By Professor Robin Bradley Kar
When the Salaita case first gained notoriety, many legal academics were quick to dismiss the fact that Salaita might have a claim for breach of contract. For example, Professors Michael Dorf at Cornell and Dave Hoffman at Temple wrote that there was no contract because Salaita’s offer letter stated that his appointment was “subject to Board of Trustee approval.” See here and here. Shortly thereafter, I wrote a lengthy post suggesting that this condition was better interpreted as a condition on performance rather than formation. I believed a valid contract existed, and that this fact would likely alter many other aspects of the litigation.
Judge Harry D. Leinenweber has now issued an important and lengthy opinion in this case, which clarifies many of the contract law issues. It is time to offer an update on my two earlier predictions in light of this opinion.
On the Existence of a Contract
The verdict is now effectively in on whether there was a valid contract in this case. In a 56-page opinion deciding the University of Illinois’s motion to dismiss Salaita’s claims, Judge Harry D. Leinenweber held that there was.
Judge Leinenweber is one of the most respected district court judges in the Northern District of Illinois. He is reputed to lean on the conservative side, but is thoroughly respected for his fairness and rigor in every case. Based on a close reading of governing law and relevant documents, he interpreted the condition of Board of Trustee approval just as I predicted: viz., as a condition on performance, not formation.
Of course, Judge Leinenweber came to this conclusion when deciding a motion to dismiss, and one must be very careful not to read too much into such a ruling. In this procedural setting, courts are required to accept as true all of the factual claims asserted in a complaint. Courts are therefore deciding whether the alleged facts would, if proven at trial, suffice to establish a legal claim. They are not deciding whether the evidence actually establishes a legal claim.
Still, at least with respect to Salaita’s contract claim, much more can be inferred from this opinion. Illinois is a “four corners” jurisdiction with respect to contract interpretation: if a term is unambiguous, when read in the context of an entire contract and without resort to extrinsic evidence, then courts will not admit extrinsic evidence relevant to the term’s interpretation. The primary document in this case was a letter sent by the University of Illinois to Salaita, and then signed and returned by Salaita. Judge Leinenweber looked at this document in full. Using a four corners approach, he found that it unambiguously contained an offer. See Court Opinion at 11 (“As to the offer in this case, the basic terms are about as unambiguous as they could possibly be.”). He found that the offer unambiguously set forth the required method of acceptance—i.e., through Steven Salaita’s signature, on a line drafted by the University of Illinois, which said “I accept the above offer of October 03, 2013”. See Court Opinion at 12 (“[T]he University used unambiguous terms in drafting the means by which Dr. Salaita could accept . . . .”). There is no dispute between the parties that Salaita signed and returned this offer letter in this requested form.
Hence there was an unambiguous offer, which was unambiguously accepted prior to the termination of the power to accept. There was—in more common parlance—a “valid contract”. Moreover, none of these conclusions depends on any facts that are in dispute or will be controvertible at trial.
But what about the condition in the offer letter, which states that “[t]his recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois”? After finding an unambiguous offer and acceptance, Judge Leinenweber engages in a protracted analysis of this condition. His analysis suggests that he believes the condition fairly clearly relates to Salaita’s appointment (which is a performance obligation under the contract) and not to the offer of a contract. Using a four corners approach to interpretation and based on the unambiguous language of the contract, Judge Leinenweber thus concludes that “the contract as a whole demonstrates that the parties intended to enter into a valid contract.”
Actually, there are two further complications in this opinion that relate to the existence of a contract. One concerns whether extrinsic evidence relevant to interpretation of the condition squares with this four corners reading of the condition. The other concerns whether the University official who drafted the offer letter had the actual or apparent authority to offer Salaita a contract. I will address these two complications only at the end of this post, however, because I do not believe they will affect the existence of a contract in the remainder of this litigation. I would therefore like to focus on my second prediction, which is that the existence of a contract is likely to affect many other aspects of this case in important ways.
On the Implications of a Contract in the Salaita Case
The fact that there was a valid contract in this case might mean anything from everything to nothing with respect to Salaita’s chances for relief. The Board of Trustees still had the explicit authority under the contract to disapprove of Salaita’s appointment. Chancellor Wise ultimately submitted his appointment to the Board of Trustees, as required by the contract, and the Board ultimately rejected Salaita’s appointment. Even if a contract was formed, a cursory reading of the condition in the contract might therefore suggest that it could not have been breached.
For two reasons, however, matters are not so simple. First, because the Board’s authority to disapprove of Salaita’s appointment was part of a valid contract, the Board was contractually obligated to exercise this authority only in a manner consistent with contractual standards of good faith and fair dealing. It is notoriously difficult to define good faith and fair dealing, but courts often defer to local standards that arise in particular industries when seeking guidance in particular cases. Because this disapproval arose in the context of a tenured academic hiring process, the legal question whether the Board exceeded its contractual authority will depend on the specific standards of good faith and fair dealing that arise in the context of academic hires with tenure. Of special importance will be any standards of good faith that constrain either (1) the grounds upon which a Board can disapprove of a tenured academic appointment once it has been offered and accepted or (2) the procedures that must be followed to determine that legitimate grounds for disapproval existed. At the University of Illinois, these approval decisions have traditionally taken place after academics have accepted tenured offers, left other tenured positions, moved to another part of the country and begun teaching—all in reliance on these offers. These facts will surely play some role in determining the contours of good faith and fair dealing in this context.
Second, the contract in this case explicitly incorporates by reference the American Association of University Professors’ principles of academic freedom and tenure. It states that:
At the University of Illinois, like most universities in this country, we subscribe to principles of academic freedom and tenure laid down by the American Association of University Professors (AAUP). The Statement on Academic Freedom and Tenure has been since 1940 the foundation document in this country covering the freedoms and obligations of tenure. The AAUP Statement on Professional Ethics is a document of similarly broad application to those in academia. I am enclosing copies of these documents for your information and commend them to your attention.
Under a four corners approach to contract interpretation, the scope of the Board’s authority to disapprove of Salaita’s appointment and the procedures they must follow to disapprove are therefore governed in part by the AAUP’s principles of academic freedom and tenure. These standards are likely to affect both the contractual scope of the Board’s authority to disapprove of Salaita’s appointment on the grounds and in the manner that it did, and the court’s interpretation of what good faith and fair dealing amount to in this specialized context.
Since these events transpired, the AAUP has censured the University of Illinois, stating that the Board’s disapproval of Salaita on the stated grounds of incivility and without demonstrating cause through appropriate procedures violates the AAUP’s principles of academic freedom and tenure. Although the court is not bound by the AAUP’s report, the AAUP’s interpretations of its own principles, which were incorporated by reference in the Salaita contract, will likely affect the way this contract is interpreted. In particular, it is likely that the University of Illinois was contractually bound to hold a more rigorous hearing on Salaita’s fitness to teach before the Board of Trustees could deny his appointment.
As a member of the University of Illinois Faculty Senate last year, I spoke publicly about my view that the law would require this. The Faculty Senate voted that Salaita was due these procedural safeguards—though nothing about that vote implies either endorsement of Salaita’s views on any particular topic or a prediction on what the outcome of such a hearing might be. I say this only to make sure the world at large knows that the Board’s decision does not reflect the institutional culture here at the University of Illinois when it comes to issues of academic freedom and tenure. But since my last post on this issue, several people have also helped me to see better some of the complexities of certain aspects of Salaita’s tweets, and some of them do look worse to me with more cultural knowledge. Be that as it may, the law would appear to require a hearing on these issues, with opportunity to respond, and a full decision that is limited to appropriate grounds for disapproval at this stage. Questions of civility cannot serve as a subterfuge for censorship of unpopular ideas, and should not play a role in that hearing.
So given that my first legal prediction (viz., about the existence of a contract) has come to pass, I am now more confident about my second set of predictions. These relate to how the existence of a contract is likely to affect many other aspects of the case going forward. The existence of a contract means the following:
- The Board of Trustees did not have the authority to disapprove of Salaita’s appointment on any subjective ground of its choice, and was instead bound by standards of good faith and fair dealing as they apply to the context of hiring of tenured academics.
- The Board of Trustees' authority to disapprove of Salaita’s appointment was contractually limited by the AAUP’s principles of academic freedom and tenure.
- Civility alone is unlikely to suffice as a ground for disapproval, and Salaita was likely contractually entitled to some kind of hearing, consistent with the AAUP’s principles of academic freedom and tenure.
- Insofar as Salaita is making claims that relate to freedom of speech, his contractual rights to freedom of speech, academic freedom and tenure may well go beyond any constitutional rights of the same name.
- Salaita may be able to obtain more than just compensation in the form of monetary relief. Given that tenured jobs are unique and difficult to value, he may obtain specific performance (or a court order to perform under the contract).
- I do not, however, believe that specific performance would come in the form of an unconditional order to reinstate Salaita. More likely, the court would order a hearing of some kind on the merits of Salaita’s fitness to teach, along with an order to reinstate him conditional upon a favorable outcome for Salaita. Any such hearing would likely include consideration of any other factors that may be relevant to revoking a tenured position.
- The same facts that create a contract in this case mean that there is more merit to Salaita’s promissory estoppel claim than some have suggested. That claim will, however, likely be moot given the existence of a contract. Salaita cannot obtain relief for both claims, and any relief he obtains for breach of contract will include or exceed relief for promissory estoppel.
I therefore take this recent opinion by Judge Leinenweber to be very important with respect to a range of other issues that still need to be fully litigated.
The Appendix: Two Technical Complications about the Existence of a Contract
Readers who are less interested in contract law technicalities should stop reading here. Everything I have said thus far is, however, based on the premise that there is a valid contract in this case. While the major thrust of Judge Leinenweber’s opinion suggests as much, there are two aspects of it that make this conclusion a little less certain than I have suggested. Still, as I hope to show now, neither complication detracts from the likelihood that the Salaita litigation will involve a controversy over a valid contract from here on out. This last section is thus directed more at contract law afficionados than the public at large.
The first complication arises from the fact that Judge Leinenweber discusses the possibility that the condition in the offer letter might be ambiguous as between a condition on performance and formation. Because this opinion was issued in response to a motion to dismiss, Judge Leinenweber observes that the complaint nevertheless cites ample extrinsic evidence to favor disambiguating the condition as one on performance rather than formation—even if the language were ambiguous. This part of the opinion accepts as true all of the factual allegations in Salaita’s complaint, and it is therefore possible that the University of Illinois could provide contrary evidence at trial. Still, most of the evidence that Salaita’s complaint cites on this particular point is not really in dispute. In addition, and more importantly, the thrust of Judge Leinenweber’s opinion suggests that he thinks the condition is unambiguously a condition on performance, rather than formation. This means that this issue is unlikely ever to go to a jury. In the unlikely event that it does, Judge Leinenweber’s jury instructions will be surely be as clear as his recent opinion with respect to the distinction between conditions on formation and performance. Given the clarity of the contract on this matter, I do not believe a jury would come to a different conclusion.
The second complication arises from a different factual question, which has yet to be resolved, as to whether Interim Dean Brian Ross, who signed the offer letter to Salaita, had the actual or apparent authority to make a binding contractual offer. David Hoffman has suggested that this authority may not exist, but his views on this topic appear to be influenced at least in part by his interpretation of the condition of Board of Trustee approval as a disclaimer of any authority to offer a contract. That interpretation has now been rejected by Judge Leinenweber. In addition, Judge Leinenweber cites plenty of facts that would, if proven at trial, establish that Interim Dean Ross had both the actual and apparent authority to offer a contract.
Still, this part of the opinion accepts as true all of the factual allegations in Salaita’s complaint. Once again, it is therefore possible that the University of Illinois could provide contrary evidence at trial and show that no real or apparent authority to contract existed.
Just as before, however, most of the critical evidence that Salaita’s complaint cites on this particular point is not really in dispute. Numerous e-mails that have now been released between the Chancellor and Provost suggest that all believed that a contract had been offered and accepted with authority. Given both Judge Leinenweber’s opinion and the way that the University of Illinois has been processing academic appointments for decades, I believe the most sensible prediction at this stage is that the court will rule that there was both actual authority and apparent authority to offer a contract but that the contract contained a condition of Board approval for the appointment. As noted above, that condition gave the Board some authority to disapprove of the appointment, but not necessarily the authority it subjectively believed that it had.