A Lawyer’s View Of The Salaita Controversy

I don’t know if Prof. Steven G. Salaita plans to sue the University of Illinois at Urbana-Champagne for retracting its offer of a tenured faculty position because of his inflammatory “tweets” about Israel.  But let’s pretend he does, just for discussion purposes.

A legal outcome always depends on the specific facts of the case.  I don’t know exactly what those are, so I’ll make some assumptions based on what I’ve read about this case:  UIUC apparently made a job offer to Prof. Salaita in the fall of 2013, which he accepted, then he resigned from his faculty position at Virginia Tech and arranged to move his family to Champagne-Urbana which included selling their house.  But in August 2014, UIUC withdrew its job offer because of the “tweets.”

To put the “tweets” in context, Prof. Salaita apparently has a history of impassioned pro-Palestine advocacy, which I presume was known to UIUC when making the job offer to Prof. Salaita.  However, the particular “tweets” UIUC deemed objectionable occurred subsequently, in response to Israel’s attack on Gaza this summer.  UIUC justified its recession of the job offer in terms of the “tone” rather than “content” of these “tweets” (their terminology, not mine).

In my opinion, if these facts are accurate, UIUC is in legal trouble.  The key to understanding why is realizing this isn’t a contract issue.  What the law calls “equity” will be determinative.  Think of Lucy and a football:

If you induce someone to do something, then yank the ball away from them, you’re liable for any resultant harm.  For example, a few years ago Citibank recruited a trader from another firm, then decided not to go through with hiring him after he had left the other job.  An arbitrator ordered Citibank to pay the spurned job candidate nearly $4 million in compensatory damages.

Something similar happened in Prof. Salaita’s case.  Based on my factual assumptions above, UIUC induced Prof. Salaita to give up his Virginia Tech position, sell his house, and move his family to Illinois by offering him a tenured faculty position.  Retracting that offer after he took those steps to join their faculty left him unemployed and with uncompensated relocation expenses.

The legal liability here has nothing to do with academic freedom, free speech, campus civility, or similar issues that have commenters from the academic community in a twist over this case.  It’s about Lucy holding the football to induce Peanuts to kick it, then yanking it away and making him fall flat on his back.  That may be a freebie in the comic strips, but not in real life.

Can an employer ever get out of fulfilling an inducement because of new information or changed circumstances?  Yes, maybe, in some circumstances.  For example, if a job applicant misrepresented his credentials, the employer doesn’t owe him for withdrawing the job offer.  So the question becomes, did Prof. Salaita’s “tweets” constitute legal justification for leaving him in the lurch?

That’s undoubtedly what UIUC’s lawyers will argue, but I doubt it’ll fly, because (a) his propensity for fiery advocacy was known when the offer was made, and (b) the “tweets” occurred “off duty” so to speak, i.e. in his private life which an employer generally doesn’t have a right to regulate.

I’m not taking a position on whether UIUC should or shouldn’t employ Mr. Salaita as a tenured professor.  All I’m saying is they shouldn’t have held out the football, then yanked it away, leaving him without a job and stuck with incurred relocation expenses.  As a legal matter, I think they’ve got to compensate him for those losses.

This isn’t about Prof. Salaita’s views on Israel.  The legal analysis would be the same if the context was BDSM, devil worship, or donating money to the Irish Republican Army.  If an employer is interested in those things it should find out about them in the interview process, if the law permits, before making an offer.  Once they hold out the football and in effect say “come on, kick it!,” they can’t yank it aRoger Rabbit iconway without incurring legal consequences.




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