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News

Federal Court Denies U. of Illinois Motion to Dismiss Salaita's Lawsuit

(August 7, 2015) - In a carefully reasoned opinion released on August 6, U.S. District Judge Harry D. Leinenweber refused to dismiss Professor Steven Salaita's lawsuit against various officials at the University of Illinois for violation of his constitutional rights. Salaita had been offered, and accepted, a tenured position in the university's American Indian Studies program, to begin in August 2014, but on August 1, in response to angry tweets by Salaita condemning Israel's bombing of Gaza, University Chancellor Phyllis Wise notified Salaita that she would not take the ordinarily routine step of submitting the appointment to the board of trustees for approval at its next meeting in the fall. (See "Untangling the Steven Salaita Case" for more on the factual background of the case.)

The court's opinion emphasized the role that political opposition, and particularly threats by a few alumni to withhold big future donations, had in persuading Wise and the other defendants to abort Salaita's appointment after he had already resigned his previous job, moved his family to Illinois, and been assigned classes to teach in the fall. Wise met with two such donors, the second one on the same day that she made her decision. She destroyed a memo from the first donor, but described it in an email: “He gave me a two-pager filled with information on Professor Salaita and said how we handle the situation will be very telling."

Judge Leinenweber began his legal analysis with Salaita's breach of contract claim under Illinois state law. The university's lawyers had argued that no contract was created because the offer sent to Salaita noted that the appointment "is subject to approval by the Board of Trustees." The judge interpreted this language not as a negation of the contract but simply as part of the university's performance, since everything else about the letter, and the university's subsequent conduct, indicated that a binding contract had been made once Salaita signed a form at the bottom of the letter indicating his formal acceptance. The university subsequently described him as an employee, gave him an email address, assigned him an office, and paid most of his moving expenses. "The University cannot argue with a straight face," said the judge, "that it engaged in all these actions in the absence of any obligation or agreement."

Indeed, Judge Leinenweber added, "the University's argument, if applied consistently, would wreak havoc" in academia: "the entire American academic hiring process as it now operates would cease to exist, because no professor would resign a tenure position, move states and start teaching at a new college based on an 'offer' that was absolutely meaningless until after the semester already started."

It followed from this that Salaita also had a viable claim for violation of his due process rights, since the contract gave him a "property interest" in his job. And he also had a free-speech claim, since his tweets were clearly protected by the First Amendment, despite their sometimes angry and vulgar language. The judge quoted famous words from a Vietnam War-era Supreme Court decision that upheld a protestor's First Amendment right to wear a jacket bearing the slogan "Fuck the Draft": “We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." (Cohen v. California, 403 U.S. 15, 26 (1971)). Although the university might ultimately win on the First Amendment issue, based on its argument that concerns about potential disruption outweighed Salaita's free-speech rights, this issue could not be resolved at the stage of a motion to dismiss the case.

On the other hand, the court agreed with the university that Salaita's claims against unnamed and unidentified donors must be dismissed because they had a First Amendment right to communicate their displeasure to the university and threaten to withhold donations. "The First Amendment is a two-way street," the judge pointed out, "protecting both Dr. Salaita's speech and that of the donor Defendants."

But all in all, the decision is a remarkable victory for Salaita, for the Center for Constitutional Rights, which is sponsoring his case, and for the thousands of professors and others nationwide, including the American Association of University Professors, who have condemned the university's action. The Israeli-Palestinian conflict, and Israel's policies in the Occupied Territories, remains a hot political issue, and the court's decision represents an important rebuke to those who attempt to silence opposition voices on U.S. campuses. (See "Charging Anti-Semitism to Squelch Dissent.")

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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