Updated: UI asks judge to dismiss Salaita's federal suit

Updated: UI asks judge to dismiss Salaita's federal suit

URBANA — The University of Illinois has asked a federal judge to dismiss a lawsuit filed by Steven Salaita, arguing the controversial professor's claim to a job at the UI is unsubstantiated.

The university's lawyers filed a motion to dismiss late Wednesday stating that Salaita had no "binding contract" with the university or an "unambiguous promise" of a job.

"At no time was he ever an employee of the University of Illinois. His entire complaint was an unsuccessful attempt to ignore this critical fact," campus legal counsel Scott Rice told The News-Gazette Wednesday.

Salaita attorney Anand Swaminathan said the UI's motion is "wrong on the facts and law, but it was expected. Ultimately, the university is desperate to avoid discovery that will get to the truth."

The UI's stand "ignores plain language in the university's communications to Professor Salaita, the actions of its officials, and every norm related to academic hiring practices," he said in an email to The News-Gazette.

"Most disturbing is the university's argument that the chancellor and board members could not be expected to understand their free speech and other constitutional obligations."

A former English professor at Virginia Tech, Salaita was offered a job in 2013 in American Indian Studies and planned to start teaching at the UI last August. But Chancellor Phyllis Wise and Vice President Christophe Pierre revoked the offer on Aug. 1 after a series of inflammatory tweets by Salaita about Israel. The decision prompted a faculty outcry about academic freedom and boycotts by some academic groups, but UI trustees voted 8-1 to reject Salaita's appointment in September. The board reiterated that decision last month.

Salaita filed a lawsuit on Jan. 29 in federal court of the Northern District of Illinois, seeking to force the campus to hire him and compensate him for lost income and damages to his reputation.

The lawsuit alleges the university violated his rights to free speech and due process and breached its contract with him. It also targeted unnamed university donors who "unlawfully threatened future donations to the university if it did not fire Professor Salaita on account of his political views," according to his lawyers.

Salaita "remains without a job, without health insurance, in his parents' home, with his academic career in tatters," and the faculty of the American Indian Studies Program still want him to join their ranks, his complaint states.

Rice said Salaita's lawsuit rests on two "entirely unsupported propositions" — first, that Salaita had entered into a contract with the university that granted him an unconditional right to a faculty position; and second, that university administrators and the UI Board of Trustees, "in a conspiracy with unnamed donors," breached that contract.

The lawsuit failed to cite a key provision of Salaita's offer letter, that it "was always subject to approval by the Board of Trustees," Rice said.

Because that approval was not granted, Salaita did not become a UI employee and therefore was not entitled to the benefits and protections given to public employees, the UI said in a memorandum supporting its motion.

Salaita's job offer was made 10 months before he was to begin teaching at the UI, and he and his wife left their positions at Virginia Tech and sold their house over the summer before the job was withdrawn. Salaita's supporters argue that trustee approval of new hires is usually a formality, and that he had the full expectation of a tenured job.

"The mere fact that it hasn't happened much does not prove that the board does not have the authority that they exerted here," Rice responded.

The university's memorandum cites previous legal cases to support its position, though none of them directly involved the UI, Rice said. "We've never been in this position before," he said.

As for donor influence, Rice called Salaita's allegations "unsupported, speculative and illusory."

Wise received hundreds of emails from donors, students, parents, alumni and concerned citizens about Salaita's tweets in the days before she decided to rescind his job offer. But the chancellor has insisted donor communications did not influence her decision.

Documents show that Salaita's "own conduct during the time that his appointment was pending called into question his fitness as a professor, which led to the Board's decision not to approve his appointment," the UI's memorandum states.

The memorandum lists 19 tweets by Salaita before and during Israel's invasion of Gaza last summer that, UI officials believe, show he was "entirely unfit to be a professor at the University of Illinois." They include: "Zionist uplift in America: every little Jewish boy and girl can grow up to be the leader of a murderous colonial regime," and "If #Israel affirms life, then why do so many Zionists celebrate the slaughter of children? What's that? Oh, I see JEWISH life."

The university "properly balanced Plaintiff's interest in making his inflammatory statements against the University's interest in providing a safe and efficient educational environment," the UI's motion says.

A campus committee that investigates alleged violations of academic freedom found fault with the process surrounding Salaita's case and concluded that Salaita's tweets critical of Israel were protected political speech. It suggested that any questions about Salaita's "professional fitness" be addressed by a newly-created panel of academic experts. The campus Academic Senate endorsed that report earlier this month.

Salaita's lawyers will have a chance to respond before the judge rules on the UI's motion.

The lawsuit asks the court for preliminary and permanent injunctive and "equitable relief," to reinstate Salaita and money for compensatory damages, punitive damages, attorneys' fees and costs. It does not specify an amount.

Salaita and his lawyers also filed a separate lawsuit against the UI in November in Champaign County Circuit Court after being denied access to documents via the Freedom of Information Act. The next hearing in that case is scheduled for April.

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nateo wrote on February 26, 2015 at 7:02 am

Just another delaying tactic. Anyone who has looked at the legal precedents knows that this one is either going to trial or is getting settled for far more than those donors would ever have offered the University.

I must say, however, that it is nice of the N-G to offer so much space to a UIUC mouthpiece for free; they'll probably need the money soon.

drive64 wrote on February 26, 2015 at 10:02 am

 Maybe the donors who pushed the Chancellor into her decision plan to pay the costs of a settlement or trial. I hope that the News Gazette will ask that question to the Chancellor.

StephenG wrote on May 15, 2015 at 1:05 pm

I have read the trustee's legal brief in support of their motion to dismiss and they make three very cogent points in support of their motion: 1. Where, as in this case, the written offer of employment of a university professor is "subject to" the approval of the board of trustees, there is no enforceable contract under Illinois law unless and until the board acts. 2. As for communications from other university officials that Mr. Salaita read as promising the position, Illinois law requires that his reliance be reasonable and the cases cited by the university hold that it is not reasonable to rely on an offer of employment that is expressly conditional on board approval. 3. In alleged agreements with public entities, Illinois law places the burden of the person contracting with the public entity to ascertain the authority of the person with who he is dealing, and clearly, only the board of trustees had the authority to hire Salaita. I look forward to reading the professor' reply brief, but it would appear that, from a legal standpoint, the university has the belter argument. This motion is not a delaying tactic, it has a high probability of winning the day.

andrewscheinman wrote on February 26, 2015 at 11:02 am

Hmmm, UIUC never released Wise's own email statement about Salaita's free speech rights, something that seems to suggest she thought he was hired ... up until she didn't.  That sounds like some sort of contract ... (see samizdat-startups.org)

       Also, Wise's own Calendar shows her talking to Warrior about Salaita the day before the Board of Trustees meeting (coming soon to samizdat-startups) ... Warrior's never talked about this (I have the info via FOIA), but since Warrior claims not to have known about Salaita being not coming until after August 1, there's a whole bunch more info that suggests other stuff going on.

        In terms of donors, Peter Fox and Carle Hospital want the medical center, both are worth ... billions?   And who's talked about them?

Bulldogmojo wrote on February 26, 2015 at 12:02 pm

She (or really the donors) have decided not to remand the decision to LAS...What a shock UGH the unfit leaders this place attracts is exhausting

 

Dear Colleagues:

In my time as your chancellor, I have come to understand that one of the most important qualities I can bring to the campus community is to be an active and careful listener. Over the past months, I have had many frank, open and productive discussions with faculty, staff and students across the entire campus around our hiring policies, better faculty communication, academic freedom and freedom of expression. Your concerns have been clear and they have led to actions.

  • A joint Academic Senate-Provost faculty committee has reviewed the current faculty hiring and appointment processes and submitted recommendations to improve them. One of these already being implemented will facilitate final faculty appointment approval by the Board of Trustees much sooner and well in advance of the arrival of potential new hires. This full report is scheduled for presentation to the Academic Senate at the March 9 meeting.
     
  • To ensure that there is strong, consistent and open communication between our academic units and my own office, I will soon ask for nominations for new Chancellor’s Faculty Fellows in both the Humanities and in the Arts. Modeled after similar positions in the Provost’s Office, these fellows will facilitate frequent and rapid faculty guidance around critical campus issues. These will offer one more avenue to enhance the shared governance system that guides our campus.
  • I have met with the Committee on Academic Freedom and Tenure (CAFT) to discuss its report and recommendations regarding Steven Salaita. After broad consultation across campus and in light of the Board’s clear statement that it will not reconsider its decision regarding Dr. Salaita, I have decided not to remand the decision to the College of Liberal Arts and Sciences for further consideration. While the employment decision is now in front of a federal court, I want to reiterate that we have undertaken significant and meaningful efforts to engage Dr. Salaita and his representatives in attempts to resolve this issue.
  • I also wish to clarify the intent of my Aug. 22 massmail, which has generated so much debate around issues of academic freedom and expression in regards to civility. I want to make absolutely clear that my statement was not intended to establish a policy on speech or a campus speech code. I believe any such code would represent an unacceptable restriction on the academic freedom of our faculty. This is consistent with the principles described in the American Association of University Professors’ (AAUP’s) 1994 Statement “On Freedom of Expression and Campus Speech Codes.” These are foundational issues to American higher education and bedrock principles of our own university. It was not my intention in my message to make our campus a focal point for the complicated, nuanced and ongoing national debate on the nature of civility and higher education. Instead, I was using the term within my understanding of it in the context of the 1940 and 1994 AAUP statements. The purpose of my August message was to enunciate my aspirations for Illinois to be a community where respectful discourse is championed and where together, we recognize that intolerance may impede the educational experiences of our students. These are aspirations that can only be achieved by inspiring new ideas and new avenues of exploration.

I have valued the honest and open conversations I have had with many of you across campus over the past months. I offer my thanks to all who have taken the time to voice their opinions. These are exactly the kind of free discussions that we must have to bring us together and help us move forward to face the short-term challenges ahead and to seize the long-term opportunities that are opening up before us.

Sincerely,

Phyllis M. Wise
Chancellor

Sid Saltfork wrote on February 26, 2015 at 1:02 pm

She left out: "All candidates must meet the approval of the University's donors in advance of employment offers."

Rocky7 wrote on February 26, 2015 at 3:02 pm

According to the news story:

 

"Salaita attorney Anand Swaminathan said the UI's motion is "wrong on the facts and law, but it was expected. Ultimately, the university is desperate to avoid discovery that will get to the truth." "

 

Well Mr. Swaminathan, perhaps it is your client that fails to understand the truth of the consequences of his profanity-laced, hateful tweets and that the BOT has the final say.

jlc wrote on February 26, 2015 at 7:02 pm

"Salaita's supporters argue that trustee approval of new hires is usually a formality, and that he had the full expectation of a tenured job."

Correction: BoT approval is *always* a formality, to the point where a significant percentage of new hires work for 2-6 months before receiving approval. How could Salaita not have had the full expectation of a tenured job when the Board had always approved all of the hires brought to it in the past?

annabellissimo wrote on February 26, 2015 at 11:02 pm

He did have the full "expectation." He did not have a guarantee, nor is he entitled to employment. Board approval is part of the process, perhaps for just such situations as this. Whether it has ever or never been used before is a moot point; it is a condition of employment. Any potential employee, especially one with experience at different work sites as Salaita is, should know and understand the conditions of his/her employment, such as whose approvals are required. He and his wife quit their Virginia Tech jobs long before the intended start date at Illinois - a date that was delayed for the better part of a year from his Virginia Tech resignation to his requested Illinois start date by his own request! The University of Illinois did not force him, nor instruct him, to use that intervening time between Virginia Tech resignation and Illinois start to make threatening, inflammatory, provoking statements against Jews and Israel; he did that himself.

Sid Saltfork wrote on February 27, 2015 at 10:02 am

His inflamatory tweaks against Israel did him in.  His rage was against Israeli citizens, the nation of Israel, and Zionists promoting more land grabs from the indigenous people of Palestine. There seems to be no distinction in the minds of his critics.  The United Nations, and Europe sees the distinction.

FreeYourMindinSC wrote on March 02, 2015 at 12:03 pm

Here is what it would be good to know -- for legal purposes, the crucial question -- did Professor Salaita sign an employment contract with the University or didn't he?

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