By: Samir Chopra
I cannot bring myself to celebrate the news of Steven Salaita's settlement with the University of Illinois at Urbana Champaign (UIUC). The reasons for this are fairly straightforward--as noted in a petition now circulating: the crucial legal issues at the heart of his dismissal remain unresolved, and his job has not been reinstated.
Shortly after Salaita announced he would be taking legal action against UIUC, I made some caustic remarks--in the company of many friends--to the effect that UIUC should fire its legal team. How could they possibly have advised a public university to take action that seemed clearly punitive and retaliatory against the exercise of political speech by one of its employees? Did they not envisage the terrible damage that would be done to the university in the discovery stage of trial, where email correspondences and internal deliberations would go public, where it would become clear that the university had succumbed to the pressure exerted by donors?
In conversations with my wife--a lawyer herself--another disturbing possibility presented itself. That the university's legal team had not discounted such a possibility, that a cost-benefit analysis had been carried out, one which reckoned the financial damage to the university resulting from the loss of donor money if Salaita was appointed as being greater than that resulting from the terms of any out-of-court settlement with Salaita. (The amount that Salaita settled for, $875,000, is far less than some big-pocket donor might have threaten to withhold had Salaita's appointment not been rescinded. By way of comparison too, think of the salaries of football coaches at large university systems like the University of Illinois.)
And so it has come to pass. Salaita's case never went to trial; the crucial First Amendment issue that lay at its core was never resolved; and instead, a simple calculus for violating academic freedom has emerged. In saying all this, I do not mean to second-guess the decision made by Salaita and his legal team; he must have wanted put the legal dispute behind him and get on with his life, which has been subject to terrible emotional pressure, and that is not an insignificant consideration. He has a life to live, and it does not need to include being the poster child for a political movement. But it remains unclear whether he will ever find employment at an American university again, for as we might well expect news of his hiring will be greeted by the same furor that precipitated the loss of his UIUC job. His academic future remains in limbo.
To reiterate, the courts of this country were not called on to put their considerable weight behind Salaita's plea to be reinstated on the grounds that his First Amendment rights had been violated. An important legal precedent would have been set had he won, and academic freedom--seemingly perennially under threat when it comes to particular issues in the current political climate--would have received important legal, political, and moral protection. Perhaps I'm too glib in assuming that Salaita would have won, and perhaps his legal team, based on its knowledge of the relevant case law, felt this was the safest path. Fair enough.
Still, when the smoke has cleared, the landscape looks much like the one before. Indeed, university administrators have learned from Chancellor Phyllis Wise's behavior how not to fire someone for exercising their academic freedom, and the amount of settlement lays down a marker all its own. Academics will still remain uncertain about what their free speech rights in this situation.