Prof. Salaita and the Donor Meme

The Committee on Academic Freedom and Tenure (CAFT) at the University of Illinois recently issued its report on the Steven Salaita case.  To the surprise of almost nobody, CAFT determined that Salaita’s treatment by Chancellor Phyllis Wise and the board of trustees had been contrary to “the University’s guarantee of freedom of political speech.”  While also finding that Wise had “raised legitimate questions about Dr. Salaita’s professional fitness,” CAFT concluded – appropriately, in my opinion – that Salaita’s appointment in the department of American Indian Studies had been wrongfully rescinded and recommended that it be reconsidered “by a committee of qualified academic experts.”

Readers of this blog may recall that I have previously criticized the rescission of Salaita’s offer, while also questioning the explanatory narrative that has been crafted by his defenders.  In particular, I believe that Salaita’s supporters have soft-pedaled the bigoted nature of his tweets, while simultaneously inventing a story in which “wealthy donors” exerted undue influence on Chancellor Wise and the trustees.  In that telling, Salaita is the entirely virtuous victim of a conspiracy of donors and administrators, and Wise is a venal (or at best, spineless) tool of outside interests. Disregarded completely in that account was the possibility that Wise and the trustees were themselves deeply offended by Salaita’s vile rants, and therefore voted sincerely, although wrongly, to revoke his offer of employment. 

Now comes the CAFT report, which puts the donor meme completely to rest.  Included in its “findings of fact” is the unequivocal statement that there is “no evidence” that Chancellor Wise was influenced by donors in “her actions with regard to Dr. Salaita.” 

The CAFT report is thorough and unbiased.  It is also unsparing in its criticism of the chancellor (who submitted to an interview and made her emails available), so the conclusion about the absence of donor influence is especially reliable.  Trustee James Montgomery, a prominent civil rights lawyer who cast the sole vote in favor of Salaita’s appointment, has also denied that donor pressure was responsible for the majority’s decision (the video of his interview is in the comments here).

It is understandable that Salaita himself (along with his most partisan backers) would want to blame his woes on donor pressure, as that allows him to avoid any responsibility for his hateful statements – one of which reinvented the ancient blood libel – while claiming that no one could possibly object to him without an underlying financial motive.  In Salaita’s words, the “University of Illinois leadership adopted a false narrative in order to appease a few wealthy donors.”  The charge of appeasement is insulting to Chancellor Wise and trustees such as Christopher Kennedy and Patrick Fitzgerald who, as CAFT now makes evident, had ample non-mercenary reasons for voting against Salaita.

It is far less understandable, however, that so many otherwise responsible people – rightly protective of academic freedom – precipitously declared that donor pressure was the only imaginable explanation for the trustees’ vote.  For example, the noted psychologist Denise Cummins wrote on PBS.org that “In the Salaita case, wealthy donors overrode faculty governance in order to control faculty hiring.”  Likewise, columnist Michael Hiltzik wrote in the Los Angeles Times that “It certainly appears that the board of trustees of the University of Illinois is marching to the donors' drums.”  At least Hiltzik acknowledged that he was relying on appearances.  University of Chicago economist Steve Cicala had absolutely no doubts about his own assumptions, as he made clear in a widely distributed letter to Chancellor Wise.  “We know that Salaita was fired for upsetting donors,” he wrote, charging that the “ex post justification for Professor Salaita’s dismissal is just a fig leaf for the real issue at hand: the influence of donors on faculty speech.”  (I emailed Prof. Cicala several days ago to see if he wants to reconsider his categorical statement in light of the CAFT report, but he has not replied to me.)

Conspiracy theories are always problematic, and the donor meme has made it especially difficult to seriously address Salaita’s hateful messages.  Since it would virtually always be wrong for a university to succumb to outside financial pressure regarding faculty hiring, there would be no need even to consider the content of Salaita’s tweets – which, as it turns out, is what Chancellor Wise and the trustees had actually done.  (The CAFT report appends the 90 or so anti-Salaita emails that Wise had received from alumni, about 20 of which mentioned donations; but the committee clearly understood, as others have not, that post hoc ergo propter hoc is a logical fallacy.)

In fact, Steven Salaita had applauded violence against Israelis and trafficked in Jew baiting, if not explicit anti-Semitism.  “I've had a horrible influx of Zio-trolls today,” he once tweeted, “It's like getting a case of the scabies.”  Now, Salaita is a smart and well-educated guy, so he surely recognized the historical implications of comparing Jews to vermin (even if they were the hated Zionists), and that is only one example of his penchant for invective.  In other words, Chancellor Wise and the Illinois trustees had plenty of good reasons to rue the offer that had been extended by the American Indian Studies department, quite irrespective of communications from alumni or donors.

Even so, Salaita was entitled to a full measure of academic freedom, and it was wrong for the University of Illinois trustees to veto his appointment, which had already been approved at the departmental and college levels.  While Salaita’s shameful comments invite censure and warrant condemnation, he did not deserve at that point to lose his job.  The principle of free expression sometimes requires us to defend people who have said despicable things, but it serves no purpose to blame their misfortunes on coded myths about “wealthy donors.” 

 

Comments

[Barry]

A few comments - first, IIRC a local paper FOIA'ed some e-mails, and there was an awful lot of donor communication going on awful fast. Considering the fact that this raised first amendment issues, I'm not surprised that the committee was unable to find such stuff.

Second, there is a clear standard for 'civility', 'fitness' and such like, which we can find in the legal professoriate. Advocacy of torture counts as civil, fit and professional.

The minute that John Yoo is fired from Berkeley for his crimes, the legal professoriate will have grounds to speak.

[anon]

It seems to me that the legal analysis to date has missed the mark. Most of this misplaced thinking turns on promissory estoppel, which is not even an issue here, IMHO.

`1. "You're hired if the Univ approves"

No contract; no reasonable reliance; no nothing. This is equivalent to the car salesman saying "I'm in agreement; 'll check with my manager." Does anyone think they have the deal at that point?

2. "You're hired, but Univ approval is a condition precedent"

Probable conclusion: promise to submit the appointment with dept recommendation to Univ (consideration?); implied in law obligation for Univ to act reasonably upon it, based on its agent's conduct (e.g., timely review, possibly "fair" review, recognizing bus jud rule)

3. "You're hired, but Univ disapproval is a condition subsequent"

Contract formed; probably same implied in law promises, with a stronger presumption that disapproval will not occur absent extraordinary circumstances

It seems to me that it is one, possibly two, but two would be a stretch.

Most seem to think it is three, or possibly think that the Univ wasn't expected to consider the appointment at all. Neither analysis is plausible.

If it is one or two, the case should be dismissed. No way to find that the Univ did not reasonably exercise judgment here about an appointment.

ANd, for all those who think that every applicant for an academic position has "academic freedom" vis a vis the hirer, before the applicant is appointed, one suggests going to law school and learning about contracts.

[Barry]

Anon, IANAL, but 'No contract; no reasonable reliance; no nothing. This is equivalent to the car salesman saying "I'm in agreement; 'll check with my manager." Does anyone think they have the deal at that point?'

Is clearly wrong, since this is the norm in the academic world. The university's position is that Professor Salaita would have been performing his duties, being paid, and making decisions which would affect students, *before* he was hired.

[anon]

Barry, so, not a lawyer, but are you a law professor who is knowledgeable about the "academic world" - in particular, this one?

Upon what do you base your statement that "the University's position is that Professor Salaita would have been performing his duties, being paid, and making decisions which would affect students, *before* he was hired."

Cite please.

[Barry]

Because the regents' meeting was after he was to have started.

Go read for yourself.

[anon]

Ok. I see. You say he "would have" started doing these things, but he didn't actually start doing these things.

Therefore, you say, the University's position is that he was "hired" because he would have done these things before he was "hired," but for the decision not to hire him, which was made after he would have done these things if he had been hired.

Obviously, Barry, although clearly interested in this site, UARNAL, nor a legal academic, apparently. I must therefore concede that you must believe in good faith that these assertions make perfect sense. Be assured, however, that your assertion that others are "clearly wrong," based on the above, would not pass muster in court, and might actually lead to sanctions.

[Adam]

Anon,

I like your style, and have little sympathy for Salaita. But "little" isn't quite the same as "none at all".

At bottom is the ludicrous hiring process in place at universities. A professorial appointment is an important one, sure, but
I cannot for the life of me understand what role university boards should play here. (I'm glad they did here, but this case is so spectacularly unusual, it's not much of a justification for the current practice). There is simply no reason for the hiring process to extend over the many months it took here. And in the vast majority of cases, subsequent approval really is a rubber stamp. That's why - despite my appreciation of your felicitous phrasing in your last comment - I'm not at all surprised that in the ordinary course of things, confirmation of his appointment would have occurred after the academic year began (admittedly, this is a bit extreme, but I have seen examples not much less extreme, without drama).

There is an issue of reliance here, which in my view would justify some limited compensation to Salaita.

[anon]

Adam

I understand and agree with your comment, to the extent I read it to say that, if the applicant had started performing, and was being paid, then the contract would have been formed, and the disapproval then would have been, at most, a condition subsequent subject to a whole bunch of legal protections for the applicant.

This seems to me to be common; performance commences before the formal contract is executed, and a contract is deemed to have been formed and part performance fills in for lack of the formal elements of a contract and other arguments about lack of essential terms and conditions.

What is so striking here is that, apparently, after the time the applicant WOULD HAVE started, he didn't start. Instead, the decision not to appoint preceded any performance. This sort of destroys the argument that a contract was formed.

Hence, I would conclude that the legal situation is as stated in alternative one above: no contract, no reasonable reliance.

One cannot reasonably rely on the contemplated and expected assent of the other party, before that assent is actually provided, to argue as contract was formed, if such assent is a condition to the formation of the contract and no performance by the one relying takes it to another level.

Promissory estoppel, an equitable remedy, is based on reasonable reliance on a promise for which there was no consideration in the classic sense. This doctrine would have no application to these facts, as I understand them, because employment was not promised; what was promised, it seems, at most, was referral to the decision maker with a recommendation of approval of a contract.

That is, in law, basically of no significance.

Again, if the applicant undertook actually performance and was paid, my view would be different, though I would not therefore conclude a appointment (or damages for lack thereof) is the remedy for disapproval by the University.

This applicant has no case, IMHO, and, because it is a case so fraught with the views of the applicant causing the failure to appoint, I for one would very much encourage the applicant to sue, because I hope and expect to see those views aired in court!

[Barry]

Anon: "Ok. I see. You say he "would have" started doing these things, but he didn't actually start doing these things."

That is the standard which the university (and most others).

"Therefore, you say, the University's position is that he was "hired" because he would have done these things before he was "hired," but for the decision not to hire him, which was made after he would have done these things if he had been hired. "

Well, your english is so garbled that there's no there there. Please have a friend re-read what I wrote.

As for my legal background and judgement, it's rich for somebody unwilling to even adopt a pseudonym have a problem with that.

[Barry]

Anon: "This seems to me to be common; performance commences before the formal contract is executed, and a contract is deemed to have been formed and part performance fills in for lack of the formal elements of a contract and other arguments about lack of essential terms and conditions.

What is so striking here is that, apparently, after the time the applicant WOULD HAVE started, he didn't start. Instead, the decision not to appoint preceded any performance. This sort of destroys the argument that a contract was formed."

This is where I'll admit that IANAL, but I do know there are legal issues as to actions taken by one party. Professor Salaita resigned a position in quite reasonable and standard expectation of a position, and I'll wager that it's been a looooooooooooooong time since this university reneged on a senior faculty hiring after that person resigned.