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    Some background: https://www.theguardian.com/education/2026/may/12/thousands-of-university-of-nottingham-staff-told-they-are-at-risk-of-redundancy Not only does Nottingham University have a good academic reputation, the city of Nottingham has a great…

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AAUP enters the Illinois/Salaita fray–and some more thoughts on Salaita’s contractual claims, which are stronger than I realized

Brian Leiter

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. 

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28 responses to “AAUP enters the Illinois/Salaita fray–and some more thoughts on Salaita’s contractual claims, which are stronger than I realized”

  1. Christopher Larcombe

    Thanks for passing on so lucidly the upshot of your "round-table" discussion, even "on the run"!

    Thanks for inviting comments, as well. I have a couple, related to: (A) contract and estoppel; and (B) administrative law.

    (A) Contract and Estoppel

    The proposition that a contract was already on foot prior to the Chancellor's purported revocation is one that always struck me as a live one. There may be a very fine distinction in practice (if not conceptually) between (1) generating an expectation that a contract will come into existence, and (2) generating an expectation that said contract was already in existence. But the facts as to the conduct of both parties in this matter appear, as you say, strong enough to support (2).

    (As a very minor side-note, the factual complexion of the Australian case of Walton Stores to which the English barrister referred in his comment to your earlier thread was, as in Professor Salaita's matter, rich enough to influence a minority of the judges to conclude that a contract had indeed been formed. For anyone interested, the Walton Stores case can be read here:

    http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1988/7.html?stem=0&synonyms=0&query=Walton%20Stores ).

    As for the bearing of the various species of "estoppel" on the legal significance of the characterisation of the factual circumstances under (2), a number of observations/questions occur to me. First, if the cause of action operates on a breach by the University of the implied (or express?) duty of contractual good faith, then an estoppel which precludes from evidence the fact of the condition itself may not work consistently with this line of argument, since this argument presupposes that the condition would be raised in evidence. Secondly, given that the source of the legal obligation under (2) is contract, no species of estoppel is being invoked as a cause of action in itself. This may be an answer which allays Professor Dorf's concern in his article a week or so ago over the choice of law issue, which raised the possibility that Virginia law (which does not recognise promissory estoppel as a "sword") would be held to be the proper law. Thirdly, if an estoppel is sought to be run, then my understanding would be that promissory estoppel would in principle still be available in equity, insofar as it also extends to representations as to contractual rights which have ALREADY arisen. The effect of promissory estoppel in this instance would be to make it inequitable for the University to invoke its right to act on the condition. Fourthly, and perhaps most pertinently, if (2) is the true characterisation, there appears to be no need (from the Australian perspective and possibly the English one, too), however, to invoke equitable estoppels as all, since – contract being the source of legal obligation – common-law estoppel in pais (by representation or conduct) and common-law estoppel by convention (which is not founded on any representation by the University, but on the MUTUAL conduct of relations between the parties on the basis of an agreed or assumed state of facts) may, perhaps, both be relied upon to preclude the condition being placed in evidence by the University for the purpose of denying that its representation, or the mutual conduct of the parties, had, respectively, induced the expectation, relied upon by the representee to his detriment, that a contract already existed or that the existence of the contract was a mutually agreed or assumed state of affairs. The effect of common-law estoppels is to shut out the "truth" (e.g., the bare legal fact that the contract included a condition); whereas the effect of equitable estoppels operating in a contractual setting is to make it inequitable for a party to rely on, to invoke, a right or condition. That's a pretty simplistic way of putting it, but I think basically accurate. Finally, the advantage of common-law estoppels is that they are all-or-nothing; either the plaintiff gets, in practice, the full benefit of the representation or he does not. Whereas, as you have raised in relation to the damages issue if promissory estoppel is pursued, even if equitable estoppels are successful, in the particular case reversing any inequitable conduct primarily seeks to relieve the innocent party of the detriment he suffered in reliance on it, relief which may not be commensurate with enforcing the full extent of the representation itself. Equitable estoppels are, also, in principle, all discretionary and liable to be decreed only on terms.

    I am only a student, and for that matter not from the US, so no doubt there are many things I'm missing in the observations above. In regard to the US law on estoppels (which would not, I assume, recognise the conceptual and jurisdictional distinctions between estoppels at common-law and in equity, though these distinctions may still perhaps be identifiable in the substance of the law), am I correct in assuming that "promissory estoppel" in the US ONLY describes estoppel as a "sword" operating extra-contractually, whereas "estoppel" simpliciter is the accurate description of estoppels which operate secondarily to a pre-existing legal cause of action?

    (B) Administrative Law

    Your raising of the issue of contractual good faith has very striking relevance to the possibility that administrative law doctrines may intersect with the private law dimension of Professor Salaita's matter.

    Since it is established under statute, I would assume that the University is bound to exercise its discretions according to law. The contract included a condition which bound the University by contract to exercise a particular discretion. But what at law structures that discretion is not exclusively a matter of contract; and perhaps, in this case, not most importantly a matter of contract. You state that the implied contractual duty of good faith cannot be discharged on a "whim"; this statement surely carries over to the bearing of public law limitations on the University's exercise of its discretions in this matter. At least in Australia (and I think in England), statutory discretions cannot (for instance) be exercised capriciously, or in breach of procedural fairness, or in a manner which results in a decision that has been materially influenced by an irrelevant consideration. Further, an estoppel can also be raised against an administrator in relation to a discretion which does not admit of being exercised from time to time, so long as such an estoppel does not result in ratifying ultra vires conduct. In Professor Salaita's matter, the discretion to act pursuant to the condition so as to revoke the offer was a one-off discretion (since an offer cannot be revoked more than once, nor can an employment contract be terminated more than once). Further, an estoppel would not have the effect of endorsing any conduct by the University which was made outside the scope of its statutory powers, for the obvious reason that a decision which approved the offer would have been entirely intra vires.

    An Australian authority on estoppel in public law is Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.

    http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/FCA/1990/22.html?stem=0&synonyms=0&query=title%28Minister%20for%20Immigration%20and%20Ethnic%20Affairs%20and%20Kurtovic%20%29

    An academic treatment of the subject is: J Thomson, “Estoppel by Representation in Administrative Law” (1990) 26 Fed L Rev 83.

    Whether administrative law can reach into the University domain (even that of a public university) may depend on whether the revocation was or was not an "academic" decision. If it was, perhaps the court won't intervene. I think the obvious retort would be that the decision is best characterised as an "employment" or "hiring" one. But this is a question I can't answer. And perhaps the applicable US administrative law for other reasons declines to reach into University matters?

    There is, of course, the question as to what relief is available in the case of administrative malfeasance. In Australia at least, damages are not available (though equitable compensation may be). The court would order the University to re-exercise its discretion according to law. And given the outcry that has been voiced in favour of Professor Salaita, the University may be minded to think very differently if it is bound to re-exercise its discretion now. And if estoppel in the US can be raised against an administrator, then the court may order that the University is precluded from denying that Professor Salaita is in substance already hired.

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  2. Michael Otsuka

    "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.' "

    It's a bit hard to see why the job offer itself, as opposed to just the payment of moving expenses for the job, would be made conditional on securing the loan.

    But consider an example in which a job offer to a foreigner is made "subject to the condition that an employer-sponsored visa is issued by the US government." Here university administrators who develop second thoughts about hiring someone aren't permitted simply to refuse to submit the necessary paperwork at their end for the visa to come through. That would be a lack of "good faith" in discharging the conditions of the contract. That also seems pretty analogous to the Chancellor's refusal to forward Salaita's case to the Trustees.

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  3. Michael Risch

    This post, and the last one, are really helpful. But I think the issues are more complex than that. This is a long comment (I'll probably turn into a post at some point).

    1. The threshold question is not whether there was a “conditional offer” but rather whether there was an offer in the first place. An offer requires that it may be accepted as is, no changes, by the offeree. A conditional offer is usually an offer that can be accepted, but the contract does not become effective until the condition is met. In a recent insurance case, for example, there was a settlement offer but a co-insurer had to sign off. The court said that this was an offer, and the signoff was merely administrative. But here, the “condition” comes from the offeror: “this is an offer, but only if my boss says it is OK.” You might read this as a conditional offer, but you could also read it as not an offer at all – that there is no ability to accept until the trustees sign off.

    2. That said, the second complicating factor – and one that is really problematic – is making offers in Oct. and not approving appointments until after school starts the next year. You have to know people will have to give notice, move and rely. They may already be on payroll! In my mind, however it shakes out, this is the biggest issue. When I started work for a large public institution, I made sure I had high level signoff and start date in mid-summer (mostly for insurance), but also for certainty.

    3. Let’s assume that the high level signoff is a conditional offer due to the odd timing, and that good faith applies to the decision of the ultimate authority to sign off on the departmental hire. The "good faith" standard is not always about "reasonableness." There are actually two types of good faith. The first, which typically applies in commercial scenarios where goods and activities are fungible, is “reasonableness.” Under this, you must act in accordance with the norms of the particular industry, and your rejection of a condition cannot be unreasonable. But employment is usually different. When the services are of a personal nature, then the standard is "honesty in fact." Honesty in fact means that the waiver of the condition means you are honestly dissatisfied with the person, and are not acting just to harm them. UIUC would seem to easily meet this standard. (I should add that in many states, at-will employment doesn’t even require that much – you just can’t violate public policy, more on that below).

    4. Here’s where it gets more complicated: the “honesty in fact”/public policy rule usually applies only to at-will. Is a PRE-HIRE condition considered at will? I’ll discuss Pickering more below, but surely there’s a bit more flexibility pre-hiring, or you would have to hire everyone who applied! If you chose between two qualified candidates, then you would necessarily not be “honest in fact” because you knew that the person was qualified. Thus, there must be some more leeway pre-hiring. The question is, how much, especially in a public university where the department signed off?

    5. This gets to the Pickering test. The “honesty in fact”/public policy rule of good faith seems to collapse into the public policy of the first amendment. But I wonder whether the mix of considerations a university may consider is different on a pre-hiring condition v. a post-hiring discipline. My gut says yes as a practical matter because a google search on Pickering shows TONS of articles post-employment and I couldn’t find one discussing it pre-hiring. Either courts are not applying or it’s impossible to prove. In other words, tone, etc., is and should be protected post hiring. It is unclear to me how protected such things would be pre-hiring. While there were few articles I found discussing Pickering pre-hiring, there were many, many articles talking about social media pre-hiring, because how you carry yourself in the world matters when an employer looks at you, public or private. And so, Brian’s warning to watch your social media if the university wins here is something that everyone on the job market already knows.

    6. Back to this case: If the standard is “honesty in fact,” I think there are enough tweets targeted at US college age people (some are noted here in the comments: http://prawfsblawg.blogs.com/prawfsblawg/2014/08/does-it-even-matter-what-steven-salaita-tweeted.html) for the university to hang its hat on as reasons why they believe that his comments might affect his ability to teach, notwithstanding the department's belief otherwise. He’s not moving as a literature guy; he’s moving as a comparative studies guy, they might believe that no jewish student would comfortably take his courses about Israel/Palestine relations based on his tweets. What student, jewish or not, would feel safe speaking in favor of Israel (or even in favor of the US) in his classes after reading a tweet that says if you support Israel you are an awful person? Yes, his literature evals were great, but we don’t have a poll of everyone who did not take his class and why. Is any of the preceding analysis sure? Obviously not. But if “honesty in fact” is the standard, then it doesn’t matter if they are right about this. It only matters if they have an honest belief. And if the Pickering test governs, I’m not convinced the outcome is different, given the vitriol in the tweets. This would be an interesting test about whether public institutions can consider non-academic behavior (rudeness, vitriol, general assholishness) before hiring someone. My gut says yes, so long as it’s not viewpoint based.

    7. This gets to my view of the whole matter. This is really a faculty governance issue more than an academic freedom/first amendment one. People are not hired all the time because of the things they say, write, and believe. You can't hire everyone, and those not hired are often the ones that displease the incumbents. Now, these things are not supposed to be a factor, but they often are; anyone who has sat on an appointments committee knows this. Even if the impermissible factors (like viewpoint) are ignored, people are judged by a whole variety of things that are ostensibly protected after they are hired: too cheerful, not cheerful enough, rude to the waitstaff, too quiet, too loud, not a great fit, boring, etc. You can’t fire someone for these things, but surely people are not hired every day because of them. But when the department overlooks such things and makes the offer, the question is when the provost, president, chancellor, trustees get to second guess that. That's a governance issue cloaked in a freedom issue. That, I think, is the heart of this matter. It’s not about Salaita’s tone. The department could have seen the tone and never hired him and it never would have been an issue. But once they did, it’s disconcerting to have the university administration second-guess that determination.

    BL COMMENT: This is interesting, but I worry that it elides the fact that their "honest" belief, on your analysis, punishes him for his constitutionally protected viewpoint.

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  4. Michael Risch

    BL: I agree, and that's the core issue. Those who think UIUC did wrong think that he is being punished for his viewpoint. Those that don't think this is about delivery and that the school can consider that pre-hire. The hard part is that the delivery is protected post-hiring.

    The pre/post distinction is one that I think is not getting enough attention. Indeed, until my friends who teach at Illinois started freaking out about how they could get fired for what they said, that possibility never even occurred to me because I view this as a hiring decision, not a firing one.

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  5. Christopher Larcombe

    Point (1) of Michael Risch's post occurred to me also. Was this an offer which was capable of acceptance in law? If the offer itself was subject to a condition precedent to its valid communication, then a failure to satisfy this condition may have the result that there were no terms, in point of contract law, for Professor Salaita validly to accept.

    But in this case, satisfaction of the condition precedent was not within the discretion of a third party (e.g., in Michael Risch's example, a co-insurer, whose rights of "sign-off" presumably arose as a result of subrogation). In this case, the offeror ITSELF had the discretion, the power, to satisfy the condition. A valid offer must indicate a willingness on the part of the offeree to be bound without further negotiation as to the proposed contractual terms. The question in this matter is, in answer to point (1): whose conduct is at law taken as evidence for such an indication of "willingness" to be bound? On the most favourable characterisation of the facts (favourable to Professor Salaita, I mean), the University itself, through its officers, conducted itself as if the condition had been, or would certainly be, satisfied. To the extent that such officers were acting within their actual, implied or ostensible authority, why is it problematic, on principles of agency law, for their principal (viz, the University), to be fixed with, bound by, the legal consequences of their conduct?

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  6. CM

    This discussion makes me curious about the legal status of a case like the following.

    As mentioned in one of the above posts, it seems common practice for the UIUC board to not vote to approve a hire until after the "prospective hire" was already teaching and receiving paychecks. Suppose the UIUC is in a stronger legal position to "not hire" someone until the board votes (that is, stronger than their legal position to fire someone who has gotten board approval). Does that mean that the UIUC could maintain this stronger legal position by postponing the board vote indefinitely? E.g., if the board didn't get around to voting for six months after the "prospective hire" started teaching, or a year, or ten years, would they still maintain this stronger legal position?

    Reply
  7. Christopher Larcombe

    In such a posited case, the University would be estopped from denying that it had, in substance, effectuated a hire, notwithstanding its omission, or intentional disinclination, formally to satisfy a condition precedent to the hire.

    Consider: if the "prospective hire" at UIUC was in receipt of paychecks from the University, then what legal relations would those pay checks be referrable to? Gifts to the "prospective hire"? Mistaken payments?

    Consider: if the University was, for a year, or ten years, acting as if the "prospective hire" were legally obliged to conduct tutorials, mark examinations, deliver lectures: what would such conduct be referrable to or explained by?

    I think the relevant question in this matter is not whether the UIUC is, simply, in a "stronger" legal position up until the point when its board votes, but whether, at the time it does (or at the time its Chancellor acts to prevent that vote), the person in respect of whose "offer" the vote is cast, is in law already hired or entitled to insist that the University not depart from its promise or controvert its representation that it would hire him.

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  8. Sam Rickless

    I do not think it is accurate to say that the UI Board of Trustees acted in bad faith: the Board has not acted at all! In their August 1 letter to Prof. Salaita, Chancellor Wise and Vice President for Academic Affairs, Christophe Pierre, wrote: "We write to inform you that your appointment will not be recommended for submission to the Board of Trustees in September, and we believe that an affirmative Board vote approving your appointment is unlikely. We therefore will not be in a position to appoint you to the faculty of the University of Illinois at Urbana-Champaign." This letter, effectively dehiring Prof. Salaita, says (or at least implicates) that it is a necessary condition for appointment with indefinite tenure at UI that one's name be "recommended for submission" to the UI Board of Trustees. As of today, the UI Board of Trustees has (technically) neither approved nor disapproved the recommendation for Prof. Salaita's appointment. (The Board, joined with other UI administrators, issued a statement of support for the Chancellor, but that is not relevant to the approval process.) In principle, the Board could still meet on September 11 and approve the hiring of Prof. Salaita.

    Unless, of course, it is technically a part of the approval process for the Chancellor to submit one's name to the Board for approval. Is it? I very much doubt it. The initial offer letter, dated October 3, 2013, sent to Prof. Salaita by Brian H. Ross, the interim Dean, states: "This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois." There is absolutely no mention here of the Board's approval being conditioned on the "submission" of Prof. Salaita's "appointment" to the Board by the Chancellor. A reasonable person reading the offer letter of October 2013 would understand it to be stating that the *only* hurdle left between the offer and official appointment is "approval by the Board".

    This raises the following question. Why did Chancellor Wise and Vice President Pierre, confident as they were on August 1 that the UI Board of Trustees would not approve the hiring of Prof. Salaita, not wait until the first official meeting of the Board on September 11 to hear the Board's verdict in the case? One hypothesis is that Chancellor Wise and Vice President Pierre wanted to give Prof. Salaita time to find alternative employment or housing. This just doesn't strike me as the whole truth, even if it is part of the truth. If the first day of instruction is August 25, then Chancellor Wise and Vice President Pierre would have to know that it is extremely unlikely that Prof. Salaita would be in a significantly better position in early August (after receipt of the letter) than he would be on September 11. There is an alternative hypothesis, though.

    An official document from the UI website (http://www.provost.illinois.edu/communication/03/Comm03_attach1.pdf) states that "Board approval is required for [faculty newly appointed with indefinite tenure] via a brief biosketch; however, approval is not required prior to the effective date of an appointment since it is essential that the University have teaching faculty members in place at all times". So, legally, it looks like Prof. Salaita would have been *effectively* appointed, and hence officially *hired*, if Chancellor Wise had waited until the first fall meeting of the UI Board of Trustees to put his name up for approval. Indeed, the effective date of Prof. Salaita's appointment would have been, we may presume, August 25, the first day of fall quarter instruction (or maybe even August 16, the first day of the academic year). So approval by the UI Board after the start of fall instruction is, in fact, as it has always been thought to be, completely pro forma.

    Contractually, it seems to me, Prof. Salaita *could* have been dehired by the UI Board of Trustees before the effective date of his appointment. If, for example, the Board had refused to approve Prof. Salaita's appointment at its May 14 meeting, it is not clear that Prof. Salaita would have had any valid legal claim against the Board or against the Chancellor. But this is not what happened.

    I am not a contracts prof, and I have not looked at all the documents that could possibly bear on this case, but I am curious to know whether UI is in a pickle that is even deeper than the promissory estoppel or plain estoppel problem. It's not so much that UI was "estopped" from invoking the condition of Board approval by virtue of "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". The problem is that the Chancellor and the Vice President for Academic Affairs invoked authority they didn't have (to refuse to submit Prof. Salaita's appointment to the UI Board for approval), perhaps at least in part as a way of avoiding the fact that Prof. Salaita would have been *effectively* appointed, without requiring UI Board approval, on August 25 (or August 16).

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  9. Keith Whittington

    I wonder what the Brian and the commentators would make of the application of these considerations to the still recent case of the University of California system, where numerous job offers were rescinded by the chancellors of individual schools due to financial considerations. Those decisions came down earlier — before a new school year started, but well after other job opportunities had been let go by candidates. Like the Board of Trustees at Illinois, the chancellor does not normally intervene to overturn job offers that had been extended by lower-level entities within the university. But unlike the Illinois case, the California case was justified on budgetary grounds.

    To what degree can job candidates rely on offer letters that include language about the agreement being conditional on the rubber stamp of higher-level figures?

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  10. Christopher Larcombe

    Very powerful points, Sam Rickless.

    It is not, however, the contract, or the terms of the offer, which would confer authority on the Chancellor to act as she purported to do. The contract is not the source of the POWERS of the University, but of the duties it bound itself to observe in relation to its offer to Professor Salaita (assuming "offer" was valid and therefore capable of inviting a valid acceptance).

    I think the missing piece of the puzzle, from the perspective of your observations, is whether the Chancellor had, by statute, a power of pre-emptive veto (or other analogous power), over Board decisions, entitling her to decide contrary to whatever the Board decided, and even if the Board had not had the opportunity to decide at all.

    Even if such a power exists, however, there still remains the question as to what legal relations the Chancellor was bound at the time she purported to act. Why should not an otherwise legally "effective" appointment bind the Chancellor in the exercise of her discretions?

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  11. Christopher Larcombe

    Keith Whittington raises an issue about the content of the grounds which may justify "rescinding" offers.

    First, if the ground of termination is in legal terms "rescission", then a right to rescission must be a term of the contract itself, and this presupposes the existence of a valid contract in the first place. Rescission of a contract can only, on my understanding, operate in relation to executory obligations. Rights already acquired are not erased and the contract is not rendered void ab initio. Therefore, the "hire" still has remedies in contract. If "budgetary grounds" were not among the grounds in the contract which enlivened the right to rescind, then the University's purported "rescission" would look to me like a repudiation.

    But perhaps "rescission" is being used as synonym for "revocation" or withdrawal. If, in the example cited, the University revokes an offer on budgetary grounds, I suspect the question will still be: did the University represent or otherwise conduct itself, before revocation, in a manner which induced the offeree reasonably to assume that a contract had come into existence or to expect that it would? If so, "budgetary grounds" are not a defence to breach of contract; they will, however, be relevant if the innocent party seeks specific performance of the contract. If not, then the offer is simply withdrawn or revoked, and the fact that the offerees ("candidates") gave up other job opportunities would not have, I think, any bearing on the legal duties of the offeror, or give rise to any remedial entitlements in the offerees.

    I am not sure if legal observations about the Salaita matter can be generalised to provide any satisfactory answer to your final question, however important it is. This is for the reason that the question assumes that it is possible to derive legal advice from speculations as to how it is *anticipated* Universities may act subsequent to issuing an offer which is subject to a condition. Since it is impossible to do so, I would assume the only sensible legal advice would be – if the advisee wishes to avoid *any* risk – not to incur any detriment until the condition has been formally satisfied. But this advice does not exclude the legal possibility that, in retrospect, there may be remedies which would make any attempt by the University to raise non-satisfaction of the condition illicit.

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  12. Michael Risch

    Keith Whittington and Sam Rickles raise the same important point, but in different ways: is the chancellor forwarding/trustee signoff a rubber stamp? Are there examples of other times an offer was not considered final? Apparently so in California.

    And this raises a third possibility in all this. Maybe Salaita has a job based on reliance, norms, custom, etc., but he doesn't have tenure. After all, at many schools the tenure signoff can come into the next year. I've known people granted tenure who twiddled their thumbs while they waited for the trustees to sign off, well into the next academic year. I've known others who have had presidents threaten to deny tenure to candidates proferred by departments.

    If you look at this as a tenure decision rather than a hiring decision, then the delay into the next academic year doesn't seem so odd. Have the chancellor/trustees at Illinois ever denied tenure to a proffered candidate? Have they done so anywhere? Has there ever been a first amendment challenge on that basis? That's an interesting question. But it means that Salaita may have a claim to be an employee, but not with tenure. I don't know where you go from there, though, because failing to renew his contract the next year would surely raise these same issues.

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  13. Michael Otsuka

    According to the wording of the letter from the Dean (linked below), the appointment itself (which carries tenure) requires the approval of the Trustees:

    "…I am pleased to offer you a faculty position in that department at the rank of Associate Professor … effective August 16, 2014. This appointment will carry indefinite tenure. This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois."

    http://www.news-gazette.com/sites/all/files/pdf/2014/08/13/14-529.Documents.pdf

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  14. Jonathan Eddison

    I am puzzled by this discussion, perhaps because no practicing lawyer of any kind is taking part. There is a very strong argument that a binding contract was formed – if the publicly reported facts are true: Illinois went through what we are given to understand was its normal recruiting process of announcing, searching, interviewing and making a written offer. Illinois knew that Salaita accepted the offer, resigned from Virginia Tech and had to move to his new campus. This, I believe, is the typical process for senior hires at universities. Illinois cannot claim in good faith that a pro forma condition subsequent trumps the good-faith performance of the offer, acceptance, move, etc. The fact that, as reported, at Illinois Board approval often came after the senior hire was already teaching strongly suggests that the the condition subsequent was pro forma (and could be relied on to be pro forma).

    One thing that I have not seen any comment on is whether there is any precedent for the Chancellor's actions at Illinois. If the action is unprecedented, that argues strongly for bad faith.

    More to the practical point – Salaita's contract does not need to pass the highest law school scrutiny to be enforceable. I am confident that Salaita has a good enough case to withstand a motion to dismiss. That will be all that Salaita needs. From there, I have no doubt that Salaita's counsel, through the process of discovery, will be able to both prove bad faith and seriously embarrass the University. Illinois has shown poor judgment repeatedly in this matter, but I can't believe that they are stupid enough to let all of the facts come out and have a jury decide the extent of the University's liability. This case will be settled well before that. Salaita needs a good plaintiff's lawyer. I expect that Professor Leither or his colleagues may be able to refer him to one.

    BL COMMENT: I infer that Mr. Eddison is a practitioner, and appreciate his contribution, which fits with much that I reported about my conversation with colleagues at the Law School. I should note that some of the participants, above, may be practitioners as well as academics. And, ironically, I got a long e-mail lecture from a practitioner about there not being a contract in this case, though it was not very coherent, and not as cogent as Mr. Eddison's explanation of the opposite conclusion.

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  15. Michael Risch

    I'm a member of the bar in California and was a partner at a firm, where I litigated employment issues. I agree that pled the right way, there is likely enough to get over a motion to dismiss and maybe even summary judgment. The timing of the decision sets up a custom and practice as well as a reliance argument. The failure to hire in its best light for Salaita can be viewpoint discrimination and thus bad faith/first amendment violation.

    My comments are primarily in response to the general commentary that this is somehow a slam dunk. I think it's far from that and would give the U better than 50% odds if this thing went to a trial (which is unlikely). Juries don't have to understand the facts the way academics do, and I don't know that they would here.

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  16. Corey Robin

    Michael Otsuka at 13 inadvertently raises an issue that I am hoping some of the specialists in contract law here (whether scholars or practitioners) can clear up for me. Michael quotes from the part of the offer letter that states that Salaita's appointment is subject to the approval of the Board of Trustees. A lot of people elsewhere are making a big muchness out of this. But with the offer letter that the UIUC sent out there was also included (if you follow the link Michael provided) an attachment specifying the terms of UIUC appointments. That attachment contains all the relevant Illinois statutes and rules. The very first rule says the following:

    "1. Notification of Appointment from the Board of Trustees

    "The University of Illinois Statutes (Article IX, Section 3.a.) provide that only the Board of Trustees has the authority to make formal appointments to the academic staff. New academic staff members will receive a formal Notification of Appointment from the Board once the hiring unit has received back from the candidate all required documents, so the appointment can be processed. Required forms normally include the electronic Employee Information form, the I-9, W-4, and the Authorization for Deposit of Recurring Payments form. Other documents (i.e., resume/vitae, 3 references, etc.) may be required and will be requested as appropriate by the unit. Some of these forms may be completed online through NESSIE."

    As I read this statement, the process of approval by the Board merely requires that the prospective employee submit all the proper paperwork. That's it. And once that's done, the approval happens. Notice the vocabulary: "will receive…has received back from the candidate…appointment can be processed."

    It really sounds like Board approval is about nothing more than processing paperwork.

    Am I reading this correctly and if so does it have any relevance for this discussion?

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  17. Christopher Larcombe

    From my inexpert perspective, I think every post thus far has something of legitimate and relevant interest in it. Speaking for myself, my few posts were attempts at getting my head around the legal issues from my background as a non-US observer, out of interest in Professor Salaita's predicament and its implications for academic autonomy and University governance. Needless to say, they didn't purport to be expert observations, just relatively well-informed conjectures (relative to my background, I mean). I guess I am correct in having assumed that Professor Leiter didn't open comments only with the expectation that expert practitioners would contribute. The practical points you raise are, quite obviously, very pertinent; but the kind of "law school scrutiny" that Brian has communicated on his blog isn't for that reason otiose, since the legal issues have significance and complexity in themselves whatever practical litigation strategies may be recommended in Professor Salaita's case.

    A propos one of those complexities raised by your post, I found it interesting that you describe the approval stipulation as a condition subsequent. Is this on the ground that, usually, Board approval is stated to occur after offer and purported acceptance? Or is it on the ground of some point of formal characterisation; viz., that the parties agreed to make the occurrence or non-occurrence of a future event (viz., Board approval) one which would give rise to a right to terminate further performance of the pre-existing contract?

    Are there obstacles to so characterising the stipulation arising from the facts that: (i) the "recommendation of appointment" was stated to be "subject to approval by the Board"; and (ii) Article IX, sec. 3a of the University Statutes confer on only the Board the authority to "formalise" appointment offers? I understand that (i) is ambiguous enough to be consistent both with an intention that the stipulation would condition whether contractual relations would be formed as well as with an intention that it would condition the performance of the parties' future obligations in relation to a contract that had already been formed. However, when combined with (ii), is the ambiguity resolved in favour of the construction that the stipulation is a formal condition precedent; i.e., that the offeror did not, as at the date of the letter and only going on its contents, intend to be bound by contract until the Board had exercised its authority to "formalise" the appointment?

    If the stipulation is a condition precedent, then I glean from what Brian has explained that the University would, because of its subsequent representations/conduct which are/is only consistent with contractual relations having in substance been formed, be estopped from purporting to act as if the condition had not in substance already been satisfied at the date it sought to revoke the appointment.

    Perhaps there's not a substantial difference at all between characterising the stipulation as a condition precedent or subsequent?

    Finally, and this question may have a bearing on the litigation burden on Professor Salaita, is it necessary for him to prove *positive* "bad faith" on the part of the University? Or is it only necessary to show that the University acted inconsistently with the standards of the implied/express duty of good faith?

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  18. Christopher Larcombe

    Very well spotted. The language suggests that, so long as the appointee does x, y, z, his appointment "will" be approved by the body empowered by statute to grant formal approval.

    If such an interpretation of the language is correct, it seems to amount to much more than a confirmation of the assumption that approval is usually, in practice, in the ordinary case, pro forma. It appears to imply a contractual *promise* to the effect that if the appointee does what is stipulated, approval "will" be granted.

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  19. Rebecca Root

    I have no expertise, just interest as a citizen, so I understand if you don't want to approve this comment, but:

    I was struck by the comment in 8 that the Board of Trustees met on May 14 without acting on Salaita's appointment one way or the other. Does that not greatly strengthen his case? How can the board approval not be just a rubber stamp, if the board had opportunity to act before the contract was set to begin, but chose not to? (I suppose perhaps his paperwork wasn't in, but I seriously doubt this all turns on something as mundane as that)

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  20. Dean C. Rowan

    I'd like to put a little pressure on Corey Robin's and Christopher Larcombe's reading of the Notification of Appointment provisions of the General Terms document. Read strictly, these provisions have to do not with approval per se, but with "notification of appointment." In other words, one will receive official word of one's appointment after the papers have been filed, etc. Merely filing papers will not surmount the obstacle of the Board's failure to approve. The language of the section cited in the Notification provision, Art. IX, sec. 3a, reads: "All appointments, reappointments, and promotions of the academic staff, as defined in Article IX, Section 4a, shall be made by the Board of Trustees on the recommendation of the chancellor/vice president concerned and the president. All appointments, reappointments, and promotions of the administrative staff shall be made by the Board of Trustees on the recommendation of the chancellor/vice president concerned if a campus-level officer is involved and the president." If the chancellor, VP, and president decline to make the recommendation, the Board will not make the appointment. Notification is moot. (I'm playing devil's advocate here.)

    The statutes suggest that the Board must do something: "All appointments … shall be made by the Board…" The "subject to approval" language of the offer letter seems to me to be more ambiguous. Setting aside the more clearly mandatory language of the Statutes, does it mean the Board must make the approval? Or that the Board's actions may but need not trump the customary process of offer letter, acceptance, and filing of papers? I ask for a reason unrelated to the Salaita matter. I'm in the midst of a bylaws revision for an organization. Under the current bylaws, certain actions taken by the organization's board are "subject to review" by the membership at certain times. It has never been clear to me whether that provision requires or merely permits review by the membership of the board's action. That is, is failure to "review" tacit approval?

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  21. Michael Otsuka

    Corey — If you're right, then the Chancellor's refusal to submit this case to the Board is much more significant than many have realized, since, had she done so, then it appears that the Board would have to have signed off. If, moreover, all it requires to formalize the appointment is the submission of all the necessary paperwork to the Board, then it sounds like there was lack of "good faith" in discharging the conditions of the contract, along the lines of the hypothetical case I mentioned in my commment #2 above, assuming (as seems reasonable — see my comment #13) that this should be treated as tenured, rather than at will, employment. (Here I'm attending to Michael Risch's point 4 in his comment #3.)

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  22. Billy Junker

    Returning to Rickless above, I have a question that I hope can be answered by somebody more knowledgable in the law. The letter refers to itself as "this recommendation." It doesn't refer to itself as "this conditional recommendation." Because it says the former and not the latter, on what grounds can the promised recommendation not occur? Is not the Chancellor's "recommendation" secured by the letter itself? Where is it specified in the UIUC faculty handbook that the Chancellor has the power to override the promise to recommend specified in the original letter? Could the Department or Dean force the recommendation through on the grounds that the Chancellor has no authority to stop it, and has perhaps already committed herself to the recommendation itself?

    The more I think about this, the more likely it seems to me that the Chancellor's power to recommend after the fact has been invented, with the aim of preReturning to Rickless above, I have a question that I hope can be answered by somebody more knowledgable in the law. The letter refers to itself as "this recommendation." It doesn't refer to itself as "this conditional recommendation." Because it says the former and not the latter, on what grounds can the promised recommendation not occur? Is not the Chancellor's "recommendation" secured by the letter itself? Where is it specified in the UIUC faculty handbook that the Chancellor has the power to override the promise to recommend specified in the original letter? Could the Department or Dean force the recommendation through on the grounds that the Chancellor has no authority to stop it, and has perhaps already committed herself to the recommendation itself?

    The more I think about this, the more likely it seems to me that the Chancellor's power to recommend after the fact has been invented, with the aim or preventing the Board from having to take a vote on the issue. My bet is the Board is shielding itself from having to vote. They should not be allowed to do so.

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  23. David Hilbert

    Regarding the point Corey raises.

    The BOT actually votes on all appointments so it's not merely a matter of submitting paperwork. On the other hand, they usually don't vote on or discuss appointments individually. They do them in blocks (the procedure is similar for promotion and tenure decisions). The paperwork requirements are for getting a particular document, the Notification of Appointment, which is the document that specifies your salary, among other things. Notification of board approval of appointments and promotions comes in a separate letter. The NOA notionally comes from the board but it really is just a matter of getting the paperwork in order once the appointment has been approved. In the strange world that is the University of Illinois, the NOA often comes after the beginning of the academic year to which it applies. Most faculty at UIC don't yet have a NOA for the current academic year even though appointments began Aug. 16 and the term began last week.

    I had always believed that most appointments starting in fall were approved at the July board meeting but a look at the September board agendas for the last couple of years shows that isn't true now if it ever was. A majority of the appointments starting in August seem to be approved retroactively in the September following. So it was not at all unusual that the BOT had not yet acted on Salaita's appointment given recent practice. I have no idea why it works this way.

    I have no opinion about the contract law issues.

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  24. Christopher Larcombe

    Yes, Dean C. Rowan, I think you're clearly correct about the notification provisions in the Statute; they don't cover the process of approval as I mistakenly concluded. They assume approval has properly been granted.

    It seems the Statute confers exclusively on the Board the power formally to make "appointments". But the mandatory language of "shall" suggests that this power must be acted on, and can only be acted on, following the requisite "recommendation". I am not sure that it follows from this that the exercise of the power by the Board must have only one outcome, namely formally approving the "recommendation". That would have the result that the statute is to be read as conferring on the Board a power without any discretion. Or, perhaps the "power" is better characterised as a "duty"?

    The "subject to approval" language on its own seems to impose a contingency on the "offer": it is defeasible, and contractual relations cannot be completed, if Board approval is not obtained. But on its own it does not seem to impose on the Board a mandatory duty to approve, though it may amount to a promise that "approval" would be properly considered according to the terms of the offer and the University statutes.

    As Professor Leiter's post explains, from my understanding of it, the offer does bind the University to deploy its approval procedures, and exercise its discretion whether or not to "approve", in good faith. A purported revocation of the offer, particularly after acceptance has been communicated, would arguably be illicit if made contrary to good faith.

    The question as to whether the University must, as opposed to merely may, make the approval can't be answered, I don't think, simply by construing the meaning of the phrase "subject to approval". The question goes to what is at the heart of Professor Salaita's matter: was the University's discretion, at the time it purported to revoke the offer, *limited* by its own subsequent representations or conduct, and the acts of Professor Salaita performed in reliance on such representations or conduct, which are all consistent with the proposition that the parties were acting with the intention that a contract had already been formed? If so, as Professor Leiter explains, the University would be estopped from invoking the "subject to approval" condition as if it had not already in substance bound itself by contract to hire Professor Salaita.

    If a contingency is coupled with a promise, then failure to review, in your example, may amount to a breach of the by-laws. But I wouldn't expect failure to review on its own (e.g., just because of the effluxion of time) would amount to a tacit approval, unless there were other representations or conduct or mutual assumptions which pointed to this conclusion.

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  25. Michael Risch

    This raises the core issue, I think, and Billy Junker also notes it: "The more I think about this, the more likely it seems to me that the Chancellor's power to recommend after the fact has been invented"

    This is the exact opposite of reality. The statutes are crystal clear that the chancellor recommend, and the trustees MUST appoint. No offer is valid UNTIL the trustees appoint.

    But that's completely unworkable in the current custom and usage. No one would be in class at start of classes because no one would have their Notices of Appointment. Further, the long history of faculty governance has given departments wide latitude to make offers and thus has given the appearance that there is control at the department level. Thus, the idea that the department chair or dean can make a hire that needs no approval is what has been invented over time.

    That's why it's so shocking when such a departmental decision is vetoed, but it happens periodically at every school, and the "official" system allows it. The problem is that the university would grind to a halt if everyone took the rules seriously.

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  26. Dean C. Rowan

    A follow-up to Christopher Larcombe (at 24) and a response to Michael Risch (at 25):

    Thank you, CL, for your helpful comments. I was sloppy with my language, imagine that. I did not mean to suggest that affirmative approval might be required, that the Board has a duty to approve. By "approval" I mean the deliberative process that leads either to approval or no approval. The terms "subject to review" and "subject to approval" are distinct in a meaningful way in this context. Review is arguably an obligation that may be discharged by omission. If the membership fails to review a board action, it has arguably made a tacit approval of the action. But an omitted approval is not so obviously a disapproval, and in light of the Statutes, it's clear that the UI Board has to take some affirmative step, pro or con. I remain unsure that my organization's membership must affirmatively review every relevant action taken by the board.

    MR, you are correct that the Statutes require Chancellor recommendation and Board appointment. But there is a catch with respect to timing in Prof. Salaita's situation. For tenure-track faculty, "approval is not required prior to the effective date of an appointment since it is essential that the University have teaching faculty members in place at all times…" (See C at http://www.provost.illinois.edu/communication/03/Comm03_attach1.pdf.)

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  27. Billy Junker

    Michael Risch,

    Thanks for the response, and apologies for my muddled earlier post written on an iphone. You write that "the statutes are crystal clear that the chancellor recommend, and the trustees MUST appoint." What still remains unclear to me, though, is *when* the chancellor's recommendation is formally or legally binding.

    The letter of Oct 3 reads: "This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois." I interpret "this recommendation for appointment" to mean that the University has committed itself at least to *recommend* the appointment to the trustees, who may or may not approve it. And so I wonder whether the Chancellor in fact has the power *not* to recommend in the face of the signed contract that refers to "this recommendation." While the letter makes clear that Salaita's appointment is conditional upon the trustees' approval, it nowhere suggests that Salaita's recommendation for appointment is similarly conditional.

    Sorry if I am missing something obvious here in restating Rickless's original points. I'm not a lawyer, and I thank you for your patience.

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  28. Michael Risch

    I agree that it's problematic. And as Dean Rowan wrote, the timing is a real problem, especially because the provost's office seems to have an official policy of moving forward without trustee approval.

    That said, I read the "recommendation" as the dean's recommendation to the chancellor. The chancellor did not sign off on the letter, so you can't attribute the recommendation.

    I, too, am bothered by the ability to simply sit on a recommendation, especially when the default is "go forward." But I think that problem has to come from custom and practice. I don't see anything that requires the chancellor to make the recommendation up the ladder, and but for the bad effects that come from sitting on it in practice, I think a court would apply the "honest dissatisfaction: standards. But due to the late timing, a court may wind up requiring more.

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