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Wednesday, August 20, 2014

Does it Even Matter What Steven Salaita "Tweeted?"

I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.

I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)

What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?

As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.

On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."    

It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:

"I'm beginning to think the Protocols of the Elders of Zion are right."

"One, two, a thousand Auschwitzes!"

"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"

"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."

"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"

Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other. 

One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.  


Posted by Paul Horwitz on August 20, 2014 at 10:22 AM in Paul Horwitz | Permalink


"In light of the University's decision to fire a professor on the basis of his commitment to ending violence against Palestinians"

A reply was made to this comment in a strident fashion, at least it might seem that way, but simply put, I do think the comment dubious.

There are various ways to be committed to the end of violence against Palestinians. This alone doesn't really seem to be the problem here. It is the concern over how a person phrased that. This doesn't make the university correct, but I think it is unfair to phrase it so broadly.

Posted by: Joe | Aug 25, 2014 11:13:16 AM

Paul --

I don't think there's any question that if the academics' letter were about someone in Prof. Salaita's position who had made some of the hypothetical comments you suggested, it would not have described the speech in question in so anodyne a fashion.


Posted by: Jonathan H. Adler | Aug 24, 2014 4:25:12 PM

Even so: setting aside blogging threads, assuming something short of absolute consensus among legal scholars and practitioners on this topic, and in the wake of Legal Realism and CLS, as well as what we've learned over several decades now about psychological mechanisms and processes, I suspect (perhaps mistakenly) that even the identification of what counts as basic premises and the ensuing determination of relevance and irrelevance invariably reflects some degree of influence of the aforementioned presuppositions, assumptions, and beliefs among the parties. This seems to be the case when one looks at the various posts on this case by the law professors at Dorf on Law, Concurring Opinions, The Faculty Lounge, and here at Prawfs. This of course does not preclude the significance of proceeding with the endeavor to identify the (precise quantity and content) of basic premises, but that may not be as straightforward as the response seems to suggest.

Posted by: Patrick S. O'Donnell | Aug 21, 2014 11:06:31 AM

Thanks for the comments. (A couple of comments may have been lost for reasons unknown to me. If I can find them or get them directly from the commenter, I'll post them. My apologies.) I don't have responses to everything and in any event the discussion has been great without me, as usual. A couple of comments, though:

Paul G.: There is certainly a content-based aspect to academic freedom. Academic freedom exists subject to one's membership in the academic community, which is subject to disciplinary standards. But I don't think most people would argue that "beyond the pale" statement on matters of public concern outside the classroom are protected by academic freedom. They might be relevant to hiring, but not to firing, absent circumstances that may turn on the content but not the viewpoint. The astronomer's comment falls in between and there have been controversies along those lines in recent years.

Anon: Re tweeting, I think I've been clear that it's a personal view. I should add that I have no problem with tweeting for aggregation purposes, deadpan humor, and such. I'm just not fond of a medium that, by virtue of its very economy, often tends to encourage (or attract) the unduly strong and combative expression of views. But your mileage may vary.

Steve: Just on your second point, I'm not trying to state that "rule" too strongly. I of course think that we may privately come to stronger conclusions about the true meaning of some speech act. In *public* discourse and *public* characterizations of another's public speech, however, I think the overall benefits of the charitable course of interpretation I suggest (calmer discourse, more appreciation for interpretive ambiguity, etc.) tend to outweigh its costs (naivete, allowing someone to get away with implicit objectionable speech, etc.). That's probably a subject for another day. Here, I was more interested in consistency. I think there are admirable things about taking this charitable course of interpretation, not least that they prevent us from jumping to conclusions and letting our first reading of someone's statement blind us to other possible genuine readings. But we should apply that rule consistently if at all possible.

Kevin and Max: I apologize for lumping the two of you together in a comment! I am aware of the kind of argument advanced here, and that it could be employed in Salaita's case or in response to the hypos I offered. It could, indeed, be used in response to almost any matter of public concern. My understanding of academic freedom is that this is precisely why we should be very cautious about giving heavy weight to such a concern, lest it swamp academic freedom altogether. My assumption is that the primary test is not whether an academic has said something outside of the class that would make students justly uncomfortable, but whether the professor has met and continues to meet relevant academic and disciplinary standards in his scholarship, teaching, and service, which includes the fair treatment of students. Hiring, in this sense, is said to represent a departmental certification that the individual does meet these standards, no matter what he says or said outside of class. If that is not the case--if, say, Salaita announces, "All Zionists who have enrolled in my class, line up for your Fs" or otherwise fails to meet basic classroom standards--that may represent a departmental failure, and it is subject to proper intervention by the university. But a test that suggests that saying objectionable things outside of class presents a prima facie case for firing (which is the premise I'm operating on in this post) would not be consistent with our current understanding of academic freedom.

Patrick: Perhaps I should have been less faux-naïve in my post. Of course I understand the likelihood that these discussions will move into the substance and context and so on, for better and worse. I would suggest that it's all the more important, then, for us to frequently touch base with the basic premises animating the argument. Doing so may help us see better which aspects of the discussion are relevant and which irrelevant, and to refine and generalize the relevant principles so they are capable of application in other cases.

Posted by: Paul Horwitz | Aug 21, 2014 9:37:07 AM

And now we're reminded of why the conversation and comment thread on Lubet's post at The Faculty Lounge discussed Hamas, Gaza, and so forth, as it speaks to background presuppositions, assumptions, and views held by more than a few folks (legal experts, academics, and other interested parties) when discussing this particular case about academic freedom and what Salaita did or did not tweet (i.e., it seems well-nigh impossible to discuss this episode without the wider context which accounts for its existence in the first place).

Posted by: Patrick S. O'Donnell | Aug 21, 2014 7:53:28 AM

"N" makes my point far better than I ever could, so I'll leave it at that.

Posted by: Kevin Jon Heller | Aug 21, 2014 6:41:57 AM

Kevin Heller, your comment is so absolutely off the wall you must be a paid consultant or some radical clown.
You state "[i]n light of the University's decision to fire a professor on the basis of his commitment to ending violence against Palestinians..."
Excuse me, but there is no excuse whatsoever for advocating that a Holocaust is justified because of "violence against Gaza." The person who supports genocide against jewish folk is a disgraceful individual and deserves to be fired.
Second, to refresh your recollection, regarding "violence" against gazans, note that your Hamas friends have lobbed thousands of missiles and Israel has every right to defend itself. Firing rockets from private homes and hospitals is not Israel's problem. The people in gaza voted for Hamas and if they dont like them need to get rid of them. You know, Hamas is duly elected govt as they were voted in.
Heller, our world is in a mess because of academics such as yourself that blame the victim and claim that defending yourself against terrorists is a violation of international law if the terrorists use homes, schools and hospitals as storage space or firing ranges. Yes, legitimate states should just rollover and let their civilians get hit. That's normal.
Anyway, the tweets are beneath contempt - and by your support of them you land in that same category.

Posted by: N | Aug 21, 2014 5:46:15 AM

In light of the University's decision to fire a professor on the basis of his commitment to ending violence against Palestinians, let's ask some questions. Would a Palestinian student be comfortable taking a class at the University? Is it reasonable to assume that the University would treat any Palestinian student fairly? How about a Palestinian student who speaks in favour of Palestine? How about a Palestinian student who refuses to speak or write in defence Israel? To ask these questions is to answer them.

Such is the natural implication of the logic of those who do not believe in academic freedom -- or in the ability of professors to assess work on the basis of anything other than their personal politics. Although that assumption is made, of course, only with regard to those who defend Palestinians. If your strident politics is in defence of Israel, such as Cary Nelson's, no one would ever suggest that you should could not fairly assess the work of Palestinian students, disqualifying you from serving a professor.

Posted by: Kevin Jon Heller | Aug 21, 2014 3:36:31 AM

Among Salaita's tweets were these:

"Let’s cut to the chase: If you’re defending Israel right now you’re an awful human being” (July 8).

"Zionist uplift in America: every little Jewish boy and girl can grow up to be the leader of a murderous colonial regime" (July 14).

"No wonder Israel prefers killing Palestinians from the sky. It turns out American college kids aren’t very good at ground combat” (July 23).

These tweets are not about Gaza, or Israel. They are about American Jews, and particularly about American Jewish students.

Ten percent of the undergrads and eight percent of the graduate students at UIUC are Jewish.

Salaita's appointment would be in the Dep't of American Indian Studies, but he has no expertise in that field except in the area of comparative American Indian/Palestinian studies. Undoubtedly his courses will include issues relating to Israel/Palestine.

Would a Jewish student be comfortable taking a class from Prof. Salaita? Is it reasonable to assume that Prof. Salaita would treat any Jewish student fairly? How about a Jewish student who speaks in favor of Israel? How about a Jewish student who refuses to speak or write against Israel? To ask these questions is to answer them.

It seems clear that Salaita cannot be trusted to be fair and impartial in instructing and evaluating Jewish students who do not speak and write against Israel's existence. As they are a substantial minority of the students he would be expected to teach, it seems to me that his tweets should disqualify him from serving as a professor at UIUC.

Posted by: Max Gross | Aug 20, 2014 6:08:16 PM

You write: "the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason." That's almost correct. The one qualification is that the university could try to establish cause, through the normal processes, for termination, though I doubt they would be successful if the faculty member were not involved in unlawful conduct related to his racist beliefs and not involved in professional or pedagogical misconduct given his racist beliefs.

Fortunately, nothing Salaita said is even in the ballpark of this scenario, notwithstanding the various misrepresentations repeated by Cary Nelson, Steven Lubet and others.

Posted by: Brian | Aug 20, 2014 4:00:27 PM

BTW, I also think you are wrong that a statement should not be considered offensive or bigoted "as long as it can be read otherwise." I am fine with that as a legal rule in First Amendment or defamation law, but not as a matter of general political discussion, especially when the statements have been made repeatedly. The owner of the Washington, D.C. football team claims that the nickname is not offensive, and some Native Americans have been said to agree, but we do not have to accept that reading even if it is borderline plausible (if you don't like that example, pick another mascot, say the Cleveland baseball team or the Florida State teams).

Posted by: S. Lubet | Aug 20, 2014 3:30:02 PM

It is a matter of intellectual honesty, Paul. If you are going to defend something in public, then your defense ought to describe it accurately and not with obscure language. Academic freedom, as you recognize, ought to protect even outrageous or despicable speech, and it actually undermines that principle when we (in the broad, academic sense) are less than forthright about the speech being defended.

Posted by: S. Lubet | Aug 20, 2014 3:17:27 PM

Why shouldn't law professors tweet (and why is it different than blogging)?

Posted by: anon | Aug 20, 2014 2:30:52 PM

I don't quite agree with this. It seems to me that there's an outer limit that can be content-based to academic freedom. Imagine if an astronomy professor insisted the sun revolves around the earth, for example. Not sure why truly beyond-the-pale political speech in a discipline where these questions are arguably part of (or related to, at least) the subject matter, like your hypothetical examples, should be different.

Of course, the first amendment questions are a whole nother ball of wax.

Posted by: Paul Gowder | Aug 20, 2014 1:43:21 PM

I think this post narrows the fundamental issue: was this a hiring or a firing? If it is a firing, then academic freedom applies.

But people are not hired for a myriad of reasons, many of which should rightfully be ignored under academic freedom standards, but are not - including personality. The only question is whether that decision is made at the appointments committee, faculty, dean, provost, president, or trustees level. Most of the time, it's at the committee level, sometimes at the faculty level, and so the issue never sees the light of day.

I wonder whether those who defend the content of the tweets are implicitly admitting that this was a hiring decision. Otherwise, you are right, what was said should be absolutely irrelevant - academic freedom cases don't usually arise when the speech is uncontroversial.

Posted by: Michael Risch | Aug 20, 2014 12:02:28 PM

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