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The Salaita case: when academic freedom collides with freedom of contract

By George Leef

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August 27, 2014

One of the hottest academic controversies of the year involves the decision by the University of Illinois to “unhire” Professor Steven Salaita. He had been tentatively awarded a position in the university’s American Indian Studies department and, upon the supposition that the job offer would be finalized by the UI Board of Trustees, resigned his previous post at Virginia Tech.

At that point, a lot of his astoundingly nasty tweets regarding Israel and the battle in the Gaza strip came to light. 

In one, he wrote, “At this point, if Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anybody be surprised?” Another celebrated the kidnapping of three Israeli teens, who were later found murdered: “I wish all the (expletive) West Bank settlers would go missing.” As for people who disagree with him, Salaita’s language turns violent. He wrote that a journalist who did not see things the way he does should get “the pointy end of a shiv.”

This kind of writing is light years away from the discourse you would expect from any educator, much less a professor at a flagship state university.

After reviewing Salaita’s penchant for vituperative language, Chancellor Phyllis Wise decided against submitting the nomination to the board of trustees. Chancellors have considerable discretion in hiring faculty members and she used it to stop him from getting the position he thought he had bagged.

Immediately, some of those who share Salaita’s vehement opposition to Israel announced that this was a horrible injustice that undermined academic freedom and the First Amendment’s protection of freedom of speech. The American Association of University Professors proclaimed, “We stand by Professor Salaita and defend his right to engage in extramural utterances. The University of Illinois cannot cancel an appointment based upon Twitter statements that are protected speech in the United States.”

Perhaps surprisingly, however, Chancellor Wise’s decision was applauded by University of Illinois professor Cary Nelson, one of the most stalwart defenders of academic freedom and free speech in the country.

In an essay on Inside Higher Education, Nelson wrote that Salaita’s statements were “sophomoric, bombastic, or anti-Semitic.” Must a university ignore such behavior in deciding whether to offer someone a position? Nelson answered in the negative: “A campus and its faculty members have the right to consider whether a job candidate’s publications, statements to the press, social media presence, public lectures, teaching profile, and so forth suggest he or she will make a positive contribution to the department, student life, and the community as a whole.” In the Salaita’s case, there was good reason to think not.

But, arguing the case against the university from “the right,” was Adam Kissel of the Koch Foundation In this Minding the Campus post he argued that if you don’t protest the treatment of Salaita, you can’t logically protest against the many instances where the left has tried to (and often succeeded in) keeping academics who take non-leftist positions from getting rehired or receiving tenure. 

Kissel gives a number of cases that are on point, such as the recent decision by the Fourth Circuit in the suit by UNC-Wilmington professor Mike Adams against his university. Adams was denied tenure mainly if not entirely because university bigwigs disliked his conservative writings for TownHall. As Kissel states the court’s holding, “Public colleges and universities may not fire, refuse to rehire, or refuse to promote professors who have expressed controversial opinions, even if the opinions are expressed in strong language.”

I am a fervent defender of the First Amendment, but I think that extending the prohibition against governmental infringement with freedom of speech to the point where it interferes with the contractual decisions of public colleges and universities is a mistake. Why shouldn’t educational institutions be allowed to consider the speech and written expressions of prospective employees or current employees under consideration for promotion? 

Of course, sometimes they will make bad decisions. Occasionally or even frequently, good scholars won’t get jobs they wanted or promotions they deserved due to the fact that university decision-makers don’t like their views. This has been going on for decades, as academic departments where a certain philosophy prevails ignore applications from scholars who don’t share it. For example, no matter how excellent their work, economists with the “Austrian” perspective have very little chance of getting any consideration in a Keynesian department. (In this essay, Daniel Klein and Charlotta Stern explain why academic departments are prone to “groupthink.”)

But on the other hand, ignoring speech and writings by academics can also lead to bad decisions. Most of them write a lot. In doing so, they may display a demeanor that is not in harmony with scholarship and the need to teach students how to think, not what to think. 

In the Salaita case, university officials were taken aback by the unscholarly nature of his expressions regarding the Gaza conflict and no doubt thought, “He seems apt to prove an embarrassment for the university and may be unable to keep his opinions out of the classroom.” Why should a college or university have to turn a blind eye to such expressions, given that once a faculty member is hired, it is very difficult to later terminate one who goes off on rants? 

Academic freedom is important. A scholar should not be penalized for writings that are displeasing to the administration. But freedom of contract is at least as important. Colleges and universities must have the freedom to decline to employ those who seem more interested in ranting about their personal “hot button” issues than in objective teaching and scholarly inquiry. 

In the last year, there have been a number of embarrassing incidents where professors “went off” on political issues, denouncing people who disagree with them, including students. (Carl Cannon provides some good examples in this RealClearPolitics piece.) Little can be done about such professors once they’ve been hired, so colleges have good reason to avoid hiring people who can’t stick to their subjects and can’t refrain from embarrassing the school with outlandish statements.

Traditionally, college faculty members have had great—but not unlimited—freedom to write or say whatever they wanted. In its 1940 Statement of Principles on Academic Freedom, the American Association of University Professors said there should be some limits, in particular that professors should not introduce into their classes “controversial matter which has no relation to his subject” and when speaking as a citizen, showing “appropriate restraint” and “respect for the opinions of others.” 

But many professors have taken advantage of the perceived lack of boundaries, behaving like children eager to see how much they could get away with. (The rapid improvement in cell phones to capture classroom happenings on video has probably made some faculty members more wary, but there is movement toward forbidding such recordings, which I discussed in this Pope Center article.) An excellent example of that was LSU professor Bradley Schaefer’s tirade in class against students who were skeptical about the global warming hobgoblin, discussed in this National Association of Scholars piece.

While the government should not curtail free speech, there is no danger (or constitutional violation) in educational institutions setting some limits.

With those AAUP principles in mind, colleges and universities ought to consider including a term in future employment contracts to clarify the boundaries for speech and writing. No faculty member should ever have to fear penalty or loss of position for real scholarship, but there is no reason why colleges shouldn’t be able to decline to hire, discipline or fire professors whose in-class or extramural expressions show no restraint or respect.

Instead of elevating the Salaita case to First Amendment status, it should be handled like any other contract case: Had a contract been made; did Illinois breach it; if so, what are the damages? (It seems that the answer to the initial question is “no,” but Salaita is due his day in court.) And if schools would insist on clear and reasonable contractual limits on faculty speech and conduct, we would see fewer cases like this in the future.

 


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