Lawyers for embattled Professor Steven Salaita have fired the latest round in his employment lawsuit against the University of Illinois, rebutting the UI's motion to dismiss the case.
In a response filed late Monday in U.S. District Court in Chicago, Salaita's team said the university had a contractual obligation to hire Salaita, disputing the UI's contention that he had no "binding contract" or "unambiguous promise" of a job.
Salaita received a written job offer in American Indian Studies in September 2013 and formally accepted it in writing, and in the ensuing 11 months before he was to start teaching "all the parties ever did was confirm their understanding that there was an agreement," said Baher Azmy, legal director for the Center for Constitutional Rights, which is representing Salaita along with the Loevy and Loevy law firm in Chicago.
The UI scheduled Salaita to teach two courses in the fall 2014 semester, ordered books for the courses and allowed students to enroll. It also assigned him an office and a university email, and Chancellor Phyllis Wise invited him to a reception for new faculty, according to his lawyers. Salaita resigned his tenured position at Virginia Tech, and he and his family prepared to move to Illinois.
"Like all of the other faculty members who went through the same process, there was no doubt that they had an agreement," Azmy said Tuesday.
UI administrators withdrew the job offer to Salaita last August after his controversial tweets about Israel, touching off a faculty uproar about free speech and academic freedom. Trustees ultimately upheld the decision on an 8-1 vote, and reiterated that stance in January. Salaita then filed his lawsuit, seeking to force the campus to hire him and compensate him for lost income and damages to his reputation.
The UI's position is that Salaita's job was always subject to approval from the UI Board of Trustees, which did not formally vote on his appointment until September 2014. Because trustee approval was not granted, Salaita did not become a UI employee and therefore was not entitled to the benefits and protections given to public employees, the UI said.
Azmy said the language about pending board approval appeared in only one document to Salaita, and is generally understood to refer only to citizenship and eligibility to work.
The language "doesn't change the actual existence of a contract," Azmy said. "If that were true, none of the 120 employees, including those who had already started teaching, had a contract. That's absurd. They could have fired everybody."
The UI said only the Board of Trustees has authority to make faculty appointments. Salaita's lawyers argued that the board had delegated that authority to administrators.
Salaita's response also said he has a clear claim against "First Amendment retaliation," which prohibits government officials from "taking adverse actions against individuals — either public employees or private citizens — that were motivated even in part by the individuals' speech as a private citizen on a matter of public concern."
His fiery, sometimes profanity-laced tweets — following the Israeli bombing of Gaza and more than 2,000 Palestinian deaths — "plainly constitute matters of public concern," the response argued.
"They basically conceded the reason they acted against him was disapproval of his speech, which is protected by the First Amendment," Azmy said. "And the law is very clear that an employee, even a public employee, can't suffer repercussions ... as a result of his protected speech."
The university argued that Salaita's tweets, interpreted by some to be anti-Semetic, could cause disruption on campus. A memorandum in support of its motion to dismiss listed 19 tweets by Salaita that, UI officials believe, show he was "entirely unfit to be a professor at the University of Illinois." They include: "If #Israel affirms life, then why do so many Zionists celebrate the slaughter of children? What's that? Oh, I see JEWISH life."
The university "properly balanced (Salaita's) interest in making his inflammatory statements against the University's interest in providing a safe and efficient educational environment," the UI's motion said.
Salaita's lawyers said the university failed to make that case. Azmy said that argument usually involves comments made on the job, as part of one's official duties.
"This speech was private speech, done from his home in Virginia. It wasn't directed at any student," Azmy said.
Salaita's lawyers conceded that some of his tweets were "provocative and strongly-worded." But the tweets make clear that "his severe criticism of the practices of the Israeli government was not grounded in antipathy toward Jewish people, but in a belief that Jewish and Arab children are equal in the eyes of God," they argued.
Salaita's lawsuit targeted unnamed university donors who "unlawfully threatened future donations to the university if it did not fire Professor Salaita on account of his political views," according to his lawyers.
The UI has called allegations of donor influence "unsupported, speculative and illusory."
Salaita's "own conduct during the time that his appointment was pending called into question his fitness as a professor, which led to the Board's decision not to approve his appointment," according to a UI memorandum in support of its motion to dismiss the case.
Wise received hundreds of emails from donors, students, parents, alumni and concerned citizens about Salaita's tweets in the days before she decided to rescind his job offer. But the chancellor has insisted donor communications did not influence her decision.
The lawsuit says the UI's actions damaged Salaita's academic reputation, as he remains without a job, living with his wife and son in his parents' home.
The university will have the chance to rebut Salaita's response before the motion to dismiss is ruled on by the federal district judge in late May.
UI officials were still reviewing Salaita's response on Tuesday. Spokeswoman Robin Kaler said the university would present its legal arguments in a reply brief that is due by April 20. A hearing on the UI's motion to dismiss is scheduled for late May.
Salaita and his lawyers also filed a separate lawsuit against the UI in November in Champaign County Circuit Court after being denied access to documents via the Freedom of Information Act. The next hearing in that case is scheduled later this month.