Why Judge Leinenweber Allows Salaita Case to Proceed to Possible Trial

I have read the entire fifty-six page opinion of Judge Harry D. Leinenweber, United States District Court, for the Northern District of Illinois, Eastern Division, who ruled that the University of Illinois at Urbana-Champaign could not sustain an argument for dismissal of many counts brought by Steven G. Salaita’s lawsuit. The judge has a rhetorical grace that not only moves beyond merely citing case law but also achieves an elegance of style that is frequently absent in constitutional law. The American Association of University Professors is referenced in the appointment letter to Salaita on p. 2 of the opinion.

While recognising the district court judge’s decision allows the case to proceed to trial or a finding of summary judgment, I find his argumentation very compelling on legal grounds that Dr Salaita was offered a contract. I am sure the attorneys representing the professor will rely heavily on this important judicial action as they seek justice with the restoration of Dr Salaita’s position in the American Indian Studies program. The decision also presents a succinct history and narrative of the chronology of this tenure travesty, and persecution of a professor responding robustly to the horror and tragedy of war. I recommend that folks read the entire decision here. I have reproduced verbatim pp. 14-16 that contain vivid examples of keen judicial argumentation and temperament:

Taking the facts alleged in the Complaint as true, there is no doubt that the parties’ actions demonstrated their intent to enter into a contract. The University paid for Dr. Salaita’s moving expenses, provided him an office and University email address, assigned him two courses to teach in the fall, and stated to a newspaper that he would in fact join the faculty, despite his unsavory tweets. The University spokesperson went so far as referencing Dr. Salaita as one of “our employees.” The University also did not hold a Board vote until after the start of the semester. If the Board vote was truly a condition to contract formation, then the University would have the Board vote on appointments before the start of a semester and before spending money on a new professor or treating the professor as a full-fledged employee. Finally, the University actually held the Board vote despite its claim that it had no agreement whatsoever. If the University truly felt no obligation to Dr. Salaita, the University could have simply not put the appointment to a vote at all. Instead, the University still went ahead with the vote, which is at least some evidence that it felt obligated to hold a vote according to the terms of the offer letter. Simply put, the University cannot argue with a straight face that it engaged in all these actions in the absence of any obligation or agreement.

Also, the University’s argument, if applied consistently, would wreak havoc in this and other contexts. What if a professor took the University’s money to move to Chicago, but decided instead to teach at Northwestern University before the Board voted on her appointment? According to the University, that professor would be free to keep the money without fear of a breach of contract claim. And what about the other professors who started teaching classes before the Board voted on their appointment? According to the University’s argument, those teachers were not employees and had no contract, despite working for, and presumably getting paid by, the University. Finally, what if, before a Board vote, the University offered a job to a different person after already receiving the signed acceptance letter from someone else? According to the University, the person originally offered the job would have no recourse because there was no contract. If the Court accepted the University’s argument, the entire American academic hiring process as it now operates would cease to exist, because no professor would resign a tenure position, move states, and start teaching at a new college based on an “offer” that was absolutely meaningless until after the semester already started. In sum, the most reasonable interpretation of the “subject to” term in the University’s offer letter is that the condition was on the University’s performance, not contract formation.

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