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August 11, 2015

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Brian

There was nothing anti-Semitic about any of the tweets. Why do you continue to lie about this? It's disgraceful.

Steve L.

I have explained the anti-Semitism in Salaita's tweets here:

and here:

Readers may draw their own conclusions.

Also, differences of opinion are not lies.

Former Editor

Steve, I think you intended to include links in your response that do not appear.

anon123

Perhaps I have not followed this closely enough. I thought that the offer was not revoked, but rather any offer was subject to approval which did not come. Maybe I am mistaken. While the approval may be expected, it does not mean it is not part of the process. I think the situation points out issues with hiring from outside the University, that decision makers may not be as familiar with the candidate as they would be with people who have been at the university longer.

TR

Anon123, not sure if you are familiar with academic hiring, but typically the BOT approval is nothing more than a rubber stamp. The BOT often, as was the case here, approves hires after the start of the semester. Yes, it is technically a contractual condition, but in practice it has never been a real threat. If it were a real threat, professors would not resign their current positions, esp. if they had tenure like Salaita did, until after BOT approval. Will be interesting to see how this situation impacts lateral tenured hires across the country.

anon

Umm, why does law professor Lubet ignore the ruling which says there was a contract - not just an offer?

In any case this was a slam dunk instance of extramural speech which should be protected.

Brian

Your "explanations" are fabrications and misrepresentations, ill-befitting someone committed to the scholarly life. If you don't know that they are fabrications, then I grant you're not lying. But the verdict then is worse.

anon123

TR, yes I am familiar with the concept that the BOT approval is GENERALLY nothing more than a rubber stamp, but that does not mean they do not have the right to reject a candidate. Perhaps controversial applicants will be more careful.

anon from 1:12

anon123 - either deans have the authority to enter into agreements to hire new professors or they don't. the court says at UIUC they did (with the caveat that this was an MTD). I am fairly certain that BOTs do not want to revoke this authority at UIUC or anywhere else. My guess is that they got the same advice from their lawyers and that is why Chancellor Wise said initially she would not send the "offer" to the BOT. That didn't fly so it went to the BOT anyway. And now the court has said it was a condition on performance so that means they have breached. Damages follow unless they want to push this to trial. Really? I doubt it and the Lubet op-ed (a reasonable proxy for the milieu that made too big a deal of this in the first place) suggests that negotiations leading to a settlement will soon take place.

anon

The opinion was denying a 12(b)(6) motion. Only those unfamiliar with this procedure would think of this as a " ruling which says there was a contract."

But, more importantly, the ruling was bizarre. The court took great lengths to distinguish a condition on an offer from a condition on performance. The logical conclusion of this bizarre opinion may not be the "victory" that the supporters of this man claim it to have been.

K prof

The significant impact is this: the contract ruling means that the BOT's decision to approve/ disapprove the appointment is now governed by the duty of good faith & fair dealing.

anon

K prof

Right. The duty not to unreasonably withhold approval.

Who should decide whether a hypothetical BOT would unreasonably take into consideration not appointing the Grand Dragon of the KKK, after his views were made known to it by his own publications, especially where that power was reserved in the "contract"?

What's your argument? Judge or jury (assuming that S. survives summary judgment, which is doubtful, IMHO)?

And, what is your view of the court's sort of bizarre but lengthy discussion of the distinction between a condition on the offer (not present in its view, thus allowing acceptance) but on performance? The "subject to" clause couldn't be written out, and it seems to me the court has painted S into a corner.

anon from 1:12

The judge rule that the condition was placed on performance not on the offer so there was (assuming the facts as plead by Salaita) an offer, it was accepted, there was consideration hence there was a contract.

Does anyone dispute that or not understand it (other than Lubet?)

Now if the University wants to tear itself apart for months on end trying to disprove the relatively well established facts in this situation to see if it can win on SJ good luck.

But the BOT gave their deans the authority to enter into such contracts, and now they have refused to (reasonably) carry out a condition necessary to perform. So that would constitute breach and therefore lead to damages.

Does anyone dispute that or not understand it?

Again the university can try to argue for months and at the cost of hundreds of thousands of dollars in taxpayer money that their exceptional behavior was reasonable.

But their swift dispatch of the Chancellor suggests that cooler heads will prevail. Even Lubet agrees with this. Personally I think this ship sailed long ago - if they don't want people who think like Salaita (and who can blame them) they will have to start by dismantling half the humanities departments and a good chunk of the social sciences as well. Welcome to the world of relativism and post-modernism.

anon

"But the BOT gave their deans the authority to enter into such contracts, and now they have refused to (reasonably) carry out a condition necessary to perform. So that would constitute breach and therefore lead to damages.

Does anyone dispute that or not understand it?"

Yes. Again, the court seems to suggest that the offer wasn't conditioned, but that performance was "subject to" BOT approval.

Please explain how exercise of discretion that the court seems to concede to the BOT could constitute a "breach of a condition" on performance? Citations would be welcome.

PS this is really not a question for anon at 1:12, but for K Prof.

BTW, IF this goes to a jury, IMHO, S can't win. Period. Once a jury hears what this man said, it's over. It won't matter about what others have done; a jury won't understand forcing a University to hire a person, when the "contract" says "subject to BOT approval."

The fact that so many faculty defend him so vehemently is so significant. This isn't just a legal issue. These folks are the same haughty moralists who preach endlessly in other contexts about hate speech, prejudice, and bigotry. They call for the most severe sanctions for the slightest perceived infringement of their ever so sensitive meters of propriety. Have they no shame?


[M][@][c][K]

Steve:

If this was a legal brief, or even in internal memorandum, you would be torn apart. It consists essentially of the unsupported maundering of someone with an "axe to grind," and indeed, if it is intended to argue for civility, intellectual honesty, and lack of rhetorical excess, it is a thoroughgoing "own goal."

Just saying...

'The fact that so many faculty defend him so vehemently is so significant. This isn't just a legal issue. These folks are the same haughty moralists who preach endlessly in other contexts about hate speech, prejudice, and bigotry. They call for the most severe sanctions for the slightest perceived infringement of their ever so sensitive meters of propriety. Have they no shame?'

Perfectly stated, anon @ 6:49. These people are so lost in their own world that they cannot even see what you stated. Of course, there is also the element here of self-protection. Not unlike the "blue wall of silence" cops are known for.

Derek Tokaz

M-K,

I do think there is something a bit off about the structure of Steve's argument. It has a very realpolitik vibe to it. Give Salaita a job not because it's what the principle of academic freedom demands, but because it allows us to advance our other goals.

Imagine if we stipulated the opposite outcomes. That the university would be subject to an increase in litigation (perhaps a wave of hostile workplace suits, use your imagination), and that Salaita would be hailed as even more of a hero with people being more sympathetic to his views. Even in this scenario, Steve should be arguing that Salaita get a job.

The whole thing rings insincere, as if the academic freedom argument is serving just as a means to get the thing published, but the real intention is to smear Salaita.

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

That was my reaction, which is why I chose not to debate his points - it's mud wrestling with a ...., you get muddy and he thinks he wins .. And then you get called a racist for debating the points.

Frankly the utter cynicism was impressive - the rhetoric, well no...

Second Try

Prof. Lubet,
I'm reposting my comment, which you inexplicably deleted. Nothing in my post violates the rules of professional etiquette, and I'd appreciate your not censoring the content.

Brian,
Your ad hominem attacks are self-serving and ignorant. Salaita's tweets are not only anti-Semitic, but he even defends being anti-Semitic on the basis of anti-Zionism. You can find so many of the tweets quoted verbatim in the bloggosphere that it's unnecessary to list them here. But here's just one to unmask the ideologically driven perspective you so proudly esponse: "Zionists: transforming 'anti-Semitism' from something horrible into something honorable since 1948." This clearly says that since 1948 (the year of Israel's independence) anti-Semitism has been a justifiable dogma. So, Brian, while you defend Salaita against charges of anti-Semitism, he defends anti-Semitism.

One more note, Brian, for the definition of "anti-Semitism" you might consider taking a look at the official definitions of the United Nations and U.S. State Department.

However one comes out on the contract issue (and I believe there was no written offer and therefore no acceptance by Salaita as possible), Salaita's statements were clearly anti-Semitic and rationalizations for the murder of Jews (take a look at his statement calling for the death of West Bank settlers, which I take to be a direct attack on only Jews, not Palestinian, settlers).

SL

Second Try: I deleted your first post because you called Brian "ignorant." I would have left it alone if you had been referring to me -- I have a thick skin about these things -- but I think I have a different obligation to other commenters.

Of course, you were defending me from Brian's ad hominem comments -- and we agree about the nature of Salaita's tweets -- but that actually made it more important for me to step it.

We obviously disagree about standards, and this was a borderline case, so I am going to leave your current post as is.

SL


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