Key claims can move forward, while some claims dismissed.
The Court in the Steven Salaita lawsuit, arising out of the University of Illinois Board of Trustees’ decision not to hire him, has just issued a Memorandum and Opinion [Full Embed at bottom of post] which allows his key claims to move forward.
For background on the case, see our prior posts:
- Anti-Israel Prof. Steve Salaita loses job offer at U. Illinois over hateful tweets
- U. Illinois Board of Trustees votes down Steven Salaita
- U. Illinois: Steven Salaita non-hiring final, will not reconsider
- Steven Salaita files federal lawsuit over non-hiring (Update: Glaring defect)
- U. Illinois Trustees seek to throw out Steven Salaita federal lawsuit
The Court in its ruling dismissed Counts VI and VII (Tortious Interference with Contract), VII (Emotional Distress) and IX (Spoiliation of Evidence). The dismissal of the Tortious Interference counts is significant in that those were alleged against various pro-Israel “John Doe” donors who communicated with the UI-UC Chancellor Phyllis Wise.
But the court permitted the heart of the lawsuit to move forward, Count I (First Amendment), II (Procedural Due Process), (III) Conspiracy, (iv) Promissory Estoppel, and V (Breach of Contract).
Analysis: I’ve now had time to read through the Opinion. Here’s a short breakdown:
First, understand that this is a decision on a Motion to Dismiss, in which the court does not decide on the merits of the case, but on whether enough has been pleaded to put the defendants on notice of the claims and whether the facts alleged plausibly set forth legal claims.
The Court must accept the facts pleaded as true, and must give the plaintiff (Salaita) beneficial inferences from the facts. That doesn’t mean the Court’s rulings are meaningless, it just means that if everything Salaita alleged were true, plus reasonable inferences, he stated a legal claim for relief. The case moves forward into discovery and potentially trial.
Breach of Contract (Count V). The court disagrees with the defendants’ interpretation of the words in the offer letter that it was “subject to” Board of Trustee approval. Here’s the key language from the offer letter (emphasis added:
Upon the recommendation of Professor Jodi Byrd, Acting Director of the American Indian Studies, I am pleased to offer you a faculty position in that department at the rank of Associate Professor at an academic year (nine-month) salary of $85,000 paid over twelve months, effective [August 16], 2014. This appointment will carry indefinite tenure. This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois.
I think the judge has seriously misread the contract in holding that those words did not, in fact, require Board of Trustee approval for the offer to be valid.
The Court placed great emphasis on the placement of the words towards the end of those sentences, not earlier where there was a reference to an “offer.”
Nothing about the actual offer, nor the mode of acceptance, indicates that no contract would be formed until after the Board’s approval.
The University points solely to the “subject to” language as evidence that there was no contract, but that term, read in light of the other contract terms, is at least plausibly a term of performance. That term says that the University would recommend Dr. Salaita’s appointment to the Board, but that the Board would have ultimate say on whether to appoint Dr. Salaita as a professor. The other concrete terms make clear that the parties had a contract, but that the University might be excused from performing if the Board rejected the University’s recommendation. The University’s own offer letter uses definite terms like “offer” and “acceptance” without any qualification. If the University really felt that there would be no contract whatsoever unless the Board first approved, it could have drafted its offer letter in those terms. It could have, for example, drafted the acceptance that Dr. Salaita signed to say “If the Board ultimately approves of my recommendation, I will accept the appointment.” Or the letter could have said, “You are not employed until the Board first approves of the University’s recommendation.” This is precisely what Purdue University did in Lutz….
Better still, the “subject to” provision could have used the word “offer,” which courts have found “telling” when deciding whether an offer is conditional. [Opinion at 12-13]
The Court then engaged in highly speculative possibilities drawn from events outside the terms of the contract, as to why the actual wording could not be deemed to make the contract contingent on Board approval:
If the Board vote was truly a condition to contract formation, then the University would have the Board vote on appointments before the start of a semester and before spending money on a new professor or treating the professor as a full-fledged employee. Finally, the University actually held the Board vote despite its claim that it had no agreement whatsoever. If the University truly felt no obligation to Dr. Salaita, the University could have simply not put the appointment to a vote at all. Instead, the University still went ahead with the vote, which is at least some evidence that it felt obligated to hold a vote according to the terms of the offer letter. Simply put, the University cannot argue with a straight face that it engaged in all these actions in the absence of any obligation or agreement.
Also, the University’s argument, if applied consistently, would wreak havoc in this and other contexts….
If the Court accepted the University’s argument, 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. In sum, the most reasonable interpretation of the “subject to” term in the University’s offer letter is that the condition was on the University’s performance, not contract formation. [Opinion at 13-16]
For the court to view the Trustees holding a vote as evidence that the Trustees did not have veto power is strange, since the letter specifically said it was subject to Board approval. If they didn’t hold a vote, that might have been interpreted as a waiver of that veto power. Moreover, the effect on the academic industry more broadly seems both overwrought and improper on a Motion to Dismiss.
The Court effectively read the “subject to approval by the Board of Trustees” language out of existence, which contradicts a standard rule of contractual construction that a contract is interpreted to give meaning to all terms where reasonable.
It will be interesting to see how the Court applies this ruling later in the case. While a decision on a motion to dismiss is not a decision on the merits, this indicates the court intends to interpret the offer letter favorably to Salaita. Whether the Court allows the case to go to a jury, or later on rules on “summary judgment” in Salaita’s favor, will be the critical battle in the case.
Promissory Estoppel (Count IV). Many commentators (including me) expected this count to be the key, given the “subject to” language in the contract which seemed to vitiated any contract claim.
Promissory estoppel allows a claim where there is no enforceable contract, but someone reasonsably relied on unambiguous promises to his detriment. I previously referred to a “glaring defect” in the Complaint, which is that Salaita never alleged he relied on a promise that Board approval would not be needed. But given the Court ruling, which essentially read the “subject to” language out of existence, the Court easily found that a promissory estoppel claim was stated.
First Amendment (Count I). The Court was less emphatic on this Count than on the Breach of Contract, but nonetheless found sufficient facts pleaded. There was no dispute that it was protected speech involved, but whether individual defendants could be liable was an issue. The court found that potentially they could.
More important to the future of the case, the Court said it was premature for the Court to decide whether the Trustees rejected Salaita because of disagreement with his point of view, or properly exercised their authority to take into consideration disruption Salaita’s hiring would cause (which might allow the Trustees to act even against protected speech):
The University’s second argument is that its action was not motivated by the content or viewpoint of Dr. Salaita’s tweets, and that even if it was, its interest in providing a disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering. The first part of the argument is premature; summary judgment or trial will reveal the University’s actual motivation, but the facts viewed in Dr. Salaita’s favor amply support a claim that the University fired Dr. Salaita because of disagreement with his point of view….
At the motion to dismiss stage, the Court simply cannot find that the University was not at all motivated by the content of Dr. Salaita’s tweets….
The University next argues that the Court should apply the balancing test in Pickering and find that under no set of facts could Dr. Salaita prove that his First Amendment rights were violated. This argument is also premature. “Normally, application of the Pickering balancing test will be possible only after the parties have had an opportunity to conduct some discovery.” Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir.1997).
The Court therefore declines to engage in a full-fledged Pickering balancing analysis at this early stage in the litigation.[Opinion at 26-28]
While the 1st Amendment claim has the most newsworthiness, in fact it is on less firm basis moving into summary judgment and trial, since the Trustees will be able to express reasons within their authority separate and apart from Salaita’s anti-Israel viewpoint. Certainly, there are dozens of UI-UC professors hired who are anti-Israel, and the university can point to those hirings as evidence that it was potential disruption, not anti-Israel viewpoints, that motivated the decision. I would expect this Count to go to a jury.
Procedural Due Process (Count II). This Count asserts that Salaita was deprived of due process in the rejection of his hiring. In light of the finding of a contract claim, the Court quickly ruled that this claim could survive the Motion to Dismiss.
A procedural due process claim has two elements: “(1) deprivation of a protected interest, and (2) insufficient procedural protections surrounding that deprivation.” Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). The University’s Motion does not challenge the second element; instead, the University argues that Dr. Salaita had no property interest at all. The University’s core argument stems from its earlier argument that Dr. Salaita had no contract, which the Court already discussed above. Dr. Salaita’s Complaint pleads a sufficient breach of contract claim, and he was therefore deprived of a property interest when the contract was allegedly breached. Thus, Dr. Salaita has pleaded a procedural due process claim.
Conspiracy (Count III). This count alleges that various individual defendants conspired to deprive Salaita of his appointment. Because the case is in the early pleading stages, the Court allowed it to move forward:
Dr. Salaita’s Complaint alleges facts that give a conspiracy claim substantive plausibility. The parties are clearly identified as the Board and its members and various administration officials. The facts in the Complaint, viewed in Dr. Salaita’s favor, detail the dates of the alleged conspiracy and its general purpose: to retaliate against Dr. Salaita because of his tweets. The University makes much of the lack of allegations regarding precisely what words were said in forming the alleged conspiracy, but Dr. Salaita cannot know that information without discovery. [Opinion at 32]
The court also said there were enough allegations to overcome, at this pleading stage, the intra-corporate conspiracy doctrine, which essentially says that people acting within a single corporate entity can’t “conspire” with each other.
The Court found that allegations that the rejection was extraordinary were enough:
None of these allegations demonstrate the type of routine conduct that the intracorporate conspiracy doctrine was meant to protect; thus the doctrine is inapplicable and Dr. Salaita has stated a conspiracy claim. [Opinion at 35.]
Tortious Interference with Contractual and Business Relations (Counts VI and VII). The Court dismissed these Counts, which alleged that unnamed “John Doe” donors pressured the university, among other ways, by threatening to stop donating.
While not of great actual importance to Salaita’s case, Salaita and others have made this a political centerpiece alleging “Israel lobby” interference. In fact, many of the pronouncements focus overwhelmingly on these Counts.
This was going to be the way Salaita gets even with the people he thinks were behind the decision. But it is not to be, the Court ruled that these donors had just as much 1st Amendment protection as did Salaita:
Aside from disputing the existence of the contract, the University does not seriously dispute that the Complaint alleges facts generally establishing tortious interference. Rather, the University argues that the claim cannot survive because the alleged conduct, i.e., the donors’ threats to withhold donations, is protected by the First Amendment. The Court agrees. Courts cannot apply state tort laws if doing so violates the First Amendment….
The donor Defendants exercised their First Amendment rights by contacting the University to express their displeasure with Dr. Salaita’s hiring. Similar activity was found to be protected in Scheidler, and the Court sees no reason to rule differently here. Dr. Salaita tries to distinguish Scheidler by characterizing the donor Defendants’ speech here as a quid
pro quo demand, but this distinction is without merit. As noted above, the letter in Scheidler was also of a similar quid pro quo nature. Because it is clear on the face of the Complaint that the donor Defendants’ allegedly tortious activity is protected by the First Amendment, Dr. Salaita cannot possibly prevail on his tortious interference claims. The First Amendment is a two-way street, protecting both Dr. Salaita’s speech and that of the donor Defendants. The Court therefore dismisses Counts VI and VII. [Opinion at 37-40]
The other two counts were dismissed, as could easily be predicted. Intentional Infliction of Emotional Distress (Count VII) never was a serious claim given the extremely high hurdle to assert such a claim, and Spoiliation of Evidence (IX) was rejected because it involved a single two page memo from a donor that Salaita could not allege actually damaged his ability to prove his case.
So where does this leave the case?
Pretty much where it has been for the past several months, in the middle of discovery. It seems that all remaining counts would avoid summary judgment, except possibly for the contract claim. The standard on summary judgment is that there have to be no material facts in dispute, and a party entitled to judgment as a purely legal matter. The defendants run a risk that the Court would rule against them as a matter of law on the contract claim, given that the Court has read Board Approval out of the offer letter. I think such a ruling would be without basis, but it’s a risk.
The Chronicle of Higher Ed quoted the university as follows:
The university issued a statement saying it was gratified that several claims had been dismissed and “a much narrower version of the case will proceed.”
UPDATE 4:20 pm.:
The university just issued a press release that Chancellor Phyllis Wise has stepped down (her term was up in 2016). From the wording, it appears connected to the Salaita controversy, though the short timing indicates is probably wasn’t a reaction to the Judges’s decision, issued just a few hours earlier:
August 6, 2015
URBANA–University of Illinois at Urbana-Champaign Chancellor Phyllis M. Wise announced in a statement today that she will step aside as chancellor and vice president of the University effective August 12 and will return to the faculty. University President Timothy L. Killeen accepted her resignation and commended Wise for her commitment to the University.
“I am in the process of selecting an interim chancellor who will serve until an immediate search for a permanent chancellor can be completed, and I expect to name that person within the next week,” Killeen said. “I anticipate a smooth transition in leadership and dedicate myself to working closely with internal and external stakeholder groups—faculty, staff, students, alumni, donors and community leaders—during the process.”
Chancellor Wise statement:
“During the last four years, I have worked with an extraordinary team to realize our vision to be ‘the pre-eminent public research university with a land-grant mission and global impact.’ We have accomplished a great deal. Importantly, we have established the foundation for the first ever engineering-driven College of Medicine. This is just one example of the success of our campus-wide effort to be pre-eminent in everything we do.
“Yet, external issues have arisen over the past year that have distracted us from the important tasks at hand. I have concluded that these issues are diverting much needed energy and attention from our goals. I therefore believe the time is right for me to step aside. I will resign from the chancellor’s position effective August 12, 2015, and will resume my roles as a member of the faculty. I look forward to rededicating my efforts to teaching, research and service.
“I would like to reiterate my commitment to this University and its role as a world-class educational institution. I have valued my time as chancellor and wish to express my deep gratitude to the many colleagues and friends who have been so essential to everything we have accomplished during my tenure.”
(added) It’s not clear how much of a role the Salaita case played, if any, as a local blog notes that the language of her statement suggests that player scandals and lawsuits were the likely pressure point.
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