Untangling the Steven Salaita Case
By Marjorie Heins
By now, the controversy over University of Illinois Chancellor Phyllis Wise's August 1, 2014 decision to terminate the faculty appointment of Professor Steven Salaita has gone viral. A multitude of opinions have poured forth from blogs, news stories, editorials, and protest letters.
The debate brings into focus the continuing problem of efforts by adamantly pro-Israel groups to suppress campus protests against Israel's policies in the occupied territories.1 In this article, I hope to bring some clarity to the underlying issues of academic freedom and First Amendment law.The facts are relatively undisputed. Salaita was offered and accepted a tenured position in the university's American Indian Studies Program, to begin August 16, 2014. He resigned his job at Virginia Tech and communicated with his new department over course assignments, schedules, and book orders for the fall. He initiated the purchase of an apartment for himself and his family and was the guest at a welcome dinner hosted by the AIS faculty. In April he was notified of his fall teaching assignment; in mid-summer he finalized his book orders."2
All that remained was the apparent formality of the chancellor's submission of the appointment to the board of trustees for approval. The board's vote ordinarily comes in mid-September, well after new hires have started work.3
During the summer, Salaita posted angry Twitter messages, sometimes more than a dozen per day, in response to Israel's bombing of Gaza, with its appalling death toll of civilians, including hundreds of children. As is typical of social media, these short posts were not written in refined academic style. Among the more provocative: "The logic of 'antisemitism' deployed by Zionists, if applied in principle, would make pretty much everybody not a sociopath 'antisemitic.'"4 And there was plenty of vulgar language, as in: "Fuck you, Israel. And while I'm at it, fuck you, too, PA, Sisi, Arab monarchs, Obama, UK, EU, Canada, US Senate, corporate media, and ISIS."5
According to documents released by the university in response to public-records requests, Chancellor Wise soon began to receive pressure from pro-Israel students, parents, and alumni, as well as the fund-raising arm of the university, to abort the Salaita appointment. There was, for example, this message from one alum: "Having been a multiple 6 figure donor to Illinois over the years I know our support is ending as we vehemently disagree with the approach this individual espouses."6 Documents showed that Wise was eager to meet with another unhappy donor, a venture capitalist who had given a half-million dollars to endow a professorship at the business school.7
Wise denied that her decision was based on pressure either from donors or from others opposed to Salaita's political viewpoint. Rather, she explained her decision in terms of the "uncivil" tone of some of Salaita's tweets:
The Due Process Issue
Whatever might be said about the credibility of Wise's asserted reason for terminating the appointment, the American Association of University Professors (the AAUP) seems correct in its assertion (in an August 29 letter to her) that the university had in effect already hired Salaita, and could not arbitrarily fire him without due process protections: notice of the charges, a fact-finding hearing, and a determination of whether the termination was justified. As the AAUP wrote: "the academic community cannot condone an appointment procedure which enables a university to offer a professor a position during normal appointment 'season' and then, after he has accepted the position, to cut him adrift without warning or hearings."9
Due process protections should apply here as a matter not only of basic fairness and good educational policy but constitutional right, because the University of Illinois is a government agency (part of the state university system), to which the due-process protections of the U.S. Constitution apply.10
On the Merits: "Civility" and Academic Freedom
But what about the merits of Wise's asserted reason? Is "incivility" in public discussions on a social-media site - that is, not in the classroom or in scholarly writings - a disqualification from a professorial job? This has been widely described as a question of academic freedom, but since Salaita's tweets did not have anything to do with his performance as an academic, it's actually a broader question of free speech that applies to all public employees.
The concept of academic freedom began to penetrate American universities in the early 20th century, in response to politically motivated firings (very much like Salaita's), often done at the behest of conservative boards of trustees. The targeted professors had been active outside their teaching and scholarship, in causes such as labor organizing and socialism.11
In response, the newly formed AAUP issued a Declaration of Principles with a three-part definition of academic freedom: in the classroom, in scholarly research and writing, and in "extramural speech" (that is, political activity not directly related to their professional duties). That third prong made sense at a time when neither the U.S. Constitution nor any state law protected employees in most circumstances against retaliation for their political views.
In 1968, the Supreme Court decided the case of Pickering v. Board of Education, which for the first time gave some First Amendment protection to public employees. In that case, a teacher had been fired after writing a letter to the local newspaper criticizing school board policies. The Court in Pickering established a balancing test that asked whether the employee's speech addressed a matter of public concern, and if so, whether the authorities were justified in firing the employee anyway, on the ground that the speech interfered with workplace efficiency.12 As a matter of First Amendment law today, that's the test that should apply both to Chancellor Wise's stated reason for cancelling Salaita's appointment, and to any additional motives, such as disagreement with his political views or pressure from funders.
In the context of a university teaching job, disagreement with a professor's viewpoint is almost always an unacceptable reason for scuttling an appointment, because a university is, as the Supreme Court has said, a quintessential "marketplace of ideas."13 But what about "civility"?
It is obviously a vague and subjective standard, and can sometimes (as perhaps in this case) be used as a pretext for disapproval of a person's point of view (or acquiescence in the disapproval of others). But beyond that, it's dangerous to use the style of speech on a social-media site such as Twitter as a job disqualification. Vulgar and hot-headed language might be inappropriate in the classroom, but tweets are not the same as classroom teaching (or scholarly writing),14 and the chancellor has not cited any evidence to suggest that Salaita has been other than a fair and popular teacher.15
This isn't to say that "incivility" in the public arena - or, for that matter, expression of a political viewpoint - could never be a disqualification from an academic job. Public expression of "creationist" views, for example, would at the very least raise serious questions about a professor's qualifications to teach biology. Persistent (and explicit) expression of the opinion that women's role is to stay home and have babies, not attend college, might at least justify an inquiry as to whether the professor can be fair to female students.
Would explicitly anti-Semitic statements raise a similar question about potential unfairness to Jewish students? Possibly, but Salaita's don't fit in this category. In fact, his perception in one tweet, that "by eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror,"16 is a fair enough point, and one worthy of discussion.
In any event, the "default" position, both legally and as a matter of policy, should be that professors are protected from retaliation for statements outside the classroom. They should not be penalized for "extramural" speech, no matter how vulgar or rude. One person's vulgarity, in the famous words of the Supreme Court, "is another's lyric."17
The Real Motive?: Threats From Funders
The facts suggest that threats from donors were at the very least a factor in Wise's decision. Attempts to censor speech through conditions on funding, whether from private donors or state legislatures (or Congress) pose a very serious problem not only for higher education but, as we saw with the National Endowment for the Arts 25 years ago, for artistic and intellectual freedom generally. In the NEA context, the Supreme Court ultimately finessed the problem by ruling that Congress' viewpoint-based restrictions on arts funding were not really restrictions at all - just suggestions.18 As a political matter, the NEA was saved from total defunding, though in a much-weakened state. In later cases, arts institutions and universities have successfully resisted threats from funders.19
That is what, as the leader of a prominent university, Chancellor Wise, should have done. But pressure from big donors, and one's own development department, can be powerful, and she may have felt cornered. She should have consulted with the faculty about the pressures, but did not. A campaign of the type that has since developed might have given her enough political backing to resist.
If a court were to find that the real (or a major) reason for her decision was financial pressure driven by hostility to Salaita's viewpoint, it should rule in his favor. But being political animals to some extent themselves, it's far from certain that the courts would do so.
Ultimately, what's important is the groundswell of opposition to Wise's hasty decision, which has now made the University of Illinois a proving ground for free speech on Israel/Palestine and the attempts to suppress it.
September 4, 2014
Updates: December 3, 2014: A coalition of scholars and public interest organizations wrote an open letter to more than 140 universities warning against limits on political debate in the interests of "civility." See https://ccrjustice.org/files/2014.11.04-FAU-Civility-and-freedom-of-speech.pdf
January 29, 2015: Salaita filed suit in federal court against Chancellor Wise, members of the Board of Trustees, and various unnamed donors, alleging violation of his First Amendment and due process rights, and various torts such as malicious interference with contract. See http://www.ccrjustice.org/files/Salaita_Complaint-with-ExA_1-29-15.pdf
August 6, 2015: A federal judge denied the university's motion to dismiss Salaita's case, ruling, among other things, that "the University cannot argue with a straight face" that it had no binding contract with Salaita. See "Federal Court Denies U. of Illinois Motion to Dismiss Salaita's Lawsuit."
November 2015: The University of Illinois announced that it would pay $875,000 to settle Professor Salaita's lawsuit. Salaita and the Center for Constitutional Rights, which sponsored his case, labeled the settlement "a victory for academic freedom and the First Amendment." But a nationwide group of professors expressed concern that the settlement did not include reinstatement, and thus allows the university to perpetuate its discrimination against controversial expression simply by paying money to those it has fired. See The Settlement in Steven Salaita's Lawsuit - Victory or Defeat for Free Speech?
Marjorie Heins is a member of the AAUP's Committee A on Academic Freedom. This article represents solely her own views.
3. See id.; Philip Weiss, "Salaita firing turns into a 'catastrophe' for University of Illinois," Mondoweiss, 9/3/14, (quoting 8/31/14 letter to Wise from president, president-elect, and immediate past president of American Historical Association).
4. Posted on 7/17/14; see https://twitter.com/stevesalaita.
5. Posted on 7/20/14; id.
6. Scott Jaschik, "The Emails on Salaita," Inside Higher Ed, 8/25/14, (also reporting that "[w]hile many of the emails are fairly similar, some stand out. For instance, there is an email from Travis Smith, senior director of development for the University of Illinois Foundation, to Wise, with copies to Molly Tracy, who is in charge of fund-raising for engineering programs, and Dan C. Peterson, vice chancellor for institutional advancement. The email from Smith forwards a letter complaining about the Salaita hire, and adds that 'Dan, Molly, and I have just discussed this and believe you need to [redacted]'"). See also Christine Des Garennes, "Salaita Prompted Donors' Fury," The News-Gazette, 9/2/14, (letters from donors included some identifying themselves as members of the UI's $25,000-plus "presidents council").
7. See Philip Weiss, "Salaita firing turns into a 'catastrophe' for University of Illinois, Mondoweiss, 9/3/14.
8. "Chancellor's Blog," 8/22/14 (link no longer available).
10. I leave aside the question whether provisions of the state constitution might also give Salaita legal protection.
11. See, e.g., Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013), pp. 17-30.
12. Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
13. Healy v. James, 408 U.S. 169, 180 (1972).
15. See David Palumbo-Liu , "Why The 'Un-Hiring' of Steven Salaita is a Threat to Academic Freedom," The Nation, 8/27/14 ("A review of Salaita’s teaching evaluations at Virginia Tech, a standard part of any hiring process, reveals absolutely no evidence of intimidation, threats or stifling of student opinion. ... Instead, the record shows strong and enthusiastic appreciation of Salaita’s teaching and interactions with students. According to this report, the student evaluations for Salaita are spectacular. Repeatedly, he is given near perfect 'excellent' scores for 'knowledge of subject'; the lowest rating he ever receives in the 'excellent' category for 'overall rating' is 86 percent. It is especially important to note student evaluations of Professor Salaita in the category of 'concern and respect' for students. Here too the evaluations are near perfect").
16. Posted on 7/18/14; https://twitter.com/stevesalaita.
17. Cohen v. California, 403 U.S. 15, 25 (1971).
19. The Brooklyn Museum, for example, in its 1999 battle with New York Mayor Rudolph Guiliani, after he not only threatened to, but did cut off funds because of his disapproval of a certain exhibit; see Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999); and, more recently, Brooklyn College, which defied defunding threats from New York City Council members after it scheduled a forum on the boycott and divestment campaign against Israel; see Alex Kane, "Brooklyn College stands behind BDS event as pressure from elected officials comes down hard," Mondoweiss, 2/1/13.