Story here, including some remarks from Prof. Salaita's lawyer that gives some indication of their legal posture. We'll know more about where this is going next in just a few hours.
Story here, including some remarks from Prof. Salaita's lawyer that gives some indication of their legal posture. We'll know more about where this is going next in just a few hours.
Episcopal Reverend Shipman at Yale. The remarkable thing is that the New York Times published his letter in the first place; that has got to make the thought police very nervous.
...but he's the Chairman of the University of Illinois Board of Trustees. I seem to recall someone suggesting he should resign...
UPDATE: This is also apt, re: civility: "it’s perfectly clear to me, as these various links, particularly Ali’s, demonstrate, that the call for civility is little more than an effort to muzzle critics, to turn vibrant campuses into intellectual morgues." Some benighted philosophy bloggers would like to achieve the same it seems; perhaps they can join the University of Illinois Board of Trustees?
Paul Boghossian (NYU) kindly gave me permission to share his:
Dear Chairman Kennedy,
I join many others in urging you to reinstate Professor Steven Salaita’s appointment as Associate Professor with tenure at UIUC. The manner in which he was ‘unhired,’ just weeks before he was to start teaching, and nearly a year after he had formally accepted the offer of a tenured post, was procedurally and morally irregular in several major respects. Failure to reinstate him will, without a doubt, result in irreparable damage to the well-being and reputation of one of our nation’s premier research universities.
It is an established norm within higher education in the United States that, after all the relevant academic controls have been cleared, the approval of an appointment by the Board of Trustees is pro forma. This is why professors trustingly resign their posts at one institution, move their families and homes, and begin working at another institution, before they receive formal Board approval. It is foul play to violate that norm without warning.
Furthermore, it seems both unjust and unwise to take a decision of this magnitude without any sort of due process, without providing any sort of clear explanation as to its basis, and without consulting with the relevant academic units and deans.
Such a way of proceeding is especially disturbing in light of the revelation that the Chancellor and Board members were lobbied heavily by donors representing a particular political viewpoint, and who threatened to withhold financial support from the University.
If you believe that Professor Salaita crossed a line that he ought not to cross, there is an easy, honest and honorable remedy, suggested to you by the AAUP: consider Professor Salaita to be a tenured member of the UIUC faculty, suspended (with pay) pending a hearing on his fitness to continue.
Otherwise, you risk doing permanent damage to your fine institution.
Silver Professor of Philosophy
New York University
This is just astonishing in its ignorance and irrationality; regarding Salaita's constitutional rights, the editors opine:
He was and remains free to speak as he chooses. But there is no right to speak with impunity. Free speech comes with consequences — from reasoned debate to a punch in the nose. Journalists lose jobs for exercising free speech. Authors lose publishers. Entertainers lose audiences. All risk civil litigation. Salaita spoke, and others spoke back, persuasively, to express both fear and disdain.
But there is a right to speak with impunity from being denied state employment because of your constitutionally protected speech, with some narrow exceptions that do not apply here. Surely the editors of a newspaper ought to have a clue about the Constitution and the First Amendment? Surely they should know that a state employer is different than a publishing house. That an audience is not the same as the state university?
Maybe they should resign too.
Michael Otsuka (LSE) invited me to share his letter to the Trustees, which appeals, suitably, to institutional self-interest and proposes an alternative strategy that (though one that might still leave Prof. Salaita in danger, but at least would mitigate the harm and gives the Board a way out of the current mess they've made short of wholesale retreat):
Dear Trustees of the University of Illinois,
I am a Professor at the London School of Economics. I am also a faculty-elected member of the LSE's Court of Governors. I write, however, in an individual capacity.
If you withhold pro forma approval of Professor Steven Salaita's appointment alongside the others when you meet on September 11, you will make clear that associate and full professors at your university do not have tenure at the outset of their appointments. Rather, even after the starting dates listed on the letters of offer they have signed, their jobs may vanish without any demonstration of cause by normal procedures that apply to tenured professors.
You will also make clear that the assurances, norms, and practices on which academics rely when they resign their posts, in order to take up jobs elsewhere, do not apply when it comes to offers from the University of Illinois.
You will thereby undermine your ability to recruit the best scholars and teachers.
I therefore urge you to follow the recommendation of the AAUP to treat "Professor Salaita’s situation as that of a faculty member suspended [with pay] from his academic responsibilities pending a hearing on his fitness to continue."
Otherwise, you will provide overwhelming grounds for AAUP censure, of which academics around the world will take note.
I imagine their statement will be up at the "Support Salaita" page before long, which has a wealth of interesting information about the case.
Corey Robin has collected all the e-mail addresses for the Trustees. My recommendation would be to keep the e-mails short and sweet, referencing a couple of pertinent items, like the AAUP letter, or the Chicago Tonight segment, or Michael Dorf's early analysis of the constitutional issues. These folks aren't going to read lengthy arguments, but it would be good for them to hear from concerned academics nationally and internationally who view the University's conduct as violating his constitutional and contractual rights.
Several friends and readers have sent along this news, namely, that the Chancellor has forwarded Salaita's appointment to the Board of Trustees. The happy scenario is that the University is going to relent and the appointment will actually be approved, in the wake of the bad publicity and especially the AAUP letter. The less happy scenario is that since the original offer letter never made the offer contingent on the Chancellor forwarding the offer to the Board (as I and others noted), they are now doing that formally in anticipation of litigation. I certainly hope it is the former, but not being by nature optimistic about bureaucrats and political hacks...
There is a letter from Alan Sokal (Physics, NYU) explaining the reasons for the boycott; you should post your name in the comments there to indicate that you are joining the boycott. I know some physicists, biologists, mathematicians, medical researchers, and others read this blog; please also share this information with colleagues in your fields as appropriate. You might also direct interested colleagues to the AAUP letter.
The AAUP has sent a very strong letter that will force the Chancellor to sit up and take notice; on the facts as presently known (and as well-stated in the letter), the AAUP views this as a case of "[a]borting an appointment...without having demonstrated cause" and thus "as tantamount to summary dismissal, an action categorically inimical to academic freedom and due process and one aggravated in his case by the apparent failure to provide him with any written or even oral explanation." In other words, the AAUP views Salaita as having had a valid employment contract with the University at the time of the August 1 letter, meaning he had a contractual entitlement to academic freedom and a contractual right to be terminated only for cause.
Is that view credible? I had expressed skepticism earlier that a court would find he had a valid contract, but an informative discussion today with colleagues at the Law School makes me think otherwise (and I imagine the reasoning I'm about to describe underlies the AAUP's position in the letter). We have a tradition here in the Law School called "roundtable": lunch three times per week to discuss substantive issues (someone's current work, a recent court decision, current legal issues in the news, sometimes even jurisprudence!). At today's roundtable, several colleagues who (unlike me) both teach contracts and do work in the area were there. Here's what I learned from them, whose opinions on this subject are far more reliable than mine:
If Salaita didn't have a valid contract at the time of the August 1 letter, he will have a solid promissory estoppel claim, as I had mentioned previously, but his damages under a promissory estoppel theory are quite uncertain (as I also noted). He is in a much better position as a matter of contract law if he had a valid employment contract, and it turns out there are very strong arguments that he did.
First, the mere fact that there was a condition in the initial offer letter--"subject to approval by the Board of Trustees"--doesn't mean the Board can terminate Salaita for any reason at all. All contractual conditions have to be discharged "in good faith" (a standard famously codified by the namesake of the Chair I hold, Karl Llewellyn, who finished his career at Chicago and was a major figure in the jurisprudential movement known as "American Legal Realism"). Imagine the University of Illinois had offered Salaita a job "subject to the condition that the University can secure a bank loan to pay for your moving expenses." That imposes a duty on the University to at least try to secure a bank loan, among other things; the University can't just do nothing. That the offer was conditional on Board approval, doesn't mean the Board can decide on a "whim" not to approve it! The Board has to act in "good faith," which in ordinary commercial contexts means something like "normal standards of fair dealing in the trade." "Normal standards of fair dealing" in the academic context mean, among other things, that the Board approves faculty appointments that have gone through regular channels, that the Board not withold approval for unconstitutional or otherwise illegal reasons, that the Boad respect academic freedom and the like. Arguably the Board acted in bad faith in this instance. Moreover, given all the facts detailed in the AAUP letter--the initial offer and acceptance; the extensive exchanges between Salaita and university officials about his new job, his teaching, his housing; his move to Illinois; his invitation to the reception for new faculty; etc.--a court is likely to hold that the university is "estopped" from invoking the condition of Board approval at all: there was a valid and completed contract, given all the promises and subsequent actions by the university, and the university can not now pretend there wasn't. (This is "estoppel," much closer to the equitable doctrine discussed by the Australian lawyer in the earlier thread, and is a different doctrine than "promissory estoppel".)
The upshot of the preceding considerations is that Salaita was at the time of the purported revocation on August 1 a tenured member of the University of Illinois faculty. As a result, he had a contractual entitlement to academic freedom (in addition to his other constitutional rights that I've discussed previously). But more importantly, he had a legal entitlement to be dismissed only for cause, which imposes procedural and evidential burdens on the university which it has not discharged, or even pretended to discharge. And if all that's right--and that's the current posture of the AAUP in the letter above--the University is in massive breach of contract, and Salaita will get substsantial damages, and probably be entitled to reinstatement as well.
So, in the end, it may be that his contractual claims are Salaita's strongest ones and, if my colleagues are correct, there is a good likelihood a court will view him as having a valid employment contract given the facts as set out in the AAUP letter.
I'm writing a bit on the run here, but given that the AAUP lawyers seem to view this in similar terms, I thought it was worth getting this legal angle out there. Comments are open for comments and questions; full name, please, and valid e-mail address.
Prof. Kirk Sanders, the Chair of the Department, writes, "The Department of Philosophy at the University of Illinois at Urbana-Champaign today (August 28) approved the following resolution:
Whereas the recent words and actions of Chancellor Phyllis Wise, President Robert Easter, and the Board of Trustees in connection with the revocation of an offer of employment to Dr. Steven Salaita betray a culpable disregard not only for academic freedom and free speech generally but also for the principles of shared governance and established protocols for hiring, tenure, and promotion, the faculty of the Department of Philosophy at the University of Illinois at Urbana-Champaign declares its lack of confidence in the leadership of the current Chancellor, President, and Board of Trustees.
Needless to say, they are right to lack confidence, and I join, I am sure, many other philosophers in commending them for taking this public stand.
A humanities faculty member at Illinois writes with some reasonable questions:
First: Under what conditions would the academic boycott of UIUC be ended?
I support the boycott -- or probably more accurately, I support the goals of those who are boycotting. I was worried before now because I thought and continue to think that there is zero chance the boycott will actually work. Now that it appears that the boycott has not worked -- at least, not to restore Salaita's job or to protect academic freedom -- what is the current endgame? Will the boycott be lifted if and when Salaita settles with the university? Or if and when Wise is removed from her position? Or if and when the Trustees are replaced? Or what?
Second: Does the academic boycott extend to job talks?
I suspect (hope?) that the university's actions have seriously hurt its chances of making senior hires in the foreseeable future. But would anyone coming to Illinois to give a job talk be seen as crossing the boycott lines? Will the boycott be seen as applying differently to junior and senior people? In not too long, I expect our department to post new job advertisements. How will the wider community view them?
What do readers think?
Historian David Prochaska at UIUC invited me, with Professor Davis's permission, to share her letter to the Chancellor. Prof. Prochaska noted that, "Natalie Zemon Davis is one of the most distinguished historians at work today. Past president of the American Historical Association, she is the author of 10 books, including The Return of Martin Guerre (translated into 22 languages). She is the recipient of the Holberg International Memorial Prize (2010), National Humanities Medal (2012), and has been named Companion of the Order of Canada (2012)." Her letter follows:
26 August 2014
Chancellor Phyllis M. Wise
University of Illinois
Dear Chancellor Wise,
As a long-time participant in the university world, I implore you to reverse your decision in regard to Professor Steven Salaita and now to recommend the approval of his appointment to the faculty of the University of Illinois at Urbana-Champaign.
I write you as an admirer of the remarkable achievements of the historians, literary scholars, and anthropologists at the University of Illinois at Urbana-Champaign. I have seen the lively and creative exchange among professors and graduate students close up as an invited guest of the History Department, and cannot believe that you would want to jeopardize this learning experience by the inappropriate and misguided criterion of civility.
I write further as a Jew, growing up in Detroit during the rise of Nazism and the anti-Semitic sermons of Father Coughlin; a Jew committed to that strand in the Jewish sensibility that still places justice and universal values at its heart; committed to the uses of rabbinical and Talmudic debate, which sought truth by language not always decorous; and to the old tradition of Jewish humor, which put laughter and mockery to the service of helping the oppressed.
As a distinguished physiologist, you have surely heard “disrespectful words” among scientists as they argued the pros and cons of research. I certainly have, as I listened to scientists go at it on grant committees, including when the important subject of gender-based biology was on the table. If words thought “demeaning” were uttered, the speaker was not excluded, he or she was answered.
The role of vigorous expression is even more central in the humanities and social sciences, where we are examining thought systems and actions that range from the violently cruel to the heroically generous. What, following your Principles of August 22, would we make of the writings of the great François Rabelais, who used every comic metaphor available, especially the bodily ones, to plead the cause of those who had been silenced by the Inquisition or harmed by unjust war?
You speak of your responsibility “ to ensure that. . . differing points of view be discussed in and outside the classroom in a scholarly, civil and productive manner.” In the classroom: one of the exemplars of master teaching was the late George Mosse of the University of Wisconsin, refugee from Nazi Germany and historian of the rise of Nazism. His lectures were celebrated for his sharp affirmations and his simultaneous invitation to the students to respond in kind—which they did – and for what one observer has called the “cross-fire” between him and a Marxist colleague. Not surprisingly, he had good friends among both Israelis and Palestinians.
Outside the classroom? But surely one knows that “differing points of view” are being discussed by members of your large faculty all the time, using every kind of speech, some of it uncivil and disrespectful. How would one enforce your criteria at the University? By “speech-police” in every classroom, college restaurant, sports arena, and living room?
Since this cannot be your intention, I come to the case of Stephen Salaita, whose scholarship, publications, and teaching were reviewed and warmly approved by colleagues, specialists, and university executive committees. You say in your statement of Principles that the “the decision regarding Prof. Salaita was not influenced in any way by his positions on the conflict in the Middle East nor his criticism of Israel.” If this be truly the case, then what could lead you to overturn the well-established evaluation and appointment procedures of your university and (according to the commentary by legal specialists) even hazard a possible lawsuit?
Professor Salaita’s tweets in regard to the Israeli bombing of Gaza in the last months seem to have been the trigger: as reported in information obtained by Inside Ed, they prompted some seventy emails to you, including from students who, as Jews, said they feared he would be hostile to them if they happened to take his course. (What their majors were was not specified in the report.)
Indeed, some of Professor Salaita’s tweets were vehement and intentionally provocative: he used strong language both to criticize the deaths from Israeli bombing and to attack anti-Semitism. The lack of “civility” in some of his tweets is linked to the genre itself: a tweet is often an answer to a tweet, and a tweet always anticipates a response. It is a form of concise communication based on give and take, on the anticipation that the respondent may respond sharply or critically to what you have said, and that the exchange will continue. Thus, in his public political life, Professor Salaita participates in a mode that always leaves space for an answer, thus, extending the respect to the individual respondent for which you call in your Principles.
The classroom is, of course, the critical space for assessing a professor’s educational performance, and from all reports, Professor Salaita has been a very successful teacher and much appreciated by his students. Why not accept the careful and extended scholarly inquiry of your University of Illinois colleagues over the hasty and seemingly politicized judgment and fears of the emailers? Further, Professor Salaita would be joining the Department of American Indian and Indigenous Studies, which on its web site commits itself to “free academic inquiry” and “the best ideals of academic freedom.” Why not leave it to the professors in this fine department to insure that a new colleague fulfills the highest goals of teaching? Indeed, the practices of careful listening and full speaking are very much part of the American indigenous tradition. Professor Salaita would thus be in a setting where he could expect to do his best teaching and make the significant contribution to scholarly inquiry hoped for by the University of Illinois professors who have been seeking his presence.
I urge you, Chancellor Wise, to rethink your position and to recommend that the Board of Trustees give its approval to the appointment of Professor Salaita. This would be an honorable course, and one that would restore the academic values which should and can prevail at a great university.
Natalie Zemon Davis,
Henry Charles Lea Professor of History emeritus, Princeton University
Adjunct Professor of History, University of Toronto
UPDATE (AUG. 29): See also this later post on Salaita's contractual claims and the AAUP letter.
Corresponding with philosophy friends and colleagues on Facebook and via e-mail alerts me to the fact that there were certain implicit assumptions in my Huffington Post piece that would benefit from some more explicit discussion. (HuffPo generally does not want pieces to be longer than 1,000 words.) So this will be an explanation of American law (to the best of my not-always expert knowledge) as it bears on the Salaita case and related matters, with a couple of links to cases and some pieces by academics more expert on some of these matters.
1. It is crucial in the Salaita case that it involves a state or public university, namely, the University of Illinois. Public universities are government actors, and like all government actors they are subject to the limitations imposed by the U.S. Constitution, including the First Amendment, which protects freedom of speech. (Technical point: the First Amendment, by its text, applies only to the federal government; in the wake of the Civil War, the Fourteenth Amendment was added to the Constitution, which imposed equal protection of the law requirements on the states; the Supreme Court subsequently interpreted the Fourteenth Amendment to incorporate the First Amendment, among others, as applying to the states as well.) One of the basics of the American law of free speech is that the government can almost never suppress or punish speech because of its content or viewpoint. (There are some very narrow exceptions: child pornography, speech that poses an imminent risk of harm [e.g., a fight or violence], and a couple of others.) Speech on matters of public or political concern is almost always protected by the First Amendment. But private universities are not bound by the First Amendment: if the University of Chicago had treated Salaita the way the University of Illinois did, he would have no constitutional claim. (This would not happen here because the Board of Trustees does not approve faculty appointments--the final decision is made by the Provost, and once s/he signs off, it is a done deal.) Against a private university, Salaita would have other claims, about which more in #5 below.
2. One important aspect of the First Amendment protection for the content of one's expression is that government can not (generally) base a hiring decision on the speaker's viewpoint or the political content of his expression. (There is a clear exception for certain kinds of political appointees--e.g., President Obama can take into account the viewpoint of those he appoints to Cabinet positions. And there are institution-specific exceptions, such as in the military. In #3, below, I take up the main limitation on this principle possibly relevant to the Salaita case.) Wagner v. Jones, a case out of Iowa that is still percolating through the legal system, offers a good illustration. Wagner, a pro-life conservative, claims she was passed over for a job teaching legal research and writing at the University of Iowa because of her political views. The district (or trial) court initially granted Iowa's motion to dismiss, but the U.S. Court of Appeals for the 8th Circuit correctly reversed in the opinion linked above. Section II(A) of the opinion contains a useful discussion of precisely the doctrines that will be at issue for Salaita's constitutional claims against the University of Illinois:
The First Amendment is binding on the states through the Fourteenth Amendment. Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). "`[P]olitical belief and association constitute the core of those activities protected by the First Amendment.'" Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (quoting Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). In Rutan, the United States Supreme Court extended Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and held that the First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions. Rutan, 497 U.S. at 79, 110 S.Ct. 2729. The state can neither directly nor indirectly interfere with an employee's or potential employee's rights to association and belief. Id. at 78, 110 S.Ct. 2729.
Academic freedom is a "special concern of the First Amendment." Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). "No more direct assault on academic freedom can be imagined than for the school authorities to [refuse to hire] a teacher because of his or her philosophical, political, or ideological beliefs." Bd. of Regents v. Roth, 408 U.S. 564, 581, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (Douglas, J., dissenting). But this court has recognized that respect for the "singular nature of academic decision-making" is also warranted because courts "lack the expertise to evaluate tenure decisions or to pass on the merits of a candidate's scholarship." Okruhlik v. Univ. of Ark., 395 F.3d 872, 879 (8th Cir.2005). The Supreme Court has also emphasized the respect due to academic judgment. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) ("When judges are asked to review the substance of a genuinely academic decision,... they should show great respect for the faculty's professional judgment."). Thus, judicial review of such decisions is limited to whether the "decision was based on a prohibited factor." Brousard-Norcross v. Augustana Coll. Ass'n, 935 F.2d 974, 976 (8th Cir.1991).
You will notice that the invocation of "academic freedom" here concerns the freedom of the academic institution to choose how to make faculty hiring decisions, subject to the limitation of not relying "on a prohibited factor," such as the political speech or viewpoint of the candidate. (Other prohibited factors would include the race of the candidate, the gender of the candidate, and so on.) I will return to this in #4, below.
Wagner's case clearly presented a factual question for a jury, which is why the district court was wrong to dismiss it without a trial (as the 8th Circuit decided). The factual question is: was her political viewpoint a factor in the University of Iowa's decision not to hire her. The difficulty for Wagner is that she has some evidence to this effect, but no "smoking gun." The decision not to hire her was taken at the departmental level, i.e., the Law School. There is some evidence of hostility to her political views, but it consists mainly in the comments of one faculty member. Salaita has considerably more evidence that it was his political expression that was the overriding factor in the decision not to hire him: the departmental unit (the American Indian Studies Program) voted to hire him; the Dean approved the hire and extended the offer; the University scheduled his fall classes; and so on. But then in July of this year his tweets about Israel became an object of criticism on right-wing websites, and then alumni and others began lobbying the University precisely because they objected to his political point of view. This seems utterly obvious, so how could a court find otherwise?
3. Chancellor Wise's and Chairman Kennedy's statements last Friday were appalling, and they contain material that no lawyer not asleep on the job could have approved (such as Kennedy's bizarre claims about disrespectful and demeaning speech not being tolerated "in our democracy," contrary to the famous "Fuck the draft" case). But in one respect, there was clearly legal counsel at work: the statements are meant to convey the message that Salaita was not denied hiring because of his political viewpoint, but because of the manner in which he expressed himself. This is clearest in Chancellor Wise's statement:
The decision regarding Prof. Salaita was not influenced in any way by his positions on the conflict in the Middle East nor his criticism of Israel. Our university is home to a wide diversity of opinions on issues of politics and foreign policy. Some of our faculty are critical of Israel, while others are strong supporters. These debates make us stronger as an institution and force advocates of all viewpoints to confront the arguments and perspectives offered by others. We are a university built on precisely this type of dialogue, discourse and debate.
What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.
Here the Chancellor disavows (however implausibly) that they are punishing Salaita for his viewpoint, but rather are only responding to the unacceptable manner in which he expressed that viewpoint. As, once again, the Court's famous "Fuck the draft" case suggests, this is going to be a hard distinction to sustain--especially since, as I suspect, the University will be hard-pressed to identify all the other cases where the Chancellor and the Board of Trustees stepped in to reverse hiring decisions because the candidates violated the articulated standard of "disrespectful words...that demean and abuse either viewpoints themselves or those who express them."
Enter now Pickering, another case, oddly enough, from Illinois decided by the U.S. Supreme Court almost a half-century ago (though one involving firing and not refusal to hire, though I do not think that distinction will matter). In that case, a local school board fired a teacher who wrote a letter to the local newspaper criticizing the board's management of district finances; the letter, it turned out, contained some factual inaccuracies as well. The U.S. Supreme Court sided with the teacher and against the board. In the crucial paragraph of the opinion, the Court stated:
To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U.S. 183 (1952); Shelton v. Tucker, 364 U.S. 479 (1960); Keyishian v. Board of Regents, 385 U.S. 589 (1967). "[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, supra, at 605-606. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
It's that last sentence, the so-called "Pickering balancing test", on which the University of Illinois will have to rely. Note that in Pickering, the Court did not find that any of the school's interests "in promoting the efficiency of the public services it performs through its employees" were really affected by the letter, even allowing that some of the statements in the letter were inaccurate. But it's precisely the Pickering balancing test that a state university can invoke if it disciplines a teacher who demeans and disrespects his students in the classroom (or if the teacher harasses, sexually or otherwise, the students). And it was the Pickering test, as elaborated by later court opinions, that the U.S. Court of Appeals for the 2nd Circuit relied on in deciding that City College could remove Leonard Jeffries from his administrative position (but not his tenured post) in the wake of a controversal speech. The 2nd Circuit gives a crisp statement of the later standard:
Whittled to its core, Waters [the later case refining the Pickering standard] permits a government employer to fire an employee for speaking on a matter of public concern if: (1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.
That paragraph gives you the essence of what the University's constitutional strategy will be in the Salaita case. The University will argue that the refusal to hire was based on a reasonable prediction that Salaita's vitriolic attacks on Israel and Zionists would disrupt the educational mission of the university, and that it was this concern that motivated their revocation of the job offer.
In my view, this argument is absurd: only if it is reasonable to think that Salaita's tweeting predicts his conduct in the classroom and with his colleagues will the argument stand any chance (and even then a court should conclude that the clear value of Salaita's core political speech on matters of public concern outweights the speculative worry). Yet presumably the university, in making the initial offer, already had substantial information on both these points (his teaching and collegiality), so that it would not be reasonable to conclude from his tweets that he would disrupt the university's operations, even though his many years of prior academic service provided no evidence to that effect. But--and this is what should, rightly, worry every professor in the United States--social media and academia is new territory for the courts, and I can not guarantee that some court might not side with the university. And if a court does, the message will be clear: all faculty, especially those at state universities and especially those looking to take a job elsewhere, should abandon social media, or make sure they "watch their mouth" really carefully before posting on a blog or a public Facebook account or tweeting.
The program starts 7 pm Central time, but the segment about Illinois will begin about 7:25 pm. ("Chicago Tonight" is a program of the local PBS affiliate in Chicago.) The HuffPo column picked up 5,400 "likes" and made it to the front page of HuffPo. Glenn Greenwald kindly tweeted it out to his 400,000 "followers." Thanks to all who helped give these issues the publicity they warrant.
I've talked to some law colleagues today about the legal issues and what the university can possibly be thinking; I'll write more about that tomorrow.
UPDATE: Here's the video, for those interested. Illinois declined to send someone to respond to me (not surprising, the public statements by the Chancellor and Board Chairman have already damaged their litigation position)), so the interviewer, quite fairly, tried to raise the issues a proponent of the university's view might have.
Not a surprise, but at least it is now a matter of public record:
The communications show that Wise was lobbied on the decision not only by pro-Israel students, parents and alumni, but also by the fund-raising arm of the university. The communications also show that the university system president was involved, and that the university was considering the legal ramifications of the case before the action to block the appointment.
Most of the emails have the names of the senders redacted and some are nearly identical, suggesting the use of talking points or shared drafts. Many of the letter writers identify themselves as Jewish and/or sympathetic to Israel, as students, parents or alumni, and as people who say that the tone of Salaita's comments (especially on Twitter) makes them believe he would be hostile to them and to their views....
Seventy people wrote to Wise to urge her to block Salaita's appointment (it is possible that some of the email messages are duplicates from the same person -- the redactions make it impossible to tell)....
While many of the emails are fairly similar, some stand out. For instance, there is an email from Travis Smith, senior director of development for the University of Illinois Foundation, to Wise, with copies to Molly Tracy, who is in charge of fund-raising for engineering programs, and Dan C. Peterson, vice chancellor for institutional advancement. The email forwards a letter complaining about the Salaita hire. The email from Smith says: "Dan, Molly, and I have just discussed this and believe you need to [redacted]." (The blacked out portion suggests a phrase is missing, not just a word or two.)
Later emails show Wise and her development team trying to set up a time to discuss the matter, although there is no indication of what was decided.
At least one email the chancellor received was from someone who identified himself as a major donor who said that he would stop giving if Salaita were hired. "Having been a multiple 6 figure donor to Illinois over the years I know our support is ending as we vehemently disagree with the approach this individual espouses. This is doubly unfortunate for the school as we have been blessed in our careers and have accumulated quite a balance sheet over my 35 year career," the email says.
I have not looked at the Illinois FOIA, but I'm surprised the names are redacted. These people deserve to be exposed in public.
Here. It takes a very different tact than I took, obviously, but I am strongly in favor of whatever rhetorical approach works to get the decision-makers to rectify the wrongs they have committed! In any case, I commend it to the attention of readers following this case.
MOVING TO FRONT TO ENCOURAGE FURTHER INPUT.
The University's conduct is so clearly illegal that I really did not see these egregious statements from the Chancellor and the Board coming. That the Chancellor of a major research university in what is a politically moderate (even liberal at times) state would affirm in public that faculty at state universities have no right to make comments that are uncivil or demeaning, even though they manifestly do under the First Amendment and, arguably, as a matter of academic freedom is truly unbelievable. My supposition, naively, had been that some adult in the university's counsel office would have explained to the miscreants or incompetents the probable legal consequences; but either there are no adults in the counsel office or they were ignored.
The question now is what to do that might make a constructive difference: I welcome suggestions from Illinois faculty and others.
...and I'm delighted that my disrespectful and demeaning speech makes me unappointable at the University of Illinois, where the First Amendment no longer applies. This commentary on her disgraceful letter is apt and I endorse everything Mr. Wilson says.
ADDENDUM: This is a tamer, but also, solid response, making clear how the Chancellor's "explanation" of her decision is even worse than the decision itself. (Thanks to Mike Dorf for the pointer.)
ANOTHER: This piece makes the same point, minus the curse words.
A lawsuit is now inevitable, and it will presumably have a defamation claim added to the constitutional and contractual claims. The Chancellor should resign: she's a disgrace. I again urge other philosophers to join the boycott. It gives me no pleasure to say that, since now the boycott has no end in sight. But the conduct by the Chancellor and the Board is such an egregious violation of the basic norms and integrity of academic institutions, that firm and public action is now imperative.
ADDENDUM: The Board of Trustees is also a disgrace--even in Texas, the Board has not done anything this egregious in a long time:
August 22, 2014
Earlier today, you received a thoughtful statement from Chancellor Phyllis Wise regarding the university’s decision not to recommend Prof. Steven Salaita for a tenured faculty position on the Urbana-Champaign campus.
In her statement, Chancellor Wise reaffirmed her commitment to academic freedom and to fostering an environment that encourages diverging opinions, robust debate and challenging conventional norms. Those principles have been at the heart of the university’s mission for nearly 150 years, and have fueled its rise as a world leader in education and innovation.
But, as she noted, our excellence is also rooted in another guiding principle that is just as fundamental. Our campuses must be safe harbors where students and faculty from all backgrounds and cultures feel valued, respected and comfortable expressing their views.
We agree, and write today to add our collective and unwavering support of Chancellor Wise and her philosophy of academic freedom and free speech tempered in respect for human rights – these are the same core values which have guided this institution since its founding.
In the end, the University of Illinois will never be measured simply by the number of world-changing engineers, thoughtful philosophers or great artists we produce. We also have a responsibility to develop productive citizens of our democracy. As a nation, we are only as strong as the next generation of participants in the public sphere. The University of Illinois must shape men and women who will contribute as citizens in a diverse and multi-cultural democracy. To succeed in this mission, we must constantly reinforce our expectation of a university community that values civility as much as scholarship.
Disrespectful and demeaning speech that promotes malice is not an acceptable form of civil argument if we wish to ensure that students, faculty and staff are comfortable in a place of scholarship and education. If we educate a generation of students to believe otherwise, we will have jeopardized the very system that so many have made such great sacrifices to defend. There can be no place for that in our democracy, and therefore, there will be no place for it in our university.
Chancellor Wise is an outstanding administrator, leader and teacher. Her academic career has been built on her commitment to promoting academic freedom and creating a welcoming environment for students and faculty alike. We stand with her today and will be with her tomorrow as she devotes her considerable talent and energy to serving our students, our faculty and staff, and our society.
We look forward to working closely with Chancellor Wise and all of you to ensure that our university is recognized both for its commitment to academic freedom and as a national model of leading-edge scholarship framed in respect and courtesy.
Christopher G. Kennedy, Chair, University of Illinois Board of Trustees
Robert A. Easter, President
Hannah Cave, Trustee
Ricardo Estrada, Trustee
Patrick J. Fitzgerald, Trustee
Lucas N. Frye, Trustee
Karen Hasara, Trustee
Patricia Brown Holmes, Trustee
Timothy N. Koritz, Trustee
Danielle M. Leibowitz, Trustee
Edward L. McMillan, Trustee
James D. Montgomery, Trustee
Pamela B. Strobel, Trustee
Paula Allen-Meares, Chancellor, Chicago campus, and Vice President, University of Illinois
Susan J. Koch, Chancellor, Springfield campus, and Vice President, University of Illinois
Donald A. Chambers, Professor of Physiology and Biochemistry; Chair, University Senates Conference
Jerry Bauman, Interim Vice President for Health Affairs
Thomas R. Bearrows, University Counsel
Thomas P. Hardy, Executive Director for University Relations
Susan M. Kies, Secretary of the Board of Trustees and the University
Walter K. Knorr, VP/Chief Financial Officer and Comptroller
Christophe Pierre, Vice President for Academic Affairs
Lawrence B. Schook, Vice President for Research
Lester H. McKeever, Jr., Treasurer, Board of Trustees
This is informative; it also makes clear how pro forma Board approval ordinarily is--many start teaching and collecting a paycheck before Board approval occurs. And, bear in mind, what happened here was not a failure of Board approval, but a unilateral revocation by the Chancellor, which was never a condition mentioned in the offer letter.
Classes start Monday at Illinois, so perhaps a resolution is imminent. IF not, a lawsuit certainly is.
Posted by Brian Leiter on August 21, 2014 at 09:04 AM in Academic Freedom, Personal Ads of the Philosophers (and other humor), The Academy | Permalink
Philosopher Paul Boghossian (NYU) gave me permission to post his comments in support of boycotting Illinois over the Salaita scandal:
We have an important moral issue before us. Academic freedom is endangered. A person, who had resigned his job on the promise of another one, is about to have his life ruined, on the basis of 140 character tweets. Administrators looking on are about to conclude that they can blithely overturn the recommendations of their own rigorous procedures for personal or political gain. Those who want to foster a culture of intimidation about sensitive world issues are about to conclude that their tactics are working. This is a time for clear-minded, assertive moral protest; not for fussing with a thousand little distinctions that no one cares about. We need to speak with a strong voice now and put a stop to this now. We don't want to have to deal with a multitude of similar cases in the near future. And how much of a 'punishment' on our colleagues at Illinois is it anyway? There are so many alternative ways of ensuring philosophical interaction with them, if that's what people really were worried about. And do you think anyone will mind if, in a few years, a signer were to say: Given this or that development, I have decided to abandon my boycott of UIUC? Time to get real, here.
Prof. Boghossian's comments, together with several instructive comments on the earlier thread (including from Illinois faculty), persuade me to revise my original stance. I will join the boycott until such time as the University of Illinois makes things right. I encourage other philosophers to do the same.
A number of fields, including philosophy, are organizing lists of signatories who will boycott the University of Illinois at Urbana-Champaign until the contract with Salaita is honored and the Chancellor reverses herself. I'm of two minds about this: on the one hand, the public threat to boycott the university might have some influence; on the other hand, it seems manifestly unfair to punish colleagues there who might want my contributions to a scholarly event, as they have in the past. (Many of these colleagues are as appalled as everyone else by the craven cowardice of the Chancellor in this matter.) Those colleagues, and their students, did not engage in any wrongdoing, yet the burden would fall on them for the Chancellor's misconduct if the signatories make good on the threat to boycott the university.
I'll open comments on this for arguments on either side of this question, but I want full names in the signature line and valid e-mail addresses (the latter will not appear).
A strong statement of the First Amendment case (which is stronger than the 'academic freedom' case in my judgment), and a preview of the lawsuit that will follow if the University of Illinois does not reverse itself.
(Thanks to Stephen Diamond for the pointer.)
Here. (Thanks to Lorna Finlayson for the pointer.)
My own view is that it is not reasonable, or desirable, to expect Israeli academic institutions to adopt positions on questions of national policy (the boycott calls for a "refusal to associate with Israeli academic institutions that have not explicitly condemned the occupation"); the same is true in the U.S. What is known as "the Kalven Report" from 1967, after its lead author, Harry Kalven, a prominent First Amendment scholar at Chicago, got it right:
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.
Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.
Unfortunately, then, this call for boycott seems to me misconceived, at least as regards academic institutions. The case for an economic boycott of Israel for its crimes is as strong as it has ever been, and only an economic boycott endorsed by significant trading partners will have the desired effects.
...and, in the process, both the University of Illinois and Cary Nelson behave disgracefully. Denied a job for using curse words? Gimme a fucking break! See the first comment on the article about Prof. Nelson's appalling intervention in this matter. Prof. Salaita's First Amendment rights have been violated, and he should sue the university immediately.
(Thanks to Phil Gasper for the pointer.)
...as it brings an English Professor up on charges of "insubordination"! Have English universities gone insane? What's going on here? Links and more information welcome.
Legal philosopher Luís Duarte d'Almeida (Edinburgh) writes:
Colleagues from Portugal are trying to draw international attention to recent unwelcome developments regarding research funding in Portugal. The situation affects many areas, including philosophy. I am forwarding a text in English, written by a philosopher friend, describing some of reasons for concern; the text is already up online on a Portuguese blog run by academics (http://dererummundi.blogspot.co.uk/). Would you consider drawing attention to this on your blog? Many thanks.
---------- Forwarded message ----------
The Portuguese Science Foundation, FCT, i.e. the Portuguese governmental agency responsible for the funding and assessment of national research, has recently announced the results of the last evaluation of the national research units in all scientific areas. Research funding in Portugal, even in the humanities, comes under the heading "science". In a shift from previous reviews, FCT appointed the European Science Foundation, ESF, for this review. ESF has been, in their own words, "focusing on the responsible winding down of its traditional research instruments and the transfer of policy activities to Science Europe." From now on, ESF will be dedicated to "science management" and to "quality peer review". It is unclear, from their site, whether ESF will continue to exist after 2015.
ESF was founded in 1974 and played an important role in the promotion of research in all academic areas across Europe, promoting collaborative research for instance through European collaborative projects (EUROCORES projects, involving researchers from at least 4 European countries), exploratory workshops (to support research into new lines of inquiry), and also conducted peer review. In the past, ESF has allowed researchers to define their own research questions, and apply for funding for self-defined projects. Now, however, this is coming to an end.
Miguel Seabra, the president of the Portuguese FCT, is also the new president of Science Europe, a new distinct organization dedicated to lobbying for science in the European research area. Since Miguel Seabra took office as president of FCT in 2012, there were drastic changes to the funding of research in Portugal. For instance, there were dramatic cuts to the number of PhD grants, post-doctoral fellowships, and 5-year research contracts. This took place in spite of the fact that, as the Portuguese minister for Science and Education, Nuno Crato, claims, the funds available at FCT have not decreased. In the humanities, the cuts in number of grants and fellowships were around 35% for doctoral grants and 65% for postdoctoral grants (The Conselho Nacional de Ciência e Tecnologia issued a statement of concern after this -- the official link to the statement in the site of the Portuguese government has been deleted). This overturns a continued investment in science and research in Portugal in the past 20 years (or more) that had brought the percentage of PhD's in Portugal closer to the European average, and drastically increased the number of Portuguese international publications, number of citations and patents. As an illustration, in the last call for individual PhD grants, only 5 were granted to philosophy PhD candidates in the whole country.
(Thanks to Felipe Leon for the pointer.)
Another reader wondered what the import of this would be in other states and for tenure in colleges and universities. As I understand it, the trial court's decision was based on a state constitutional right to an education. My guess is all states recognize a similar right (I haven't looked into this), but the court's decision was based on factual findings about how rules about tenure (and the like) affected the educational experience of the children. Other courts in other states may or may not reach similar conclusions. (The decision may also be overturned or modified on appeal in California.) The right to a public education does not, typically, encompass university education, so it is doubtful that argumentative strategy would work in an attack on tenure at the collegiate level. It also would have no force for tenure at private schools, where it is standardly a contractual right.
UPDATE: Philosopher/lawyer John Bogart writes:
Headlines notwithstanding, the decision does not hold that tenure for public school teachers is contrary to the California Constitution. The news coverage and public understanding will likely see it that way, but what the judge held was not that tenure violated the Constitution.
He did hold that (1) requiring tenure decisions after 12 to 18 months on the job, (2) onerous requirements for discharge decisions and (3) mandatory LIFO layoff policies violate the California Constitution. Nothing in the opinion even suggests that tenure is per se out — there is no endorsement of at-will employment. If tenure decisions were made after 3 to 5 years, that would likely pass muster, for example.
Still, the public understanding will be that tenure is somehow unconstitutional.
Professor McCabe alluded to this possibility in her valedictory address, and now it turns out they are threatening to fire 120 academics in health fields who don't generate enough research funding or who don't teach enough students. This, by the way, is the kind of thing that tenure in the U.S. prevents crazed administrators from doing. What a disgrace.