Surprising, they usually do a more careful job:
[A]ny lawsuit by Mr. Salaita probably would hinge on the question of whether he was entitled to the academic-freedom and free-speech protections of the university’s faculty members. The answer to that probably will come down to contract law and whether he had gained any employee protections by virtue of being offered a job.
This simply isn't correct: Mr. Salaita's free speech claims do not depend on whether there was a contract making him a faculty member, as I wrote previously. The absence of a contract will also not block his recovery on promissory estoppel grounds.
Now, as we noted previously, there are good reasons to think Salaita was, in fact, a tenured member of the faculty when summarily terminated in August, and that will certainlty guarantee his victory in court. It's also worth calling attention to the fact that Robin Kar, a law professor at the University of Illinois (and a teacher and scholar of contracts, as well as legal philosophy), has come to a similar conclusion.
The University's legal position is wholly untenable; more to the point, as a retired Illinois judge observed, Salaita's lawsuit will survive a motion to dismiss. Let me make clear why this is a significant fact about the legal posture of the cse. If Salaita files a lawsuit, the University will move to dismiss it essentially on the grounds that it states no colorable legal claims, even accepting the facts as alleged by Salaita. For a defendant in a lawsuit, that is always the happiest outcome, but Illinois will not be so lucky, since Salaita has multiple colorable claims, constitutional and contractual. Once a lawsuit survives the motion to dismiss, things change: now the plaintiff is entitled to "discovery" (to collect facts pertinent to his or her case). As I wrote to one of the lawyer/Trustees last week:
[A]s a practical matter of litigation strategy, some or all of Salaita’s contractual and constitutional claims are going to survive a motion to dismiss, at which point his lawyers are going to have a field day in discovery, going through e-mail accounts, minutes of meetings, telephone records etc. All the names of alumni and donors who may have written to the Chancellor will become matters of public record as well. Besides being costly, this whole affair is going to be potentially very embarrassing for a distinguished university.
The University will never let this happen: it will be humiliating, and cost a lot of people their jobs, including Chancellor Wise and Chairman Kennedy of the Board of Trustees. All the behind-the-scenes shenanigans will be aired for public consumption, and the main actors here will be revealed, as I said early on, unfit to run a serious research university. So once Salaita survives the motion of dismiss, he will have considerable power to dictate the terms of a settlement.
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