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Valparaiso Univ. Law School

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Monday, August 25, 2014

Some additional thoughts about the Salaita case

As Jeremy Telman previously noted, the unhiring of Steven Salaita has caused quite a stir in academic circles.  There was even an article in the Chronicle of Higher Education briefly discussing the contractual issues, which included the arguments made by Prof. Michael Dorf and Prof. David Hoffman.  I think they both have good arguments but I tend to think  this is a real contract and not an issue of promissory estoppel.  The reason I believe this has to do with what constitutes a "reasonable interpretation" under these circumstances.  I think both parties intended a contract and a "reasonable person" standing in the shoes of Salaita would have believed there was an offer.  The offer was clearly accepted.  What about the issue regarding final Board approval? Does that make his belief there was an offer - which he accepted -  unreasonable?  I don't think so given the norms surrounding this which essentially act as gap fillers and the way the parties acted both before and after the offer was accepted.  I think the best interpretation - really, the only reasonable one given the hiring practices in academia - is that the Board approval was a rubber stamp but one that could be withheld if the hired party did something unexpected, like commit a crime.  In other words, I think there was an offer that was accepted and that the discretionary authority of the board to approve his appointment was subject to the duty of good faith and fair dealing - i.e. the Board would only withhold approval for good cause.  I don't think this was a conditional offer - the language would have to be much more explicit than it seemed to be and to interpret it that way would constitute a forfeiture (which courts don't like) - and yes, I considered whether it could be a condition to the effectiveness of a contract.  That question caused me some angst but I still don't think it was given the hiring norms in general, and the way the parties acted. 

There was, however, an implied term in the contract that Salaita would not do anything or that no information would come out that would change the nature of the bargain for the university.  For example, if it turned out that he didn't really have a PhD or that he plagiarized some of his work, that would be grounds for the Board to refuse to approve his appointment.  In that case, the Board could refuse to approve his hiring without breaching its good faith obligation.

The real dispute here is whether Salaita's tweets constituted a breach of that implied term (i.e. did it undermine the bargain that the university thought it was getting?)  I think that's really what the disagreement in the academic community is about and why the real contractual issue has to do with interpretation - and the meaning of academic freedom.

 

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Comments

Does the fact that UI is a governmental agency affect the analysis?

Posted by: Del Blankenship | Aug 26, 2014 2:16:15 PM

Nancy,

By Chancellor Wise's own admission, the Board was not scheduled to consider Salaita's appointment until a month after his classes would have started at Illinois. I assume that's a relevant point for both contract and promissory estoppel. I'd appreciate your thoughts.

Posted by: Kevin Jon Heller | Aug 27, 2014 9:53:31 AM

Del,
It may affect the ability to recover if some sort of immunity applies, but not the contract law analysis itself.

Kevin,
Yes, I think it does affect the analysis because it indicates that both parties intended a contract and that the board vote was just a formality. There was an implied understanding - as there are in all contracts - that neither party was hiding something material or would do something that would undermine the agreement. Barring a finding of something unexpected (plagiarism, etc), it was a done deal. The question is whether the tweets constituted something amounting to a breach of that implied understanding. I think that's the real heart of the matter and why the issue is interpretation and academic freedom. The problem here is that the University apparently never even brought the matter before the Board, like they agreed they would.
Nancy

Posted by: Nancy | Aug 28, 2014 9:24:37 AM

Brian Leiter thinks that the fact that the U of I is a state institution matters a lot for the purposes of Salaita's constitutional claims (which were not the subject of Nancy's post). He has a blog post on HuffPo: http://www.huffingtonpost.com/brian-leiter/salaita-v-university-of-i_b_5726034.html
His thesis paragraph reads:

Public universities, like all state agencies, are subject to the U.S. Constitution, including the First Amendment, which protects freedom of speech. One of the basics of the American law of free speech is that the government can almost never suppress or punish speech because of its content. (There are some very narrow exceptions: e.g., child pornography, speech that poses a risk of immediate violence ["fighting words".) Speech on matters of public concern -- such as the Israeli attack on Gaza -- is almost always protected by the First Amendment.

Posted by: Jeremy Telman | Aug 31, 2014 9:56:10 AM

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