Untangling the Salaita case

US Politics
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By now, the controversy over University of Illinois Chancellor Phyllis Wise’s August 1 decision to terminate the faculty appointment of Professor Steven Salaita has gone viral. A multitude of opinions have poured forth from blogs, news stories, editorials, and protest letters.

The debate brings into focus the continuing problem of efforts by adamantly pro-Israel groups to suppress campus protests against Israel’s policies in the occupied territories.[1] In this article, I hope to bring some clarity to the underlying issues of academic freedom and First Amendment law.

The facts are relatively undisputed. Salaita was offered and accepted a tenured position in the university’s American Indian Studies Program, to begin August 16, 2014. He resigned his job at Virginia Tech and communicated with his new department over course assignments, schedules, and book orders for the fall. He initiated the purchase of an apartment for himself and his family and was the guest at a welcome dinner hosted by the AIS faculty. In April he was notified of his fall teaching assignment; in mid-summer he finalized his book orders.[2] All that remained was the apparent formality of the chancellor’s submission of the appointment to the board of trustees for approval. The board’s vote ordinarily comes in mid-September, well after new hires have started work. [3]

During the summer, Salaita posted angry Twitter messages, sometimes more than a dozen per day, in response to Israel’s bombing of Gaza, with its appalling death toll of civilians, including hundreds of children. As is typical of social media, these short posts were not written in refined academic style. Among the more provocative: “The logic of ‘antisemitism’ deployed by Zionists, if applied in principle, would make pretty much everybody not a sociopath ‘antisemitic.'”[4] And there was plenty of vulgar language, as in: “Fuck you, Israel. And while I’m at it, fuck you, too, PA, Sisi, Arab monarchs, Obama, UK, EU, Canada, US Senate, corporate media, and ISIS.”[5]

According to documents released by the university in response to public-records requests, Chancellor Wise soon began to receive pressure from pro-Israel students, parents, and alumni, as well as the fundraising arm of the university, to abort the Salaita appointment.  There was, for example, this message from one alum: “Having been a multiple 6 figure donor to Illinois over the years I know our support is ending as we vehemently disagree with the approach this individual espouses.”[6] Documents showed that Wise was eager to meet with another unhappy donor, a venture capitalist who had given a half-million dollars to endow a professorship at the business school.[7]

Wise denied that her decision was based on pressure either from donors or from others opposed to Salaita’s political viewpoint. Rather, she explained her decision in terms of the “uncivil” tone of some of Salaita’s tweets:

“What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them. … A Jewish student, a Palestinian student, or any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful, and mutually respectful manner.”[8]

The Due Process Issue

Whatever might be said about the credibility of Wise’s asserted reason for terminating the appointment, the American Association of University Professors (the AAUP) seems correct in its assertion (in an August 29 letter to her) that the university had in effect already hired Salaita, and could not arbitrarily fire him without due process protections: notice of the charges, a fact-finding hearing, and a determination of whether the termination was justified. As the AAUP wrote: “the academic community cannot condone an appointment procedure which enables a university to offer a professor a position during normal appointment ‘season’ and then, after he has accepted the position, to cut him adrift without warning or hearings.”[9]

Due process protections should apply here as a matter not only of basic fairness and good educational policy but constitutional right, because the University of Illinois is a government agency (part of the state university system), to which the due-process protections of the U.S. Constitution apply.[10]

On the Merits: “Civility” and Academic Freedom

But what about the merits of Wise’s asserted reason? Is “incivility” in public discussions on a social-media site — that is, not in the classroom or in scholarly writings — a disqualification from a professorial job? This has been widely described as a question of academic freedom, but since Salaita’s tweets did not have anything to do with his performance as an academic, it’s actually a broader question of free speech that applies to all public employees.

The concept of academic freedom began to penetrate American universities in the early 20th century, in response to politically motivated firings (very much like Salaita’s), often done at the behest of conservative boards of trustees. The targeted professors had been active outside their teaching and scholarship, in causes such as labor organizing and socialism.[11]

In response, the newly formed AAUP issued a Declaration of Principles with a three-part definition of academic freedom: in the classroom, in scholarly research and writing, and in “extramural speech” (that is, political activity not directly related to their professional duties). That third prong made sense at a time when neither the U.S. Constitution nor any state law protected employees in most circumstances against retaliation for their political views.

In 1968, the Supreme Court decided the case of Pickering v. Board of Education, which for the first time gave some First Amendment protection to public employees. In that case, a teacher had been fired after writing a letter to the local newspaper criticizing school board policies. The Court in Pickering established a balancing test that asked whether the employee’s speech addressed a matter of public concern, and if so, whether the authorities were justified in firing the employee anyway, on the ground that the speech interfered with workplace efficiency.[12] As a matter of First Amendment law today, that’s the test that should apply both to Chancellor Wise’s stated reason for cancelling Salaita’s appointment, and to any additional motives, such as disagreement with his political views or pressure from funders.

In the context of a university teaching job, disagreement with a professor’s viewpoint is almost always an unacceptable reason for scuttling an appointment, because a university is, as the Supreme Court has said, a quintessential “marketplace of ideas.”[13] But what about “civility”?

It is obviously a vague and subjective standard, and can sometimes (as perhaps in this case) be used as a pretext for disapproval of a person’s point of view (or acquiescence in the disapproval of others). But beyond that, it’s dangerous to use the style of speech on a social-media site such as Twitter as a job disqualification. Vulgar and hot-headed language might be inappropriate in the classroom, but tweets are not the same as classroom teaching (or scholarly writing),[14] and the chancellor has not cited any evidence to suggest that Salaita has been other than a fair and popular teacher.[15]

This isn’t to say that “incivility” in the public arena — or, for that matter, expression of a political viewpoint — could never be a disqualification from an academic job. Public expression of “creationist” views, for example, would at the very least raise serious questions about a professor’s qualifications to teach biology. Persistent (and explicit) expression of the opinion that women’s role is to stay home and have babies, not attend college, might at least justify an inquiry as to whether the professor can be fair to female students.

Would explicitly anti-Semitic statements raise a similar question about potential unfairness to Jewish students? Possibly, but Salaita’s don’t fit in this category. In fact, his perception in one tweet, that “by eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror,”[16] is a fair enough point, and one worthy of discussion.

In any event, the “default” position, both legally and as a matter of policy, should be that professors are protected from retaliation for statements outside the classroom. They should not be penalized for “extramural” speech, no matter how vulgar or rude. One person’s vulgarity, in the famous words of the Supreme Court, “is another’s lyric.”[17]

The Real Motive? Threats From Funders

The facts suggest that threats from donors were at the very least a factor in Wise’s decision. Attempts to censor speech through conditions on funding, whether from private donors or state legislatures (or Congress) pose a very serious problem not only for higher education but, as we saw with the National Endowment for the Arts 25 years ago, for artistic and intellectual freedom generally. In the NEA context, the Supreme Court ultimately finessed the problem by ruling that Congress’ viewpoint-based restrictions on arts funding were not really restrictions at all — just suggestions.[18] As a political matter, the NEA was saved from total defunding, though in a much-weakened state. In later cases, arts institutions and universities have successfully resisted threats from funders.[19]

That is what, as the leader of a prominent university, Chancellor Wise, should have done. But pressure from big donors, and one’s own development department, can be powerful, and she may have felt cornered. She should have consulted with the faculty about the pressures, but did not. A campaign of the type that has since developed might have given her enough political backing to resist.

If a court were to find that the real (or a major) reason for her decision was financial pressure driven by hostility to Salaita’s viewpoint, it should rule in his favor. But being political animals to some extent themselves, it’s far from certain that the courts would do so.

Ultimately, what’s important is the groundswell of opposition to Wise’s hasty decision, which has now made the University of Illinois a proving ground for free speech on Israel/Palestine and the attempts to suppress it.

Sept. 5, 2014

Footnotes

[1] See, e.g., Marjorie Heins, “Charging Anti-Semitism to Squelch Dissent,” http://www.fepproject.org/commentaries/Anti-Semitism.html.

[2] See American Association of University Professors letter to Wise, 8/29/14, http://www.aaup.org/file/AAUPLetterChancellorWise.pdf.

[3] See id.; “Salaita firing turns into a ‘catastrophe’ for University of Illinois,” Mondoweiss, 9/3/14, http://mondoweiss.net/2014/09/catastrophe-university-illinois.html (quoting 8/31/14 letter to Wise from president, president-elect, and immediate past president of American Historical Association).

[4] Posted on 7/17/14; see https://twitter.com/stevesalaita.

[5] Posted on 7/20/14; id.

[6] Scott Jaschik, “The Emails on Salaita,” Inside Higher Ed, 8/25/14, https://www.insidehighered.com/news/2014/08/25/u-illinois-officials-defend-decision-deny-job-scholar-documents-show-lobbying (also reporting that “[w]hile many of the emails are fairly similar, some stand out. For instance, there is an email from Travis Smith, senior director of development for the University of Illinois Foundation, to Wise, with copies to Molly Tracy, who is in charge of fund-raising for engineering programs, and Dan C. Peterson, vice chancellor for institutional advancement. The email from Smith forwards a letter complaining about the Salaita hire, and adds that ‘Dan, Molly, and I have just discussed this and believe you need to [redacted]’”). See also Christine Des Garennes, “Salaita Prompted Donors’ Fury,” The News-Gazette, 9/2/14, http://www.news-gazette.com/news/local/2014-09-02/salaita-prompted-donors-fury.html (letters from donors included some identifying themselves as members of the UI’s $25,000-plus “presidents council”).

[7] See “Salaita firing turns into a ‘catastrophe’ for University of Illinois, Mondoweiss, 9/3/14, http://mondoweiss.net/2014/09/catastrophe-university-illinois.html.

[8] “Chancellor’s Blog,” 8/22/14, http://illinois.edu/blog/view/1109/115906?count=1&ACTION=DIALOG&sort=asc.

[9] AAUP letter to Wise, 8/29/14, http://www.aaup.org/file/AAUPLetterChancellorWise.pdf.

[10] I leave aside the question whether provisions of the state constitution might also give Salaita legal protection.

[11] See, e.g., Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013), pp. 17-30; http://www.fepproject.org/fepp/PriestsReviews.html.

[12] Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

[13] Healy v. James, 408 U.S. 169, 180 (1972).

[14] See the AAUP’s recent Statement “Academic Freedom and Electronic Communications,” http://www.aaup.org/report/academic-freedom-and-electronic-communications-2014.

[15] See David Palumbo-Liu , “Why The ‘Un-Hiring’ of Steven Salaita is a Threat to Academic Freedom,” The Nation, 8/27/14, http://www.thenation.com/article/181406/why-unhiring-steven-salaita-threat-academic-freedom# (“A review of Salaita’s teaching evaluations at Virginia Tech, a standard part of any hiring process, reveals absolutely no evidence of intimidation, threats or stifling of student opinion. … Instead, the record shows strong and enthusiastic appreciation of Salaita’s teaching and interactions with students. According to this report, the student evaluations for Salaita are spectacular. Repeatedly, he is given near perfect ‘excellent’ scores for ‘knowledge of subject’; the lowest rating he ever receives in the ‘excellent’ category for ‘overall rating’ is 86 percent. It is especially important to note student evaluations of Professor Salaita in the category of ‘concern and respect’ for students. Here too the evaluations are near perfect”). 

[16] Posted on 7/18/14; https://twitter.com/stevesalaita.

[17] Cohen v. California, 403 U.S. 15, 25 (1971).

[18] National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); see also Free Expression Policy Project, Free Expression in Arts Funding (2003), pp. 11-13, http://www.fepproject.org/policyreports/artsfunding.pdf.

[19] The Brooklyn Museum, for example, in its 1999 battle with New York Mayor Rudolph Guiliani, after he not only threatened to, but did cut off funds because of his disapproval of a certain exhibit; see Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999); and, more recently, Brooklyn College, which defied defunding threats from New York City Council members after it scheduled a forum on the boycott and divestment campaign against Israel; see Alex Kane, “Brooklyn College stands behind BDS event as pressure from elected officials comes down hard,”  Mondoweiss, 2/1/13, http://mondoweiss.net/2013/02/brooklyn-pressure-officials.html.

About Marjorie Heins

Marjorie Heins directs the Free Expression Policy Project (www.fepproject.org) and is a member of the AAUP's Committee A on Academic Freedom. This article represents solely her own views.

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9 Responses

  1. just
    September 5, 2014, 12:21 pm

    Super article. Thanks.

  2. Sycamores
    September 5, 2014, 12:29 pm

    Phyllis Wise

    ““I, in hindsight, wish I had been a little bit more deliberate and had consulted with more people before I made that decision”

    Phyllis Wise was confronted by graduate student Rico Kleinstein Chenyek representing members of the university’s Jewish community

    “Your decision to fire Professor Salaita is in fact what threatens us as Jews,” Chenyek said. “By pointing to anti-Semitism and anti-Judaism in an attempt to obscure politically and financially-motivated University actions, you minimize the Jewish voices of those who have resisted real and violent anti-Semitism,” Cheyenek added.

    “By conflating pointed and justified critique of the Israeli state with anti-Semitism, your administration is effectively disregarding a large and growing number of Jewish perspectives that oppose Israeli military occupation, settler expansion, and the assault on Palestine,” Chenyek said.

    “The firing of Professor Salaita is the Israeli attack on Palestine coming to our campus. Just as we work tirelessly to oppose Israeli ethnic cleansing and displacement of Palestinians taking place in our name, we will ensure that the silencing of Professor Salaita and others like him does not take place in our name either,” Chenyek stated.

    http://electronicintifada.net/blogs/ali-abunimah/illinois-chancellor-says-she-should-have-consulted-more-people-firing-palestinian

  3. The JillyBeans
    September 5, 2014, 2:33 pm

    This case clearly demonstrates the idea of “money is the root of all evil.” Between the donor’s and Ken Langone, the Home Depot founder telling the Pope to shut up, it’s clear that some people have gotten too big for their britches.

  4. seafoid
    September 5, 2014, 4:22 pm

    There isn’t much to entangle. It’s the usual Zionist thuggery and career destruction

    “It was a technique which the Zionists were to employ throughout their struggle. The technique of promoting damaging personal attacks on those who stood in their way rather than trying to counter their arguments.”
    “Such non conformists were subtly made aware that their jobs might be at risk, their books unpublishable, their preferment out of the question, their public reputations vulnerable if they did not renounce the heresy of anti Zionism ”
    Publish it not, Mayhew and Adams, 1975

    http://www.counterpunch.org/2013/09/13/the-people-against-the-800-pound-gorilla/

    “James Abourezk, former Senator from South Dakota, who has testified: “I can tell you from personal experience that, at least in the Congress, the support Israel has in that body is based completely on political fear – fear of defeat by anyone who does not do what Israel wants done. I can also tell you that very few members of Congress–at least when I served there – have any affection for Israel or for its lobby. What they have is contempt, but it is silenced by fear of being found out exactly how they feel. I’ve heard too many cloakroom conversations in which members of the Senate will voice their bitter feelings about how they’re pushed around by the lobby to think otherwise. In private one hears the dislike of Israel and the tactics of the lobby, but not one of them is willing to risk the lobby’s animosity by making their feelings public.”

  5. ritzl
    September 6, 2014, 7:34 am

    Good article, but doggone it it’s occupied PALESTINE, not some nebulous “territory,” occupied or otherwise. The people who live there are Palestinians, not “occupied territorians.”

    The use of “territories” is the Israeli frame. It denies, is intended to deny, Palestine and Palestinian identity. I wish people, especially well meaning people, would STOP subscribing to that particular form of suppression. It’s such an easy thing. Just don’t do it.

  6. pabelmont
    September 6, 2014, 9:17 am

    Israel occupies Syria’s Golan Heights and Palestine’s Gaza and West Bank. Except for Gaza Israel occupies with both settlers and army (and government employees outside the army, such as police) present within the occupied territory. Gaza is nevertheless occupied because Israel controls its borders.

    I consider all of Palestine as occupied, some occupied (settlers and soldiers) in and after 1948, some in and after 1967. Since some Israelis are Palestinians and some are Jews who lived in Palestine before 1948, I guess some Israelis live — but not as settlers –in occupied Palestine.

    An important thing is that after 1948, Israel never had (and never announced or even claimed an intention of announcing) its ENTIRE boundary. The post-1948 boundaries were all truce-lines and subject to change. In principle, Israeli territory could expand or contract. This is still true.

    The treaties with Egypt and Jordan DO create some boundaries between Israel and other states, but there is no boundary with Lebanon, Syria, and most important with Palestine. That’s why I think the whole of pre-1967 Israel is “occupied territory” — it is held by military force after having been acquired by war.

  7. pabelmont
    September 6, 2014, 9:45 am

    Israel occupies Syria’s Golan Heights and Palestine’s Gaza and West Bank. Except for Gaza Israel occupies with both settelrs and army (and government employees outside the army, such as police) present within the occupied territory.

    I consider all of opalestine as occupied, some occupied (settlers and soldiers) in and after 1948, some in and after 1967. Since some Israelis are Palestinians and some are Jews who lived in Palestine before 1948, I guess some Israelis live — but not as settelrs –in occupied Palestine.

    An important thing is that after 1948, Israel never had (and never announced or even claimed an intention of announcing) its boundaries. The post-1948 boundaries were all truce-lines and subject to change. The treaties with Egypt and Jordan DO create some boundaries between Israel sand other states, but there is no boundary with Lebanon, syria, and most important with Palestine. That’s why I think the whole of pre-1967 Israel is “occupied territory” — it is held by military force after having been acquired by war.

  8. Citizen
    September 6, 2014, 3:27 pm

    What younger American politician will tell Americans Emperor Israel has no clothes? The tipping is point is drawing near: http://www.counterpunch.org/2014/09/05/israels-fatal-over-reach/

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