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.
