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Salaita v. University of Illinois: The Constitutional Issues

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Now that the University of Illinois has affirmed its illegal decision to revoke the offer of a tenured position to Prof. Steven Salaita, I want to here explore in some more detail the constitutional issues at stake in the litigation that is likely to follow.

Public universities, like all state agencies, are subject to the U.S. Constitution, including the First Amendment, which protects freedom of speech. One of the basics of the American law of free speech is that the government can almost never suppress or punish speech because of its content. (There are some very narrow exceptions: e.g., child pornography, speech that poses a risk of immediate violence ["fighting words".) Speech on matters of public concern -- such as the Israeli attack on Gaza -- is almost always protected by the First Amendment.

One important aspect of the First Amendment protection for expression is that government cannot (generally) base a hiring decision on the speaker's political viewpoint. (There are exception for certain kinds of political appointees [e.g., Cabinet members], as well as institution-specific exceptions, e.g., the military.) Wagner v. Jones, a recent case, offers a good illustration. Wagner, a pro-life conservative, claims she was passed over for a job teaching legal research and writing at the University of Iowa because of her political views. The trial court initially granted Iowa's motion to dismiss, but the U.S. Court of Appeals for the 8th Circuit correctly reversed that decision. Section II(A) of the opinion contains a useful discussion of precisely the doctrines that will be at issue for Salaita's constitutional claims against the University of Illinois (citations mostly omitted):

"`[P]olitical belief and association constitute the core of those activities protected by the First Amendment.'" Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990).... In Rutan, the United States Supreme Court extended [earlier decisions] and held that the First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions....The state can neither directly nor indirectly interfere with an employee's or potential employee's rights to association and belief.....

Academic freedom is a "special concern of the First Amendment." Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967). "No more direct assault on academic freedom can be imagined than for the school authorities to [refuse to hire] a teacher because of his or her philosophical, political, or ideological beliefs." Bd. of Regents v. Roth, 408 U.S. 564, 581 (1972) (Douglas, J., dissenting). But this court has recognized that respect for the "singular nature of academic decision-making" is also warranted because courts "lack the expertise to evaluate tenure decisions or to pass on the merits of a candidate's scholarship...." The Supreme Court has also emphasized the respect due to academic judgment.....Thus, judicial review of such decisions is limited to whether the "decision was based on a prohibited factor."

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"[A]cademic freedom" here concerns primarily the freedom of the academic institution to determine criteria for faculty hiring, subject to the limitation of not relying "on a prohibited factor," such as the political viewpoint of the candidate. (Other prohibited factors would include, e.g., the race of the candidate.)

The trial court was wrong to dismiss Wagner's case, but will a jury conclude that she was denied the position for political reasons? The decision was taken at the departmental level, i.e., the Law School, and one faculty member (out of several dozen) was clearly hostile to her politics. By contrast, Salaita has considerably more evidence that it was his political expression that was the overriding factor in the decision not to hire him. The departmental unit (the American Indian Studies Program) voted to hire him; the Dean approved the hire and extended the offer; the University scheduled his fall classes; and so on. But then in July of this year his tweets about Israel became an object of criticism on conservative websites, and then alumni and others began lobbying the University precisely because they objected to his political point of view. This seems utterly obvious, so how could a court find otherwise?

Chancellor Wise's and Chairman Kennedy's statements last Friday were shocking in their abrogation of the constitutional and contractual rights of the current faculty, but in one respect, they were clearly following legal advice: the statements claim that Salaita was not denied hiring because of his political viewpoint, but because of the manner in which he expressed himself. This is clearest in Chancellor Wise's statement:

The decision regarding Prof. Salaita was not influenced in any way by his positions on the conflict in the Middle East nor his criticism of Israel....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.

Here the Chancellor disavows (however implausibly) that the University was motivated by Salaita's viewpoint, but rather only by the unacceptable manner in which he expressed it. The Supreme Court's famous decision protecting vulgar speech in a courthouse -- "fuck the draft" -- suggests this is going to be a difficult distinction to sustain--especially since the University will be hard-pressed to identify any other cases where the Chancellor and the Board of Trustees stepped in to reverse hiring decisions because the candidates violated the articulated standard of "disrespectful words... that demean and abuse either viewpoints themselves or those who express them."

Enter now Pickering, another case, oddly enough, from Illinois decided by the Supreme Court almost a half-century ago. In that case, a local school board fired a teacher who wrote a letter to the local newspaper criticizing the board's management of district finances; the letter, it turned out, contained some factual inaccuracies as well. The Court sided with the teacher and against the board. In the crucial paragraph of the opinion, the Court stated:

To the extent that the [lower court's] opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court....At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

It's that last sentence, the so-called "Pickering balancing test", on which the University of Illinois will have to rely. Note that in Pickering, the Court did not find that any of the school's interests "in promoting the efficiency of the public services it performs through its employees" were really affected by the letter, even allowing that some of the statements in the letter were inaccurate. But it's precisely the Pickering balancing test that a state university can invoke if it disciplines a teacher who demeans and disrespects his students in the classroom (or if the teacher harasses, sexually or otherwise, the students). And it was the Pickering test, as elaborated by later court opinions, that the U.S. Court of Appeals for the 2nd Circuit relied on in deciding that City College could remove Prof. Leonard Jeffries from his administrative position (but not his tenured post) in the wake of a controversial speech. The 2nd Circuit gives a crisp statement of the later standard:

Whittled to its core, [the Supreme Court] permits a government employer to fire an employee for speaking on a matter of public concern if:  (1) the employer's prediction of disruption is reasonable;  (2) the potential disruptiveness is enough to outweigh the value of the speech;  and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.  

That paragraph gives the essence of what the University's constitutional strategy will be in the Salaita case. The University will argue that the refusal to hire was based on a reasonable prediction that Salaita's vitriolic attacks on Israel and Zionists would disrupt his ability to deliver education to the students and work with his colleagues, and that it was this concern that motivated the University's revocation of the job offer.

This argument is, obviously, absurd. Only if it is reasonable to think that Salaita's tweeting predicts his conduct in the classroom and with his colleagues would the argument even pass the first prong of the test. Yet the university, in making the initial offer, already had substantial information on both these points (his teaching and collegiality), so that it would be manifestly unreasonable to conclude from his tweets that he would disrupt the university's operations given his many years of prior academic service with no such effects. But even if the University met the first prong, there is still the problem that Salaita was speaking out on matters of immediate public concern, matters at the heart of First Amendment protections, making it unlikely that the second prong would be satisfied. Finally, of course, the University will be hard-pressed (as noted already) to show that it was motivated by concerns about "disruption" of its educational functions rather than caving into political and donor pressure because of Salaita's political views.

Alas, social media and academia is new territory for the courts, and some benighted, lawless court might actually side with the University's awful arguments. If that happens, the message will be clear: all faculty should abandon social media, or employ an editor well-attuned to the local political norms about "acceptable" expression.