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Valparaiso Univ. Law School

Thursday, August 21, 2014

Contracts and the Case of Steven Salaita

A lot of ink has been spilled over this subject, and I don't have much to add, except to note that I have not seen a very many good discussions of the contract issues.  

The very short version of the story, as best I can cobble it together from blog posts, is that the University of Illinois offered a position in its American Indian Studies program to Steven Salaita, who had previously been teaching at Virginia Tech.  According to this article in the Chicago Tribune, the U of I sent Professor Salaita an offer letter, which he signed and returned in October 2013.  Professor Salaita was informed that his appointment was subject to approval by the U of I's Board of Trustees, but everyone understood that to be pro forma.  In August 2014, Salaita the U of I Chancellor notified Professor Salaita that his appointment would not be presented to the Board and that he was no longer a candidate for a position.  According to the Tribune, the Board next meets in September, after Professor Salaita's employment would have begun.  The Chancellor apparently decided not to present Professor Salaita's contract for approval because of his extensive tweets on the Isreali-Palestinian conflict, which may or may not be anti-Semitic, depending on how one reads them.  

The main argument in the blogosphere is over whether or not the U of I's conduct is a violation of academic freedom. But there is also a secondary argument over whether Professor Salaita has a breach of  contract of promissory estoppel claim against the U of I.  The list of impressive posts and letters on the whole Salaita incident include:

Michael Dorf on Verdict: Legal Analysis and Commentary from Justia

Katherine Franke, et al. in a letter to the U of I Chancellor

Brian Leiter commenting on the Franke letter on Brian Leiter's Law School Reports

Michael Rothberg, in a letter to the U of I Chancellor

Steven Lubet at The Faculty Lounge here and here

Jonathan Adler on the Volokh Conspiracy here, here and here

Finally, Dave Hoffman stepped in on Concurring Opinions to address the promissory estoppel issues  and then answers Michael Dorf's response 

Hoffman makes strong arguments that there was no breach of contract here, because the offer was clearly conditional on Board approval.  There are arguments that the promise breached was a failure to present Salaita's employment to the Board, but the remedy for that breach would simply be presentment, at which point both the claim and the appointment would go away (unless U of I has a change of heart on the matter).  

We would have to know more about the process to make a more educated guess about whether or not a breach of contract claim here could succeed.  I think it is relevant that, at the point Salaita was informed that the offer was rescinded, the Board could not meet before his employment would have begun.  I suspect that his courses were already scheduled and that students had, at least provisionally, registered for them.  I wonder if there were any announcements on the U of I website crowing about their recent hires.  All of this would be relevant, it seems to me, to the state of mind of the parties regarding whether or not a contract had been made.  It would be very sad for all of us in academia if it turned out to be the case that our offer letters mean nothing until the Board has spoken, as acceptance of a position usually involves major life changes, including giving notice at current jobs, moving to a new city, selling and buying a residence, etc.

I have no doubt that Dave Hoffman is right that promissory estoppel claims rarely succeed.  I do think that some versions of the facts presented here suggest that this one might be a winner nonetheless or, as Hoffman suggests, is the kind of claim that is worth bringing at least in order to make the threat of discovery on the subject a strong inducement to the U of I to settle the case.  But the remedy for promissory estoppel is probably not really the remedy Salaita seeks.  

Professor Salaita's claims -- his academic freedom and constitutional claims -- go beyond the issues of contract and promissory estoppel.  A lot has been written on this situation, and I haven't had a chance to read everything carefully, but I have yet to see a clear discussion of whether those claims hinge on Professor Salaita's contractual claims.  It seems likely to me that if he had no contract, then he had no free speech or academic freedom rights vis a vis the U of I.  And I don't think a promissory estoppel claim would get him such protections either.  Or do people think that universities have a generalizable erga omnes duty to protect academic freedom?


Dave Hoffman has an additional post up on Concurring Opinions here.

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It turns out that there is contract law showing that in such cases a contract really is formed, and I am surprised that contract professors would not even realize this, and that it was not more obvious to me. I was surprised to find this Georgia Appeals case, which matches the question at hand on the legal condition in a college employment contract about "subject to board approval". The court backed up its decision with numerous case precedents and was itself in agreement with a lower court ruling on the case at hand.

The court found that:
1. The requirement of board approval was only "perfunctory", because the professor was a good candidate, had been repeatedly treated as if he had been hired, and because no one else had ever been rejected from the college by the board after being given an offer.

Can offer conditions really just be "perfunctory" and practically ignored by courts as an obstacle? It looks like it!!

2. Not only is that condition perfunctory, but the condition of board approval is not actually a condition for an employment offer to be made. In fact, it is an "implied duty" placed upon the parties. The college in effect made an offer, formed a contract on acceptance, and then had the duty to attempt to acquire the board's approval.

The court pointed to previous case law where a sales contract requiring financing in fact made it an IMPLIED duty that the party would seek financing. Likewise, when another contract required a business to first join a business association, this in fact IMPLIED that the business would seek to do so.

So the Georgia appellate court decided in the college employment case that a contract had been formed and that "subject to board approval" were not the words of a condition on contract formation, but in fact meant that a contract was formed and that there was an implied duty to get the board's approval. The court said that the next question became not whether there was a contract, but whether in retracting employment, the board was justified in breaching the contract.

Personally, I found this all a bit surprising, because the boilerplate-style language in the letter itself didn't talk about the board's approval like it was perfunctory or an implied duty. But it turns out that such concepts in contract law as perfunctory conditions and implied duties to fulfill conditions exist!

Posted by: Hal | Feb 10, 2015 3:33:24 PM

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