Jim Dey: Decision's made; on goes debate

Jim Dey: Decision's made; on goes debate

Chancellor still taking heat for coming down against Salaita hiring

Last week, University of Illinois Chancellor Phyllis Wise appeared to slam the door shut on the issue of hiring a controversial English professor from Virginia.

But the reverberations continue.

Members of the UI's American-Indian Studies Department approved a vote of no-confidence in Wise, characterizing her actions as "in clear disregard of basis principles of shared governance and unit autonomy, and without basic courtesy and respect for collegiality."

Salaita, who taught English at Virginia Tech in the 2013-14 school year, was scheduled to join the UI in mid-August as a tenured professor. But Salaita's foul-mouthed tweets bashing Israel drew public attention, the result being that Wise sent him an Aug. 1 letter informing him that the UI was withdrawing its offer. In her statement last week, Wise said the UI is no place for "disrespectful and demeaning speech that promotes malice."

That assertion, of course, depends on whom you talk to. Salaita defenders argue that his anti-Israel tweets, characterized by some as anti-Semitic, were not problematic, but also say, "So what if they were?"

In an op-ed for the Huffington Post, University of Chicago law professor Brian Leiter wrote that "it is not an exaggeration to say that the chancellor and the board of trustees have now declared that the First Amendment does not apply to any tenured faculty at the University of Illinois."

Why is that?

Leiter argues that "it is not the job of the board of trustees of a research institution to second-guess the judgment of academics and scholars." In its denunciation of Wise's decision, the American-Indian Studies Department said Salaita had, in effect, been hired by the UI and is entitled to its free speech and academic freedom protections as he "awaited customary rubber-stamp approval" of his contract by trustees.

But Salaita supporters are getting ahead of themselves and, as lawyers like to say, assuming facts not in evidence.

Leiter and others assert that Salaita is entitled to the immunity professors enjoy by virtue of his status as a member of the faculty. But it's precisely Salaita's status — employee or prospective employee — that makes a huge legal difference.

The Oct. 3, 2013, offer letter sent to Salaita specifically noted that "this recommendation for appointment is subject to approval" of UI trustees. Wise's Aug. 1 letter to Salaita, the one informing him the deal was off, told Salaita that "your appointment will not be recommended for submission" to trustees.

So are the trustees, in effect, nine stooges obligated to approve whatever is put in front of them? Or are they the final authority on university decisions, the ones whose votes insert binding obligations into contractual proposals?

That's not to say that Salaita doesn't have legal options.

But lawyers disagree on a contractual concept that could be key to Salaita's position — promissory estoppel.

Cornell University law professor Michael Dorf said Salaita could be entitled to a recovery because he relied upon representations that he would be joining the UI faculty, as a consequence resigning his position at Virginia Tech and preparing to move to Champaign-Urbana.

But Temple University law professor David Hoffman dismisses promissory estoppel as "a last-ditch shot to push through discovery and thus motivate settlement."

"Promissory estoppel cases are losers. This case would be a loser," Hoffman said.

The essence of Hoffman's argument is that it is hardly credible for Salaita to claim that he is entitled to damages because he relied upon the prospect of employment when he was specifically told in his offer letter that his appointment was "subject" to trustees' approval.

Professor Dorf wrote a lengthy sur-rebuttal to Professor Hoffman's lengthy rebuttal, concluding that "I still think that I am right," but maybe not.

"Does all this mean that Salaita would necessarily win a promissory estoppel claim? No, nor did I say so before," Dorf said.

Don't you just love it when lawyers say, "Here's a brilliantly conceived, incredibly creative legal argument that I never said a judge would actually find persuasive."

But there's nothing like a good argument to stir the blood of academics — or protests. Word is afoot that protesters will take to the Quad soon to express their support for Salaita and against Wise.

It'll be more evidence of the UI's fierce devotion to creating a multicultural campus environment — American-Indian faculty members chastising an Asian-American chancellor over her alleged abuse of a Palestinian-American professor for his anti-Semitic rants. You can't beat fun at the ol' Quadrangle.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com.

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Sid Saltfork wrote on August 26, 2014 at 7:08 am

The muddled mess does create a learning experience.  Do not criticize Israel.  Criticism of that country's military action will lead to being labeled an anti-semite.   Criticism of U.S. actions is allowed along with criticism of other countries.  If this happens in academia; does it extend to other occupations including politicians, actors, physicians, and bartenders? 

rsp wrote on August 26, 2014 at 8:08 am

As much as people may want to distort them or take them out of context, it still will not make Salaita or his tweets racist.

Fretboy wrote on August 27, 2014 at 3:08 pm

Rude and undignified, but not racist.

Brian Leiter wrote on August 26, 2014 at 11:08 am

Mr. Dey is incorrect that I asserted that Salaita is "entitled to the immunity professors enjoy by virtue of his status as a member of the faculty."  I asserted nothing of the kind.  My full discussion, to which Mr. Dey is alluding, is here:  http://www.huffingtonpost.com/brian-leiter/university-of-illinois-re_1_b_5703038.html.  Salaita's strongest constitutional claim is precisely that he was denied employment because of his constitutionally protected speech on matters of public concern--that is a First Amendment claim that any citizen can have against the state, and has nothing to do with academic freedom.  If, as seems unlikely, a court finds that there was a valid contract and that Mr. Salaita was already an employee at the time of the revocation (because, for example, Board approval has always been pro forma in the past), then his legal case will be easier.  But as a matter of contract law, his strongest claim will be for promissory estoppel, and contrary to Prof. Hoffmann, he will certainly recover something on promissory estoppel grounds, though how much is uncertain.  A primary point of my article on this sorry affair, however, is that the astonishing statements by Chancellor Wise and Chairman Kennedy should be alarming to all current faculty and students, and strongly suggest that these two individuals are unfit to lead a major research university, given their profound ignorance of the constitutional rights of faculty and students, and the contractual rights of current faculty.

Skepticity wrote on August 26, 2014 at 11:08 am

He did not limit his public statements to criticism of Israel.  He engaged in public statements of a nature that is incompatible with a professorship at an institution of higher learning.  He demonstrated he was not professorial in demeanor, and through his own inappropriate behavior, removed himself from consideration. 

Behavior and speech have consequences.  Freedom of speech does not permit you to engage in behavior destructive to the reputation of a prospective employer.

Sid Saltfork wrote on August 26, 2014 at 9:08 pm

As much as I have agreed with you in the past, this is one that causes disagreement.  "Freedom of speech does not permit you to engage in behavior destructive to the reputation of a prospective employer" has not been followed in the past when faculty voiced their opinions, and demonstrated in public.  Face it; this mess was created by the university's knee jerk reaction to be politically correct.  The potential loss of donation money over ruled the previous academic approval.  The employer created this mess with it's "yes, no" response after complaints about twitter texts.  If behavior and speech had consequences; Dr. Wozniak, and Dr. Kaufman would have been terminated by the administration long before they left the university.  As this mess gains noterioty across the country, expect the university to reach a settlement with the professor with perhaps an apology.  The settlement might even be paid with donation money.