authorized to offer him a job.ANAL but AFAIK letter of intent law is estoppel so I think we agree there.

    There is one area of disagreement.

    — CAFT/AAUP say that what was done didn’t comport with the AAUP rules … that’s a claim that isn’t negated by any finding of the court.

    Here we disagree. What happens if they court finds that Salaita wasn’t hired for reasons other than Twitter? Both AAUP and CAFT has just assumed that the board members were sheep but if they testify they had their own reasons this case goes sideways.

    There are also other possibilities though less likely.

    What happens if the court finds that UIUC legally cannot delegate they cannot hire without board approval? (which I think they likely would)?

    What happens if the court case turns up misconduct that Salaita hasn’t mentioned? Say for example board members became aware of examples of students who claim under oath they were harassed or treated unfairly by Salaita for expressing Zionist opinions? How comfortable is the AAUP going to be backing someone who has statements under oath of practicing discrimination in the classroom?

    What if they turn up criminal activities that the board was aware of but that Wise wasn’t (or hasn’t mentioned) like ties to Hamas?

    Obviously the AAUP can censure whomever they like for whatever reasons they like.

    ____

    I still think the most likely outcome is the court rules he was never an employee and the university made good faith efforts to try and settle after issuing the letter of intent while Salaita did not act in good faith and thus…

    • Let’s address your arguments quickly: despite enormous desire to dig up dirt on Salaita, absolutely no one has alleged any criminal activities or mistreatment of students. It is completely legal for UIUC to delegate hiring authority (as Illinois State University and many other colleges already do). It is crystal clear that Salaita was fired solely because of twitter. Wise and various board members have admitted that they never looked at his teaching or research record in the initial decision to dismiss him. As for remedies, if it’s purely a contract issue then the remedy might only be money. But if a court finds a First Amendment violation, then the remedy is to reinstate Salaita to his tenured position.

      • @John

        — It is crystal clear that Salaita was fired solely because of twitter.

        You’ve asserted several times that things are unequivocal that aren’t. For example that he had a written offer when the reality is that no such offer exists and the only piece of writing we have states over and over that it is not a job offer. I think you may want to adjust how quickly you jump to certainty.

        Salaita was never fired. We have 0 information from the people who choose not to hire them why they choose not to hire him. Other than the psychic friends network I’m not sure how you get to crystal clarity as to their motives. There has been a lot of speculation but that it.

        — Wise and various board members have admitted they never looked at his teaching or research record

        First off Wise isn’t the one who voted against him. The board may have looked at other records like a criminal complaint. Moreover with one exception I don’t know of any board member that indicated why they voted like they did. Further the board might have examined his record since.

        — despite enormous desire to dig up dirt on Salaita

        What enormous desire? Prior to this he wasn’t suing anyone. He was just a particularly obnoxious academic. Now he’s suing rich people for being part of a secret conspiracy. The other side hasn’t spoken yet. You don’t know what they’ve dug up.

        — But if a court finds a First Amendment violation, then the remedy is to reinstate Salaita to his tenured position.

        What first amendment violation? The first amendment protects against prior restraint, it doesn’t guarantee someone a job. The normal court remedy for a 1st amendment violation in the case of speech / press is to allow the publication of the document that was being censored. Since he’s not being censored, and he’s not being held in jail / prison and can talk freely the court isn’t going to do anything.

        As for workplace fairness, that political expression in the workplace is protected speech, the courts have generally found the opposite that it is not protected speech and employees can be lawful subject to punishment for political opinions expressed in the workplace.

        A court is not going to give someone a lifetime job.

  5. Let me respond to CD-Host’s many, many errors. First, what Salaita received (and you link to above) was unquestionably a job offer. UIUC’s letter says, “I am pleased to offer you a faculty position.” Then Salaita signs the bottom of the form where it says, “I accept the above offer.” The letter never says that it isn’t a job offer. Then later letters refer to that as “the offer letter.” It is a job offer, pure and simple. The fact that it’s conditional on Board approval doesn’t change that basic reality.

    Second, I know the motives of Wise and the Board because that is what they have said. Wise told both CAFT and the AAUP her decision was based solely on the tweets. As the AAUP report noted, “Her decision, she told the subcommittee, was based solely on the tone of the tweets and not on their political content.” Chris Kennedy explained (http://www.news-gazette.com/news/local/2014-09-19/kennedy-we-did-right-thing.html) the process of the Board: they were in closed session, a student trustee looked up the tweets and read them, and according to Kennedy, “We were sort of stunned that anyone would write such blatantly anti-Semitic remarks. We indicated to Chancellor Wise that we’d be supportive of her decision.” So it was clearly nothing but the tweets; the trustees had nothing else to go on. Also, the letter they all signed is only about the tweets. It doesn’t take a psychic to understand exactly what the trustees say happened.

    Third, if you believe that the First Amendment only applies to imprisonment or prior restraint by the government, then you know nothing about civil liberties law.

    • @John

      — UIUC’s letter says, “I am pleased to offer you a faculty position.”

      Yes and as I’ve mentioned two sentences later Dean Ross makes it clear that he can’t offer Salaita a faculty position but can only offer to recommend him to the board. John Wilson I’d like to offer you my recommendation for the job of CEO of Exxon. I’m informing you now however that this offer is contingent on the Board of Directors of the Exxon corporation agreeing with my recommendation. That is not a job offer to be CEO of Exxon and no court is going to allow you to use my statement to force Exxon to hire you as their CEO.

      And since you are quoting Kennedy he says the same thing, “I don’t know how we can violate someone’s tenure if we never gave it to someone.”

      I think this is pretty clear.

      — So it was clearly nothing but the tweets; the trustees had nothing else to go on

      As for the article the article doesn’t say what you claim. What it says it, “At one point one of the student trustees Googled Salaita’s name and read his tweets aloud to the other board members, he [Kennedy] said.” Nowhere in there does he indicate what other board members knew or didn’t know. Nowhere does he say that was the only information everyone went on. Particularly since he does indicate that the board members knew this was going to happen in advance. These are all educated and accomplished individuals, what prevents them from doing research on their own?

      John you do not know what they knew. You are just making stuff up.

      — Wise told both CAFT and the AAUP her decision was based solely on the tweets.

      That’s correct. Chancellor Wise said that. Not the board. We know why Wise didn’t recommend we don’t know why the board didn’t approve.

      — Third, if you believe that the First Amendment only applies to imprisonment or prior restraint by the government, then you know nothing about civil liberties law.

      You are right. I know nothing about the civil liberties law that guarantees people lifetime employment because someone disagreed with them and didn’t hire them because of it. I wonder why that might be?

  6. There’s actually a very instructive post on huffingtonpost about the first amendment issues (http://www.huffingtonpost.com/brian-leiter/salaita-v-university-of-i_b_5726034.html), John you were right to point out that the remedy there is (presumably) reinstatement.

    What’s most fascinating about the discussion is that it explains that first amendment rights in an academic institution deserve balancing against disruptive effects, the Pickering test. So all the arguments Wise has made about Salaita as a disruptive professor is to bolster that argument that, in the balance, free speech is outweighed by disruption.

    The other point the article makes is that saying Salaita was fired simply because of the statements in his tweets would be as profound a violation of first amendment rights as you can get. Presumably Wise never made that statement — only that the controversy caused by the tweets shows how disruptive a professor he’ll be.

    I’d really only been focused on the contract/estoppel arguments. If you believe that huffpost writer, it sounds as if Salaita’s first amendment case really may be compelling.

    And it also doesn’t hinge on his already being fully hired, because denial of hiring by a state entity because of extramural speech is apparently rather forbidden.

    Time will tell.

  7. Pingback: U. of Illinois President on Censure: “No need to get out of jail.” | The Academe Blog

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