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.
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.
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Granted he has academic freedoms to say and think what he wants. However, the university has a duty to ensure that students have an “educated and wise” professors. Salaita’s foolish and idiotic comments demonstrate his ignorance and lack of wisdom.
well said, david!
Sounds like you’ve been drinking the Cary Nelson-flavored Kool-Aid, my friend. Check out the debunking of Nelson’s screed against Professor Salaita.
I understood that, rather than the U of I Board of Trustees, “[taking] the rare step of rejecting the appointment,” what happened was the Chancellor Wise herself decided against forwarding Salaita’s appointment to the Board for approval. Assuming I’m right, does this fact have any consequences for your analysis?
I think he assumed, and while there is no way at this point of knowing for sure, that the Board of Trustees spoke to the Chancellor about the appointment post The Offending Tweets. They may have all agreed, or she may not have agreed with them, but whatever went on behind the scenes isn’t clear. But if the Board of Trustees leaned toward firing, she went along with it, because a big part of being a university president or chancellor is falling on the sword of trustees, donors, etc. To buck that would be to risk losing her job. Political courage does not run through the veins of most university chancellors or “CEOs.”
michael dorf, it is commendable that you acknowledge your own anti-israel bias [“I myself have considered an analogy between Israel’s use of force in Gaza and homicide in domestic law”], and perhaps that explains your failure to address another possible reason for the university of illinois’s decison to deny tenure to this individual: incompetence with reference to academic protocols. competence in any field requires responsible research to support expressed opinions. the wording of Steven G. Salaita’s twitter comments alone strongly suggests that factual reasoning is not part of his repertoire either in teaching or in forming his own opinions. my guess is that he has demonstrated that deficit in the course of his classroom behavior to date, and possibly in his publications if there have been any, leading to the decision that he not be granted tenure.
You seem to have a variety of serious misconceptions. I probably shouldn’t even be bothering with a response, but most of this reply was composed before I fully comprehended the depths of your incomprehension.
For starters, this isn’t a case of denial of tenure, it is rescinding an offer of employment.
“I myself have considered an analogy between Israel’s use of force in Gaza and homicide in domestic law” does not, by itself, constitute an acknowledgement of bias. Getting from one to the other requires facts that you appear to have simply assumed.
Likewise wrt Salaita’s classroom conduct and publications, these are things that would have been examined in detail before any offer was made.
I do not see any respect in which your comments are helpful to UofI or the state of Israel–are you, perhaps, really a provocateur seeking to undermine the credibility of both?
Thank you very much for this thoughtful analysis. I quite agree that the best case for the legitimacy of revoking Professor Salaita’s offer depends on the tweets being offensive and objectionable. You allow that if his tweets were sexist, racist, or homophobic, that might warrant the revocation of his offer. I wonder, however, if you may have omitted consideration of the tweets that best make the case that Salaita’s tweets are comparable to sexist, racist, or homophobic tweets. Two are of particular moment. Professor Salaita wrote, “Zionists: transforming ‘anti-Semitism’ from something horrible into something honorable since 1948.” This is most naturally read as an endorsement of anti-Semitism. Professor Salaita also wrote, “You may be too refined to say it, but I’m not: I wish all the fucking West Bank settlers would go missing.” This is most naturally read as an endorsement of the kidnapping, and perhaps murder, of hundreds of thousands of Israeli citizens. I find it plausible that if sexist, racist, or homophobic tweets would license the revocation of the university’s offer, then those tweets license the revocation of the university’s offer. And even if I felt that those tweets should be charitably interpreted as not comparable to sexist, racist, or homophobic remarks, I suspect I would still find the less charitable interpretation of them plausible enough that I would not judge the university’s actions on the basis of that less charitable interpretation to be actionable.
and let’s be fair: if Salaita had tweeted half the things he had but with African-Americans, native americans, or other marginalized groups as the target (ie in place of the Israelis) of his tweets, the outcry we are hearing now would be very different.
it has been reported that the decision not to hire sailata was not made at the trustee level, and that the university’s administration decided not to submit the recommendation to the board at all. if true, that would seem to take the issue into the realm of contract proper, rather than just promissory estoppel, since the contract would contain *at least* an implied duty on the university’s part to submit the administration’s recommendation to the trustees for approval. the failure to do so would violate the university’s duty of good faith and fair dealing implied by law in the contract.
Michael, it seems to me that he should be suing for the “benefit of the bargain” — specific performance. Give him the job they promised him, which was a full-tenure position. Apparently, as a tenured professor, he would have been protected from Cary Nelson’s night of long knives.
Also, I respectfully disagree that the case would be heard in Virginia. The breach of contract occurred in Illinois, where the detrimental reliance argument is pretty much like shooting fish in a barrel.
Every professor in the country should be supporting Professor Salaita in this egregious evisceration of academic freedom.
Isn’t the challenge with specific performance the discretionary one that the decree is rarely granted in the case of contracts of personal service? Moreover, specific performance presupposes the existence of a contract to perform. In this case, because the University is likely to argue that the contract was not validly formed because the offer was revoked (not “rescinded”), Salaita needs to establish that the University is estopped from denying its promise that the contract would come into existence. Hence, resort to the doctrine of promissory estoppel.
i disagree very strongly. it’s not an egregious evisceration, it is a hard case, and one that probably should be settled in court.
had he been fired outright from a job he already held, it would be a lot closer to an evisceration. but that simply is not clear at all. part of what you & the other advocates here appear to be saying is that the governing body of UIUC is *compelled* to follow through on decisions made at lower levels. That doesn’t sound like the role of a governing body to me.
if someone guaranteed to Salaita that the governing body’s approval was a “rubber stamp,” they should probably be a party to Salaita’s lawsuit (which he absolutely should file, but I am not at all convinced about what the outcome will be), and maybe fired themselves.
saying the governing body of UIUC is without power would be a fairly straightforward statement whose consequences and nature I would be surprised to find a court withholding. if it has no power, what’s it there for? sounds like it might as well be dissolved. if I sat on that Board, i’d be prepping my lawyers to make just that argument and I suspect many courts would defer to it.
I think you may be conflating two issues: (1) whether a representation was made by someone or some body with the actual, implied or ostensible authority of the University to the effect that approval had already been granted or would be granted by the trustees; and (2) whether a discretion was, by the terms of the conditional offer, reserved to the trustees to revoke or decline to ratify the offer on their exercising their review powers.
If (1) had occured, and if the representation was made within the scope of the agent’s authority, I see no reason in principle why the trustees would not be bound by it and why their discretion under (2) would not be structured accordingly. It depends on whether the agent who made the putative representation had the authority to bind the University, including the trustees. That is a question of fact.
Of course, if the putative agent who made the putative representation acted outside the scope of his or her authority, then, as you speculate, Salaita may have an action against him or her independently (as would the University). In such a scenario, it may be impossible to bind the University on general agency principles. But Salaita may have an action against it on the grounds that it were vicariously responsible for the damage which has resulted from the agent’s breach in acting outside the scope of his or her authority.
In summary, the question is not in general about the existence of power in the governing body. It is whether its discretion has been limited in this instance by the (authorised) action of a subordinate officer or agent of the University.
This is interesting and seems right to me.
Yes, breach of an implied contractual term must surely also be relevant. The issue is that the implied term cannot conflict with any express terms of the contract; since an express term of the contract was (going on what’s been vaguely disclosed publically) that approval was conditional on approval by the trustees, the implied term can only enforce the duty to PRESENT the offer to the trustees for approval, it cannot bind the trustees’ discretion to decide in one way or another.
“If true, that would seem to take the issue into the realm of contract
proper, rather than just promissory estoppel, since the contract would
contain *at least* an implied duty on the university’s part.”
Interesting observation, but is it clear (from what’s been reliably disclosed in public) whether there was a validly formed contract at all? I take it from your statement that you reason that there was; however Professor Dorf’s article refers only to an “offer”, not to a fully-formed contract. It is for this reason that he invokes promissory estoppel.
I suppose there are two possibilities:
(1) there was a conditional offer which required by its terms approval by the trustees before the contract would come into existence; OR
(2) there was a contract on foot, but its terms provided that rights and liabilities under it would not be enlivened until a condition precedent was satisfied, viz., ratification/approval by the trustees.
There’s been talk that the university “rescinded” the contract. I’m not at all sure what this means, but it does presuppose that the University acted pursuant to a term of a contract already on foot, empowering it to treat the contract as no longer binding on it (because, e.g., a condition had been breached or had not been satisfied). But note that if “rescision” is being referred to in its technical sense, a valid contractual rescision can only discharge executory obligations. The contract itself is not void ab initio; rights already acquired are not divested or discharged.
Possibilities (1) and (2) are mutually exclusive. Has there been any progress in obtaining clarity on this fundamental issue?
Promissory estoppel can operate in relation to each possibility, though in different ways. If (1). then the estoppel acts to preclude the promisor from denying its representation that a contract would come into existence. If (2), the the estoppel acts to preclude the promisor from denying its representation that it would not act on its contractual right (e.g.) to rescind the contract for breach of a condition.
Your stimulating reflections have prompted another thought, this time on the issue as to what legal consequences may flow from the Chancellor’s decision not to present the offer to the trustees for their approval.
If there was no contract on foot, there can be no implied contractual duty on the University for it to place the offer before the Board in all events.
But supposing there was a contract on foot, I would agree with you that there was an implied, and in fact probably express, duty for the University to place the offer before the Board. But what if the Chancellor has an express power of PRE-EMPTIVE veto over Board resolutions in respect of hiring decisions? In this case, the implied contractual duty is inconsistent with an express power in the Chancellor and must, to that extent, give way to it. The very possibility of complying with the implied duty is subject entirely to the contingency that the Chancellor may exercise his or her express power of pre-emptive veto.
I don’t suppose anyone has any information as to whether the Chancellor has such a power?
Prof. Michael Dorf’s argument is quite cogent and in fact legally irrefutable as regards his main contentions.
Yet, there are twol by-the-way assertions in his post that seem to me controversial or even unfounded.
For one thing, I doubt those who advocated a boycott of Israeli institutions did so in order to repress opinions (namely those voiced by the representatives of those institutions), but rather in order to express rejection of the State of Israel’s politics, in the same way as in the eighties many people espoused a boycott of South-African academic institutions. (I am not saying such a line is necessarily right or in any case the best one to follow.)
For another, I am not really acquainted with American criminal law but in the civil-law systems (unlike in canon law, e.g.) he who kills is equally guilty whether his goal was the death of the victim or a different event provided he believed that by trying to attain that goal the victim would die.
This is one of the most levelheaded and honest takes on this issue I’ve
seen, even though I disagree with a good deal of what you’ve written. Thanks for all the legal background, by the way.
You claim that Salaita “was told by Illinois that trustee approval was essentially a rubber stamp”—any evidence for that?
And further: is promissory estoppel a consequence of his being so told? Or, alternatively, is promissory estoppel a consequence of the rareness of trustee refusal (i.e., everyone knows it’s just a formality, so it’s perfectly reasonable to quit your old job before the new one is technically finalized)? If it’s the latter, then how can the stipulation of trustee approval ever be binding?
Assuming for a moment that he was indeed “told that final approval of his appointment by the university’s board of trustees was essentially a foregone conclusion,” is there ANYTHING he could have said or done after the original offer was made that would have invalidated promissory estoppel?
I’d like to ask essentially the same question about your First Amendment argument: is there ANYTHING Salaita could have publicly said or written after the original offer was made that would have allowed UIUC to rescind it without violating his 1A rights?
You note that “the First Amendment also limits the ability of public employers to make hiring decisions BASED ON HOSTILITY TO A PARTICULAR VIEWPOINT,” citing Rutan v. Republican Party of Illinois: “conditioning hiring decisions on POLITICAL BELIEF AND ASSOCIATION plainly constitutes an unconstitutional condition.” You then add, “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.” A bit further down, you also write: “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.”
As you might guess from the parts I capitalized, I’m not as convinced as you seem to be that the offer was revoked because some administrators disagreed with Salaita’s political beliefs. After all, professors critical of Israel are rather common at UIUC and on other campuses. Perhaps it’s really a question of how broadly one defines “political belief,” and maybe there’s a legal definition somewhere that would clarify the matter, but I think his tweets do “cross that threshold” into territory that would make him unfit to teach:
Shortly after the much publicized kidnapping of three Israeli children, Salaita tweeted: “You may be too refined to say it, but I’m not: I wish all the fucking West Bank settlers would go missing.” Link:
Here is another: “Let’s cut to the chase: If you’re defending #Israel right now you’re an awful human being.” Link: https://twitter.com/stevesalaita/status/486718092933099520
Here is one that doesn’t seem all that bad to readers who don’t know much about the age-old anti-Semitic “blood libel” trope: “At this point, if Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anybody be surprised?” Link: https://twitter.com/stevesalaita/status/490683700116738048
Another: “When frustrated, I remember that, despite the cigarettes and fatty food, I have a decent chance of outliving #Israel.” Link: https://twitter.com/stevesalaita/status/491091027709931520
He re-tweeted this: “Jeffrey goldberg’s story should have ended at the pointy end of a shiv” Link: https://twitter.com/djkilllist/status/486166701587722240
Would you hire this guy as an educator? I think it would be perfectly reasonable for administrators to look at those tweets and wonder how fairly Salaita would treat students who openly disagree with him (you know, the students he regards as “awful human being[s]”). It’s not that students should never be made to feel UNCOMFORTABLE (they should!)—it’s that they shouldn’t FEAR sharing an opinion in class that the professor vehemently disagrees with.
The tweets also call into question his judgment, professionalism, and maturity. Are public universities not allowed to consider character when hiring? (serious question)
And speaking of character: whether or not he really is an anti-Semite, he’s certainly made several statements that practically beg to be construed as anti-Semitic. I do agree with you that his main argument is that “Zionists” (just some of them? all of them?) inaccurately label criticism of Israel as “anti-Semitism.”
Nonetheless, he could make the same point without using rhetoric like, “Zionists are partly responsible when people say antisemitic shit,” and (one you didn’t mention), “Zionists: transforming ‘antisemitism’ from something horrible into something honorable since 1948.” Link: https://twitter.com/stevesalaita/status/490651053101441025
At the very least, Salaita has indeed been “[o]vertly insensitive” (your phrase) rather frequently. You bring up a hypothetical parallel wherein someone argues that proponents of affirmative action “are partly responsible when people say [racist] shit,” and to your credit you’re absolutely consistent in your analysis thereof. But I’m likewise consistent when I say that I definitely wouldn’t want to hire someone who’d tweeted that, either—at least not for a semi-public position, which a professorship surely is.
Many on the “academic left” currently closing ranks on Salaita’s behalf would doubtless (and rightly) be criticizing him sharply had his comments been about “racist shit” rather than “antisemitic shit.” Hell, some of them would call for his FIRING if he’d already been hired. They’d argue that to hold anyone other than racists responsible (let alone supporters of affirmative action, many of whom are themselves POC) for racist remarks is itself racist. Note that Salaita didn’t say that “Zionists” are “partly responsible” for OSTENSIBLY anti-Semitic remarks. Read the tweet again. A perfectly valid (and more straightforward) parsing of it is that GENUINELY anti-Semitic remarks are themselves partly the fault of “Zionists” who “eagerly conflat[e] Jewishness and Israel”—in other words, that “Zionists” are “partly responsible” for PROVOKING others to make anti-Semitic remarks.
(Sorry for all the capitalizing for emphasis; I don’t know how to do italics here.)
In short, one does not need to jump through hoops to seriously question Salaita’s suitability for the job. I’d actually argue that one needs to read his tweets incredibly charitably to conclude that they shouldn’t raise many red flags for a potential employer.
In any case, thanks again for really delving into some of these issues. It seems like everyone else is glossing over some vital aspects. Your article is highly informative.
On your promissory estoppel questions, my understanding is:
(i) the doctrine can apply in the absence of the valid formation of a contract (for instance, where no consideration has passed) or in circumstances where a party to a contract promises not to exercise rights under that contract;
(ii) it applies only to representations or conduct which are intended by the representor to induce the representee to act on the certain assumption that a contract would come into existence;
(iii) further, it can only be relied upon where the representee has acted to his detriment on the representation;
(iv) it operates both as a cause of action and as a rule of evidence to estop (preclude) the party who made the representation from denying its consequences.
The mere fact that approval is customarily granted is not sufficient to amount to a representation for the purposes of the doctrine.
There are many things which the representee might do after the representation has been made which would either negate the existence of the putative future contract (e.g., the representee may not accept the promise, or might make a counter-offer) or make it inequitable for him to rely on the representation. The detriment he suffers must also be suffered in reliance on the representation; if, for instance, the detriment would have occured anyway, then it is questionable whether there would be a link between the representation, reliance on it, and detriment.
There is a potential complexity which should be introduced into Professor Dorf’s analysis. It relates to the question as to what precisely the representation was. I’m not sure if all the evidence is available publically on this issue. For instance, the representation may have been merely that the job offer would definitely be put to the Board and, judging by the usual procedure in such matters, would most likely be approved; in this case, the estoppel would function to deny the University from placing the offer before the Board, but not from revoking it. Or, the representation could have been that approval would be granted. That is the best case scenario for Salaita when it comes to promissory estoppel, since giving effect to the representation is the equivalent of bringing the employment contract into valid existence.
One further point of interest: As Salaita’s professional field of expertise is precisely the Israel/Palestinian conflict, his public media comments on the subject arguably form part of his professional portfolio, even though they are not part of his explicit C.V. Might it be reasonable for his political tweets to be used in forming a judgement of his professional expertise, hence, his fitness for his position?
But even if the answer to that is yes, it’s not normally the part of the university president to make such determination; it’s his departmental peers and chair who should have the prerogative, i.e., the ones who said this spring (clearly aware of his opinions), “Yes, let’s hire this guy.” Even if the university president determines there is such an overwhelming effect of this summer’s tweets, that tenure (presumptively in effect by the rubber-stamp assumption) should now be abrogated, that calls for whatever substantial grievance procedures the university has to come into play–not a high-handed act by the president.
But how does one without a contract, engage the grievance procedures? And if by promissory estoppel or otherwise, he gains that access–then will there be any need for it?
Couldn’t have crafted a stickier wicket if he’d tried.
Taking a page out of the 6th Circuit’s ruling in Parate v. Isibor, an academic freedom case where the court relied in part upon Board of Regents policies cited in several other Circuit and SCOTUS rulings, we should also examine any such controlling document in Illinois. Thus, if we consult Article X of the University of Illinois’ Board of Trustees Policies on academic freedom we see that, given the arguments made in the blog that Prof. Salaita was subject to Illinois state law, then that same state law would require that Prof. Salaita have access to a hearing on this matter (has he requested such — we do not know):
“Section 2. Academic Freedom
“a. It is the policy of the University to maintain and encourage full freedom within the law of inquiry, discourse, teaching, research, and publication and to protect any member of the academic staff against influences, from within or without the University, which would restrict the member’s exercise of these freedoms in the member’s area of scholarly interest. The right to the protection of the University shall not, however, include any right to the services of the university counsel or the counsel’s assistants in any governmental or judicial proceedings in which the academic freedom of the staff member may be in issue.
“b. As a citizen, a faculty member may exercise the same freedoms as other citizens without institutional censorship or discipline. A faculty member should be mindful, however, that accuracy, forthrightness, and dignity befit association with the University and a person of learning and that the public may judge that person’s profession and the University by the individual’s conduct and utterances.
“c. If, in the president’s judgment, a faculty member exercises freedom of expression as a citizen and fails to heed the admonitions of Article X, Section 2b, the president may publicly disassociate the Board of Trustees and the University from and express their disapproval of such objectionable expressions.
“d. A staff member who believes that he or she does not enjoy the academic freedom which it is the policy of the University to maintain and encourage shall be entitled to a hearing on written request before the Committee on Academic Freedom and Tenure of the appropriate campus senate. Such hearing shall be conducted in accordance with established rules of procedure. The committee shall make findings of facts and recommendations to the president and, at its discretion, may make an appropriate report to the senate. The several committees may from time to time establish their own rules of procedure.”
Of course, so far Prof. Salaita has not made public the terms of his offer, but many institutions do not grant tenure until the completion of one or more semesters of the appointment. If the appointment offered to Prof. Salaita was not with immediate tenure, then it is noteworthy that the courts have often sided with the right of the institution to terminate the contract of a non-tenured faculty member for almost any reason, as the court indicated in Parate v. Isibor. In short, the same tenets of academic freedom have been used by courts to defend universities’ rights and not just the rights of professors.
With respect to the Virginia law wrinkle, is it not most likely the case that Prof. Salaita exercised his acceptance of the U of Illinois offer by means of either a letter via the US Postal Service or an email? In either case, can it be said that his action of acceptance was solely an action taken and completed within the state of Virginia inasmuch as an integral part of the action, the written acceptance, occurred only upon the receipt of the document in Illinois?
Thank you, Professor Dorf, for this lucid analysis. Promissory estoppel had occured to me as an obvious (equitable) ground on which Salaita could rely, though no one whom I have read had as yet made certain that either the University or agent with the actual, apparent or ostensible authority of the University had represented to Salaita that Board approval would be a mere formality, with the intention that he should rely on this representation. As an Australian whose legal system still recognises and enforces distinct legal and equitable sources of rules, principles and remedies, I would be interested to know the basis on which the law of Virginia does not recognise promissory estoppel. Is it because the estoppel acts to prevent departure from a representation as to a FUTURE intention to enter into contractual relations? If so, does the law of Virginia recognise estoppel by representation or conduct (“estoppel in pais”), which is recognised both at common-law and in equity? Such an estoppel prevents departure from a representation as to a FACT, though it is a rule of evidence and not (like promissory estoppel) a cause of action in itself. In the Salaita case, if Virginia does not recognise the equitable development of promissory estoppel, then might an estoppel in pais be relevant? The cause of action would be contractual; but the existence of the contract could be established by arguing that the University would be estopped from denying, as a matter of evidence, the legal effect of its represention that approval of the offer was in FACT and substance (if not formally) already granted. Such an argument redescribes the representation from being one of future intention (“You’re safe, you’ll be approved when the Board meets next week, next month, etc”) to being one of fact (“You’re safe, approval has been granted, the Board just needs to affix its formal assent). Would such an argument be open so as to overcome the choice of law challenge (if it arises?).
Although Dorf’s post has an even-handed tone, he draws a nice gauzy veil over the worst of Salaita’s tweets. Such as:
A tweet supporting anti-semitism: “Zionists: transforming “antisemitism” from something horrible into something honorable since 1948.”
Supporting violence against journalists by retweeting this: “Jeffrey goldberg’s story should have ended at the pointy end of a shiv”
Would you still favor this guy’s hiring if he had tweeted that black people should go back to Africa? How about that he wishes all homosexuals would disappear? Or is it only okay if he hates Jews? Also, why should U of I hire him, after it became obvious he would be a bad influence on morale and students. U of I can do much better.
Having seen a number of Prof. Salaita’s tweets, it seems to me that Prof. Dorf, and many others, slip too easily into benign characterizations as merely being critical of Israeli actions and policies. For me, the critical issues relate to the classroom, to whether Prof. Salaita, without neutering his own views, would allow for the expression of contrasting views in an open and respectful fashion, and whether the content of his tweets and other communications would reasonably form a substantial obstacle for students of particular backgrounds and views otherwise wishing to study the topics being taught by Prof. Salaita. The bar here is, and should be, quite high. My own reading of a selection of the more objectionable tweets is that they may transgress even the most protective standard. Prof. Dorf does seem to acknowledge that there is a bar and that some statements can be so excessive as to be unprotected. Once that concession is made, I think one is forced to make a close examination of the contested tweets, which it seems to me Prof. Dorf has failed to do. One can easily imagine the response some of these tweets would have elicited if they were made against certain other groups; I think it is incumbent on Prof. Dorf to explain why rather shocking statements about Jews (not merely Israelis) should be treated as less grave. Some of the tweets would, indeed, be quite directly threatening to prospective Jewish students.
On other aspects of Prof. Dorf’s legal analysis, while I am not a specialist in contract law, it does seem to me that a statement by a prospective colleague that higher level approvals are normally pro forma falls rather short of an authorized, official representation that is binding on the University, particularly as regards specific performance at the tenured professor level. Such an approach would effectively negate the integrity of the established hiring process and render higher level action nugatory. That cannot be right. Nor can the fact that the Board rarely exercises its right to reject a hiring recommendation deprive it of its authority to take such action in the rare circumstance that it deems appropriate for such actions, unless, of course, the action is itself fundamentally illicit (e.g., in violation of statutes prohibiting discrimination on the basis of race, gender, etc.).
On Chancellor Wise’s decision not to forward the decision to the Board, we are still in the dark as to what communications may have taken place between the Chancellor and the Board, and whether the Chancellor could predict with reasonable certainty what the results of Board consideration would be. There may still be some legal niceties as to precisely how this was handled, and my expertise is insufficient to address those particulars. I would certainly expect and assume that legal advice was sought in these circumstances, but I am not in position to know or pass judgment on that advice.
Alan Jay Weisbard
University of Wisconsin-Madison
Does Dorf also do golf analysis?
It turns out that based on a case Dorf mentioned, there is contract law showing that in such cases a contract really is formed, and I am surprised that contract professors would not even realize this, and that it was not more obvious to me. I was surprised to find this Georgia Appeals case, which matches the question at hand on the legal condition in a college employment contract about “subject to board approval”. The court backed up its decision with numerous case precedents and was itself in agreement with a lower court ruling on the case at hand.
The court found that:
1. The requirement of board approval was only “perfunctory”, because the professor was a good candidate, had been repeatedly treated as if he had been hired, and because no one else had ever been rejected from the college by the board after being given an offer.
Can offer conditions really just be “perfunctory” and practically ignored by courts as an obstacle? It looks like it!!
2. Not only is that condition perfunctory, but the condition of board approval is not actually a condition for an employment offer to be made. In fact, it is an “implied duty” placed upon the parties. The college in effect made an offer, formed a contract on acceptance, and then had the duty to attempt to acquire the board’s approval.
The court pointed to previous case law where a sales contract requiring financing in fact made it an IMPLIED duty that the party would seek financing. Likewise, when another contract required a business to first join a business association, this in fact IMPLIED that the business would seek to do so.
So the Georgia appellate court decided in the college employment case that a contract had been formed and that “subject to board approval” were not the words of a condition on contract formation, but in fact meant that a contract was formed and that there was an implied duty to get the board’s approval. The court said that the next question became not whether there was a contract, but whether in retracting employment, the board was justified in breaching the contract.
Personally, I found this all a bit surprising, because the boilerplate-style language in the letter itself didn’t talk about the board’s approval like it was perfunctory or an implied duty. But it turns out that such concepts in contract law as perfunctory conditions and implied duties to fulfill conditions exist!
Besides that, Dorf is making a good point, although probably unnecessary, about promissory estoppel. The college promised to submit Salaita’s candidacy to the board, and Salaita in turn relied on that promise. Didn’t the college violate that promise by then recommending against him based on reasons that a jury could find are unjustified?