Academic Freedom in the Salaita Case

Posted in: Constitutional Law

A recent decision by the University of Illinois at Urbana-Champaign to revoke the offer to Steven G. Salaita of a tenured faculty appointment raises important questions of academic freedom. Although Salaita had been told that final approval of his appointment by the university’s board of trustees was essentially a foregone conclusion, the university refused to finalize the appointment—apparently in response to Salaita’s strongly worded tweets criticizing Israel’s conduct of military operations in Gaza.

The case is rich in irony and apparent hypocrisy on both sides. Less than a year ago, Illinois Chancellor Phyllis Wise reaffirmed the university’s commitment to academic freedom as a “core principle” in touting “the critical importance of the ability of faculty to pursue learning, discovery and engagement without regard to political considerations.” That statement was issued to explain why the university opposed an academic boycott of Israeli institutions. Salaita, for his part, has been an outspoken supporter of that boycott.

Nonetheless, Salaita’s case is—or should be—relatively easy. Academic freedom and freedom of speech protect all viewpoints, even those that are hostile to academic freedom or freedom of speech. Moreover, as I explain below, none of the peculiarities of Salaita’s case justifies the university’s revocation of its offer.

Failure to Hire Versus Firing

Some​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel. He was told by Illinois that trustee approval was essentially a rubber stamp, and in reliance on that representation he resigned from his prior position on the faculty of Virginia Tech.

To be sure, a party who sues for promissory estoppel rather than suing under a formal contract typically only recovers to the extent of his reliance, rather than in strict accordance with what he expected to gain under the contract. But here, there is no real difference between what contract law calls the reliance interest and the expectancy interest: By giving up his position at Virginia Tech, Salaita gave up a job in which he had academic freedom; thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom.

There is a further wrinkle, however. I have assumed that Illinois law governs this dispute over whether an Illinois university breached its obligations, and under standard choice-of-law principles that is very probably correct. Still, it is conceivable that Virginia law governs, as Salaita’s act in reliance on the representation of a tenured offer occurred in Virginia. And pursuant to a 1997 ruling of the Virginia Supreme Court, that state does not recognize liability for promissory estoppel.

The First Amendment

Yet even in the unlikely event that Virginia rather than Illinois law governs the contractual issues, Salaita could still have a valid claim, under federal constitutional law.

Academic freedom in private colleges and universities is entirely a matter of contract law, but state institutions—like the University of Illinois—are also bound by the First Amendment. And as the Supreme Court explained in the 1967 case of Keyishian v. Board of Regents, academic freedom is “a special concern of the First Amendment.”Whether the university violated the federal First Amendment by, in essence, punishing Salaita for his speech on a matter of public concern, should not simply depend on whether state contract law happens to recognize the doctrine of promissory estoppel.

Furthermore, even apart from its protection of academic freedom, the First Amendment also limits the ability of public employers to make hiring decisions based on hostility to a particular viewpoint. As the Supreme Court explained in the 1990 case of Rutan v. Republican Party of Illinois, “conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.”

The government does have vital interests in ensuring that high-ranking policy officials stick to the party line. Thus, if Salaita had been under consideration for a position as a diplomat in the State Department, his outspoken views on the Israeli/Palestinian conflict could be disqualifying. But professors are not spokespeople for the government. Thus, even without the contractual protection of tenure and apart from considerations of academic freedom, a university may not choose to deny a job to a professor based on political disagreements, as the Supreme Court ruled in the 1972 case of Perry v. Sindermann.

Accordingly, it appears likely that either as a matter of state law or the federal Constitution, Salaita was entitled to keep his position at the University of Illinois.

Extracurricular Statements

Does that conclusion make sense? Putting aside the freestanding First Amendment issues, one might think that academic freedom should only extend to a faculty member’s speech in an academic capacity. After all, the point of academic freedom is to encourage free inquiry within the academic environment.

But in fact academic freedom has generally been seen to be much broader. The American Association of University Professors (AAUP) 1940 Statement of Principles of Academic Freedom and Tenure sets out the general understanding of academic freedom. It proclaims that when professors “speak or write as citizens, they should be free from institutional censorship or discipline.”

And for good reason. As the Illinois AAUP recently noted in connection with the Salaita controversy, “the virtual classroom today has no limits.” Universities benefit from their faculty playing the role of public intellectuals, which now frequently means using social media like Twitter.

Profanity, Restraint, and Respect

The 1940 Statement also says that in speaking to the public, faculty “should at all times be accurate, should exercise appropriate restraint, [and] should show respect for the opinions of others.” Salaita pretty clearly did not heed this warning.

For example, in one tweet, he admonished: “Zionists, take responsibility: if your dream of an ethnocratic Israel is worth the murder of children, just fucking own it already.” He also wrote that “by eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror.”

At the very least, the use of profanity demonstrates a lack of restraint, and the tone of Salaita’s tweets is hardly respectful of those who hold different views. But it is hard to believe that Salaita’s offer was revoked solely because of the profane language or tone of his tweets, without any regard to the viewpoint they expressed.

Moreover, the 1940 Statement does not say—and no one seriously argues—that a professor’s academic freedom is contingent on university administrators’ determination whether he exercises restraint and speaks respectfully. These obligations are so vague that they must be understood to be subject only to self-monitoring. Any effort by university officials to police them would inevitably risk censorship and chill robust expression of controversial views.

Concern for Student Sensitivities

Some people have suggested that Illinois acted legitimately out of concern for the sensitivities of the students who would take Salaita’s classes or otherwise encounter him on campus. This strikes me as the best justification for the university’s action, but it too falls short.

Let me begin, however, by acknowledging that extracurricular statements are relevant to an evaluation of a university professor’s fitness. It could be argued that because Salaita’s tweets occur outside of the classroom, they are not relevant to an evaluation of his impact on students. Yet that approach would allow Salaita to have his cake and eat it too. If academic freedom protects statements on social media because the virtual classroom has no barriers, then conversely, such statements make their way into the classroom as well, even if an instructor makes no overt reference to them while teaching.

Thus, it is possible in an extreme case for a faculty member’s external statements to render him or her unfit to teach. Overtly insensitive and repeated racist, sexist, or homophobic statements might fall into this category. But in order for the concern for student sensitivities not to swallow up academic freedom, the threshold must be very high.

Did Salaita cross that threshold? In short, no.

For example, in blaming Israel for contributing to antisemitism, Salaita pretty clearly disavows antisemitism himself: Someone making overtly antisemitic remarks would not refer to such views as “antisemitic shit.” One can disagree with Salaita’s causal claim, just as one can disagree with the structurally similar causal claim by some opponents of race-based affirmative action that it entrenches racism. However, that does not convert a statement about the causes of antisemitism or racism into a statement that is overtly racist or antisemitic.

Likewise, some of Salaita’s other statements merely use provocative language to make points that others have made more prosaically. For example, by referring to Israel’s “murder of children,” Salaita ignores the evidence that, by contrast with Hamas, Israel does not deliberately target civilians. But so what? Salaita can readily be understood to be making the point that there is no real moral difference between foreseeably causing large numbers of collateral civilian casualties and intending those civilian casualties. Again, one can disagree, but then we are in the realm of legitimate debate. And indeed, although I see the Israel/Palestine conflict as substantially more complicated than Salaita does, I myself have considered an analogy between Israel’s use of force in Gaza and homicide in domestic law.

Thus, even if one were to conclude that Salaita’s tweets are “loathsome,” “sophomoric,” and “irresponsible,” they remain an exercise of academic freedom, notwithstanding how they might be received by students and others. The characterizations I have just quoted come from Cary Nelson, an English professor at Illinois and a recent past president of the AAUP. Nelson argues that Illinois was justified in revoking its offer to Salaita, but his argument turns entirely on the assumption that Salaita was not entitled to be treated as already a de facto member of the Illinois faculty with academic freedom. Yet, as we have seen, that assumption is probably false. If Salaita is treated as a de facto faculty member, then even Nelson acknowledges that his tweets would be protected by academic freedom.

Finally, although it should go without saying, let me be clear that in criticizing the university’s decision to revoke Salaita’s offer, I am not endorsing either the content of his views or the manner in which he expressed them. That basic premise of free speech and academic freedom should go without saying, but in light of the university’s treatment of Salaita, apparently it needs to be said.