More on tweeting without tenure

August 15, 2014

Last week I blogged about the case of Steven Salaita, an academic who was offered a lateral position at the University of Illinois only to have the offer rescinded, apparently due to Salaita’s penchant for vitriolic tweets about Israel.  The University’s action have prompted a debate over academic freedom, and whether it is ever appropriate for universities to consider a professor’s comments outside of class.

Adam Kissel argues that the offensiveness of Salaita’s tweets does not make Salaita any less deserving of protection.  Writes Kissel:

You should formulate your response to the case of Steven Salaita cautiously. Salaita, a professor at the University of Illinois, was unhired following public outcry over his declamations against Israel, Jews, and defenders of Israel on Twitter. If you don’t defend him, you can’t defend right-wingers who express themselves in similarly strong language.

“No individual loses his ability to speak as a private citizen by virtue of public employment,” the U.S. Court of Appeals for the Fourth Circuit reminded us in the case of Professor Mike Adams. 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.

Denver Post editorial writer Vincent Carroll is not so sure.

As I noted in my prior post, former AAUP (and Illinois Professor) Cary Nelson has defended the university’s position.  This has prompted a bit of a backlash, detailed in Inside Higher Ed.  There is also a series of petitions from academics calling for a boycott of the University of Illinois until Salaita is reinstated.

Cornell law Professor Michael Dorf thinks that Salaita has a strong legal case.  According to Dorf, Salaita should be able to argue promissory estoppel (he resigned his prior academic post in reliance on the Illinois offer) and could perhaps even raise constitutional claims (as Illinois is a state institution).

In the Chicago Tribune, Northwestern University law Professor Steven Lubet suggests that the case is more complicated.  Lubet argues that Salaita’s academic freedom claim appears to be stronger than his legal claim.  Yet Lubet also notes that some of Salaita’s defenders have been quick to obscure the actual content of Salaita’s tweets. (See, e.g., the Dorf article linked above.)

Many of Salaita’s supporters have been unfortunately eager to obscure the true nature of his tweets, usually by calling him a passionate supporter of Palestinian rights who reacted strongly to recent events in Gaza. That does not begin to tell the whole story. Salaita’s demeaning comments about Israelis and Jews predate the current fighting, and they go far beyond the bounds of civil, or even passionate, discourse. For example, Salaita celebrated the kidnapping (and subsequent murder) of three Israeli teenagers and proudly called for more such crimes to be committed: “You may be too refined to say it, but I’m not: I wish all the (expletive) West Bank settlers would go missing.”  . . .

Salaita also traffics in anti-Semitism, having tweeted: “Zionists: transforming ‘anti-semitism’ from something horrible into something honorable since 1948.” It should go without saying that racism — toward any group, for any reason — is never honorable, despite Salaita’s own indulgence of bigotry. Even bigots, of course, are entitled to academic freedom, but Salaita’s supporters have been regrettably disingenuous. . . .

Some of Salaita’s tweets have been inexcusably violent and racist. That may not disqualify him from teaching college students, but let’s not be naive about his hateful message.

(A non-paywall version of Lubet’s article is available here.)

I largely share Lubet’s views.  His point about the disingenuous (or uninformed) characterization of the tweets in question is particularly well taken.  As he notes, when defending Nazi marchers in Skokie, Ill., “the ACLU never soft-pedaled the Nazis as merely passionate critics of international banking.” I agree with Lubet that an academic should not be fired or denied a job offer, because of his or her political views, but I also question whether someone with Salaita’s record of hateful and offensive rhetoric is capable of being an effective academic and educator.

UPDATE: Several prominent law professors have signed a letter to the University of Illinois administration expressing “alarm” over their treatment of Salaita. The letter’s broad endorsement of academic freedom is commendable; the letter’s failure to acknowledge the actual nature of Salaita’s tweets is not.

UPDATE: Dave Hoffman questions the strength of Salaita’s potential legal claims.

Note: Post update to reflect that Adam Kissel is no longer with FIRE. FIRE’s own comment on controversy is here.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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