Legal Issues in the Salaita Case

Robin Kar, of the University of Illinois, has put up a very informative post about the legal issues -- especially contracts -- in the Salaita case.  Read it here.

Comments

[anon]

Prof Kar has some good arguments, but most of his analysis is off the mark.

First, he places almost entire reliance on the notion that the "subject to" clause was a condition on performance, not on the offer, and that the discretion granted the BOT was limited by a.) the cov of good faith and fair dealing, and b. the norms of the AAUP.

First, the whole "condition on performance" is bizarre, because the "condition" was in the full control of the promisor. If this is the case, wasn't the contract illusory?

No, the reply comes, because the promisor could only decide whether the condition would be fulfilled in "good faith." Ok, that isn't contract law, but let's go with it. It sounds good at least.

What would good faith require? That the BOT simply "rubber stamp" the contract with no thought whatsoever? No, the argument goes, the BOT must go with the AAUP guidelines governing academic freedom.

Here, we find a big mistake. Prof Kar states:

"the scope of the Board’s authority to disapprove of Salaita’s appointment and the procedures they must follow to disapprove are therefore governed in part by the AAUP’s principles of academic freedom and tenure."

In other words, S was appointed, obtained tenure, and his appointment could only be "disapproved" in accordance therewith.

This is a bizarre line of reasoning. I'd love to see the jury instructions that Prof K proposes (or, does he think that the court can decide this as a matter of law)?

The condition on performance was a condition on appointment. S wasn't appointed. The letter stated:

"This recommendation for appointment is subject to approval by the BOT ..."

This cannot be read out of the contract.

Second, the AAUP rules were not "incorporated into a contract." That is not supported by the letter either. The letter simply stated that the UofI "subscribes to the principles" of the AAUP and enclosed copies.

Third, the whole "good faith" argument is especially weak. This simply means, if we accept that a contract was formed, that the BOT must have acted reasonably. If the appointee revealed that he was the Grand Dragon of the KKK during the interim before appointment, no jury would find that the BOT could not have "in good faith" exercised its discretion to reject the "recommendation" and not appoint.

Finally, the custom and practice argument is equally weak and won't work. First, the court took pains to conclude the "offer" was not conditioned and unambiguous (in order to get to the promissory estoppel prong). Second, the fact that S acted on a recommendation not acted upon by the BOT was his choice.

Would a person familiar with the LAW have read the "subject to" clause out of the letter, and started the subject posting, thinking that the "deal was done" and that he could foment bigotry, prejudice and spew vile hate speech with impunity?

IF this matter gets to a jury, all that the jurors will need to hear is "subject to approval" and S's hate speech. This will be a quick decision, IMHO.

[[M][a][c][K]]

Steve,

You lost the argument - you last post was embarassing, you are in a hole, stop digging....

[anon]

Wow. I missed this whopper:

"More likely, the court would order a hearing of some kind on the merits of Salaita’s fitness to teach, along with an order to reinstate him conditional upon a favorable outcome for Salaita. Any such hearing would likely include consideration of any other factors that may be relevant to revoking a tenured position."

One refers the good prof to a basic course on remedies, and to the fact that there was no tenured position to revoke.

[Rob Kar]

To Anon: Thanks for your two thoughtful look at these issues. I'm probably not going to jump in much, but a few quick thoughts in response:

I'll put intersperse my responses with ***'s to your points, which are introduced with >>>'s.

>>> Prof Kar has some good arguments, but most of his analysis is off the mark.

>>> First, he places almost entire reliance on the notion that the "subject to" clause was a condition on performance, not on the offer, and that the discretion granted the BOT was limited by a.) the cov of good faith and fair dealing, and b. the norms of the AAUP.

*** I'm not sure if you've read the court opinion, but, at least with respect to the question whether a contract exists as a matter of law, the Court does think the major issue is whether the "subject" to clause was a condition on performance or or on the offer. The Court is right about this (though there are of course many other centrally important aspects of the case that don't relate to the existence of a contract): Here's the relevant text from the court opinion:

*** The crux of this case involves the agreement between Dr. Salaita and the University. Dr. Salaita claims that, by signing and returning the University’s offer letter, he entered into an employment contract that the University
violated by firing him because of his political speech. According to the University, Dr. Salaita was never an employee and the parties never had a valid contract because Dr. Salaita’s appointment was “subject to” the Board of Trustees’ approval. Many of the parties’ arguments hinge on whether there is a contract; thus, the Court will start with the breach of contract [claim] . . . and then consider the remaining arguments.

*** A. Breach of Contract (Count V)

*** The University’s central argument is that the parties never entered into a valid contract. The University claims that the “subject to” language in its initial letter made its offer conditional on the Board’s approval, and thus Dr. Salaita’s acceptance was likewise only conditional. Dr. Salaita argues that the condition, if any, was a condition on performance under the contract, not on the offer itself. Moreover, Dr. Salaita argues that the condition was a mere formality and that the Board’s approval was ministerial in nature.

*** Under Illinois law, the elements for a breach of contract claim are: “(1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages.”
Vill. of S. Elgin v. Waste Mgmt. of Ill., Inc., 810 N.E.2d 658, 669 (Ill. App. Ct. 2004). Defendants’ arguments go to the offer element, and “the offeror has total control over its own offer and may condition acceptance to the terms of the offer.” McCarty v. Verson Allsteel Press Co., 411 N.E.2d 936, 944 (Ill. App. Ct. 1980). The ability to make an offer conditional also extends to performance: that is, an offeror may make performance under the contract subject to some other condition. See, McKee v. First Nat’l Bank of Brighton, 581 N.E.2d 340, 343–44 (Ill. App. Ct. 1991). The difference is crucial; if the condition applies to the offer, there is no contract before the condition is satisfied, but if the condition applies to performance, there is a valid contract even if the condition is not satisfied. Moreover, if there is a contract at all, then the obligation of good faith and fair dealing — which is inherent in all contracts — applies. Martindell v. Lake Shore Nat’l Bank, 154 N.E.2d 683, 690 (Ill. 1958).

>>> First, the whole "condition on performance" is bizarre, because the "condition" was in the full control of the promisor. If this is the case, wasn't the contract illusory?

*** Your begging the question here. The contract *might* be illusory *if* the condition were in the full control of the Board of Trustees, but not if there were limits on the grounds upon which the Board could disapprove of the appointment. Hence, your assumption that there was complete control is what is making you think the contract was illusory. But under black letter contract law, the non-occurrence of a condition that is under the complete control of a party will be excused in some circumstances, including if the party prevented the condition from occurring in bad faith. To take an extreme example Inot applicable here), there's no doubt in the world that if the Board had solicited sexual favors from Salaita and then had decided not to approve him simply because he would not engage in the sexual favors, the nonoccurrence would have been excused. There is also no doubt in the world that if the U of I had decided that it would be fun idea to ruin Salaita's life by pretending to give him the offer knowing all along that they were going to disapprove it, just to harm him, and did it on that ground, that the nonoccurrence would have been excused. It follows that there are logically possible circumstances in which there was an obligation--so this contract was not illusory.

>>> No, the reply comes, because the promisor could only decide whether the condition would be fulfilled in "good faith." Ok, that isn't contract law, but let's go with it. It sounds good at least.

*** You're right that this is my reply (at least in part--there's also the question of what a four corners approach to interpretation will consider the condition of Board approval to mean, given reference to the AAUP principles). But you're wrong that that isn't contract law. It's basic black letter contract law that conditions in contracts can be excused through waiver, estoppel, prevention or to avoid forfeiture. Avoidance of forfeiture has a number of elements, one of which relates to the good faith of the the party. It's also black letter law that contracts are subject to objective standards of interpretation, and--once again--you're begging the question whether "subject to Board approval" means "subject to Board approval on any grounds whatsoever" or whether an objective interpretation places some limitations on the grounds for disapproval. So the nonoccurrence of this express condition could be excused, under basic contract law standards, if the disapproval were to violate standards of good faith in fair dealing. An objective interpretation of the condition might also place limits on what the Board can and cannot do. You say this isn't the law, but the judge pretty clearly understands the law on this. He also cites Martindell v. Lake Shore Drives for the idea that the duty of good faith and fair dealing is read into every contract and constrains all performance obligations. So he--like me--is benighted enough to thinks it's the law. Do you have case law that suggests that there is no duty of good faith and fair dealing that constrains performance under a contract in Illinois? (That was, of course, a rhetorical question: the rule is a mandatory rule, one that parties cannot contract around. The court has already looked at the cases the parties briefs on this, but maybe you know something no one else does?)

>>>What would good faith require? That the BOT simply "rubber stamp" the contract with no thought whatsoever? No, the argument goes, the BOT must go with the AAUP guidelines governing academic freedom.

*** Well, I do agree that what good faith requires is the hardest question here. For what it's worth, I don't think it can be resolved on a motion to dismiss or on a motion for summary judgment, because I think there are too many factual issues in play. But because there is a contract, the contract and its conditions are subject to objective standards of interpretation given the entirety of the contract. And looking at the condition of Board Approval in the context of the offer letter's stated commitment to the principles of academic freedom and tenure of the AAUP, I think that those principles re going to play a role in objective interpretation of the contract. If those place some restrictions on the grounds and manner in which disapprovals can occur at such a late stage in the game (as they seem to), then the offer--properly construed--committed the U to a process of approval that was limited to vetting certain classes of issues and not others. My reading of the principles suggests that in this particular case, a hearing with parties focused on the issue that are relevant and opportunity for both sides to present their cases, was probably required. That may still come out unfavorably to Salaita, but you have to admit that all of this purported litigation through heated exchanges throughout the blogosphere hasn't been adding as much illumination as it could. For what it's worth, I also think that many other grounds would have been possible for not hiring Salaita had it not gone so far. But the U of I can't commit itself to certain national principles of how this type of hiring and appointment works in its offer letters and then decide not to follow them later--at least as a matter of contract law. I actually don't think the people involved really disagreed. Their recently released e-mails suggest that they all thought there was a contract but were just willing to breach it for what they thought was the good of the U.

>>> Here, we find a big mistake. Prof Kar states:

>>>"the scope of the Board’s authority to disapprove of Salaita’s appointment and the procedures they must follow to disapprove are therefore governed in part by the AAUP’s principles of academic freedom and tenure."

>>> In other words, S was appointed, obtained tenure, and his appointment could only be "disapproved" in accordance therewith.

*** Why is this a big mistake again? The U of I is the master of its offer. If the U of I decided to commit itself to these principles, then it can. Are you saying it can't?

>>> This is a bizarre line of reasoning. I'd love to see the jury instructions that Prof K proposes (or, does he think that the court can decide this as a matter of law)?

*** With respect to jury instructions, my strong suspicion from the opinion is that the Court thinks that there was an unambiguous offer and unambiguous acceptance prior to the termination of the power to accept. Also, I think he'll probably think that the condition was a condition on performance rather than formation as a matter of law; so that the question whether a contract existed won't go to a jury. If *that* question (viz. whether there was a contract) were to go to a jury, I think the jury instructions would look much like the text I quoted from the opinion above. It will probably say something like: "If the U wanted to make this a condition on an offer, it could have easily done so by saying explicitly this is a condition on the offer--as it did with some other things (like his VISA status)--see the opinion). It will also likely quote the same cases as in the opinion, use some of the same reasoning, and maybe cite some other cases like: Board of Regents of the University System v. Doe, 630 S.E.2d 85 (Ga. App. Ct. 2006) (finding contract formed once offer of deanship was accepted, even though deanship was “subject to Board approval”, because condition of Board approval was condition to performance, not formation, of the contract.) But I don't think that will really go to the jury.

*** With respect to whether there was a violation of the duty of good faith and fair dealing, I emphatically *do not* believe it could be decided as a matter of law. I didn't say anything about the jury instructions there, but I suspect the court would mention that the contract mentions the AAUP standards; and will probably cite some examples of violations of standards of good faith and fair dealing in this type of context. Jury instructions on this will require some of the most thought, and I could imagine quite a lot of work needing to be put into getting this right--given that there may be some incorporation of free speech, AAUP principles, and other issues. The court will have to sort this out in a very balanced way.

>>> The condition on performance was a condition on appointment. S wasn't appointed. The letter stated:

>>> "This recommendation for appointment is subject to approval by the BOT ..."

>>> This cannot be read out of the contract.

*** I agree that it can't be read out of the contract. But then you're assuming there are only two possibilities: that this condition either gives complete discretion to the Board to disapprove on any ground of its choice or no authority at all. Those obviously aren't the only two possibilities. A third--which is more consistent with governing contract law in Illinois--is that the Board had the authority to approve or disapprove of the appointments, but that that authority had some limits. (Think of a contract where an architect has the authority to approve a final construction before the final payment--the architect can't just disapprove on any ground, like not liking a person, refusal to perform a sexual favor, or because they think it would be funny; and yet the condition still has meaning).

>>> Second, the AAUP rules were not "incorporated into a contract." That is not supported by the letter either. The letter simply stated that the UofI "subscribes to the principles" of the AAUP and enclosed copies.

*** Well then how then do you read that sentence? Does it play no role in what the contract means? Perhaps you think it means that the U of I subscribes to those principles but is not willing to be bound by them? (In which case I suppose anyone's tenure can be revoked at any time.) And why exactly did the U of I put this language about subscribing to these principles into the signed contract? I would imagine it was part of the U of I's attempt to induce Salaita to come. (I had a similar letter, and wouldn't have come if I didn't know that U of I subscribed to these principles. I wouldn't have left a tenured job for something with less job stability. But maybe Salaita would have?) I can tell you right now that the U of I is trying to figure out ways to make sure people we recruit know that we're serious about these obligations. So I suspect these statements will continue to be in our offer letters. So... You suggest that my reading of the contract (and, really, the judge's) reads the condition out of the contract. But that isn't actually your true. Your reading, on the other hand, really does read some part of the contract out of existence.

>>> Third, the whole "good faith" argument is especially weak. This simply means, if we accept that a contract was formed, that the BOT must have acted reasonably. If the appointee revealed that he was the Grand Dragon of the KKK during the interim before appointment, no jury would find that the BOT could not have "in good faith" exercised its discretion to reject the "recommendation" and not appoint.

*** I don't at all disagree that there may have been good faith grounds to disapprove of Salaita. But I doubt that the stated reasons will all count. And I think he needed more procedure--but that doesn't come from general feature of good faith and fair dealing. It comes from my understanding of the AAUP's principles and their case law on issues like these.

>>> Finally, the custom and practice argument is equally weak and won't work. First, the court took pains to conclude the "offer" was not conditioned and unambiguous (in order to get to the promissory estoppel prong). Second, the fact that S acted on a recommendation not acted upon by the BOT was his choice.

*** I'm not sure exactly what you're getting at here. The court *did* take pains to concede that the offer was not conditioned, but that's because the governing law, when applied to this offer letter, suggests as much--not because he was trying to get to promissory estoppel (which is likely moot). The offeror is the master of the offer, so the lack of ambiguity came from the facts that the offer letter explicitly said it was an offer, explicitly stated how to accept it, was unambiguous about the major terms of the offer, etc. I don't think this will need extrinsic evidence, but if extrinsic evidence is offered, the emails from top officials now show that they all thought there was an offer that had been accepted.

*** The fact that the court thought the offer was pretty clearly a condition on performance not formation arose in part from the fact that the offer letter elsewhere was explicit when there were conditions on the offer (e.g., if there were a problem with VISA status). So the only place that I referenced custom and tradition coming into the mix is when interpreting what good faith and fair dealing is likely to amount to here. And I stand by that. I don't see how the court couldn't allow evidence of how things work in the academic hiring context for that purpose: the duty of good faith and fair dealing is highly context specific and explicitly references standards of trade in its most general expression.

>>> Would a person familiar with the LAW have read the "subject to" clause out of the letter, and started the subject posting, thinking that the "deal was done" and that he could foment bigotry, prejudice and spew vile hate speech with impunity?

*** Well, I take myself to be a person familiar with the law (whether in upper or lowercase), and--for reasons discussed--I would *not* have read the "subject to clause" out of the letter. I would have read it as the court (who is also familiar with the law) did: as a condition on performance, not formation. Most conditions are conditions on performance, you know.

*** If I were advising a person with a contract like this, I would have recommended that they not foment bigotry, prejudice or spew vile hate speech with impunity, because that might be grounds for a disapproval. On the other hand, I would told him that once things got far enough along, there would likely be limits on what the Board could do to disapprove under the contract, and that many of the things he was saying may be protected under principles of free speech, academic freedom and tenure, even if they were vile. I would have told him that the issues are nevertheless controvertible enough that he may be in for some litigation--which would not have been a sure thing. And I would have told him that the AAUP requirements would like entitle him contractually to a full hearing of some sort on that--but that the U of I may or may not honor that part of the contract. I've been right so far on all this--but who knows: these are just my best predictions as things stand.

*** If anyone happened to ask me for a more personal opinion on some things, I might say, as I did on my original post on this, that both the U of I and Salaita could have done better earlier on: Here's how I ended my early blog post on this:

*** In either case, I hope that this controversy will be turned into an opportunity for all involved. I hope that the University of Illinois will use this as an occasion to reflect on its interpretation of the appropriate relationship between the political and academic branches of the state, and whether this interpretation is consonant with those of the nation. I hope the University of Illinois will reflect on how best to view this relationship if it wants to preserve its status a world-class research university. And I hope that the University of Illinois will begin to communicate this understanding much more clearly to the rest of the world—including in its offer letters and other contractual dealings. If it wants to opt out of its commitment to the AAUP's principles on academic freedom in the future, then it needs to say so clearly in all its communications—but I believe that would cause great damage to the institution. If these opportunities are taken, then this controversy may well have provoked the kind of frank and open discussion that can improve even the best of universities.

*** And as for Salaita, I understand that what one tweets in one's personal life deserves some protection from academic censure. But if Salaita aspires to be a truly public intellectual, then I hope he will use this as an opportunity to consider how he might better express difficult and critical ideas in ways that may open—rather than close—the minds of his most important interlocutors. I also hope—for everyone’s sake—that there are no other grounds for concern about Salaita’s genuine fitness to teach.

>>> IF this matter gets to a jury, all that the jurors will need to hear is "subject to approval" and S's hate speech. This will be a quick decision, IMHO.

*** Well, that's an interesting question. I think that *if* Salaita were to have been given procedural safeguards, an opportunity to respond, etc., before the disapproval (or if that were to happen now), and if a disfavorable decision were made in his case on the right types of grounds, then, even without reference to any jury passions that you seem to be relying on, I think it would be a hard factual case to establish a breach of the duty of good faith and fair dealing. And I suspect that you may be right that jury passions might sway the analysis even further to one or another side.

>>> Wow. I missed this whopper:

>>> "More likely, the court would order a hearing of some kind on the merits of Salaita’s fitness to teach, along with an order to reinstate him conditional upon a favorable outcome for Salaita. Any such hearing would likely include consideration of any other factors that may be relevant to revoking a tenured position."

>>> One refers the good prof to a basic course on remedies, and to the fact that there was no tenured position to revoke.

*** True, there was no tenured position to revoke. That's why I said in the paragraph that you didn't quote right above the one that you did that there would not be a remedy of specific performance ordering his reinstatement. On the other hand, the CAFT report (internal to the U of I, drafted by many well-respected people who understand the issues well to advise the U of I on this) concluded that the procedural safeguards I suggest were required by law. The AAUP has said they are required under their principles. I stand by the position that the U of I incorporated these principles by reference. (If it didn't do so clearly enough, it will want to start doing so better in its contracts going forward if it wants to recruit people.) And what I'm saying is that once a tenured position is offered and accepted, in a contract that both has a condition of Board Approval and incorporates these principals of academic freedom, the grounds upon which the Board can disapprove are limited to some degree so that they cannot include grounds that would undermine academic freedom, at least in some ways. So if Salaita's tweets show his lack of fitness to teach or something like that, he the Board could disapprove (but probably owed him more process under the contract). But in the sentence that you find a whopper, I wanted to make sure that readers also know that if there are *other* grounds that would suffice to revoke a tenured position (i.e. ones not even mentioned in any of the debates thus far, and going beyond the fitness to teach, which most of the case law that is most applicable turns on), then those would clearly be fair game too.

*** So I *do* think anything relevant to revoking a tenured position would easily be fair game in a hearing deciding not to approve the appointment at this stage. Do you disagree, or are you just reacting to a misinterpretation of my position as suggesting that he had Board Approval? (A strange reading, given all I've said...)

*** Anon: do you have a name? I appreciate your passion on all this, but my post was meant to explain the where things stand in this litigation. As far as I can tell, your own view is just that a crazy judge who doesn't know the law as well as you made some bizarre and unfounded distinctions? I certainly would have criticized aspects of the court opinion if I thought they were as crazy as you, but I just don't see it. Or maybe you think that the condition was unambiguously one on the offer, *not* on performance? Or that there is no duty of good faith and fair dealing read into every contract? I honestly think your passion, while admirable, may be getting you to look at this with a little less closeness of attention to the legal issues than you might. But then you may also be less interested in the legal issues. I admit there are many aspects to this case to be interested in and the law is only a very small part.

*** Regards -Professor Kar.

[anon]

Prof Kar

Since you conclude your comment above with a few gratuitous and specious personal attacks, I'll simply respond as follows.

You say "I'm probably not going to jump in much, but a few quick thoughts in response."

If these are your "quick thoughts" and "not much," I'd really not want to see what you think would be a comprehensive approach, because this is a very windy brief, full of repetition and sort of unsupported assertions.

Suffice it to say that you carved up my comments in such a way that you mostly rebutted points addressed by the next shred, as you shredded the comment. No matter. Doing this doesn't make your argument any more persuasive.

I'm glad that you agree that the "good faith" prong is a jury question. As stated above, I would expect a quick verdict. Hate speech isn't exactly popular, and forcing a reputable organization to approve the appointment of a person who spews it, when the right to not approve was reserved, seems like a fairly easy question.

You haven't made the case that S was entitled to the procedures you seem to think apply. If you believe a court will order the process you have described, then I believe that you are on shaky ground and haven't had much experience in court. Sorry.

I'd also suggest you review the law regarding conditions and covenants, remedies, evidence of custom and incorporation of extrinsic standards by reference. I believe you have incorrectly stated the law on each of these points as applied here.

Finally, if you believe it is appropriate to inappropriately question the motives of anyone who disagrees with your legal analysis, then I must again conclude that you have had not much experience in court. Your overall approach suggests this conclusion is correct. Am I wrong?