Steven Salaita files federal lawsuit over non-hiring (Update: Glaring defect)

Steven Salaita files federal lawsuit over non-hiring (Update: Glaring defect)

Steven Salaita, the controversial former professor who was denied a tenured job at the University of Illinios at Urbana-Champaign, has filed a lawsuit against the university trustees and unnamed (“John Doe”) donors who allegedly pressured the university. The one trustee who voted in favor of hiring, James Montgomery, was not named as a defendant. Chancellor Phyllis Wise also was named as a defendant.

The lawsuit was filed in the Northern District of Illinois, rather than the Central District where the campus is located, based on the Trustees having voted not to hire Salaita at a meeting in Chicago. Strategically, Salaita presumably prefers a Chicago jury, if it gets to that.

More details and an embed of the Complaint to follow (now full embed at bottom of post).

The heart of Salaita’s factual claim is that his tweets during July 2014 over the Gaza conflict are all that is at issue, when in fact one of his tweets before July wishing for all Israeli settlers to go missing after three teens were kidnapped and presumably murdered, was specifically mentioned by at least one of the Trustees:

3. The speech at issue consists of messages critical of Israeli policy that Professor Salaita posted to his personal Twitter account in July 2014, after the state of Israel launched “Operation Protective Edge,” an aerial bombardment and ground campaign in the Gaza Strip. Professor Salaita saw the news images of Palestinian children killed and felt compelled to speak out. He did so by posting Twitter messages critical of the Israeli government and its political leaders, and highlighting the impact of its policies. In the United States, Professor Salaita’s criticisms of Israeli state policy are infrequently heard from American politicians or presented in the mainstream national media. The University Administration, facing pressure from wealthy University donors, fired Professor Salaita for his political speech challenging the prevailing norm.

Salaita alleges, among other things, reputational damage, which opens up a lot of issues for litigation:

5. Professor Salaita has suffered severe economic, emotional, and reputational damage as a result of the wrongful conduct of the University, the above-named University officials, and the donors to the University who demanded that the University break its contract with Professor Salaita. Professor Salaita’s prominent scholarship and excellent teaching credentials had allowed him to obtain a lifetime-tenured faculty position at a major American university—the pinnacle achievement for an academic….

Salaita alleges that donors caused or at least contributed to his non-hiring (which he calls a firing), something Chancellor Phyllis Wise has vigorously denied:

15. Defendants JOHN DOE DONORS TO THE UNIVERSITY OF ILLINOIS are unknown contributors to the University who threatened future donations to pressure the University to terminate Professor Salaita. They each communicated with University officials regarding Steven Salaita’s employment and demanded that the University breach its contractual obligations and promises to Professor Salaita or else they would withhold financial contributions to the University.

We can expect to see an attempt to add these alleged donors to the lawsuit at some future date. One donor, Steven Miller, is identified in the Complaint, but was not (yet) named in the lawsuit.

There is a glaring defect in the Complaint which at least would go to Salaita’s contractual claims and perhaps even his free speech claims. Salaita never says in the Complaint that anyone ever told him that Board of Trustee approval was a formality and certainly would be obtained. That was a condition of the offer, yet in the Complaint Salaita only says he assumed Trustee approval was a formality:

38. Based on the communications and conduct above, as well as standard academic hiring practices, including practices at the University of Illinois, Professor Salaita reasonably believed that approval of the Board of Trustees was a mere formality and that his position with the University of Illinois was certain so long as he remained legally eligible to work.

This will be problematic for Salaita in his quest to turn a contingent offer into an enforceable contract under the doctrine of promissory estoppel. Based at least on the Complaint, no one with authority ever promised him that the Board of Trustee contingency would not apply.

If a court finds no enforceable contract, and that Salaita was just a potential hire, then the University would have more discretion into what it took into account in the hiring process. That would include, as both official and unofficial university faculty committees found, whether the tweets were part of Salaita’s scholarly profile and therefore properly taken into account when judging Salaita’s fitness for the job.

I will have more analysis of the lengthy discussion of Salaita’s tweets in the Complaint, likely in a later post.

Here are the Counts in the Complaint:

Count I – 42 U.S.C. § 1983
First Amendment
Against the Trustee Defendants and Defendants Easter, Pierre, and Wise

Count II – 42 U.S.C. § 1983
Procedural Due Process
Against the Trustee Defendants and Defendants Easter, Pierre, and Wise

Count III – 42 U.S.C. § 1983 and 42 U.S.C. § 1985
Conspiracy
Against all Defendants

Count IV – State Law
Promissory Estoppel
Against the Board of Trustees

Count V – State Law
Breach of Contract
Against the Board of Trustees

Counts VI and VII – State Law
Tortious Interference with Contractual and Business Relations
Against John Doe Donor Defendants

Count VIII – State Law
Intentional Infliction of Emotional Distress
Against all Defendants

Count IX – State Law
Spoliation of Evidence
Against Defendant Wise

The University issued the following statement in response:

A statement by the University re Steven Salaita complaint
University to vigorously defend against meritless claims

January 29, 2015

The University of Illinois must balance all of the interests of its campuses and the institution in reaching any decision, particularly one as important as granting a positon as a member of our faculty.

Last summer, while Steven Salaita was still under consideration for a tenured position to teach courses comparing issues related to the experiences of Native Americans to issues related to Palestinians and the Middle East, Dr. Salaita began demonstrating that he lacked the professional fitness to serve on the faculty of the University of Illinois at Urbana-Champaign.

Specifically, Dr. Salaita began making a series of statements via social media on precisely the subject matter that he proposed to teach at our University. For example, on June 19, 2014, after three Israeli teenagers were reported kidnapped and presumed dead, Dr. Salaita posted a statement on Twitter which read: “You may be too refined to say it, but I’m not: I wish all the f**king West Bank settlers would go missing.” Dr. Salaita continued to post this comment even after the three teens were found murdered later that month.

Dr. Salaita also posted statements such as:

“Zionist uplift in America: every little Jewish boy and girl can grow up to be the leader of a monstrous colonial regime.”

“If #Israel affirms life, then why do so many Zionists celebrate the slaughter of children? What’s that? Oh, I see JEWISH life.”

“Zionists: transforming antisemitism [sic] from something horrible into something honorable since 1948.”

“Let’s cut to the chase: If you’re defending #Israel right now you’re an awful human being.”

These statements and many more like them demonstrate that Dr. Salaita lacks the judgment, temperament and thoughtfulness to serve as a member of our faculty in any capacity, but particularly to teach courses related to the Middle East.

As Dr. Salaita admits in the complaint he filed today, the offer he received in October 2013 from the American Indian Studies Program was at all times subject to the ultimate approval of the Board of Trustees. This is consistent with the Statutes of the University of Illinois and the past precedent of the University. Dr. Salaita was well aware of the importance of this final approval. At no time was Dr. Salaita hired as a faculty member. His appointment was always subject to approval by the Board of Trustees.

On September 11, 2014, after carefully considering all of the issues related to Dr. Salaita’s proposed appointment, the Board of Trustees voted 8-1 not to approve Dr. Salaita for a position on the faculty. Two weeks ago, the Board emphatically reiterated that its decision is final and will not be reconsidered.

The Board’s decision concerning Dr. Salaita was not reached hastily. Nor was it the result of external pressures. Indeed, the Committee on Academic Freedom and Tenure concurred that “donor influence” was not a basis for the decision. The decision did not present a “new approach” to the consideration of proposed faculty appointments. It represented the careful exercise of each Board member’s fiduciary duty and a balancing of all of the interests of the University of Illinois. In the end, this is a responsibility that cannot be delegated nor abdicated.

Today, Dr. Salaita has filed a complaint in federal court. Among other accusations, he contends that the individual trustees and administrators of the University of Illinois are liable for intentionally inflicting emotional distress by refusing to provide him with a faculty position. The University of Illinois intends to vigorously defend against these and each of Dr. Salaita’s other meritless claims. The University has attempted to negotiate a settlement for his reasonable losses and expenses, but he has refused those offers.

As a private citizen, Dr. Salaita has the constitutional right to make any public statement he chooses. Dr. Salaita, however, does not have a constitutional right to a faculty position at the University of Illinois.

Steven Salaita v Christopher Kennedy Et Al – Complaint

(This post was added to several time)

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