Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Saturday, August 16, 2014

Letter from law professors to Chancellor Wise at Illinois re: Salaita case

A good letter.  Signatories include Katherine Franke (Columbia), Michael Dorf (Cornell), Steven Shiffrin (Cornell) and many others.

ADDENDUM:  There's clearly only one defensible side to take on this case if you support academic freedom, tenure and freedom of speech, so it is somewhat depressing that some law professors (not those who signed the above letter, obviously) can't tell night from day.  None of Salaita's tweets incited violence or were racist; many were vulgar, but, you know what, that's tough shit:  he's allowed to be vulgar under the First Amendment.  (He's allowed to be a racist too, by the way--Illinois has had real ones on the faculty in the past.))  Many were tasteless and incendiary, though none are as ugly as the racist sentiments emanating from some prominent Israelis.  If they were, we wouldn't be hearing about this case, I'm sure.  For that's not what this case is about:  it's not about vulugar tweets, or stupid tweets, or tweets wishing misfortune befall his enemies, it's about the third rail of American public life, Israel.  He has been punished for expressing politically verboten views about Israel and its treatment of the Palestinians, and doing so not with restraint or caution, but unapologetically and with vulgarity.  And punishing him for that is both unconstitutional and a breach of his contractual rights.  One can recognize that without taking any position on whether Salaita is a "brilliant" scholar (as one petition asserted, which I did not sign for that reason--I have no reason to believe he is or isn't, and it is also wholly irrelevant), or whether his views about Israel are correct or defensible, or whether you'd want to invite him to dinner.  He went through the regular channels for tenured appointment at Illinois, received and accepted an offer from the university, and reasonably relied on that when he moved to Illinois to begin his job.  This case is as clear as they come.

MORE:  There is a copy of the correspondence between Illinois and Salaita here.  You will note that the offer letter says the appoitnment is "subject to approval by the Board of Trustees."  It says nothing about the appointment being subject to unilateral revocation by the Chancellor, which is what happened here.  But that aside, as many department chairs have pointed out to the Chancellor (I've seen some of the letters), this will make the appointments process for all departments going forward incredibly difficult, since what was previously taken to be a pro forma part of the process has proven not to be.

ANOTHER:  Michael Dorf (Cornell) replies to some of the criticisms of his original analysis.  Having spoken with some contracts scholars, there's no doubt that Dorf is right about the promissory estoppel point.  The other rationalization for this violation of Salaita's contractual and constitutional rights in circulation is that his tweets might make his students uncomfortable or might indicate that he would treat students with contrary views unfairly.  Both claims are speculative, and I find it hard to believe anyone takes the first seriously:  do you really forfeit your right to be terminated for cause, and your First Amendment rights, if some of your students might be "uncomfortable"?   If a professor mistreats his students in reality, then the university has an obligation to sanction such conduct and, in an extreme case, initiate the process leading to termination.  The University could even initiate a process for firing Salaita on the grounds that his tweets constitute cause; they should not prevail on that ground, but at least that procedure would be far more defensible than unilateral revocation by the Chancellor, a condition nowhere mentioned in the formal offer letter.

BREAKING NEWS:  The great German writer Heinrich Heine apparently just tweeted this:

My wishes are: a humble cottage with a thatched roof, but a good bed, good food, the freshest milk and butter, flowers before my window, and a few fine trees before my door; and if God wants to make my happiness complete, he will grant me the joy of seeing some six or seven of my enemies hanging from those trees.  Before death I shall, moved in my heart, forgive them all the wrong they did me in their lifetime.  One must, it is true, forgive one's enemies-- but not before they have been hanged.

Word is Chancellor Wise will not be putting his tenured appointment before the Board of Trustees either.  (Political theorist Corey Robin [Brooklyn/CUNY] has a few more quotes in this vein.)

THOSE WHO ARE INTERESTED should peruse Salaita's twitter account (he is a prolific tweeter, to put it mildly).  The primary theme of the first 100 or so items is that 300 children in Gaza have been killed, and there can never be a justification for killing children, regardless of race, nationality, ethnicity etc..  I didn't even come across any vulgarity!  No doubt the various right-wing bloggers cherry-picked the most incendiary and tasteless stuff, but I would describe the sample I just looked at as more sentimental ("think of the children!") than incendiary.  (There's more on the "controversial" tweets here--the context is telling.)

ANOTHER:  Prof. Michael Rothberg, Chair of English at Illinois, has another good letter on this issue.  It's increasingly clear that the whole discussion has been warped by misrepresentation of Salaita's tweets, first by right-wing hacks like William Jacobson, the clinical professor at Cornell who is an embarrassment to that university, and then by Cary Nelson.

http://leiterlawschool.typepad.com/leiter/2014/08/letter-from-law-professors-to-chancellor-wise-at-illinois-re-salaita-case.html

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