The University of Illinois prides itself on its transparency, except of course when it doesn't.
So while the hiring/non-hiring fight over a controversial professor continues to rage in some quarters, it's hush-hush deep within the UI bureaucracy. When even a "no comment" is hard to come by, speculation fills the void, and there's plenty regarding Steven Salaita and the UI.
"To date, both Salaita and the university have maintained absolute silence about the case. It would be unusual for a university to comment publicly on a personnel matter, but such reserve is uncharacteristic of Salaita, who has never been known for his reticence. This strongly suggests that a deal is probably in the works, probably involving a buyout and mutual covenants of confidentiality and nondisparagement," wrote Northwestern University law Professor Steven Lubet in a recent commentary.
Lubet is referring to the possibility of a legal settlement to resolve potential litigation between the prospective employer — the UI — and the prospective employee — Salaita — over the last-minute withdrawal of a job offer.
It's not easy to just say no when legal claims — either real or imagined — can be invoked.
"I think the university has a problem," said Champaign lawyer Glenn Stanko. "So (a settlement) would not surprise me."
Here's the background.
Salaita, an American of Palestinian descent and a former English professor at Virginia Polytechnic Institute and State University, was offered a tenured position in the UI's American Indian Studies Program, scheduled to start in mid-August. Controversy, however, arose when his reputation for tweeting obscenity-laden messages dominated by virulently anti-Israel themes made the news.
One of his more inflammatory tweets involved the murder of three Israeli teenagers, an action he applauded.
"You may be too refined to say it, but I'm not: I wish all the (obscenity) West Bank settlers would go missing," Salaita said.
In a letter to UI President Robert Easter, a representative from the Simon Wiesenthal Center questioned the UI's decision to hire a notorious anti-Semite, and there must have been plenty of other objections raised.
UI Chancellor Phyllis Wise subsequently wrote Salaita an Aug. 1 letter telling him the deal was off because "we believe an affirmative board (of trustees) vote approving your appointment is unlikely."
Is the lack of trustees' approval dispositive of this dispute? Cornell University law Professor Michael Dorf contends it is not.
"That view appears to be false as a matter of contract law," wrote Dorf, citing the concept of "promissory estoppel."
"Like many other states, Illinois law offers protection to people who, in reasonable reliance of an offer that falls short of a fully enforceable contract, take actions to their detriment," he said.
Under the impression he was coming to the UI, Salaita resigned his position at Virginia Tech.
"By giving up his position at VT, Salaita gave up a job in which he had academic freedom; thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom," Dorf wrote, citing the concept that allow university faculty members to run amok without fear of sanction by their employer.
There seems to be no question that if Salaita had joined the UI faculty in 2013, he would not be subject to any fallout from his intemperate tweets. Granting him pre-emptive academic freedom before official employment apparently would have the same effect.
Dorf also cited Salaita's potential First Amendment claim that he is the victim of viewpoint discrimination for opposing Israel.
That's a somewhat tougher argument. While the UI has been silent on the issue, supporters of the UI's decision, including faculty members Cary Nelson, Nick Burbules and Joyce Tolliver, have cited Salaita's puerile and incendiary language they say violates university civility standards and shows no respect for differing opinions.
Dorf, however, dismissed that argument, conceding Salaita's "provocative" comments but warning that "the threshold must be very high" to "swallow up academic freedom."
Unlike Professor Dorf, Professor Lubet is not nearly as impressed with Salaita's legal position.
"(Chancellor) Wise has great discretion when it comes to hiring professors — as opposed to firing them — and there is no rule that prevents her from considering Salaita's history of vulgar and intemperate outbursts. That may seem like a technicality, but law is technical by its very nature," he said.
So there's a lot to think about, with no definitive answer until a court rules.
Attorney Stanko said he's thought about the issue "just for academic purposes," seeing both the contract and constitutional speech issues. He wonders if the UI would have been better off presenting Salaita's contract to trustees and having them reject it rather than having Wise act in apparent response to Salaita's tweets.
"How many people are on the board? How do you prove what the motive of all the board members is?" Stanko asked.
Given the tough issues on both sides of the plate, the UI and Salaita each have motives to work out their differences. Are they?
Can't say. Mum's the word. If Chancellor Wise told you, she'd have to kill you — a real breach of the university's civility standards.