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Thursday, August 14, 2014

Lubet on Academics, Law, and Politics

Steve Lubet published an op-ed in the Chicago Tribune today regarding the recent controversial non-hiring at Illinois.  Seems to me he got it just about right.

The link will lead you (I believe) to a pay wall; the Tribune's editors have graciously allowed us to reprint - which you can find below the fold.

UPDATE:  I have opened the comments.  My concern originally was the fact that this is about the bounds of civil discourse (apart from the legitimately debatable issues of academic freedom and law), and because all the comments get e-mailed to me even when unmoderated, I didn't want to be a potential adjudicator of civil discourse.  There's even a legitimate debate about what constitutes civil discourse, which is the part of Steve's essay that resonated with me.  But there IS a line, albeit not always clear where it is, and I agree with Steve that this person crossed it.  With that reservation now express, go to it.

Chicago Tribune, August 14, 2014

Free speech and U. of I.'s Steven Salaita

By Steven Lubet



Controversial scholar Steven Salaita — who has been most benignly described as "deeply critical of Israel" — has been fired or "non-hired" by the University of Illinois, depending on which news source you believe. In either case, it appears Salaita's numerous tweets, which have included venomous comments about Israelis and Jews, played a role in his job loss. Thus, he is either an avatar of academic freedom or the victim of his own extremism, again depending on your point of reference. Needless to say, the situation is not quite that simple. There are actually three distinct principles involved, and they do not necessarily lead to a single neat conclusion.


To understand the Salaita contretemps, we must separately consider academics, law and politics.

Salaita's strongest case can be made in the name of academic freedom. Ever since the McCarthy era, when professors were required to sign loyalty oaths as a condition of employment, it has been an article of faith among scholars that political considerations should play no role in academic appointments. It was therefore predictable that the Association of American University Professors would issue a statement defending Salaita's right to tweet his "views without fear of retaliation, even where such views are expressed in a manner that others might find offensive or repugnant." I am among those who find Salaita's tweets loathsome and incendiary, and not merely outspoken — more on that below — but, like nearly all academics, I do not think his political opinions should affect his job security at his university.

Salaita's legal position, however, is weaker than his academic freedom claims. According to press reports, Salaita's appointment had never been endorsed by the University of Illinois at Urbana-Champaign chancellor, Phyllis Wise, who has declined to submit his name to the board of trustees for official approval. 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. Whatever he might have been told during the hiring process, it is virtually certain that Salaita was informed in writing that no appointment was final without the approval of the chancellor and trustees.

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 reticence. This strongly suggests that a deal is in the works, probably involving a buyout and mutual covenants of confidentiality and non-disparagement. Whatever his appeals to scholarly high ground, Salaita's legal position is shaky. So don't be surprised if he accepts the money and cuts his losses.

That brings us to the political dimension, where Salaita's position is weakest of all. 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." He once retweeted a vile suggestion that journalist Jeffrey Goldberg ought to get "the pointy end of a shiv."

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. A committee of the Illinois AAUP, for example, argued that Salaita had merely made "an impassioned plea to end the violence currently taking place in the Middle East." This is manifestly untrue. Salaita has not called for an end to violence against Israelis. Quite the contrary, he has reveled in it.

I worked with the American Civil Liberties Union on the Nazis-in-Skokie case in the 1970s, and I would gladly do so again. It is always rewarding to defend free speech, but it is also important to be candid about the speech we are defending — which is why the ACLU never soft-pedaled the Nazis as merely passionate critics of international banking.

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.

Steven Lubet is a law professor at Northwestern University. His most recent book is "John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook."


Posted by Jeff Lipshaw on August 14, 2014 at 05:05 PM | Permalink


I'm tempted to say "Total, are you really that stupid?" On second thought, I don't know. And neither do you.

Posted by: Joe | Sep 8, 2014 12:59:03 PM

"Who would be arguing for Salaita, if he were an active member of the KKK and the Nazi Party, and spouting hate against African Americans?"

I don't know, and neither do you. Making up hypotheticals and then using them is not actually producing any evidence.

Posted by: Total | Aug 25, 2014 1:56:44 PM

Who would be arguing for Salaita, if he were an active member of the KKK and the Nazi Party, and spouting hate against African Americans?

Posted by: Leeada Johnson | Aug 24, 2014 10:26:42 AM

Here is a link to replace the one above that was in error: http://www.breakingthesilence.org.il/testimonies/database/44524

Posted by: Patrick S. O'Donnell | Aug 19, 2014 9:00:02 AM

Elmer, That's a rather pathetic response. The Israelis are responsible for the conditions in Gaza, given their long-standing siege and control (sometimes in collaboration with Egypt) over entry and exit by land, air and water.*

Anyone wanting to read ample precedent for such behavior, should visit the website, Breaking the Silence: Israeli soldiers talk about the Occupied Territories. Two vivid examples are readily located: http: www.breakingthesilence.org.il/testimonies/database/?ci=136

The Star of David is the IDF vandal's meme and, as for markers, yes the soldiers have them: http://mondoweiss.net/2014/08/gruesome-massacres-neighborhood.html

* By way of sampling the relevant literature (more stuff is found in my Israeli-Palestinian conflict bibliography available at my academia.edu page), works by Sara Roy, Ariella Azoulay and Adi Ophir, alongside documentation by groups like Gisha and B'Tselem provide vivid portraits of the horrible conditions in Gaza and precisely how and why they got that way. For the requisite legal background and orientation, see Virginia Tilley, ed., Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories (Pluto Press, 2012).

Posted by: Patrick S. O'Donnell | Aug 19, 2014 8:28:37 AM


That Guardian headline only cites a single 'home,' and one building that is not a home. The headline refers to 'Palestinians,' but only quotes one Palestinian about his 'home.' That article notes the stench of feces, without mentioning Gaza's major sewage problems that have prevented people from swimming at the beaches all summer. In other words, this puff-piece (poo-piece?) makes it seem like the offending odor was entirely due to IDF presence, when it is well known that there has been a major sewage problem, and Hamas is not known for investing in above-ground infrastructure. Next, the article claims that there was a blue star of David drawn on the wall. Do you really think in the heat of battle, the IDF soldiers had time to fetch the correct colored marker? If they peed in bottles, as the article claims, why would they have defecated everywhere? Are the turds from a human source or dog source? Did you note that the only 'evidence' was a soft-focus, neat, tidy little death threat in minuscule font, perfect for a thumbnail snap? Have you ever noticed that Palestinians live in nothing but 'hovels' except when it's their 'houses' that are destroyed or vandalized? Why should these "high-minded" professors "fret" more about some shoddy excuse for journalism? The sewage crisis was reported in Haaretz, Israel's most liberal paper, way back in June. (http://www.haaretz.com/news/middle-east/1.601908)

Read something other than the Guardian, and then maybe you won't look so colossally ignorant. May I suggest the rather excellent http://www.palwatch.org?

Posted by: Elmer | Aug 18, 2014 11:27:16 PM

What is high minded about "honorable" anti-Semitism and kidnapping teenagers?

Posted by: S. Lubet | Aug 15, 2014 8:39:35 PM

Patrick, doesn't that strike you as a bullshit argument ?

Posted by: Paul Horwitz | Aug 15, 2014 8:24:20 PM

I agree with Corey Robin at Crooked Timber: "It's a strange universe we live in, where high-minded professors fret more about the 'foul-mouthed' tweets of a scholar than the shit and curses soldiers leave in the destroyed homes of civilians." See: http://www.theguardian.com/world/2014/aug/07/palestinians-return-home-israeli-troops-faeces-graffiti?CMP=twt_gu

Posted by: Patrick S. O'Donnell | Aug 15, 2014 5:04:04 PM

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