I am delighted to be in the Faculty Lounge, and I will soon take up Al’s invitation to post some observations about legal history. But first, some comments about a current controversy:
Defenders of Prof. Steven Salaita – whose job offer was recently rescinded by the University of Illinois – often seem to believe that this is an all or nothing proposition. His academic freedom has been violated, and he has legal remedies, and he is a basically a good guy with an important message. That approach confuses three separate issues – academic freedom, contractual rights, and political decency – which I hope to untangle in this post. Even granting that Salaita has been aggrieved by the withdrawal of his job offer, it does not follow that he has a winning case for breach of contract, and it is baffling that so many people have been willing to overlook his celebration of violence against Israelis and his indulgence of blatant anti-Semitism.
The noted Constitutional Law scholar Michael Dorf argues here that Salaita’s litigation would succeed because he has “an almost-classic case of promissory estoppel,” based on the assumption that Salaita “was told by Illinois that trustee approval was essentially a rubber stamp.” But Dorf cannot tell us who might have provided the alleged assurance or how it was given, although that is an essential element of promissory estoppel (not just anyone can deliver a binding promise on behalf of an institution). An actual case requires proof, however, and the official letter to Salaita – from interim dean Brian Ross of the College of Arts and Sciences – expressly made the offer contingent on approval by the trustees. Even if Salaita received some sort of assurance from some unnamed person, that would not carry sufficient “apparent authority” to override Dean Ross’s unequivocal reservation. Thus, as contracts scholar Dave Hoffman further explains here, Salaita’s case is far shakier than Dorf allows.
That does not mean Salaita should have been dumped by Illinois – like most academics, I think that the rescission of his offer was wrong – but only that he probably has no remedy at this point (other than accepting a settlement, which seems likely). On a Venn diagram, the circles of academic freedom and legal enforcement would be overlapping but not congruent.
More troubling than the merits of his case, though, is the widespread insistence on defending, ignoring, or explaining away the language of Salaita’s venomous tweets, some of which were shockingly violent and anti-Semitic. That is only to be expected on highly partisan political blogs such as Mondoweiss and Electronic Intifada, but even serious scholars have downplayed Salaita’s malicious comments. An open letter on behalf of constitutional law teachers, for example, characterized Salaits’s tweets as merely “criticizing Israel’s military operations in Gaza,” which does not begin to tell the whole story.
One of Salaita’s worst tweets asserted that Zionists have made anti-Semitism “honorable.” Without mentioning that appalling claim, Michael Dorf absolves Salaita of ill-intent because he once tweeted that “Zionists are partly responsible when people say antisemitc shit.” According to Dorf, “someone making overtly antisemitic remarks would not refer to such views as ‘antisemitic shit.’” That is reading a lot into a single profanity. According to the Urban Dictionary, “it’s the shit” is a statement of high praise in contemporary youth slang. Even in my generation, “giving shit” to somebody often meant delivering a sincere rebuke.
These days, everyone disclaims personal prejudice (see, e.g., Sterling, Donald), but that is no reason to accept their protestations. A smart guy like Salaita surely knew that he was evoking an ancient anti-Jewish meme, and and stirring up some despicable anti-Jewish shit, when he tweeted that Benjamin Netanyahu might appear “wearing a necklace made of the teeth of Palestinian children.” I do not understand the impulse to soft-pedal Salaita’s racist invective, but it requires true intellectual gymnastics to turn his comments into nothing more than an expression of his “opinion on the Middle East.”
Worst of all has been the statement of the Illinois AAUP academic freedom committee. After defending Salaita’s rights, Illinois AAUP committee concluded its statement with a virtual endorsement of his political views – gratuitously adding that Salaita had protested “actions of another country that much of the global community including the U.N. Secretary General and even the U.S. State Department have found “disgraceful.’” Even putting aside Salaita’s celebration of the kidnapping (and subsequent murder) of three Israeli teenagers, which occurred weeks before the current fighting in Gaza, why would the committee’s evident approval of Salaita’s tweets have anything to do with academic freedom? This might be called the anti-Voltaire principle: defending Salaita’s right to speak, while vigorously agreeing with him.
What possible difference does it make if Salaita happens to agree, about a single incident, with the U.S. State Department? Would he be less entitled to academic freedom if the State Department had not said anything about disgracefulness? The Illinois AAUP committee, alas, has really exposed itself as deeply politicized, and has damaged the organization’s credibility in the process.
Academic freedom is a valuable principle in its own right. It is not reserved for scholars with strong legal cases whose statements can somehow be justified, and it is certainly not contingent on political approval by AAUP committees or agreement with the State Department. Academic freedom is ultimately compromised when we begin confusing it with law and politics. Those are separate realms, and they should be kept separate.