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.
4. So what about "academic freedom", about which I've said little in my various commentaries on this affair? Often the phrase is used informally and capaciously (as I do with my blog category "Academic Freedom") to mean issues pertaining to the freedom of academics and scholars. Some people believe that anything academics say is protected by "academic freedom": that view has no legal standing in the U.S., and strikes me as implausible with respect to the most plausible notion of "academic freedom," the one famously defined by the AAUP in 1940. The core of the 1940 ideal is the freedom of academics in their research and teaching; one will note that the AAUP statement says,
When they [academics] speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution
This part of the AAUP statement has been rendered, I believe, moot, as a constitutional matter, by Pickering, unless, applying the Waters standard, some court decides that tweeting showing lack of "appropriate restraint" and "respect for the opinion of others" is, in fact, disruptive.
It's important to realize, however, that academic freedom is not primarily a constitutional doctrine. Almost every academic institution in the United States guarantees its faculty academic freedom in the AAUP sense as a matter of contract. That is, just as your contract with your college or university guarantees you a salary and certain benefits, it also guarantees you academic freedom, often by explicit reference to the AAUP standard. This is true of both private and public institutions, and it is the bedrock protection for the freedom of faculty to exercise their judgment about their research and teaching, even if administrators or politicians or private companies disapprove.
And now here is the bad news: this conception of academic freedom has almost no constitutional standing today. Courts in the United States have either repudiated outright the idea that there is some special constitutional freedom that only academics have or have interpreted it in ways that make it largely irrelevant to the speech of individual academics. I commend, in this regard, pp. 1055-1062 of this essay by my colleague Aziz Huq (a constitutional law specialist), regarding the academic freedom jurisprudence of our colleague Frank Easterbrook, now an influential judge on the U.S. Court of Appeals for the 7th Circuit. (Easterbrook's official view is, roughly, that it is the institution that enjoys academic freedom.)
If academic freedom, at least in the AAUP sense, enjoys no special constitutional status, that means its legal protection derives almost entirely from the contractual commitments universities make to their faculties. Since Illinois will deny that Salaita had a valid contract with the University (a point on which I expect they will prevail), that means he will have no distinctively legal claim of academic freedom against the University of Illinois, unless he can persuade an Illinois court to recognize such a constitutional right (that will be unlikely as a matter of federal constitutional law, since Illinois is part of the 7th Circuit, and so Judge Easterbrook's views, in the cases Prof. Huq discusses, will control; I do not know whether academic freedom has any status as a matter of state constitutional law in Illinois, though I'm skeptical it does).
None of the preceding means, of course, that Salaita's case is irrelevant to anything deserving the label "academic freedom": there is clearly an ideal of universities as places of unfettered expression about controversial ideas that is under direct assault in virtue of the University's treatment of Salaita and its articulation of these new "civility" standards (and the latter, as applied to current faculty, will implicate their contractual rights and also their general "free speech" rights). But legally, I do not see that "academic freedom" will figure in Salaita's case against the University.
(I should note that there is one very serious threat to the constitutional status of academic freedom on the horizon, namely, the Supreme Court's decision about a decade ago in Garcetti, which severely restricted the free speech rights of public employees when speaking in their 'official' capacity, but which disavowed how this would apply to academics at state universities. There is a useful discussion of that case by Marty Lederman, a smart constitutional lawyer at Georgetown, here.)
5. In addition to his constitutional claims, Salaita has an almost textbook version of a contract law claim under the doctrine of "promissory estoppel" (the classic case on the subject is Red Owl). The basic idea is simple: even if there is no formal contract between two parties (my expectation, as noted, is the court will find no contract between Salaita and Illinois), if one party reasonably relies on the promises and representations of the other, and then the other reneges, the injured party is entitled to compensation to the extent of his reasonable reliance. It was clearly reasonable for Salaita to rely on an offer letter from the Dean–an offer letter that specifically mentioned the academic freedom protections the University of Illinois affords faculty!–even with a clause saying the appointment was subject to approval by the Board of Trustees (after all, there does not appear to be a case in the last half-century in which the Board failed to approve a tenured appointment that went through the normal university channels, as Salaita's did). Indeed, the reasonableness of Salaita's reliance is enhanced by the fact that the University scheduled his classes this fall and even referred to him in public as a faculty member.
The harder question will be Salaita's damages. At a minimum, he should recover for the costs of relocation, his housing costs this year (since he rented his prior home), the cost of insurance and related expenses, and his salary for this academic year; but he has a strong claim for asking for compensation for having relinquished tenure and his job and salary at Virginia Tech, i.e., for several decades worth of salary and benefits. In other words, I would expect Salaita's lawyers to ask for several million dollars in lost wages and benefits extending over a career. Now there is always a duty in contract cases to "mitigate" damages–to take steps to prevent the unnecessary growth of damages–which here would mean seeking other academic employment. If Salaita can not secure such appointment–and given the smear campaign against him, aided and abetted now by the University of Illinois, it is hard to see a public university, vulnerable to the same political pressures, being able to hire him–then he has a claim for his lost wages and benefits as a professor for the next (roughly) thirty-plus years. (Hopefully some private university, better insulated from such pressures, will step up.)
6. If this goes to court, I assume that Salaita will also sue the University for defamation, since its statements clearly imply he is unfit in his chosen profession, i.e., teaching. And if Salaita is unable to secure other academic employment, his damages here could also be substantial. There is a risk that a court will treat the Salaita affair as a matter of public concern, which makes it almost impossible for a plaintiff to prevail (see this earlier discussion). I think that would be the wrong standard here, but I will defer to the libel experts of the world.
7. Litigation is costly, especially for an individual, less so for the University, which already employs lawyers (though I would expect they would hire outside counsel to litigate this case). It is also a slow-moving process (though not usually as bad as in Bleak House!); it could easily take several years before Salaita recovers anything by way of compensation for his constitutional and contractual claims. This gives the University of Illinois a huge strategic advantage: time is on their side, not Salaita's. This means the University will try to secure a settlement for a much smaller sum, which Salaita may accept out of necessity. Basicaly, the University will make some guesstimates of the probability of very large judgments against the university X years down the line, and the likelihood that Salaita will take much smaller amounts sooner; Salaita's lawyers will make similar calculations in consultation with their client. Any settlement the University offers will include confidentiality provisions that prevent either the University or Salaita from revealing the terms of the settlement or from openly disparaging the other–which means the public likely will never find out much about what drove the University to revoke the offer in the first place, absent some aggressive invesetigative journalism in the interim. My own guesstimate is that the University will end up paying in a settlement one or two million dollars at the high end, and may get away with less.
In the crassest scenario–and the world is crass, so this is not a far-fetched scenario–some decision-makers at the University of Illinois made the following calculation when Salaita's anti-Israel tweets first got public attention: we will be liable for some amount of money if we revoke the offer, but we will net more by way of money from donors and political support if we cave in to the political pressures and revoke the offer, even if it is unconstitutional to do so. This crass calculation–which, if made by the Chancellor just confirms my earlier point about her unfitness to lead an academic institution–is fairly straightforward if I am right about the likely settlement amounts in the prior paragraph.
So much for the law.
Now I will remove my lawyer's hat, and speak a bit more directly about the moral and political issues at stake here: what this case is actually about, as every sentient person knows, is that Israel is the third rail of American public life, and that saying certain things about Israeli policy and conduct are verboten in America–think of the endless defamation heaped on my colleague John Mearsheimer for observing (obviously correctly) that Israel benefits from a powerful and well-endowed domestic lobby devoted to rationalizing Israeli misconduct and protecting Israel, no matter what. (Even spokesmen for the status quo like Thomas Friedman have started using Mearhseimer & Walt's phrase "the Israel lobby.") My University, unlike Illinois, believes in free speech and in academic freedom, despite years of threats by wealthy donors over Mearsheimer (truly). (At least one non-wealthy right-wing donor, by the way, once announced he would not give to the Law School because the university appointed me–confirming, once again, that you don't have to be wealthy to be venal!) Indeed, last Spring, Mearsheimer (who is a very good lecturer) was the featured speaker at the day for prospective Chicago undergraduates: that one gesture distinguishes a real academic institution from a university directly hostage to the moral corrupton of politicans and the wealthy.
If Salaita were an over-the-top tweeter about Russia, or Iran, or China, no one would have heard of him. But too many supporters of Israel in the United States have become–either because of bad memories or fear or just naked tribalism–enemies of freedom and decency, to the point where they will do anything to destroy critics of Israeli conduct. What has happened to Steven Salaita is a case in point, but it is a particularly appalling case because it has resulted in the leadership of a major research institution betraying the most basic value of a real university, namely, freedom of expression, especially controversial expression. Chancellor Wise and Chairman Kennedy have done something wicked and unjust, as well as illegal. I have not much hope for Mr. Kennedy–this is not the first time Chairman Kennedy has punished an academic for his speech, though the very personal element in that latter case might have led one to treat it as an aberration…until now. But Chancellor Wise, as a lifelong academic, has disgraced her university and her chosen profession. I hope that, before long, in the dark hours of the night her conscience will awaken her, and she will find a way to make things right.
I open this for additional discussion or questions, which I will try to attend to, but please be patient. All comments must include a full name in the signature line and a valid e-mail address.
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