Salaita v. Kennedy - Motion To Dismiss and Memorandum in Support

Case: 1:15-cv-00924 Document #: 32 Filed: 02/25/15 Page 1 of 4 PageID #:114
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
STEVEN SALAITA,
Plaintiff,
v.
CHRISTOPHER KENNEDY, Chairman of the
Board of Trustees of the University of Illinois;
RICARDO ESTRADA, Trustee of the University of
Illinois; PATRICK J. FITZGERALD, Trustee of
the University of Illinois; KAREN HASARA,
Trustee of the University of Illinois; PATRICIA
BROWN HOLMES, Trustee of the University of
Illinois; TIMOTHY KORITZ, Trustee of the
University of Illinois; EDWARD L. MCMILLAN,
Trustee of the University of Illinois; PAMELA
STROBEL, Trustee of the University of Illinois;
ROBERT EASTER, President of the University of
Illinois; CHRISTOPHE PIERRE, Vice President of
the University of Illinois; PHYLLIS WISE,
Chancellor of the University of Illinois at UrbanaChampaign; THE BOARD OF TRUSTEES OF
ILLINOIS; and JOHN DOE UNKNOWN
DONORS TO THE UNIVERSITY OF
ILLINOIS,
Case No. 15-cv-00924
Honorable Harry D. Leinenweber
Defendants.
DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)
Pursuant to Fed. R. Civ. P. 12(b), Christopher Kennedy, Ricardo Estrada, Patrick J.
Fitzgerald, Karen Hasara, Patricia Brown Holmes, Timothy Koritz, Edward L. McMillan, and
Pamela Strobel (the Trustees), Robert Easter, Christophe Pierre, and Phyllis Wise (the
Administrators), and The Board of Trustees of the Illinois (the Board) (collectively,
Defendants), respectfully move the Court to dismiss this action for the Plaintiffs failure to state a
claim upon which relief can be granted and for lack of jurisdiction. For the following reasons, as
well as those in the Memorandum in Support (Supporting Memorandum), which is filed
concurrently with this Motion and incorporated herein by reference, Defendants move to dismiss
the Complaint with prejudice.
1.
In the Complaint, Plaintiff alleges First Amendment retaliation in violation of 42
U.S.C. 1983 against the Trustees and Administrators (Count I), a procedural due process claim
pursuant to 42 U.S.C. 1983 against the Trustees and Administrators (Count II), conspiracy in
violation of 42 U.S.C. 1983 and 1985 against all Defendants (Count III); promissory estoppel
against the Board (Count IV); breach of contract against the Board (Count V); tortious interference
with contractual and business relations against John Doe Unknown Donors (Counts VI and VII);
intentional infliction of emotional distress against all Defendants (Count VIII); and spoliation of
evidence against Chancellor Wise (Count IX). In each instance, Plaintiff fails to state a claim and the
Complaint must be dismissed in its entirety.
2.
First, the breach of contract and promissory estoppel claims fail because there was
no binding contract and there was no unambiguous promise by the University upon which
Plaintiff could reasonably rely.
3.
Second, Plaintiffs civil rights claims fail to state a cause of action because Plaintiff
fails to make specific allegations against the Trustees and Administrators, and the University
properly balanced Plaintiffs interest in making his inflammatory statements against the Universitys
interest in providing a safe and efficient educational environment. Further, Plaintiff was not denied
due process because he did not have a property interest in a faculty position, has not alleged that
Defendants actions have made it impossible for him to find employment in his field, and has failed
to allege an actionable agreement among Defendants.
4.
Third, Plaintiffs various tort claims under state law tortious interference with
contract, tortious interference with business relations, intentional infliction of emotional distress,
and spoliation each fail to establish the elements necessary to plead any of these causes of action.
-2-
5.
Finally, even if Plaintiff were able to state a claim, which he cannot, the Court lacks
subject matter jurisdiction over the Board and the Trustees and Administrators in their official
capacities based on the doctrine of sovereign immunity, and the Trustees and Administrators are
entitled to qualified immunity in their individual capacities.
6.
Accordingly, the claims brought against Defendants must be dismissed as Plaintiff
cannot state a claim with regard to any of the causes of action asserted.
WHEREFORE, for these reasons and those set forth in Defendants Supporting
Memorandum, Defendants respectfully request that the Court enter an order dismissing this action,
with prejudice, and granting any such other just and equitable relief .
Dated: February 25, 2015
Respectfully submitted,
By: /s/ Christopher B. Wilson

One of Their Attorneys
Christopher B. Wilson
Richard M. Rothblatt
Keith Klein
Josephine Tung
Perkins Coie LLP
131 South Dearborn Street, Suite 1700
Chicago, IL 60603-5559
Tel: (312) 324-8400
Fax: (312) 324-9400
Counsel for Defendants Christopher Kennedy,
Ricardo Estrada, Patrick J. Fitzgerald,
Karen Hasara, Patricia Brown Holmes,
Timothy Koritz, Edward L. McMillan,
Pamela Strobel, Robert Easter, Christophe Pierre,
Phyllis Wise, The Board of Trustees of the University of Illinois
-3-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing MOTION was served upon
all counsel of record this 25th day of February, 2015 via the Case Management/Electronic Case
Filing (CM/ECF) System.
/s/ Christopher B. Wilson
-4-
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
STEVEN SALAITA,
Plaintiff,
v.
CHRISTOPHER KENNEDY, Chairman of the
Board of Trustees of the University of Illinois;
RICARDO ESTRADA, Trustee of the University of
Illinois; PATRICK J. FITZGERALD, Trustee of
the University of Illinois; KAREN HASARA,
Trustee of the University of Illinois; PATRICIA
BROWN HOLMES, Trustee of the University of
Illinois; TIMOTHY KORITZ, Trustee of the
University of Illinois; EDWARD L. MCMILLAN,
Trustee of the University of Illinois; PAMELA
STROBEL, Trustee of the University of Illinois;
ROBERT EASTER, President of the University of
Illinois; CHRISTOPHE PIERRE, Vice President of
the University of Illinois; PHYLLIS WISE,
Chancellor of the University of Illinois at UrbanaChampaign; THE BOARD OF TRUSTEES OF
ILLINOIS; and JOHN DOE UNKNOWN
DONORS TO THE UNIVERSITY OF
ILLINOIS,
Case No. 15-cv-00924
Honorable Harry D. Leinenweber
Defendants.
DEFENDANTS MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS
PLAINTIFFS COMPLAINT PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 12(b)

TABLE OF CONTENTS
Page
INTRODUCTION ..........................................................................................................................................1
STATEMENT OF FACTS ............................................................................................................................2
A.
Dr. Salaita applies for a faculty position at the University of Illinois ...............2
B.
Dr. Salaita Publishes Inflammatory Statements on Twitter...............................3
C.
Reaction to Dr. Salaitas Tweets ............................................................................5
OVERVIEW OF PLAINTIFFS CLAIMS .................................................................................................5
ARGUMENT....................................................................................................................................................6
I.
Plaintiffs Breach of Contract and Promissory Estoppel Claims Are
Precluded by the Nature of the Conditional Offer ..........................................................7
A.
Plaintiff Did Not Have a Contract with the University .....................................7
B.
Plaintiff Is Not Entitled To Equitable Relief for His Unreasonable
Reliance on a Conditional Offer ......................................................................... 12
II.
Defendants Did not Violate Plaintiffs Constitutional Rights ..................................... 15
A.
Plaintiff Fails to Allege Any Defendants Direct Personal
Responsibility for Any Purported Violation of His Constitutional
Rights ...................................................................................................................... 15
B.
Plaintiffs First Amendment Retaliation Claim Fails as a Matter of
Law .......................................................................................................................... 17
C.
Plaintiff Fails to Allege Facts Sufficient to Establish a Violation of
His Procedural Due Process Rights ................................................................... 20
D.
Plaintiff Fails to Allege an Underlying Constitutional Violation or
Agreement Among Defendants .......................................................................... 23
III.
Plaintiffs Remaining State Law Causes of Action Fail to State a Claim
Against Any Defendant ..................................................................................................... 24
A.
Plaintiffs Merged Claim of Tortious Interference with Contractual
and Business Relations Fails as a Matter of Law .............................................. 24
B.
Plaintiff Fails to State a Claim for Intentional Infliction of Emotional
Distress ................................................................................................................... 26
C.
Plaintiffs Spoliation of Evidence Claim Fails as a Matter of Law ................ 28
IV.
Defendants Are Immune from Suit ................................................................................. 31
A.
The Court Lacks Subject Matter Jurisdiction Over the Board and the
Trustees and Administrators in their Official Capacities Pursuant to
Federal Rule of Civil Procedure 12(b)(1)........................................................... 31
B.
The Trustees and Administrators Are Immune from Suit in their
Individual Capacities Based on the Doctrine of Qualified Immunity ........... 33
CONCLUSION ............................................................................................................................................. 35
-i-

TABLE OF AUTHORITIES
Page
CASES
A.J. Maggio Co. v. Willis,
316 Ill. App. 3d 1043 (1st Dist. 2000) .................................................................................................... 11
A/S Apothekernes Lab. for Specialpraeparater v. I.M.C. Chem. Grp., Inc.,
873 F.2d 155 (7th Cir. 1989).................................................................................................................... 10
Allen v. Cedar Real Estate Grp., LLP,
236 F.3d 374 (7th Cir. 2001).................................................................................................................. 7, 8
Andersen v. Mack Trucks, Inc.,
341 Ill. App. 3d 212 (2d Dist. 2003) ................................................................................................ 29, 30
Anderson v. Simon,
217 F.3d 472 (7th Cir. 2000)...................................................................................................................... 2
Ashcroft v. Iqbal,
556 U.S. 662 (2009)........................................................................................................................ 7, 15, 17
Bank of Pawnee v. Joslin,
166 Ill. App. 3d 927 (4th Dist. 1988) ..................................................................................................... 12
Bd. of Regents v. Roth,
408 U.S. 564 (1972)................................................................................................................................... 20
Berco Investments, Inc. v. Earle M. Jorgensen Co.,
No. 94-3961, 1996 WL 388463 (N.D. Ill. July 8, 1996)......................................................................... 8
Bishop v. Wood,
426 U.S. 341 (1976)................................................................................................................................... 21
Black Knight Prods., Inc. v. Univ. of Ill. at Chi.,
50 Ill. Ct. Cl. 406 (1998) ........................................................................................................................... 12
Bogie v. PAWS Chi.,
914 F. Supp. 2d 913 (N.D. Ill. 2012) ...................................................................................................... 27
Bonds v. Mil. Cnty.,
207 F.3d 969 (7th Cir. 2000).................................................................................................................... 19
Bordelon v. Ch. Sch. Reform Bd. of Trs.,
233 F.3d 524 (7th Cir. 2000).................................................................................................................... 22
-ii-

(continued)
Page
Borsellino v. Goldman Sachs Grp., Inc.,
477 F.3d 502 (7th Cir. 2007).................................................................................................................... 28
Boyd v. Travelers Ins. Co.,
166 Ill. 2d 188 (1995) ......................................................................................................................... 29, 30
Bridges v. Gilbert,
557 F.3d 541 (7th Cir. 2009)................................................................................................................7, 17
Brown v. Chi. Bd. of Educ.,
973 F. Supp. 2d 870 (N.D. Ill. 2013) ...................................................................................................... 35
Cangemi v. Advocate S. Suburban Hosp.,
364 Ill. App. 3d 446 (1st Dist. 2006) ...................................................................................................... 30
Chi. Limousine Serv., Inc. v. City of Chi.,
335 Ill. App. 3d 489 (1st Dist. 2002) ...................................................................................................... 14
Cobb-Alvarez v. Union Pac. Corp.,
962 F. Supp. 1049 (N.D. Ill. 1997) ........................................................................................................... 8
Cohen v. Am. Sec. Ins. Co.,
735 F.3d 601 (7th Cir. 2013)...................................................................................................................... 7
Cooney v. Rossiter,
583 F.3d 967 (7th Cir. 2009).................................................................................................................... 23
Daniel v. Univ. of Cin.,
116 Ohio Misc. 2d 1 (Ohio Ct. Cl. 2001) .............................................................................................. 13
Dardeen v. Kuehling,
213 Ill. 2d 329 (2004) ................................................................................................................................ 29
DeGroot v. Vill. of Matteson,
No. 13-08530, 2014 WL 3360562 (N.D. Ill. July 9, 2014) .................................................................. 20
Dougherty v. Akzo Nobel Salt, Inc.,
47 F. Supp. 2d 989 (N.D. Ill. 1999) ........................................................................................................ 14
Dowd & Dowd, Ltd. v. Gleason,
181 Ill. 2d 460 (1998) ................................................................................................................................ 26
Duncan v. Duckworth,
644 F.2d 653 (7th Cir. 1981).................................................................................................................... 15
-iii-

(continued)
Page
Dunn v. City of Elgin,
347 F. 3d 641 (7th Cir. 2003) .................................................................................................................. 28
Elliott v. Thomas,
937 F.2d 338 (7th Cir. 1991)............................................................................................................. 34, 35
Evans v. Tavares,
No. 09-2917, 2009 WL 3187282 (N.D. Ill. Sept. 30, 2009) .................................................................. 6
Feltmeier v. Feltmeier,
207 Ill. 2d 263 (2003) ................................................................................................................................ 27
Garcetti v. Ceballos,
547 U.S. 410 (2006)................................................................................................................................... 17
Gomez v. Garda CL Great Lakes, Inc.,
No. 13-1002, 2013 WL 4506938 (N.D. Ill. Aug. 23, 2013)................................................................. 24
Green v. Caseys Retail Co.,
No. 11-1103, 2012 WL 253368 (S.D. Ill. Jan. 26, 2012) ...................................................................... 27
Hamwi v. Zollar,
299 Ill. App. 3d 1088 (1st Dist. 1998) .................................................................................................... 14
Hanley v. Green Tree Servicing, LLC,
934 F. Supp. 2d 977 (N.D. Ill. 2013) ........................................................................................................ 2
Harper v. Univ. of Ill. at Chi.,
No. 95-5987, 1996 WL 288628 (N.D. Ill. May 30, 1996).................................................................... 11
Hartmann Realtors v. Biffar,
2014 IL App. (5th) 130543 ...................................................................................................................... 29
Hatcher v. Cheng,
No. 13-00407, 2014 WL 5358408 (S.D. Ill. Aug. 7, 2014) .................................................................. 34
Head v. Chi. Sch. Bd. of Trs.,
224 F.3d 794 (7th Cir. 2000).................................................................................................................... 22
Hosty v. Carter,
412 F.3d 731 (7th Cir. 2005).................................................................................................................... 35
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc.,
131 Ill. 2d 145 (1989) ................................................................................................................................ 25
-iv-

(continued)
Page
IK Corp. v. One Financial Place Pship,
200 Ill. App. 3d 802 (5th Dist. 1990) ..................................................................................................... 14
In re Midway Airlines, Inc.,
180 B.R. 851 (Bankr. N.D. Ill. 1995) ...................................................................................................... 14
Knierim v. Izzo,
22 Ill. 2d 73 (1961) .................................................................................................................................... 27
Kokkinis v. Ivkovich,
185 F.3d 840 (7th Cir. 1999).................................................................................................................... 18
Krieg v. Ameritech Intl, Inc.,
No. 96-4751, 1998 WL 161010 (N.D. Ill. Mar. 31, 1998) ................................................................... 13
Kroll v. Bd. of Trs. of Univ. of Ill.,
934 F. 2d 904 (7th Cir. 1991) .................................................................................................................. 31
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949)................................................................................................................................... 32
LaSalle Natl Bk. v. Vega,
167 Ill. App. 3d 154 (2d Dist. 1988) ......................................................................................................... 8
Leibovitch v. Syrian Arab Republic,
25 F. Supp. 3d 1071 .................................................................................................................................. 28
Lewis v. Westinghouse Elec. Corp.,
139 Ill. App. 3d 634 (1st Dist. 1985) ...................................................................................................... 27
Lopez v. Bd. of Trs. of Univ. of Ill. at Chi.,
344 F. Supp. 2d 611 (N.D. Ill. 2004) ...................................................................................................... 20
Loubser v. Thacker,
440 F.3d 439 (7th Cir. 2006).................................................................................................................... 23
Marquez v. Turnock,
967 F.2d 1175 (7th Cir. 1992) ................................................................................................................. 18
Martin v. City of Chi.,
No. 12-9207, 2014 WL 4947674 (N.D. Ill. Sept. 30, 2014) ................................................... 24, 29, 30
Martin v. Keeley & Sons, Inc.,
2012 IL 113270.......................................................................................................................................... 29
-v-

(continued)
Page
Mason & Dixon Lines, Inc. v. Glover,
975 F.2d 1298 (7th Cir. 1992) ................................................................................................................. 14
Massey v. Johnson,
457 F.3d 711 (7th Cir. 2006).................................................................................................................... 17
McElearney v. Univ. of Ill. at Chi. Circle Campus,
612 F.2d 285 (7th Cir. 1979).................................................................................................................... 23
McGrath v. Fahey,
126 Ill. 2d 78 (1988) .................................................................................................................................. 26
McKee v. First Nat. Bank of Brighton,
220 Ill. App. 3d 976 (4th Dist. 1991) ....................................................................................................... 8
Mutter v. Madigan,
17 F. Supp. 3d 752 ............................................................................................................................. 31, 32
Natl Org. for Women, Inc. v. Scheidler,
No. 86-7888, 1997 WL 610782 (N.D. Ill. Sept. 23, 1997) .................................................................. 25
Newton Tractor Sales, Inc. v. Kubota Tractor Corp.,
233 Ill. 2d 46 (2009) .................................................................................................................................. 13
Nielsen-Massey Vanillas, Inc. v. City of Waukegan,
276 Ill. App. 3d 146 (2d Dist. 1995) ....................................................................................................... 12
Oja v. Blue Mountain Cmty. Coll.,
No. 03-964, 2004 WL 1119886 (D. Or. May 19, 2004) aff'd in relevant part, rev'd in part, 184
F. Appx. 597 (9th Cir. 2006)................................................................................................................... 13
Osteen v. Henley,
13 F.3d 221 (7th Cir. 1993) ...................................................................................................................... 32
Patrick Engg, Inc. v. City of Naperville,
2012 IL 113148.......................................................................................................................................... 11
Pearson v. Callahan,
555 U.S. 223 (2009)................................................................................................................................... 34
People ex rel. Bd. of Trs. of Univ. of Ill. v. Barrett,
382 Ill. 321 (1943) ....................................................................................................................................... 9
PharMerica Chi., Inc. v. Meisels,
772 F. Supp. 2d 938 (N.D. Ill. 2011) ........................................................................................................ 2
-vi-

(continued)
Page
Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty, Ill.,
391 U.S. 563 (1968)...................................................................................................................... 17, 18, 19
Piggee v. Carl Sandburg Coll.,
464 F.3d 667 (7th Cir. 2006)....................................................................................................... 17, 18, 19
Pollak v. Bd. of Trs. of Univ. of Illinois,
No. 99-710, 2004 WL 1470028 (N.D. Ill. June 30, 2004) ................................................................... 31
Pompa v. Swanson,
2013 IL App ............................................................................................................................................... 26
Propst v. Bitzer,
39 F.3d 148 (7th Cir. 1994) ...................................................................................................................... 19
Pub. Fin. Corp. v. Davis,
66 Ill. 2d 85 (1976) .................................................................................................................................... 28
Pugel v. Bd. of Trs. of Univ. of Ill.,
378 F.3d 659 (7th Cir. 2004).................................................................................................................... 20
Puri v. Blockbuster Music Retail, Inc.,
No. 95-50018, 1995 WL 756855 (N.D. Ill. Dec. 20, 1995)................................................................... 8
Quake Const., Inc. v. Am. Airlines, Inc.,
141 Ill. 2d 281 (1990) ................................................................................................................................ 13
Raymond v. Alexander,
No. 11-00532, 2012 WL 4388328 (S.D. Ill. Sept. 25, 2012) ........................................................ 24, 25
Richman v. Sheehan,
270 F.3d 430 (7th Cir. 2001).................................................................................................................... 33
Rockford Cutting Tools & Abrasives v. Norton Co.,
No. 90-2743, 1991 WL 191601 (N.D. Ill. Sept. 19, 1991) .................................................................. 13
Roehl v. Merrilees,
No. 11-4886, 2012 WL 1192093 (N.D. Ill. Apr. 10, 2012) ................................................................. 24
Ross v. May Co.,
377 Ill. App. 3d 387 (1st Dist. 2007) ...................................................................................................... 14
S.J. v. Perspectives Charter Sch.,
685 F. Supp. 2d 847 (N.D. Ill. 2010) ...................................................................................................... 28
-vii-

(continued)
Page
Safi v. Royal Jordanian Airlines,
No. 08-7365, 2010 WL 4339434 (N.D. Ill. Oct. 25, 2010) ................................................................. 27
Saucier v. Katz,
533 U.S. 194 (2001)................................................................................................................................... 35
Scheduling Corp. of Am. v. Massello,
119 Ill. App. 3d 355 (1st Dist. 1983) ...................................................................................................... 25
Scherer v. Balkema,
840 F.2d 437 (7th Cir. 1988).................................................................................................................... 23
Schrier v. Univ. of Co.,
427 F.3d 1253 (10th Cir. 2005) ............................................................................................................... 19
Simpson v. Robb,
No.13-1263, 2014 WL 4817491 (C.D. Ill. Sept. 29, 2014) .................................................................. 15
Smith v. Secy of Dept of Envtl. Prot. of Pennsylvania,
540 F. Appx 80 (3d Cir. 2013)................................................................................................................ 32
Spanierman v. Hughes,
576 F. Supp. 2d 292 (D. Conn. 2008) .................................................................................................... 21
Specht v. Google, Inc.,
660 F. Supp. 2d 858 (N.D. Ill. 2009) ........................................................................................................ 6
Steshenko v. Gayrard,
No. 13-03400, 2014 WL 4904424 (N.D. Cal. Sept. 29, 2014) ............................................................ 21
Stone v. Bd. of Trs. of N. Ill. Univ., et al.,
No. 13-04089, 2014 WL 3845164 (N.D. Ill. Aug. 5, 2014)................................................................. 23
Tanner (Gerard E.) v. Board of Trs. of University of Illinois,
43 Ill. Ct. Cl. 12 (1989) ...................................................................................................................... 10, 36
Thomas v. Bd. of Examrs, Chi. Pub. Sch.,
651 F. Supp. 664 (N.D. Ill. 1986) ........................................................................................................... 21
Trejo v. Shoben,
319 F.3d 878 (7th Cir. 2003)............................................................................................................. 17, 22
Upadhya v. Langenberg,
834 F.2d 661 (7th Cir. 1987)...................................................................................................................... 9
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(continued)
Page
Venture Assocs. v. Zenith Data Sys.,
987 F.2d 429 (7th Cir. 1993)...................................................................................................................... 2
Vill. of S. Elgin v. Waste Mgmt. of Ill., Inc.,
348 Ill. App. 3d 929 (2d Dist. 2004) ..................................................................................................... 7, 8
Wadden v. Vill. of Woodridge,
193 Ill. App. 3d 231 (2d Dist. 1990) ....................................................................................................... 12
Williams v. Univ. of Ill.,
945 F. Supp. 163 (N.D. Ill. 1996) ........................................................................................................... 33
Wood v. Moss,
134 S.Ct. 2056 (2014)................................................................................................................................ 34
Wright v. Assoc. Ins. Cos. Inc.,
29 F.3d 1244 (7th Cir. 1994)...................................................................................................................... 2
Yatvin v. Madison Metro. Sch. Dist.,
840 F.2d 412 (7th Cir. 1988).................................................................................................................... 20
STATUTES
5 ILCS 160/1, et seq. ................................................................................................................................. 29, 30
5 ILCS 160/2 .................................................................................................................................................... 30
5 ILCS 160/8 .................................................................................................................................................... 30
110 ILCS 305/1................................................................................................................................................ 33
110 ILCS 305/7.................................................................................................................................................. 9
110 ILCS 305/7(a) ............................................................................................................................................. 9
705 ILCS 505/1, et. seq. ................................................................................................................................... 32
705 ILCS 505/8................................................................................................................................................ 32
745 ILCS 5/1 .................................................................................................................................................... 32
42 U.S.C. 1983 .................................................................................................................................... 5, 15, 23
42 U.S.C. 1985 ...........................................................................................................................................5, 23
-ix-
INTRODUCTION
Despite its length and hyperbole, Plaintiffs Complaint fails to state a claim upon which relief
can be granted. Each of its nine counts is flawed as a matter of law. At its core, Plaintiffs
Complaint rests on two entirely unsupported propositions: first, that he had entered into a contract
with the University of Illinois creating an unconditional right to a faculty position; and second, that
certain University administrators 1 and the Board of Trustees, in a conspiracy with unnamed donors,
breached this contract. Each of Plaintiffs nine counts flows from these twin assumptions.
The allegations set forth in Plaintiffs Complaint, however, reveal precisely the opposite. At
no time was Dr. Steven Salaita (Dr. Salaita or Plaintiff) ever an employee of the University of
Illinois (the University). As an applicant proceeding through the rigorous process for selecting
tenured faculty, Dr. Salaita received a conditional offer of employment as a tenured associate professor
at the University that was expressly subject to the approval of the Board of Trustees (the Board).
The Board, comprised of Trustees Christopher Kennedy, Ricardo Estrada, Patrick J. Fitzgerald,
Karen Hasara, Patricia Brown Holmes, Timothy Koritz, Edward L. McMillan, and Pam Strobel
(collectively, the Trustees), denied Dr. Salaitas appointment to the faculty. 2 Because Board
approval was not given and the condition of the offer was not met, Dr. Salaita did not become an
employee at the University and therefore was never entitled to the attendant benefits and procedural
protections provided to public employees.
The documents relied upon by Plaintiff further establish that Dr. Salaita s own conduct
during the time that his appointment was pending called into question his fitness as a professor,
which led to the Boards decision not to approve his appointment.
Specifically, Plaintiff names Robert Easter, President of the University of Illinois, Christophe Pierre, Vice President for
Academic Affairs for the University of Illinois, and Phyllis Wise, Chancellor of the University of Illinois at UrbanaChampaign (collectively, the Administrators).
James Montgomery is also a trustee on the Board. He voted in favor of Dr. Salaitas appointment, (Compl. 96), and
is not a named defendant.
LEGAL125094293.2
STATEMENT OF FACTS 3
A. Dr. Salaita applies for a faculty position at the University of Illinois.
In late 2012, the American Indian Studies Program at the University of Illinois at UrbanaChampaign began a search process to hire a new full-time faculty member. (Compl. 20.) The
application process for an associate professor tenured position is rigorous and involves multiple
steps. (Id. 21-24). The final and most critical step, however, is approval by the Board. (Id. 25.)
Dr. Salaita, then a professor at Virginia Polytechnic Institute and State University (Virginia
Tech), applied for the position. (Id. 21.) As part of the application process, on September 27,
2013, Brian Ross, the Interim Dean of the College of Liberal Arts and Sciences, wrote to Dr. Salaita
regarding a tenured position in the American Indian Studies Program at the University. (Id. 25.)
On October 3, 2013, Dean Ross sent a revised letter to Dr. Salaita that communicated a conditional
offer of employment. (Id. 25.) The letter, a copy of which is attached to Exhibit 1, 4 characterized
the offer as a recommendation for appointment and clearly stated that the recommendation
was subject to approval by the Board of Trustees . (Compl. 25; Ex. 1, Doc. 2 at Pgs. 46-47.)
(emphasis added). Dr. Salaita signed and returned a photocopy of the letter. (Id.) At no time
following the fall of 2013 did anyone from the University, acting in any capacity, inform Dr. Salaita
For purpose of Defendants Motion to Dismiss, Plaintiffs allegations must be taken as true. Hanley v. Green Tree
Servicing, LLC, 934 F. Supp. 2d 977, 980 (N.D. Ill. 2013). By reciting Plaintiffs allegations, Defendants do not concede
that they are true.
Documents that are attached to a motion to dismiss are appropriately considered part of the pleadings if they are
referred to in the plaintiffs complaint and are central to his claim. Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th
Cir. 1994) (citing Venture Assocs. v. Zenith Data Sys., 987 F.2d 429, 431 (7th Cir. 1993)). In addition, in ruling on a
12(b)(6) motion, a district court may take judicial notice of matters of public record without converting the 12(b)(6)
motion into a motion for summary judgment. PharMerica Chi., Inc. v. Meisels, 772 F. Supp. 2d 938, 946 (N.D. Ill. 2011)
(quoting Anderson v. Simon, 217 F.3d 472, 47475 (7th Cir. 2000)). The Committee on Academic Freedom and Tenure
(CAFT) of the University of Illinois at Urbana-Champaigns Report on the Investigation into the Matter of Steven
Salaita (the CAFT Report) is attached to Exhibit 1 Plaintiffs Complaint refers to and relies upon the CAFT Report,
(see Compl. 39, 56), and the CAFT Report and the October 3, 2013 letter in particular are central to Plaintiffs claims.
The October 3, 2013 letter is attached to Exhibit 1 as Document 2 (at Pgs. 46-47).
[2]
that he had obtained the approval of the Board or that his appointment was no longer subject to the
Boards approval. Plaintiffs entire Complaint is an unsuccessful attempt to elide this critical fact.
B. Dr. Salaita Publishes Inflammatory Statements on Twitter.
Throughout the fall of 2013 and into the summer of 2014, Dr. Salaita was still employed by
Virginia Tech. In May of 2014, prior to any action by the Board on his appointment, Dr. Salaita
notified Virginia Tech that he would be leaving, effective in August of 2014. (Id. 34.) In June
2014, while still employed by Virginia Tech, Dr. Salaita, a member of Twitter, an online social
networking service, began sending a series of Tweets 5short public statements limited to 140
characters. In his Complaint, Dr. Salaita states that he has used his Twitter account as an outlet for
his thoughts and reactions to events in the Middle East. (Compl. 61.) These Tweets also
revealed that Dr. Salaita was entirely unfit to be a professor at the University of Illinois. For
example, in June 19, 2014, after various media reported that three Israeli teenagers had been
kidnapped and were presumed dead, Dr. Salaita wrote: [y]ou may be too refined to say it, but Im
not: I wish all the f**king West Bank settlers would go missing. 6 Dr. Salaita continued to post
similar remarks even after the three teens were found murdered.
Throughout June and July, Dr. Salaita also offered the following thoughts and reactions to
events in the Middle East: 7
Lets cut to the chase: If youre defending #Israel right now youre an awful human
5 Twitter defines a tweet as an expression of a moment or idea. It can contain, text, photos, and videos. See Twitter
Website, available at https://about.twitter.com/what-is-twitter/story-of-a-tweet.
By June 30, 2014, it was determined that the teenage boys had been murdered. See Jodi Rudoren & Isabel Kershner,
Israels Search for 3 Teenagers Ends in Grief, NYT (June 30, 2014), available at
http://www.nytimes.com/2014/07/01/world/middleeast/Israel-missing-teenagers.html?_r=0.
These tweets are appended to the CAFT Report and are publicly available. (See Ex. 1, App. C at Pgs. 39-40.) Plaintiffs
Complaint relies on the tweets in question as the basis for his claims. (See, e.g., Compl. 64-67.) Accordingly, the
tweets are appropriately part of the record for the purposes of Defendants Motion to Dismiss. While Plaintiff
maintains that tweets are intended to be pithy . . . [and] are not inherently designed to capture nuance and subtly [sic],
(id. 60), he maintains that his tweets were intended to bring texture to an increasingly politicized and polarized
debate, (id. 62). For the propriety of a public filing with this Court, Defendants have edited the profanity in his
tweets.
7
[3]
being
By eagerly conflating Jewishness and Israel, Zionists are partly responsible when
people say antisemitic sh*t in response to Israeli terror
Zionist uplift in America: every little Jewish boy and girl can grow up to be the
leader of a murderous colonial regime
The @IDFSpokesperson is a lying mother**ker
Do you have to visit your physician for prolonged erections when you see pictures
of dead children in #Gaza?
If it werent for Hamas, Israel wouldnt have to bomb children. Look
motherf**ker, if it werent for Israel thered be no #GazaStrip
If #Israel affirms life, then why do so many Zionists celebrate the slaughter of
children? Whats that? Oh, I see JEWISH life
Zionists, take responsibility: if your dream of an ethnocratic Israel is worth the
murder of children, just f**king own it
At this point, if Netanyahu appeared on TV with a necklace made from the teeth of
Palestinian children, would anybody be surprised?
I repeat, if youre defending #Israel right now, then hopelessly brainwashed is
your best prognosis
Zionists: transforming antisemitism from something horrible into something
honorable since 1948
F**k you, #Israel. And while Im at it, f**k you, too, PA, Sisi, Arab monarchs,
Obama, UK, EU, Canada, US Senate, corporate media, and ISIS
Ever wonder what it would look like if the KKK had F-16s and access to a surplus
population of ethnic minorities? See #Israel and #Gaza
When I am frustrated, I remember that, despite the cigarettes and fatty foods, I
have a decent chance of outliving #Israel;
We can argue into eternity, but in the end this is what matters most: the people in
#Gaza are there because theyre not Jewish
If you havent recently been called a terror-loving anti-Semite, then Im sorry to say
your critique of #Israel is totally weak
Its silly when white American kids pretend to be Middle Eastern. Its
unconscionable when they go play soldier in the Middle East
[4]
#Israels message to #Obama and #Kerry: well kill as many Palestinians as we

want, when we want. p.s. f*ck you, pay me.
C. Reaction to Dr. Salaitas Tweets.
Shortly after Dr. Salaita published these statements, Chancellor Wise received hundreds of
letters, e-mails, and phone calls from concerned students, family members of students, alumni of the
University, and concerned citizens, expressing their outrage at these comments and the possibility
that Dr. Salaita would be approved as a member of the University faculty. (See Ex. 1, Doc. 6 at Pgs.
60-140.) 8 On July 24, 2014, the Board held a regularly scheduled meeting at the Chicago campus, a
portion of which was an executive session, as permitted under the Illinois Open Meetings Act.
Among the matters discussed was Dr. Salaitas pending appointment to the faculty and the
likelihood of Board approval. (Compl. 82-83.) Following this meeting, on August 1, 2014,
Chancellor Wise and Vice President Pierre wrote Dr. Salaita to inform him that your appointment
will not be recommended for submission to the Board of Trustees in September. (Compl. 71.)
The letter further noted that approval by the Board was unlikely. (Id.) On September 11, 2014, the
Board met for its next regularly scheduled meeting. By a vote of eight to one, the Board voted not
to approve Dr. Salaita for appointment an appointment to the faculty. (Id. 95.)
OVERVIEW OF PLAINTIFFS CLAIMS
From this straightforward decision, Plaintiff has manufactured nine ill-pleaded claims based
on his unreasonable subjective interpretation of the conditional contractual offer and the Boards
appropriate exercise of its authority. Specifically, Plaintiff alleges: First Amendment retaliation in
violation of 42 U.S.C. 1983 against the Trustees and Administrators (Count I); a procedural due
process claim pursuant to 42 U.S.C. 1983 against the Trustees and Administrators (Count II);
8 These letters are referenced in Plaintiffs Complaint, (see Compl. 77-78), were obtained pursuant to requests under
the Illinois Freedom of Information Act (id. 77), and serve as the basis for several of Plaintiffs claims against each
Defendant. Accordingly, they are appropriately part of the record for the purposes of Defendants Motion to Dismiss.
[5]
conspiracy in violation of 42 U.S.C. 1983 and 1985 against all Defendants (Count III);
promissory estoppel against the Board (Count IV); breach of contract against the Board (Count V);
tortious interference with contractual and business relations against John Doe Unknown Donors to
the University of Illinois (Unknown Alleged Donors) (Counts VI and VII); intentional infliction
of emotional distress against all Defendants (Count VIII); and spoliation of evidence against
Chancellor Wise (Count IX).
As will be set forth in detail below, each of these causes of action fails as a matter of law.
First, the breach of contract and promissory estoppel claims fail because there was no binding
contract and there was no unambiguous promise by the University upon which Plaintiff could
reasonably rely (Section I). Second, Plaintiffs civil rights claims fail to state a cause of action
because Plaintiff fails to make specific allegations against the Trustees and Administrators, and
because the University properly balanced Dr. Salaitas interest in making his inflammatory
statements against the Universitys interest in providing a safe and efficient educational environment.
Further, Dr. Salaita was not denied due process because he did not have a property interest in a
faculty position, has not alleged that Defendants actions have made it impossible for him to find
employment in his field, and has failed to allege an actionable agreement among Defendants
(Section II). Third, Plaintiffs various tort claims under state law tortious interference with
contract, tortious interference with business relations, intentional infliction of emotional distress,
and spoliation each fail to establish the elements necessary to plead any of these causes of action
(Section III). Finally, even if Plaintiff were able to state a claim, which he cannot, the Court lacks
subject matter jurisdiction over the Board and the Trustees and Administrators in their official
capacities based on the doctrine of sovereign immunity, and the Trustees and Administrators are
entitled to qualified immunity in their individual capacities (Section IV).
[6]
ARGUMENT
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court
is to accept as true all well-pleaded facts in the Complaint and draw all reasonable inferences in favor
of the Plaintiff. Specht v. Google, Inc., 660 F. Supp. 2d 858, 862 (N.D. Ill. 2009). The Court, however,
need not accept mere legal conclusions. Evans v. Tavares, No. 09-2917, 2009 WL 3187282, at *1
(N.D. Ill. Sept. 30, 2009). Threadbare recitals of a cause of action, supported by mere conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must
actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief
above the speculative level. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (internal quotation
marks omitted) (emphasis in original). To survive a motion to dismiss, [t]he complaint must allege
more than a sheer possibility that a defendant has acted unlawfully. Cohen v. Am. Sec. Ins. Co., 735
F.3d 601, 612 (7th Cir. 2013) (internal quotation marks omitted). Plaintiffs Complaint fails to state
a claim under Federal Rule of Civil Procedure 8(a) and must be dismissed.
I.
Plaintiffs Breach of Contract and Promissory Estoppel Claims Are Precluded

by the Nature of the Conditional Offer
A. Plaintiff Did Not Have a Contract with the University.
Plaintiff has failed to plead facts establishing the existence of a valid contract with the
University. In order to state a claim for breach of contract under Illinois law, a plaintiff must allege
facts establishing: (1) a valid contract, including offer and acceptance, consideration, and definite
and certain terms; (2) performance by the plaintiff; (3) a breach by the defendant; and (4) damages
resulting from the breach. Vill. of S. Elgin v. Waste Mgmt. of Ill., Inc., 348 Ill. App. 3d 929, 940 (2d
Dist. 2004). Courts must interpret purported contractual documents to give effect to the intentions
of the parties as expressed in the four corners of the instrument. Allen v. Cedar Real Estate Grp.,
LLP, 236 F.3d 374, 381 (7th Cir. 2001). Here, Plaintiff has not established and cannot establish the
existence of a valid contract and his breach of contract claim must be dismissed.
[7]
i.
The Offer Was Subject to the Approval of the Board of Trustees
Plaintiff has failed to plead that there was an offer that he could accept. The offer
propounded to Plaintiff was clearly conditional, stating expressly that it was subject to the approval
of the Board of Trustees. (See Ex. 1, Doc. 2 at Pgs. 46-47; Compl. 25.) Under Illinois principles
of contract law, an offeror has complete control over an offer and may condition acceptance to the
terms of the offer. Puri v. Blockbuster Music Retail, Inc., No. 95-50018, 1995 WL 756855, at *4 (N.D.
Ill. Dec. 20, 1995) (citing LaSalle Natl Bank. v. Vega, 167 Ill. App. 3d 154 (2d Dist. 1988)).
Moreover, [a] manifestation of willingness to enter into a bargain is not an offer if the person to
whom it is addressed knows or has reason to know that the person making it does not intend to
conclude a bargain until he has made a further manifestation of assent. Vill. of S. Elgin, 348 Ill.
App. 3d at 943 (quoting Restatement (Second) of Contracts 26 (1981)). The language subject to
generally indicates a partys promise is not to be performed unless a condition occurs. McKee v.
First Natl Bank of Brighton, 220 Ill. App. 3d 976, 983-84 (4th Dist. 1991).
Thus, when the terms of an offer state that it is subject to approval, the subject to event is a
condition precedent, which must be met in order to the form the contract. See Allen, 236 F.3d at
381-82 (affirming decision of district court that found inclusion of the phrase this offer is subject
to purchaser[]s approval a condition precedent to the formation of the contract); Cobb-Alvarez v.
Union Pac. Corp., 962 F. Supp. 1049, 1054 (N.D. Ill. 1997) (applying Illinois law and finding that
severance letter did not constitute an acceptable offer where participation in the severance program
was subject to the approval of Union Pacifics Vice President of Human Resources); Berco Invs.,
Inc. v. Earle M. Jorgensen Co., No. 94-3961, 1996 WL 388463, at *4 (N.D. Ill. July 8, 1996) (applying
Illinois law and granting a motion to dismiss a breach of contract claim where a purported contract
stated that it was subject to approval by the defendants board and such approval was not given);
Puri, 1995 WL 756855, at *4 (finding no contract where, among other things, offer was subject to
[8]
the approval of an authorized officer of Blockbuster in his/her sole discretion and such approval
was not given). As the offeror, the University was entitled to control the nature of its offer and the
unequivocal language in the October 3, 2013 letter that Plaintiffs recommendation for
appointment would be subject to approval by the Board of Trustees created a condition
precedent, which was not met.
Plaintiff attempts to minimize the importance of this conditional language, relying on the
CAFT Report and speculating that it is virtually unheard of for a universitys board to overrule a
faculty hiring decision after the university has obtained the recruited faculty members acceptance of
an offer of a tenured position. (Compl. 39-40.) Plaintiff fallaciously characterizes the Boards
role in the hiring process as ministerial, (id. 51), one of delegation, (id. 53), and its approval
as a ratification, (id. 54).
Plaintiffs assumptions are entirely inconsistent with Illinois law. Under Illinois law, the
Board is empowered to make the final decision regarding faculty hiring. The law is clear that only
the Board has the power to appoint professors to the faculty of the University. See 110 ILCS
305/7(a) (The Trustees shall have the power to . . . appoint such professors and instructors . . . as
may be required to teach . . . .); see also People ex rel. Bd. of Trs. of Univ. of Ill. v. Barrett, 382 Ill. 321, 340
(1943) (holding that selection and employment of University employees are powers committed
solely to the corporation [i.e., the Board of Trustees]); 110 ILCS 305/7 (The Board of Trustees
shall have the authority to adopt all administrative rules which may be necessary for the effective
administration, enforcement and regulation of all matters for which the Board has jurisdiction or
responsibility.). Plaintiffs argument also runs afoul of the University Statutesbylaws promulgated
by the Board, which have the forc[e] of administrative rules and hence law in Illinois. See
Upadhya v. Langenberg, 834 F.2d 661, 663 (7th Cir. 1987). These Statutes grant the Board sweeping
powers to manage and administer the University. See Preamble to University Statutes (Within the
[9]
limits fixed by the Illinois constitution and laws, the Board of Trustees exercises final authority over
the University.); University Statutes, Article XIII, 7 ([T]he board expressly reserves to itself the
power to act on its own initiative in all matters affecting the University, notwithstanding that such
action may be in conflict or may not be in conformance with the provisions of these Statutes.). 9
Plaintiff further attempts to minimize the Boards role in the hiring process, arguing that the
Board is required to approve his appointment pursuant to Article IX, 3(a) of the University Statutes,
which provides that [a]ll appointments, reappointments, and promotions of the academic staff . . .
shall be made by the Board of Trustees on the recommendation of the chancellor/vice president
concerned and the president. (Compl. 52.) As an initial matter, the term recommendation
plainly indicates that appointments need not be approved by the Board. See Tanner (Gerard E.) v. Bd.
of Trs. of Univ. of Ill., 43 Ill. Ct. Cl. 12, 17 (1989) (recognizing that a statute authorizing the Board to
issue degrees on recommendations of the faculty created a discretionary and not mandatory
power). In addition, read in the context of the faculty appointment process, this provision merely
indicates that Board approval of the recommendation is the manner in which appointments are
approved, if and when they are approved.
Ultimately, Plaintiffs subjective interpretation of the Boards role is immaterial to whether a
contract existed. In A/S Apothekernes Lab. for Specialpraeparater v. I.M.C. Chem. Grp., Inc., 873 F.2d
155, 157-58 (7th Cir. 1989), the plaintiff believed a contract existed to purchase the Biochemical
Division of the defendant, despite language requiring an agreement of sale acceptable to the
defendants board of directors. The Seventh Circuit disagreed and held for the defendant. The
court rejected plaintiffs suggest[ion] that the board approval provision did not mean what it
appeared to mean and found that the language in the letter of intent should have put [the
As Plaintiff highlights in the Complaint, Article IX, 12(7) of the University Statutes specifically empowers the Board to
adjudicate the dismissal of a tenured professor. While Plaintiff was not a tenured professor at the University and thus,
was not entitled to the process outlined in the University Statutes, see infra at Section II.B.i., this provision further
underscores the critical role played by the Board in faculty employment matters.
[10]
plaintiffs representative] on notice that any promises by [the defendants agent] of rubber-stamp
board approval were not to be taken seriously. Id. at 157-58. Here, the conditional offer letter
informing Plaintiff that his recommendation for appointment would be subject to approval of
the Board of Trustees renders Plaintiffs subjective interpretation of that process irrelevant.
ii. The Offerors Had No Actual or Apparent Authority to Bind the University
Plaintiff does not contend that the Board or any Trustee made him an offer of employment.
Rather, Plaintiff alleges that he received the October 3, 2013 conditional offer letter from Interim
Dean Ross upon the recommendation of Professor Byrd. (Compl. 25.) Plaintiff does not allege,
however, that the Board consented to or knowingly acquiesced in [Interim Dean Rosss or
Professor Byrds] exercise of authority, as required to show apparent authority to make such an
offer. See A.J. Maggio Co. v. Willis, 316 Ill. App. 3d 1043, 1050 (1st Dist. 2000). Such a conditional
offer did not purport to bind the University nor could it.
Article I, Section 6 of the University Statutes expressly incorporates the General Rules
Concerning University Organization and Procedure of the University of Illinois (the General Rules) to the
extent that they do not conflict with the University Statutes. Article 2, Section 4(c) of the General
Rules requires that either the Secretary of the Board or the Comptroller of the University execute
University contracts. Plaintiff does not allege that either the Secretary or the Comptroller signed the
conditional offer letter. Nor could Plaintiff contend that Interim Dean Ross had apparent authority
to bind the Board. 10 Under settled Illinois law, the doctrine of apparent authority does not bind
The University Statutes describe the deans role in the faulty hiring process such that he or she shall recommend the
appointment, reappointment, nonreappointment, and promotion of members of the academic staff. University Statutes,
Article III, 3(d). The provision provides that [i]n case a recommendation from a college is not approved by the
chancellor/vice president, the dean may present the recommendation to the president, and, if not approved by the
president, the dean with the consent of the Board of Trustees may present the recommendation in person before the Board of Trustees in
session. Id. (emphasis added). Once again, the University Statutes vest the ultimate authority for appointment of
academic staff with the Board of Trustees.
10
[11]
governmental bodies such as the Board. 11 As the Illinois Supreme Court recently stated, it is well
established under Illinois law that anyone dealing with a governmental body takes the risk of having
accurately ascertained that he who purports to act for it stays within the bounds of his authority.
Patrick Engg, Inc. v. City of Naperville, 2012 IL 113148, 36; see also Nielsen-Massey Vanillas, Inc. v. City of
Waukegan, 276 Ill. App. 3d 146, 156 (2d Dist. 1995) (holding that a governmental body cannot be
estopped by an act of its agent beyond the authority expressly conferred upon that official . . . .).
In Black Knight Prods., Inc. v. Univ. of Ill. at Chi., 50 Ill. Ct. Cl. 406, 410 (1998), the Illinois
Court of Claims granted the Universitys motion to dismiss a breach of contract claim where the
plaintiff alleged that a signature by an employee of the University of Illinois at Chicago bound the
University to a promotional contract. Noting that in dealing with an agent of the State one must
ascertain at his peril the authority of the agent, and the mere assertions of the agent are not sufficient
to bind the State, the court held that because the plaintiff had not pleaded that the University
employee had actual authority to execute the contract and because the doctrine of apparent authority
did not apply, the employee could not make a promise that would bind the Board. Id. Accordingly,
as a matter of law, the October 3, 2013 letter could not serve to bind the Board. 12
In sum, there was no contract to breach. For this reason, Count V of the Complaint must
be dismissed as a matter of law.
11 See Harper v. Univ. of Ill. at Chi., No. 95-5987, 1996 WL 288628, at *2 (N.D. Ill. May 30, 1996) (There can be no
dispute that UIC is an arm of the state for purposes of the Eleventh Amendment); see also infra at Section IV.A.i.
(discussing the status of the Board as a state governmental entity for sovereign immunity purposes).
Under Illinois law, an alleged agent cannot have apparent authority to bind a principal where applicable statutes
reserve that power to the principal. When, as here, statutes require that a governmental body has the exclusive right to
make an offer on behalf of the State, an unauthorized agent cannot have apparent authority on behalf of that body. See
Bank of Pawnee v. Joslin, 166 Ill. App. 3d 927, 940 (4th Dist. 1988) (holding that where statutes required that any contract
entered into by municipality be approved by a vote of municipal officers, clerk and village manager did not have
apparent authority to make offers because a contracting party is charged with ascertaining authority of representatives of
governmental bodies); see also Wadden v. Vill. of Woodridge, 193 Ill. App. 3d 231, 241 (2d Dist. 1990) (holding that there
was no apparent authority by a manager to make an employment contract for commissions on behalf of a town when
ordinances stated he did not have that authority).
12
[12]
B. Plaintiff Is Not Entitled To Equitable Relief for His Unreasonable Reliance on a

Conditional Offer.
In tacit recognition of the lack of an enforceable contract, Plaintiff seeks equitable relief
based on the doctrine of promissory estoppel. Once again, Plaintiff has failed to state a claim upon
which relief can be granted. To state a claim for promissory estoppel under Illinois law, Plaintiff
must plead that: (1) the Board made an unambiguous promise to him; (2) Plaintiff reasonably relied on
such promise; (3) Plaintiffs reasonable and justifiable reliance was expected and foreseeable by the
Board; and (4) Plaintiff relied on the unambiguous promise to his detriment. See Newton Tractor Sales,
Inc. v. Kubota Tractor Corp., 233 Ill. 2d 46, 51 (2009); Quake Const., Inc. v. Am. Airlines, Inc., 141 Ill. 2d
281, 310 (1990). Plaintiffs promissory estoppel claim is fatally deficient as a matter of law as he fails
to allege an unambiguous promise by the Board or anyone with the authority to bind the Board and
his reliance on the conditional offer was unreasonable.
i.
The Board Never Made an Unambiguous Promise of Employment
As discussed supra at Section II.A., the October 3, 2013 letter to Plaintiff was a conditional
offer of employment subject to the approval of the Board of Trustees. Under Illinois law, to
support a promissory estoppel a claim a promise need not be express, but it must be
unambiguous. Rockford Cutting Tools & Abrasives v. Norton Co., No. 90-2743, 1991 WL 191601, at *4
(N.D. Ill. Sept. 19, 1991) (finding no unambiguous promise despite facts that led the plaintiff to
believe a contract had been formed). In its plain terms, the conditional offer letter was not an
unambiguous promise.
Moreover, to support a promissory estoppel claim, Plaintiff must allege that it was the Board
who made the alleged unambiguous promise. See Krieg v. Ameritech Int'l, Inc., No. 96-4751, 1998 WL
161010, at *5 (N.D. Ill. Mar. 31, 1998) (applying Illinois law) (holding that a promise by third parties
who did not have authority as agents for the defendant could not support a claim for promissory
estoppel). The Complaint is silent with regard to any promises made by the Board or any Trustee to
[13]
Plaintiff. Just as with his breach of contract claim, Plaintiff may not argue that the letter from
Interim Dean Ross bound the Board. 13 In addition, [e]stoppel against public bodies is generally not
favored and is allowed in only rare and unusual circumstances. Chi. Limousine Serv., Inc. v. City of
Chi., 335 Ill. App. 3d 489, 500 (1st Dist. 2002) (internal quotation marks omitted); see Hamwi v. Zollar,
299 Ill. App. 3d 1088, 1096 (1st Dist. 1998) (The affirmative act which prompts a partys reliance
must be an act of the public body itself such as a legislative enactment rather than the unauthorized
acts of a ministerial officer or a ministerial misinterpretation.). Plaintiff has failed to allege rare and
unusual circumstances prompted by an affirmative act by an act of the University such that estoppel
would be applicable against the Board.
ii. Plaintiffs Reliance on the Conditional Offer Was Unreasonable
It is bedrock law in Illinois that [w]here the defendants promise is conditional, the
plaintiffs reliance is not reasonable, as [o]pinions based on contingent or future events are not the
basis of an action for . . . promissory estoppel. In re Midway Airlines, Inc., 180 B.R. 851, 944 (Bankr.
N.D. Ill. 1995) (internal quotation marks omitted). Where a plaintiff knows that a promise is subject
to approval by another person or entity, it is unreasonable to rely on that promise. See Mason &
Dixon Lines, Inc. v. Glover, 975 F.2d 1298, 1305 (7th Cir. 1992) (holding that reliance on trustees
representation regarding settlement was unreasonable where written notice provided that any
settlement would be subject to approval by the other trustees); Dougherty v. Akzo Nobel Salt, Inc., 47
F. Supp. 2d 989, 992 (N.D. Ill. 1999) (interpreting Illinois law and holding that reliance on managers
Although not binding here, it is instructive that courts in other states have also consistently recognized in the context
of offers to hire a professor that where state ordinances reserve the authority to hire or approve the hiring of professors
to a particular university body, there can be no liability for promissory estoppel against the university for actions taken
by an employee when that university body has not approved the promise. See Oja v. Blue Mountain Cmty. Coll., No. 03964, 2004 WL 1119886, at *6 (D. Or. May 19, 2004) aff'd in relevant part, rev'd in part, 184 F. Appx. 597 (9th Cir. 2006)
(holding that it was unreasonable to rely on a universitys interim presidents promise of employment when the plaintiff
knew approval by the universitys Board was required); Daniel v. Univ. of Cin., 116 Ohio Misc. 2d 1, 5 (Ohio Ct. Cl. 2001)
(holding that it was unreasonable for a prospective professor to rely on promises from the Director of Graduate Studies
and a professor at a university when state statutes gave the board of trustees of the university sole authority to make
employment contracts).
13
[14]
statement that he would not be fired was unreasonable when the plaintiff knew manager did not
have final authority to make decision); Ross v. May Co., 377 Ill. App. 3d 387, 394 (1st Dist. 2007)
(finding reliance on managers statements unreasonable where employee handbook made clear that
senior vice president of human resources was the only person who could alter an employees
employment status).
Thus, because the laws of the State of Illinois vest the Board with the exclusive power to
appoint professors to the University, any reliance by Plaintiff was unreasonable, and his claim for
promissory estoppel must be dismissed.
II.
Defendants Did Not Violate Plaintiffs Constitutional Rights
Plaintiff alleges three ill-pleaded constitutional claims under 42 U.S.C. 1983: violation of
his First Amendment rights; violation of his Procedural Due Process right; and conspiracy. To
survive a motion to dismiss a Section 1983 action, a plaintiff must allege plausibly, under the
pleading standards of Iqbal, that defendant was directly or indirectly responsible for the claimed
deprivation of constitutional rights. Simpson v. Robb, No.13-1263, 2014 WL 4817491, at *7 (C.D. Ill.
Sept. 29, 2014). The Complaint must establish a defendants personal responsibility for the
violation. Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981).
A. Plaintiff Fails to Allege Any Defendants Direct Personal Responsibility for Any
Purported Violation of His Constitutional Rights.
Counts I and II are brought only against the Trustees and Administrators, yet, Plaintiff fails
to allege sufficient direct personal responsibility on the part of any individual Trustee or
Administrator to state a claim. The only conduct ascribed to Trustees is two-fold: (1) participation
in a July 24, 2014 executive session, at which time Plaintiffs candidacy was discussed, (Compl. 82);
and (2) a September 11, 2014 meeting at which the Trustees voted down his appointment, (id. 95).
The vote not to approve Plaintiffs appointment was based on a record of public outrage evidenced
by the hundreds of communications, some of which are attached to the CAFT Report. (See Ex. 1,
[15]
Doc. 6 at Pgs. 60-140.) Accordingly, the Trustees actions were within the scope of their statutory
mandate and limited to two instances of administrative conduct.
Plaintiff has brought claims against three administrators: President Robert Easter; Vice
President of Academic Affairs Christopher Pierre; and Phyllis Wise, the Chancellor of the UrbanaChampaign campus. As to each of these administrators, however, Plaintiff fails to describe
individual action which would subject any of them to liability.
First, Plaintiff fails to ascribe any actionable conduct to President Easter. There is not a
single statement, action, meeting, or document linked to President Easter. Second, the only
allegation regarding Vice President Pierre was his status as a co-signatory of the August 1, 2014
letter, which informed Plaintiff that his appointment would not be recommended for submission to
the Board in September of 2014. (Compl. 71.) Plaintiffs appointment was put to an unsuccessful
Board vote in September. Plaintiff has not pled that President Easter or Vice President Pierre had
any influence on the Boards decision-making process or that either had any authority to override
the Boards decision. Plaintiffs allegations regarding President Easter and Vice President Pierre are
insufficient to establish any violation of any constitutional right.
The Complaint contains a myriad of allegations regarding Chancellor Wise; none of the
actions pled, however, implicate Plaintiffs constitutional rights. Plaintiff alleges that Chancellor
Wise: (1) initially approved Plaintiffs appointment (id. 31); (2) sent Plaintiff an invitation to a fall
reception for new faculty (id. 36); (3) informed Professor Robert Warrior that she would monitor
Plaintiffs tweets prior to the Boards review of her recommendation (id. 68); (4) contacted Plaintiff
on August 2, 2014, enclosing a letter informing him that his appointment would not be
recommended for submission to the Board (id. 71); (5) met with a member of the Universitys
Business Council and the Board of the Hillel Foundation, Steven Miller, regarding Plaintiff (id. 85);
(6) allegedly destroyed a two-page memorandum six months before Plaintiff filed suit (id. 81); (7)
[16]
published an open letter regarding her decision not to recommend him for approval by the Board
(id. 87); and (8) informed the Board that she would not be recommending Plaintiff for approval (id.
95). Despite Plaintiffs conclusory and speculative allegations that Chancellor Wises decision was
based entirely on alleged pressure from Unknown Alleged Donors, the facts pled in the Complaint
establish that it was the Board that ultimately considered and rejected Plaintiffs appointment.
Chancellor Wise did not violate any constitutional rights purportedly possessed by Plaintiff.
The Court need not even advance to the substantive analysis of Counts I and II. Plaintiff
fails to sufficiently allege direct personal responsibility on the part of the Trustees and
Administrators to state a claim under Iqbal and those counts must be dismissed.
B. Plaintiffs First Amendment Retaliation Claim Fails as a Matter of Law.
Even if the Court were to find that Plaintiffs allegations were sufficiently alleged against any
Trustee or Administrator, as a matter of law, the Universitys interest in avoiding disruption on its
campus and any imposition on the schools educational mission outweighs Plaintiffs interest in the
speech in question. As the Seventh Circuit has recognized a public employees freedom of speech
on matters of public concern is far from absolute and all-encompassing, and the exercise of
protected speech may nevertheless serve as the basis for termination if the employer articulates
convincing reasons for taking such action. Trejo v. Shoben, 319 F.3d 878, 884-85 (7th Cir. 2003). To
establish a prima facie First Amendment retaliation claim, Plaintiff bears the burden of establishing
that: (1) he was a public employee who engaged in activity protected by the First Amendment; (2)
he suffered a deprivation that would be likely to deter First Amendment activity in the future; and
(3) the First Amendment activity was at at least a motivating factor in Defendants decision to take
such retaliatory action. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Under Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty, Ill., 391 U.S. 563 (1968),
however, Plaintiffs First Amendment retaliation claim still fails, as the likelihood of disruption based
[17]
on Plaintiffs speech outweighed Plaintiffs interests in commenting upon matters of public concern.
The Seventh Circuit has interpreted the case of Garcetti v. Ceballos, 547 U.S. 410 (2006) to signal the
Courts concern that courts give appropriate weight to the public employers interests. Piggee v. Carl
Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006).
The Seventh Circuit has identified seven factors to consider when balancing Plaintiffs First
Amendment interests against the Universitys interest in providing a safe and efficient environment
for the education of its students, including:
(1) whether the statement would create problems in maintaining discipline by
immediate supervisors or harmony among co-workers; (2) whether the employment
relationship is one in which personal loyalty and confidence are necessary; (3)
whether the speech impeded the employee's ability to perform her daily
responsibilities; (4) the time, place, and manner of the speech; (5) the context in
which the underlying dispute arose; (6) whether the matter was one on which debate
was vital to informed decisionmaking; and (7) whether the speaker should be
regarded as a member of the general public.
Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999). Under Pickering, evidence of actual disruption
is unnecessary. Marquez v. Turnock, 967 F.2d 1175, 1179 (7th Cir. 1992).
The record established by Plaintiffs Complaint and the referenced documents is beyond
dispute. As a result of Plaintiffs Tweets, Chancellor Wise received hundreds of letters, e-mails, and
phone calls from concerned students, family members of students, and alumni of the University
expressing collective outrage and communicating concerns about, among other things, students
safety, ability to practice their religion, and comfort level on campus. (See Ex. 1, Doc. 6 at Pgs. 60140.) The Seventh Circuit has recognized that educational institutions have an interest in avoiding
precisely this type of disruption to its students education. In Piggee, the Seventh Circuit granted
summary judgment in favor of Carl Sandburg College, after a part-time instructor of cosmetology
gave a gay student two religious pamphlets on the sinfulness of homosexuality. Piggee, 464 F.3d at
668. The court found that the plaintiffs speech was not relating to her job . . . [and] if it did
anything, it inhibited her ability to perform that job by undermining her relationship with [the student] and other
[18]
students who disagreed with or were offended by her expressions of her beliefs. Id. at 672 (emphasis added).
After analyzing evidence of disruption in students education, the court concluded [t]his evidence
shows, at a minimum, that the college reasonably took the position that nongermane discussions of
religion and other matters had no place in the classroom, because they could impede the schools
educational mission. Id. 14
Similarly, in Bonds v. Mil. Cnty., 207 F.3d 969, 981 (7th Cir. 2000), the Seventh Circuit
affirmed a decision of the trial court in favor of Milwaukee County, which had revoked a contract
offer to a public employee following insubordinate speech. Upon performing a Pickering analysis,
the court noted that:
After considering the views of three county supervisors and her chief of staff,
Ordinans concluded that hiring Bonds would become a big problem and a
disaster. Under these circumstances, the Countys interests in government
efficiency and workplace harmony justified its decision to rescind its offer to Bonds
for a policymaking position and outweighed Bondss First Amendment interests
under Pickering. The alternative for the County was to hire a prospective employee
for a sensitive policymaking position who it believed would be disruptive and
ineffective in his new role. The Countys decision not to hire Bonds because of his
speech at the July 26 forum meets the Pickering standard and does not violate the
First Amendment.
Id. at 982; see also Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994) (finding that the interests of the
University in avoiding workplace disruption outweighed the interests of two University employees in
their speech about the appropriation of funds); Schrier v. Univ. of Co., 427 F.3d 1253, 1265 (10th Cir.
2005) ([I]t was reasonable for the University to conclude that Dr. Schriers speech, including the
manner in which he expressed himself to others, was having a negative impact both on his
performance and on the Universitys operations.).
Based on the ample documentation reflecting a likely, if not already occurring, disruption at
While the speech in Piggee occurred inside the clinical beauty salon where instruction took place, the Seventh Circuit
observed that [h]ad [the plaintiff] come up to [the student] in a local grocery store and slipped the pamphlets into his
pocket, we would have a different case. It is still possible that this might have raised concerns, because the
instructor/student relationship does not end the moment the instructional period is over. Piggee, 464 F.3d at 671.
14
[19]
the University, the Boards decision not to grant Plaintiffs appointment to the faculty satisfies the
Pickering test and precludes Plaintiffs First Amendment retaliation claim.
C. Plaintiff Fails to Allege Facts Sufficient to Establish a Violation of His
Procedural Due Process Rights.
The Fourteenth Amendment to the United States Constitution provides that [n]o State shall
. . . deprive any person of life, liberty, or property, without due process of law . . . . U.S. Const.
amend. XIV. 1. A procedural due process analysis involves two-steps: first, the Court determines
whether the plaintiff was deprived of a protected interest; and second, the Court determines what, if
any, process is due. Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004). Under this
analysis, Plaintiff has failed to state a claim for procedural due process. Plaintiffs Complaint
purports to plead a protected interest in two ways: a property interest and a liberty interest. We
address each in turn.
i.
Plaintiff Did Not Have a Property Interest in a Contingent Offer
Plaintiff has not pled facts sufficient to establish a property interest in a position that was
always subject to the approval of the Board. A property interest is established by existing rules or
understandings that stem from an independent source such as state lawrules and understandings
that secure certain benefits and that support claims of entitlement to those benefits. Lopez v. Bd. of
Trs. of Univ. of Ill. at Chi., 344 F. Supp. 2d 611, 623 (N.D. Ill. 2004) (quoting Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972)). Property interests protected by procedural due process do not stem from
mere unilateral expectations, Roth, 408 U.S. at 577, but rather a mutually explicit understanding
of his continued or indefinite employment, Lopez, 344 F. Supp. 2d at 623 (emphasis added).
Simply put, there is no mutually explicit understanding of employment where a prospective
employee has a conditional offer. See, e.g., Yatvin v. Mad. Metro. Sch. Dist., 840 F.2d 412, 417 (7th Cir.
1988) applicant for promotions expectation was too exiguous to count as property under the due
process clauses, given the inherent uncertainty whether she could meet the condition . . . .); DeGroot
[20]
v. Vill. of Matteson, No. 13-08530, 2014 WL 3360562, at *2 (N.D. Ill. July 9, 2014) (dismissing
procedural due process claim where court found that candidate for firefighter position with a
conditional offer of employment had no property interest in prospective employment); Spanierman v.
Hughes, 576 F. Supp. 2d 292, 302 (D. Conn. 2008) (Thus, despite whatever unilateral expectations
he may have held, the Plaintiff had no legitimate claim of entitlement to a renewal of his
employment contract with the DOE.).
While [a] property interest in employment can . . . be created by ordinance, or by an implied
contract . . . the sufficiency of the claim of entitlement must be decided by reference to state law.
Bishop v. Wood, 426 U.S. 341, 344 (1976); Steshenko v. Gayrard, No. 13-03400, 2014 WL 4904424, at
*11 (N.D. Cal. Sept. 29, 2014) (finding that graduate student failed to allege a protected property
interest as he had plead no facts showing that University regulations, state law, or any other
independent source created a legitimate claim of entitlement to admission to the programs). As
discussed supra, Illinois state law and the conditional offer letter empowered the Board to make the
final decision on Plaintiffs appointment and there was no guarantee that such appointment would
be granted. In Thomas v. Bd. of Examrs, Chi. Pub. Sch., 651 F. Supp. 664, 666 (N.D. Ill. 1986), the
court granted the defendants motion to dismiss a former public school teachers procedural due
process claim based on the local Board of Examiners refusal to recommend her for the Board of
Educations approval for a principals certificate upon failing an oral examination. Recognizing that
Illinois law empowered the Board of Education to maintain and operate the Chicago public school
system, and that the Board of Education has the ultimate authority on appointments and
promotions of teachers and principals, the court found that the plaintiff had no entitlement to the
certificate. Id. at 665, 667. The court noted that the applicant would have a legitimate expectation
of the certificate only if the relevant state law guaranteed all applicants for principal certificates a
certificate simply because they applied for one. Id. at 667. The court found that Illinois law did not
[21]
guarantee such a result and that if such were the case the oral examination would serve absolutely
no purpose. Id.
Under Illinois law, as discussed supra, Plaintiffs offer was contingent upon Board approval
and there was no mutually explicit understanding of his employment. Therefore, Plaintiff was never
an employee at the University and had no legitimate claim of entitlement, nor did he have a
protected property interest.
ii. Plaintiff Fails to Sufficiently Allege That Defendants Actions Make it Virtually
Impossible for Him to Find New Employment as a Professor of American Indian Studies
Similarly, Plaintiff fails to state a claim regarding a deprivation of his liberty interest. Plaintiff
alleges that he surrendered his position at Virginia Tech, has been denied the opportunity to teach
by the University, that his academic career is in shambles, and that he cannot publish articles in
academic journals and present his scholarship to colleagues. (Compl. 5.) Plaintiff also contends
that he suffered a deprivation of his liberty interest because of false and defamatory statements
made by unnamed administrators and the Boards denial of his appointment to the faculty. (Id.
109.) Plaintiff contends that members of the administration erroneously claimed that he is antiSemitic or bigoted, 15 attacked his scholarship and credentials, and claimed that he is unfit to teach,
which caused harm and stigma to his professional, intellectual, and business reputation. (Id.)
These allegations do not specifically identify any of the Trustees or Administrators as
offenders and are insufficient to state a claim for a due process deprivation of a liberty interest.
[A]n employees right to pursue his or her chosen occupation is infringed only if the circumstances
of the discharge, at least if they were publicly stated, had the effect of blacklisting the employee from
Nowhere in the Complaint does Plaintiff provide a single factual allegation regarding any member of the
administration of the University claiming that he was anti-Semitic or bigoted. Rather, Plaintiff alleges Trustee Kennedy
said that he believed the Tweets were anti-Semitic. (Compl. 97-98.) Plaintiffs allegations of defamation are fallacious
and unsupported by his Complaint. Plaintiff also claims that his prominent scholarship and excellent teaching
credentials earned him tenure and self-describes as a nationally recognized scholar and extremely prolific academic.
(Id. 5, 18, 19.) To the extent Plaintiffs liberty interest claim is predicated on characterizations of his Tweets
characterizations that he maintains are false and legally actionable potential employers are free to agree or disagree with
him and offer him employment as they see fit.
15
[22]
employment in comparable jobs. Trejo, 319 F.3d at 889 (internal quotation marks omitted); see also
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 531 (7th Cir. 2000) (quoting Head v. Chi. Sch. Bd.
of Trs., 224 F.3d 794, 801 (7th Cir. 2000)) (It is not enough that the employers stigmatizing conduct
has some adverse effect on the employees job prospects; instead, the employee must show that the
stigmatizing actions make it virtually impossible for the employee to find new employment in his
chosen field.). Plaintiffs diminished ability to publish articles in academic journals and present
his research to colleagues is not enough to constitute a deprivation of his liberty interest. See
McElearney v. Univ. of Ill. at Chi. Circle Campus, 612 F.2d 285, 288 (7th Cir. 1979) (By dismissing
McElearney the University administrators did not prevent him from pursuing his chosen area of
research. They simply refused to underwrite it.).
For all of these reasons, Plaintiff has failed to state a claim for a violation of his due process
rights and Count II must be dismissed.
D. Plaintiff Fails to Allege an Underlying Constitutional Violation or Agreement
Among Defendants.
Plaintiffs conspiracy count is based on an alleged agreement to violate his constitutional
rights under 42 U.S.C. 1983 and 1985. To survive a motion to dismiss his Section 1985
conspiracy claim, a plaintiff must plead an agreement amongst defendants to deprive plaintiff of his
rights, and that he was actually deprived of those rights by overt acts taken in furtherance of the
conspiracy. See Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Plaintiff cannot merely allege a
conspiracy solely within the University. See Stone v. Bd. of Trs. of N. Ill. Univ., et al., No. 13-04089,
2014 WL 3845164, at *9 (N.D. Ill. Aug. 5, 2014) (dismissing Section 1983 conspiracy claim based on
intra-corporate conspiracy doctrine). Notably, conspiracy claims have been held to a higher
pleading standard. See Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). [C]ourts require the
plaintiff to allege the parties, the general purpose, and the approximate date of the conspiracy.
Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006).
[23]
Plaintiff cannot survive the Motion to Dismiss here. First, as there was no violation of
Section 1983, Plaintiff has failed to state a claim for conspiracy. Second, Plaintiff has not alleged
facts regarding any express or implied agreement between any Defendants, let alone an agreement to
deprive him of his constitutional rights. This pleading deficiency is fatal. See Martin v. City of Chi.,
No. 12-9207, 2014 WL 4947674, at *2 (N.D. Ill. Sept. 30, 2014). In lieu of specific allegations of an
agreement, Plaintiff speculatively pleads that all Defendants reached an agreement among
themselves to deny Professor Salaitas appointment to the Universitys faculty . . . . (Compl. 114.)
However, caselaw is legion that speculative allegations of an agreement are insufficient to survive a
motion to dismiss. See Roehl v. Merrilees, No. 11-4886, 2012 WL 1192093, at *8 (N.D. Ill. Apr. 10,
2012) (granting motion to dismiss Section 1985 conspiracy claim where allegations of agreement
were not alleged above a speculative level); see also Gomez v. Garda CL Great Lakes, Inc., No. 13-1002,
2013 WL 4506938, at *6 (N.D. Ill. Aug. 23, 2013) (same). Count III must be dismissed.
III.
Plaintiffs Remaining State Law Causes of Action Fail to State a Claim

Against Any Defendant
A. Plaintiffs Merged Claims of Tortious Interference with Contractual and Business
Relations Fails as a Matter of Law.
Plaintiffs tortious interference claims are based on his novel theory that while he does not
know who they are or exactly what they did, a group of invisible Unknown Alleged Donors to the
University intentionally acted to harm him. As with his contract claims, Plaintiffs tortious
interference claims are based on his unreasonable reliance on a conditional offer, which was
unequivocally subject to Board approval. For the reasons provided below, they must be dismissed. 16
i.
Plaintiff Fails to Allege Either a Valid and Enforceable Contract or Actionable Speech
In direct contravention of the Federal Rules of Civil Procedure, Plaintiff impermissibly pleads a self-styled, merged
claim of tortious interference with contractual and business relations, which are two separate torts with separate
elements of proof. This error in pleading alone warrants dismissal of the claims. See Raymond v. Alexander, No. 11-00532,
2012 WL 4388328, at *9 (S.D. Ill. Sept. 25, 2012) (requiring that a unified claim for tortious interference with
contractual relations and with prospective economic advantage be re-pleaded so as to distinguish between the two
competing theories).
16
[24]
To state a claim for tortious interference with contract, Plaintiff must allege: (1) a valid and
enforceable contract between Plaintiff and the Board; (2) the Unknown Alleged Donors awareness
of the contract; (3) the Unknown Alleged Donors intentional and unjustified inducement of a
breach of that contract; (4) a subsequent breach by the Board, caused by the Unknown Alleged
Donors wrongful conduct; and (5) damages. See HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc.,
131 Ill. 2d 145, 154-55 (1989). There can be no claim for tortious interference with contract unless
there is a valid and enforceable contract. Scheduling Corp. of Am. v. Massello, 119 Ill. App. 3d 355, 362
(1st Dist. 1983). Here, as described supra at Section II.A., Plaintiff has failed to adequately plead that
he had a valid and enforceable contract with the University. Accordingly, there can be no cause of
action for intentional interference with contract against the Unknown Alleged Donors.
Additionally, the allegedly actionable conduct that forms the basis of the claim is privileged.
[W]here the conduct of a defendant in an interference with contract action was privileged, it is the
plaintiffs burden to plead and prove that the defendants conduct was unjustified or malicious.
HPI, 131 Ill. 2d at 156. Plaintiff has failed to do so except for the conclusory statement that the
Unknown Alleged Donors conduct was done wrongfully, intentionally, and without just cause.
Plaintiff alleges that the Unknown Alleged Donors conduct involved writing letters and e-mails
related to a protest and was based on . . . strong disagreement with Professor Salaitas views
regarding Israel. (Compl. 78.) Even as pled, the Unknown Alleged Donors speech was
privileged and is inactionable. See Natl Org. for Women, Inc. v. Scheidler, No. 86-7888, 1997 WL
610782, at *28-31 (N.D. Ill. Sept. 23, 1997) (declining to apply state tort law to a political campaign
and boycott because doing so would violate the First Amendment). Dr. Salaita therefore apparently
claims that while the Universitys decision not to approve him for a position on the faculty has
violated his free speech rights under the First Amendment, a decision by a private citizen to notify
the University that he or she has decided not to donate money to the University enjoys no First
[25]
Amendment protection whatsoever. The decisions and alleged statements of Unknown Alleged
Donors cannot constitute a claim for tortious interference with contract.
ii. Plaintiff Fails to Allege a Reasonable Expectation of a Business Relationship
Plaintiffs claim for tortious interference with prospective business relations is even more
problematic. To state a claim for tortious interference with prospective business relations, a plaintiff
must allege: (1) a reasonable expectation of entering into a valid business relationship; (2) the
defendants knowledge of his expectancy; (3) intentional interference by the defendant that prevents
the plaintiffs legitimate expectancy from becoming a valid business relationship; and (4) damages.
Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 484 (1998). Here, Plaintiffs expectation of a valid
business relationship was unreasonable, as it was based on a conditional offer. See Pompa v. Swanson,
2013 IL App (2d) 120911, 35 (affirming dismissal of claim for interference with prospective
business relations where expectancy was conditional at best). Moreover, as with Plaintiffs claim
of tortious interference with contractual relations, the Unknown Alleged Donors speech was
privileged and is inactionable. Counts VI and VII must be dismissed as a matter of law.
B. Plaintiff Fails to State a Claim for Intentional Infliction of Emotional Distress.
Plaintiffs claim of intentional infliction of emotional distress is wholly inapplicable in a suit
based on the Boards decision not to hire him. Generally, a plaintiff may recover damages for
intentional infliction of emotional distress if he alleges: that (1) the defendants conduct was
extreme and outrageous; (2) the defendant intended to inflict severe emotional distress or knew that
there was at least a high probability that his conduct would inflict severe emotional distress; and (3)
the defendants conduct did in fact cause severe emotional distress. McGrath v. Fahey, 126 Ill. 2d 78,
85 (1988). However, with good reason, under Illinois law, [c]ourts are cautious in their treatment
of emotional distress claims in the employment domain, because if discipline, job transfers, or even
terminations could form the basis of an action for emotional distress, virtually every employee
[26]
would have a cause of action. Safi v. Royal Jordanian Airlines, No. 08-7365, 2010 WL 4339434, at *4
(N.D. Ill. Oct. 25, 2010).
To meet the first prong, the nature of the defendants conduct must be so extreme as to go
beyond all possible bounds of decency and be regarded as intolerable in a civilized community.
Feltmeier v. Feltmeier, 207 Ill. 2d 263, 274 (2003). In weighing the sufficiency of the complaint, courts
apply an objective standard, Lewis v. Westinghouse Elec. Corp., 139 Ill. App. 3d 634, 635 (1st Dist.
1985), and the determination is based on the facts of the particular case, Knierim v. Izzo, 22 Ill. 2d 73,
86 (1961). Here, Plaintiff rests his claim on two instances of purportedly outrageous conduct: (1)
the Board, Trustees, and Administrators actions in inducing Plaintiff to resign from his position
while not appointing him to the faculty; and (2) the Unknown Alleged Donors interference with his
appointment. (Compl. 136-37.) Clearly, these allegations are inadequate. As discussed supra at
Section II.A., Plaintiff included a dearth of specific factual nonconclusory allegations against the
Administrators generally, and nothing that would qualify as extreme or outrageous. As to the
Board and the Trustees, the law is clear that [f]ailing to hire . . . does not amount to conduct that is
extreme and outrageous. Bogie v. PAWS Chi., 914 F. Supp. 2d 913, 917 (N.D. Ill. 2012) (internal
quotation marks omitted). In the employment context, Plaintiffs allegations are woefully inadequate
to establish outrageous conduct. See Green v. Caseys Retail Co., No. 11-1103, 2012 WL 253368, at *4
(S.D. Ill. Jan. 26, 2012) (collecting cases regarding extreme and outrageous conduct).
With regard to intent, Plaintiff summarily pleads that Defendants actions were undertaken
with intent or knowledge that there was a high probability that the conduct would inflict severe
emotional distress and with reckless disregard of that probability. (Compl. 139.) A summary
recitation of the element of the tort does not suffice to allege intent. See S.J. v. Perspectives Charter Sch.,
685 F. Supp. 2d 847, 860 (N.D. Ill. 2010) (dismissing intentional infliction of emotional distress
claim where the plaintiffs allegations comprise[d] nothing more than a recital of the three elements
[27]
of an [intentional infliction of emotional distress] claim).

Finally, as to the third element, Plaintiff fails to properly allege that he suffered severe
emotional distress and that Defendants conduct was the proximate cause of his severe distress.
Under Illinois law, severe emotional distress is, distress so severe that no reasonable person could
be expected to endure it. Dunn v. City of Elgin, 347 F. 3d 641, 651 (7th Cir. 2003) (internal quotation
marks omitted). Plaintiffs only descriptions of his severe emotional distress are: (1) the
conclusory statement that he suffered injuries, including severe emotional distress and great
conscious pain and suffering prior to his death, 17 (Compl. 141), which is merely a recitation of the
third element of the tort and insufficient to state a claim; and (2) that he felt ashamed when he
received notice he would not be hired, (id. 74). Plaintiffs purported feelings of shame are
inactionable under Illinois law. See Pub. Fin. Corp. v. Davis, 66 Ill. 2d 85, 90 (1976) (Although fright,
horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term emotional
distress, these mental conditions alone are not actionable.).
For all of these reasons, the Court must dismiss Count VIII of Plaintiffs Complaint.
C. Plaintiffs Spoliation of Evidence Claim Fails as a Matter of Law
Illinois does not recognize a standalone cause of action for spoliation of evidence. Borsellino
v. Goldman Sachs Grp., Inc., 477 F.3d 502, 50910 (7th Cir. 2007). Rather, under Illinois law,
spoliation of evidence is a form of negligence and must be pled as such. Martin v. Keeley & Sons, Inc.,
2012 IL 113270, 26. Plaintiffs spoliation of evidence claim fails to properly allege a claim for
negligence. Even if the Court were to generously construe Plaintiffs spoliation argument as a
In what is in all likelihood a typographical error, Plaintiff contends that he suffered injuries, including severe
emotional distress and great conscious pain and suffering prior to his death . (Compl. 141.) (emphasis added). This
error merely highlights the type of case a wrongful death action where an intentional infliction of emotional distress
claim might actually be appropriate. See Leibovitch v. Syrian Arab Republic, 25 F. Supp. 3d 1071, 1085 (N.D. Ill. 2014)
(applying Illinois law and awarding judgment to the plaintiff based on a claim of intentional infliction of emotional
distress where the defendants engaged in terrorist activities in efforts to kill innocent civilians). Simply stated, Plaintiffs
claim is not applicable here.
17
[28]
negligence claim, however, this claim still must be dismissed as a matter of law.
To properly state such a negligent spoliation claim, Plaintiff must have alleged that: (1)
Chancellor Wise owed a duty to him to preserve the two-page document that was allegedly given
to her by a donor; (2) she breached that duty by losing or destroying that two-page document; (3)
the loss or destruction of the two-page document was the proximate cause of his inability to prove
an underlying lawsuit; and (4) as a result, he suffered actual damages. See Hartmann Realtors v. Biffar,
2014 IL App (5th) 130543, 15. Plaintiff has failed to meet each of these elements.
In Illinois, the general rule is that there is no duty to preserve evidence. Martin, 2012 IL
113270, at 27 (citing Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, 195 (1995)). Rather, the Supreme
Court in Boyd setup a two-prong test to determine whether there is such a duty. The Court must
first determine whether such a duty arises by agreement, contract, statute, special circumstance, or
voluntary undertaking, and, [i]f so . . .whether that duty extends to the evidence at issuei.e.,
whether a reasonable person should have foreseen that the evidence was material to a potential civil
action. See Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004). Plaintiff does not contend, nor could he,
that there was an agreement or contract between him and Chancellor Wise. See Andersen v. Mack
Trucks, Inc., 341 Ill. App. 3d 212, 217 (2d Dist. 2003) (finding that the agreement or contract must
have been between the parties).
Plaintiff contends that Chancellor Wise had a duty under 5 ILCS 160/1, et seq. (the Illinois
State Records Act) to preserve a two-page document given to her by an alleged donor. (Compl.
144.) Plaintiffs allegation is not supported by either the language of the statute or by a single case
imposing such a duty. Under the Illinois State Records Act:
The head of each agency shall cause to be made and preserved records containing
adequate and proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency designed to furnish
information to protect the legal and financial rights of the state and of persons
directly affected by the agencys activities.
[29]
5 ILCS 160/8. As an initial matter, the two-page document in the Complaint is not a record
under the Illinois State Records Act. 18 The document is not alleged to have been received in
pursuance of state law, nor was it alleged to have been in connection with the transaction of public
business. Moreover, the Illinois State Records Act creates an obligation to preserve documents
related to the organization, function, policies, decisions, procedures, and essential transactions of
the agency, none of which encompass a two-page document purportedly provided by a University
donor in connection with the potential hire of faculty.
Under Boyd, a plaintiff must plead that a reasonable person in the defendants position
should have foreseen that the evidence was material to a potential civil action. Martin, 2012 IL
113270, 27 (internal quotation marks omitted). The failure to allege facts indicating that
Chancellor Wise knew that the document would be material to a potential civil action is fatal to
Plaintiffs claim. See Andersen, 341 Ill. App. 3d at 218 (finding that the plaintiff failed to allege
sufficient facts indicating reasonable foreseeability of the materiality of the evidence).
Finally, Plaintiff has not claimed, as is required, that without the alleged document
destruction, he would have had a reasonable probability of succeeding in an otherwise valid,
underlying cause of action. Boyd, 166 Ill. 2d at 197; see also Cangemi v. Advocate S. Suburban Hosp., 364
Ill. App. 3d 446, 472 (1st Dist. 2006) (To state a claim for negligent spoliation, a plaintiff must
allege that but for the spoliation by defendant, plaintiff likely would have prevailed in the underlying
suit.). Plaintiff merely alleges that Chancellor Wises alleged destruction interfered with his ability to
prove his claims, presumably in the present suit. (Compl. 145.) Plainly, that is insufficient.
Plaintiff cannot demonstrate that the two-page document is material in any way to his ultimate
18 Records include documents and other materials made, produced, executed or received by any agency in the State in
pursuance of state law or in connection with the transaction of public business and preserved or appropriate for
preservation by that agency or its successor as evidence of the organization, function, policies, decisions, procedures,
operations, or other activities of the State or of the State Government, or because of the informational data contained
therein. 5 ILCS 160/2.
[30]
success in any suit, nor can he demonstrate a duty to preserve this document. Accordingly, Count
IX fails as a matter of law and must be dismissed.
IV.
Defendants Are Immune from Suit 19

A. The Court Lacks Subject Matter Jurisdiction Over the Board and the Trustees
and Administrators in their Official Capacities Pursuant to Federal Rule of Civil
Procedure 12(b)(1).
The Eleventh Amendment to the United States Constitution provides that [t]he judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State. U.S. Const. amend XI. Under Illinois law, this Court lacks subject
matter jurisdiction over the Board and the Trustees and Administrators sued in their official
capacities under Federal Rule of Civil Procedure 12(b)(1).
i.
The Board is Immune from Suit in Federal Court
The Seventh Circuit has repeatedly held that a states sovereign immunity extends to its
agencies, and that the Board is a state agency. See Kroll v. Bd. of Trs. of Univ. of Ill., 934 F. 2d 904, 907
(7th Cir. 1991). 20 While the State of Illinois has generally waived its sovereign immunity under State
Lawsuit Immunity Act, see 745 ILCS 5/1, the Illinois Court of Claims possesses exclusive jurisdiction
over certain suits against the Board, see 705 ILCS 505/1, et. seq. Exclusive jurisdiction includes
Plaintiffs failure to specifically identify which claims are alleged against the Trustees and the Administrators in their
individual capacity and which are alleged against them in their official capacity and his failure to specifically identify the
relief requested pursuant to the particular claims complicates this Courts analysis of sovereign and qualified immunity.
Nevertheless, under the most generous reading of Plaintiffs Complaint, the Board, Trustees, and Administrators are
entitled to sovereign and qualified immunity and must be dismissed from the suit.
19
Plaintiff alleges that, as a function of the Universitys funding, which stems from a variety of sources, the Board is not
protected by sovereign immunity. (Compl. 9.) Plaintiff is wrong. While a state agency can lose its designation as an
arm of the State, a university risks doing so if a State totally privatizes a once public college or hospital, the newly
private body would indisputably lose its privileged status. Pollak v. Bd. of Trs. of Univ. of Ill., No. 99-710, 2004 WL
1470028, at *2 (N.D. Ill. June 30, 2004) (finding that the University was entitled to sovereign immunity and refusing to
engage in fact-intensive inquiry on the issue). As recently as February of 2014, courts in the Northern District of Illinois
have applied the doctrine of sovereign immunity to the University without conducting any factual analysis on their
sources of funding. See Mutter v. Madigan, 17 F. Supp. 3d 752, 757-58 (N.D. Ill. 2014). Plaintiffs funding argument is of
no moment.
20
[31]
claims sounding in tort against the Board and those against the State based on contracts entered into
with the State of Illinois. See 705 ILCS 505/8. 21 The Illinois Court of Claims exclusive jurisdiction
prevents this Court from exercising concurrent or supplemental jurisdiction over any claims against
the Board. See Osteen v. Henley, 13 F.3d 221, 224 (7th Cir. 1993) (affirming dismissal of claims against
university officials in their official capacity based on the doctrine of sovereign immunity).
Although unmoored to an individual claim, Plaintiff requests preliminary and permanent
injunctive relief including reinstatement by completing his appointment. (See Compl. Wherefore
Clause.) Normally, a suit for prospective injunctive relief is not deemed a suit against the state and
thus is not barred by the Eleventh Amendment. Mutter, 17 F. Supp. at 758. However, if the relief
requested cannot be granted by merely ordering the cessation of the conduct complained of but will
require affirmative action by the sovereign, . . . a claim for injunctive relief requiring that a plaintiff
be newly hired may be barred by the Eleventh Amendment. Smith v. Secy of Dept of Envtl. Prot. of
Pennsylvania, 540 F. Appx 80, 82 (3d Cir. 2013) (quoting Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 691 n.11 (1949)). It is not clear that requiring the Board to hire Plaintiff is a remedy
recognized by the Seventh Circuit. Moreover, the only federal claim to which such a remedy could
apply against the Board, Count III for conspiracy, is a frivolous claim that fails as a matter of law.
ii. The Trustees and Administrators Are Immune from Suit in their Official Capacities in
Federal Court
When the Trustees and Administrators are sued in their official capacities, as they are here,
the doctrine of sovereign immunity applies and this Court lacks subject-matter jurisdiction. See
Williams v. Univ. of Ill., 945 F. Supp. 163, 165 (N.D. Ill. 1996) (A suit against an individual in his
Additionally, the University of Illinois Act provides that [t]he Board of Trustees of the University of Illinois shall . . .
have power to contract and be contracted with, to sue and be sued, provided that any suit against the Board based upon
a claim sounding in tort must be filed in the Court of Claims . . . . 110 ILCS 305/1. Accordingly, to the extent Count
VIII is not dismissed with prejudice, as it should be, the Illinois Court of Claims also possesses exclusive jurisdiction
over such a claim involving the Board.
21
[32]
official capacity is a suit against the entity of which he is an agent.). Claims against individual
officers will be considered against the State if the individual officers were: (1) acting within the
scope of their authority; (2) performing a duty not owed by the public generally independent of state
employment; and (3) engaged in matters ordinarily within that employees normal and official
functions. Richman v. Sheehan, 270 F.3d 430, 441 (7th Cir. 2001).
By Plaintiffs own admission, the Trustees and Administrators were acting within the scope
of their employment when the allegedly wrongful conduct occurred. (Compl. 14, 147.) Plaintiff
does not allege that the Trustees or Administrators exceeded their scope of authority, performed a
duty owed by the public generally, or that they were not engaged in matters ordinarily within that
employees normal and official functions. The remaining issue is whether the Trustees and
Administrators have the authority to perform the requested injunctive relief. As discussed supra, it is
not clear that the Seventh Circuit permits such a remedy, nor is it clear that the Trustees, in their
official capacity, rather than the Board as an entity, have the authority to grant such relief. It is clear,
however, that the Administrators do not. See supra at Section I.A.i.
This Court lacks subject matter jurisdiction over the Board, as well as the Trustees and the
Administrators in their official capacities, and the parties must be dismissed from the Complaint.
B. The Trustees and Administrators Are Immune from Suit in their Individual
Capacities Based on the Doctrine of Qualified Immunity.
Even if the Court were to find that Plaintiff has stated a claim against the Trustees and
Administrators, they must be dismissed from the case in their individual capacities based on the
doctrine of qualified immunity. The doctrine balances two important intereststhe need to hold
public officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Qualified immunity gives public officials the benefit of legal
doubts. Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991). Under the doctrine, liability for civil
[33]
damages is precluded unless a plaintiff pleads facts establishing (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct. Wood v. Moss, 134 S.Ct. 2056, 206667 (2014) (internal quotation marks
omitted). Plaintiff fails to satisfy either of these criteria.
i.
The Complaint Fails to Allege That Either the Trustees or the Administrators Violated
a Statutory or Constitutional Right
As discussed supra at Section II.A., Plaintiff has failed to allege sufficient facts to establish
that any Defendant violated any statutory or constitutional right. When the Complaint is analyzed
Defendant-by-Defendant, it is clear that Plaintiff fails to allege particularized facts regarding each
Trustee or Administrators direct personal responsibility that could plausibly support any violation
of a clearly established statutory or constitutional right.
ii. Even Accepted as True, Plaintiffs Complaint Fails to Allege That the Trustees or
Administrators Violated a Clearly Established Right
There is no clearly established right to unfettered free speech while subject to Board
approval for a faculty position. An inability to supply the Court with an analogous case indicates
that Defendants should be shielded from liability. See Hatcher v. Cheng, No. 13-00407, 2014 WL
5358408, at *1, 5 (S.D. Ill. Aug. 7, 2014) (finding that chancellor was subject to qualified immunity
upon overruling tenure decision where there [was] no allegation in the amended complaint that the
plaintiff had a clearly established right at the time the defendant made the final decision to deny her
tenure application and the plaintiff failed to supply an analogous case establishing a right to be
free from the specific conduct at issue).
The inquiry into whether a right was clearly established at the time of the alleged violation
must be undertaken in light of the specific context of the case, not as a broad general proposition.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Such a ruling can be made at the motion to dismiss phase.
See Brown v. Chi. Bd. of Educ., 973 F. Supp. 2d 870, 881 (N.D. Ill. 2013) (dismissing the principal in a
[34]
First Amendment retaliation suit at the motion to dismiss stage finding that the alleged
constitutional violation here is not so obvious that a reasonable state actor would know what they
are doing violates the Constitution) (internal quotation marks omitted). When confronted with
disruption in the workplace, state employees are shielded from liability for alleged violations of even
current employees First Amendment rights. See Elliott, 937 F.2d at 341 (finding defendants
protected by qualified immunity where the law had not clearly established the impropriety of
transferring a public employee whose speech created a disturbance undermining the productivity of
other workers and providing that [o]bjectively reasonable but mistaken conclusions do not violate
the Constitution . . . . the inquiry must focus on what the defendants knew, and whether reasonable
persons in their position would have believed their actions proper given the state of the law . . . .).
As the Seventh Circuit has made clear, [p]ublic officials need not predict, at their financial
peril, how constitutional uncertainties will be resolved. Hosty v. Carter, 412 F.3d 731, 739 (7th Cir.
2005). Plaintiffs claims here are inactionable or, at most, an unsettled issue of constitutional law,
and the Trustees and Administrators are entitled to qualified immunity and must be dismissed from
the lawsuit in their individual capacities.
CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that this Court enter an
Order dismissing the Amended Complaint in its entirety with prejudice and granting any other relief
that this Court deems just and proper.
Dated: February 25, 2015
Respectfully submitted,
By: /s/ Christopher B. Wilson
One of Their Attorneys
[35]
Christopher B. Wilson
Richard M. Rothblatt
Keith Klein
Josephine Tung
Perkins Coie LLP
131 South Dearborn Street, Suite 1700
Chicago, IL 60603-5559
Tel: (312) 324-8400
Fax: (312) 324-9400
Counsel for Defendants Christopher Kennedy, Ricardo
Estrada, Patrick J. Fitzgerald, Karen Hasara,
Patricia Brown Holmes, Timothy Koritz, Edward L.
McMillan, Pamela Strobel, Robert Easter,
Christophe Pierre, Phyllis Wise, The Board of
Trustees of the University of Illinois
[36]
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing MEMORANDUM IN
SUPPORT OF THE MOTION was served upon all counsel of record this 25th day of February,
2015 via the Case Management/Electronic Case Filing (CM/ECF) System.
/s/ Christopher B. Wilson
Case: 1:15-cv-00924 Document #: 33-1 Filed: 02/25/15 Page 1 of 141 PageID #:165
EXHIBIT 1
Before the Committee on Academic Freedom and Tenure (CAFT)

of the University of Illinois at Urbana-Champaign
Report on the Investigation into the Matter of Steven Salaita
Before:
David OBrien (Chair)
College of Fine and Applied Arts
Andrew Alleyne
College of Engineering
Melody Allison
University Library
Matt Finkin
College of Law
C.K. Gunsalus
College of Engineering
*Chris Higgins
College of Education
*Mark Steinberg
College of Liberal Arts and
Sciences
*Did not participate in the investigation or approval of the report
Table of Contents
I.
Executive Summary......................................................................2
II.
Introduction...................................................................................4
III.
Findings of Fact.............................................................................5
IV.
The Determination of the Universitys Obligations.....................11
V.
Issues of Governance...................................................................17
VI.
The Bases of Decision..................................................................22
VII.
Dr. Salaitas Speech......................................................................26
VIII.
Conclusions...................................................................................31
IX.
Appendices
A. Chronology...............................................................................33
B. Civility As a Speech Standard..................................................35
C. Selection of Dr. Salaitas Tweets Provided
by Counsel to the Trustees............................................................39
X.
Documents.....................................................................................41
I. Executive Summary
Dr. Steven Salaitas proposed appointment was initiated, reviewed, approved, and
processed in accordance with all applicable university procedures from the initiation of
the search through his acceptance of an offer of appointment. It was complete except for
final Board of Trustees approval. At that point, less than a month before his projected
start date, concerns about his professional suitability for appointment arose and he was
notified that his appointment would not be forwarded for that approval. Eventually, it
was forwarded for Board approval and was rejected. His status at the time was complex:
he was more than an applicant and less than an employee. Under these circumstances,
we believe the academic freedom and liberty of political speech afforded to members of
the faculty by the University Statutes should reasonably apply.
The process by which Dr. Salaitas proposed appointment was withdrawn and
eventually rejected did not follow existing policies and procedures in several substantial
respects, raising questions about the institutions commitment to shared governance. The
reasons given the civility of tweets made by Dr. Salaita in the summer of 2014 is
not consistent with the Universitys guarantee of freedom of political speech. Statements
made by the Chancellor, President, and Trustees asserting that the incivility of a
candidates utterances may constitute sufficient grounds for rejecting his appointment
should be renounced. We conclude, however, that the Chancellor has raised legitimate
questions about Dr. Salaitas professional fitness that must be addressed.
In light of the irregular circumstances leading up to the Board of Trustees
disapproval of an appointment for Dr. Salaita, the Committee recommends that
Dr. Salaitas candidacy be remanded to the College of Liberal Arts and Sciences for
reconsideration by a committee of qualified academic experts.
II. Introduction
According to the Bylaws of the Senate of the University of Illinois at UrbanaChampaign, the Committee on Academic Freedom and Tenure (CAFT):
may investigate instances of possible infringement of academic freedom
and hear cases involving allegations of such infringement, and may make
such recommendations to the Chancellor and reports to the Senate as are
appropriate. The Committee may investigate allegations of violations of
the role of faculty in governance as specified in the University Statutes
and unit bylaws and report to the Chancellor and the Senate if appropriate
changes are not made.
Allegations of such infringement and such violations have been made widely across
campus and indeed extramurally in relation to the handling of an offer of appointment to
Dr. Steven Salaita.
Article X, Section 2d, of the Statutes of the University provides that:
A staff member who believes that he or she does not enjoy the academic
freedom which it is the policy of the University to maintain and encourage
shall be entitled to a hearing on written request before the Committee on
Academic Freedom and Tenure of the appropriate campus senate. Such
hearing shall be conducted in accordance with established rules of
procedure. The committee shall make findings of facts and
recommendations to the president and, at its discretion, may make an
appropriate report to the senate. The several committees may from time to
time establish their own rules of procedure.
Two faculty members, Professors Robert Warrior and Vicente Diaz, have filed a formal
grievance (Document 1) with the Committee, alleging that the administrations actions in
the matter of Steven Salaita violated their academic freedom.
A subcommittee consisting of Andrew Alleyne, Matt Finkin, C. K. Gunsalus, and
David OBrien (Chair) investigated both the allegations and the grievance. Its findings
were discussed by the entire CAFT, which has approved this report.
III. Findings of Fact

The key events in the matter of Dr. Steven Salaita are listed in the chronology
(Appendix A) and summarized here. Following an open-rank search approved on July
10, 2013, by Ruth Watkins, the Dean of the College of Liberal Arts and Sciences (LAS),
a duly constituted search committee recommended candidates. These were reviewed and
approved at each required level as documented in the chronology (Appendix A).
Following those steps, Brian Ross, Interim Dean of LAS, wrote to Steven Salaita,
then an Associate Professor at Virginia Tech University, on October 3, 2013, offering
him an appointment as an Associate Professor with tenure in the Department of American
Indian Studies (Document 2). That letter noted that the recommendation for appointment
was subject to approval by the Board of Trustees of the University.
By the same date, the then Acting Director of American Indian Studies wrote to
Dr. Salaita detailing his nine-month salary, informing him of equipment and computer
resources, office space, subvention for moving expenses, course load, and the availability
of funds for research (Document 3). On October 7, 2013, Dr. Salaita accepted the
appointment in writing (Document 2). Though he was originally invited to take up his
appointment in January of 2014, he delayed his start date to August 16, 2014 (Document
2). We understand that he resigned his position at Virginia Tech University at the end of
the spring semester of 2014. Inquiries by CAFT with the Office of the Provost at
Virginia Tech University revealed that this institution does not normally permit faculty
who have accepted permanent positions at other universities to take leaves of absence.1
The Department of American Indian Studies arranged Dr. Salaitas teaching schedule for
1
Communication by email from Jack W. Finney, Vice Provost for Faculty Affairs at Virginia Tech
University, to David OBrien on November 6, 2014.
the fall and posted his courses online (Document 4). In the summer the University
arranged to pay for his moving expenses and saw to his computing needs (Document 5).
On approximately July 20, 2014, Phyllis Wise, the Chancellor of the University of
Illinois at Urbana-Champaign, became aware of controversial tweets Dr. Salaita was
posting online.2 On July 21, the Chancellor began receiving emails protesting the
appointment of Dr. Salaita because of his tweets.3 Many of these emails have been made
public as the result of a Freedom of Information Act request, and the fact that some came
from donors has been widely reported. The Chancellor has stated that donors in no way
influenced her actions with regard to Dr. Salaita. This investigation found no evidence
that they did.
On July 21, 2014, in response to a question from the press, Robin Kaler, the
campuss spokesperson and Associate Chancellor for Public Affairs, stated that,
Professor Salaita will begin his employment with the university on Aug. 16, 2014. He
will be an associate professor and will teach American Indian Studies courses. [...]
Faculty have a wide range of scholarly and political views, and we recognize the freedom
of speech rights of all of our employees (Document 6).
On July 24, the Chancellor and the Board of Trustees discussed Dr. Salaitas
tweets in executive session. The Chancellor has told the investigating committee that she
believed that, based on the offer letter (Document 2) sent to Dr. Salaita, it was the
Boards decision to approve or disapprove his appointment. It was her understanding
that, at the meeting, she and the Trustees had arrived jointly at the conclusions that the
2
All parties who provided evidence for this report were asked to read this section and agree to its contents.
Counsel for the Trustees has read this section and has asked that a group of tweets by Dr. Salaita be placed
in the report. They are included in Appendix C.
3
Counsel for the Trustees has asked that a group of these emails be placed in the report. They are included
as Document 10.
Board would not support Dr. Salaitas appointment and that therefore she should not
forward the appointment to them.
As part of our investigation, we invited the Trustees to comment on the Boards
role in this matter and in particular on the meeting of July 24. Only one Trustee, James
Montgomery, responded, and he referred us to the public comments he had already
made.4 In published comments Trustee Chris Kennedy has stated that at this meeting the
Board had not arrived at a position regarding Salaitas appointment: We [the Board]
werent saying if you recommend him we were not going to approve. We were never
close to that.5
On August 1, the Chancellor and Christophe Pierre, Vice President for Academic
Affairs, wrote to Dr. Salaita informing him that his appointment would not be
recommended for submission to the Board of Trustees in September, and we believe that
an affirmative Board vote confirming your appointment is unlikely (Document 7).
On August 22, the Chancellor published an essay entitled The Principles on
Which We Stand on the Chancellors Blog on the University website (Document 8).
The essay discussed the universitys decision not to recommend further action by the
Board of Trustees concerning [Dr. Salaitas] potential appointment to the faculty of the
University of Illinois at Urbana-Champaign. The communication asserted, inter alia,
that
What we cannot and will not tolerate at the University of Illinois are
personal and disrespectful words or actions that demean and abuse either
viewpoints themselves or those who express them. We have a particular
duty to our students to ensure that they live in a community of scholarship
4
Public comments made by the Chancellor, the President, and Trustees Montgomery and Fitzgerald are
available here: http://www.trustees.uillinois.edu/trustees/audio/20140911/20140911_14-roll-call-vote.mp3
(accessed 12/10/2014).
5
Quoted from Julie Wurth, Kennedy: We Did the Right Thing, News-Gazette, September 19, 2014.
that challenges their assumptions about the world but that also respects
their rights as individuals.
As chancellor, it is my responsibility to ensure that all perspectives
are welcome and that our discourse, regardless of subject matter or
viewpoint, allows new concepts and differing points of view to be
discussed in and outside the classroom in a scholarly, civil and productive
manner.
On the same date, the Board of Trustees, President Robert Easter, and numerous
university officials issued a mass mail (Document 9) supporting the universitys
decision not to forward Dr. Salaitas appointment to the Board and stating that the
university must constantly reinforce our expectation of a university community that
values civility as much as scholarship. It continued,
Disrespectful and demeaning speech that promotes malice is not an
acceptable form of civil argument if we wish to ensure that students,
faculty and staff are comfortable in a place of scholarship and education.
If we educate a generation of students to believe otherwise, we will have
jeopardized the very system that so many have made such great sacrifices
to defend. There can be no place for that in our democracy, and therefore,
there will be no place for it in our university.
Around September 4, the Chancellor reversed course and forwarded Dr. Salaitas
appointment to the Board of Trustees with the recommendation that they not approve it.
On September 11, the Board of Trustees voted 8-1 to reject the appointment of Dr.
Salaita.
The investigative subcommittee interviewed the Chancellor on November 14.
She confirmed that she had not consulted with the Provost, the Dean of LAS, or other
faculty representatives about her decisions not to forward Dr. Salaitas offer of
appointment to the Board of Trustees and to notify him in advance of this decision. She
indicated that her initial understanding of the process was that it was her prerogative not
to forward Dr. Salaitas appointment to the Board of Trustees, and she only later
discovered this understanding to be incorrect. She expressed much regret that she had
8
not consulted more widely with the faculty and administration, and attributed her neglect
of shared governance to the rapidity with which decisions had to be made.
In explaining the decisions first not to forward the appointment and then to
forward it with a negative recommendation, the Chancellor characterized Dr. Salaitas
tweets as harassing, intimidating, [...] hate speech, and as inflammatory. The
decision was motivated in part, she said, by a desire to protect students. She noted that
courses at the university can address particularly sensitive issues and felt that the faculty
teaching those courses have to be open to all students. She emphasized that her and the
Boards actions were not based on the political content of the tweets that is,
Dr. Salaitas positions regarding Israel, Zionism, the war in Gaza, or any other topic. Her
intention was not to restrict the discussion of controversial topics; rather, it was to create
an atmosphere at the university that was welcoming and safe for students and where
controversial topics could be discussed in a safe and respectful learning environment.
With regard to her essay The Principles on Which We Stand, the Chancellor
expressed surprise that it had generated controversy and rejected the notion that it could
constitute a policy.
When asked by the committee to distinguish between professional and extramural
speech, the Chancellor stated that in this matter she saw no clear distinction. She
elaborated, The manner in which you speak reflects on how welcoming you would be as
a faculty member. In her view, if Dr. Salaita communicated to students in the same
manner as in his tweets, he would be intimidating. She expressed her conviction that in
a small community such as Champaign-Urbana, there was little distinction between
faculty members, community members, and bloggers, noting that in her own life she
sees no distinction among these roles.
10
IV. The Determination of the Universitys Obligations

At the threshold, CAFT must determine what the universitys obligations to
Dr. Salaita are. Dr. Salaita was neither an applicant nor an employee. Were the Trustees
to have approved his appointment, the Statutes affordance of academic freedom and
political free speech would plainly apply to him; he would also be due observance of the
procedures set out for the imposition of any sanction for his speech. Were he to be an
applicant, neither of these would apply: anywhere along the line of collegial and
administrative assessment for an offer of appointment, a negative evaluation on the basis
of the quality of his scholarship, his disciplinary direction, even of personal traits relevant
to his dealing with students or staff could be taken into account and his candidacy passed
over.
One approach to the determination of the universitys obligations could be by
strict application of the letter of offer: he was told that trustee approval was required; it
was not granted; therefore he was not appointed. Whatever obligations the
administration or trustees owed to the academic body whose recommendation was first
accepted and then rejected, no further obligation was owed to Dr. Salaita.
The committee finds this approach to be incomplete. It does not fully
acknowledge the expectations mutually engendered by the universitys course of dealing.
This committee is not a court, constituted by civil authority to decide questions of
law. The committee is constituted by the universitys Statutes to decide the universitys
responsibilities as an institution of higher learning. In this, we are guided by the norms
and expectations of the academic community in which the university is situated.6 A
In fact, it is not at all clear that the law would draw as categorical a distinction as the courts have often
had recourse to academic norms for guidance in construing university rules. A leading case explains why
11
useful source is the 1940 Statement of Principles on Academic Freedom and Tenure. The
1940 Statement, jointly formulated by the American Association of University Professors
(AAUP) and the Association of American Colleges (AAC), was referenced in
Dr. Salaitas offer of appointment and a copy was provided him at the time. When we
turn to the academic experience reflected in it we see that the issue posed in the sequence
of events before us is not novel.
Between 1958 and 1971, there were several cases investigated and reported on
where a firm offer of appointment (and, in one case, the issuance of a formal letter of
intent to grant tenure under the institutions rather unusual rules) had been withdrawn
before trustee or regental approval, rejected by the board after a firm offer had been
made, or been rescinded by the board after approval.7 In all of these, the individual had
become a subject of public controversy that erupted after the offer had been made, which
facts or events were not known or could not have been known to the appointing authority
beforehand; for example, as being a person with alleged communist sympathies; for
invoking the Fifth Amendment before the House Committee on Un-American Activities;
for engaging in public protest of the Vietnam War.
an express disclaimer of binding effect stated in a university rule should not be given legal effect. Greene
v. Howard University, 412 F.2d 1128, 1135 (D.C. Cir. 1969) followed in Brown v. George Washington
Univ., 801 A.2d. 382 (D.C. 2002). Other courts have also drawn upon the norms and usages of the
academic profession, found in AAUP policies and reports, to give content to institutional policies and rules.
E.g. Browzin v. Catholic Univ., 527 F.2d 843 (D.C. Cir. 1975); Krofkoff v. Goucher College, 585 F.2d 675
(4th Cir. 1978); Drans v. Providence College, 383 A.2d 1033 (R.I. 1978); McConnell v. Howard Univ., 818
F.2d 58 (D.C. Cir. 1987); Saxe v. Bd. of Trustees of Metropolitan State College of Denver, 179 P.3d 67
(Colo. App. 2007).
7
Academic Freedom and Tenure: The George Washington University, 48 AAUP Bull. 240 (1962);
Academic Freedom and Tenure: The University of South Florida, 50 AAUP Bull. 44 (1964); Academic
Freedom and Tenure: University of Hawaii, 55 AAUP Bull. 29 (1969); Academic Freedom and Tenure:
Columbia College (Missouri), 57 AAUP Bull. 513 (1971). See also Academic Freedom and Tenure:
Trenton State College, 54 AAUP Bull. 42 (1968) (state Commissioner of Education, whose approval for
reappointment of faculty was legally required, declined to approve); Academic Freedom and Tenure:
Northern State College (South Dakota), 54 AAUP Bull. 306 (1968) (rejecting the argument that as the
Board had not approved the appointment, its refusal to approve two weeks into the academic year was a
refusal to enter into a contract, not a dismissal.)
12
The question in all of these cases was whether, despite board action (or inaction),
the status of the person was such that he should come under the protections afforded by
the 1940 Statement and relevant institutional policies. The resolution turned on the
weighing of considerations additional to any express reservation that the appointment
was subject to board approval. Examples of these include: (1) the definiteness of terms of
the offer; (2) whether the offer was in accord with established procedures by which
academic appointments were normally tendered and accepted; (3) the length of time
between the offer and the withdrawal or rejection; (4) whether specific arrangements had
been made by the institution or with the institutions knowledge for the person to move to
the institution; (5) whether teaching assignments were agreed to and courses assigned or
posted; (6) whether the institution had authorized an announcement of the persons
appointment or otherwise indicated publicly that the appointment had been made; (7)
whether it was a general understanding by the institutions faculty that an offer of
employment would be honored. Overarching these factors, and, perhaps, giving direction
to them, is a consideration adverted to in 1958: that offers made by high administrative
officers, a president or a dean, are customarily regarded as binding and that any
enervation of that reliability would throw the process by which colleges and universities
engage new faculty membersinto complete chaos to the detriment of both institutions
and faculty members.8
Let us examine each of these factors in turn with reference to the matter of
Dr. Salaita:
(1) the definiteness of terms of the offer;
Livingstone College, 44 AAUP Bull. 188 (1958)
13
By letter of October 3, 2013, from the Interim Dean of the College of Liberal Arts
and Sciences, Dr. Salaita received an offer of a tenured appointment with a starting date
of August 16, 2014. The offer was made subject to approval by the Board of Trustees;
it required written acceptance, preferably by October 14, stated Dr. Salaitas salary, and
incorporated the 1940 Statement (Document 2) By the same date, the Acting Director of
American Indian Studies wrote to Dr. Salaita greeting him enthusiastically, detailing his
nine-month salary, informing him of equipment and computer resources, office space,
subvention for moving expenses, course load, and the availability of funds for research
(Document 3). Dr. Salaita signed his acceptance on October 9 (Document 2).
(2) whether the offer was in accord with established procedures by which academic
appointments were normally tendered and accepted;
The letter was the conclusion of an authorized search process conducted in
accordance with university policy. Dr. Salaitas selection was approved by every faculty
body and administrative officer with jurisdiction for it.
(3) the length of time between the offer and the withdrawal or rejection;
On September 11, 2014, a month after the date upon which his teaching was to
commence and eleven months after he tendered his signed acceptance, the Board of
Trustees voted not to approve it.
(4) whether specific arrangements had been made by the institution or with the
institutions knowledge for the person to move to the institution;
Subsequent correspondence confirmed the institutions accommodation to his
computer needs and arrangements for moving expenses, including a recommended mover
(Document 5).
14
(5) whether teaching assignments were agreed to and courses assigned or posted;
His courses were assigned and posted (Document 4).
(6) whether the institution had authorized an announcement of the persons appointment
or otherwise indicated publicly that the appointment had been made;
His appointment was announced. As late as July 21, 2014, in response to a
question from the press, the campuss spokesperson informed the press, that, Professor
Salaita will begin his employment with the university on Aug. 16, 2014. He will be an
associate professor and will teach courses in American Indian Studies courses
(Document 6).
(7) whether it was a general understanding by the institutions faculty that an offer of
employment would be honored.
As best this committee has been able to determine, the Board has never rejected
an appointment that had been generated and reviewed through formal academic channels,
and thus administrators and the faculty generally expect that offers of employment for
tenured and tenure-track positions will be honored, notwithstanding the standard
language included in all letters that they are subject to the Boards approval.
If the offer was truly conditional on serious Board consideration or experience
suggested approval might not be forthcoming, a prudent administration might have
advised the candidate to proceed in two ways upon receipt of the offer. First, the
candidate could have been advised to take an unpaid leave of absence from his current
employer in order to await approval. However, upon inquiry, the Provosts Office of
Dr. Salaitas prior institution informed the committee that a leave for that purpose would
not have been granted. Alternatively, the faculty member could have been advised to
15
resign from his home institution only upon notice that approval had been granted.
However, there are ethical norms that obligate a faculty member to give timely notice of
resignation, customarily no later than May 1, in order to allow the home institution
adequate time to find a replacement or adjust to the faculty members departure. Were
the university to have advised that course of action, it would have placed the appointee on
the horns of an ethical dilemma. In the event, no such advice was given, likely because
none of those involved in the appointment process seriously considered that Board
approval might be withheld, it never having happened in memory.
These circumstances offer compelling reasons to grant Dr. Salaita the academic
freedom and liberty of political speech normally afforded to a member of the faculty.
Given Dr. Salaitas in-between status (more than an applicant and less than an employee)
and issues of governance discussed in the next section, one possible course of action
suggests itself. When concerns arose about his suitability for appointment, he could have
been notified of the reasons for the concerns and provided an opportunity to respond in
writing. The concerns and his response should have been referred to an appropriate
group of academic experts. Their recommendation could then have been forwarded
through the normal appointment reporting procedures before final action.
16
V. Issues of Governance
The Statement on Government of Colleges and Universities, formulated in 1966
by the American Council on Education, the Association of Governing Boards of
Universities and Colleges, and the American Association of University Professors,
acknowledges that
The variety and complexity of the tasks performed by institutions of
higher education produce an inescapable interdependence among
governing board, administration, faculty, students, and others. The
relationship calls for adequate communication among these components,
and full opportunity for appropriate joint planning and effort.
Communication is required at universities partly because authority for decision-making is
delegated from the Board through the President and Chancellor to the Provost and from
there to academic units. The Statement assigns primary responsibility to the faculty in
matters of faculty status, including the granting of tenure:
scholars in a particular field or activity have the chief competence for
judging the work of their colleagues; in such competence it is implicit that
responsibility exists for both adverse and favorable judgments. Likewise,
there is the more general competence of experienced faculty personnel
committees having a broader charge. Determinations in these matters
should first be by faculty action through established procedures, reviewed
by the chief academic officers with the concurrence of the board. The
governing board and president should, on questions of faculty status, as in
other matters where the faculty has primary responsibility, concur with the
faculty judgment except in rare instances and for compelling reasons
which should be stated in detail.
In the case of Dr. Salaita, the most complete account of the Boards reasons are stated in
Document 9, which itself refers to Document 8. They will be addressed in a subsequent
section.
17
At the University of Illinois, the understandings addressed in the Statement are

institutionalized through a range of policies and governance documents. The universitys
primary governance document, the Statutes, provides in Article IX, Section 3a, that All
appointments, reappointments, and promotions of the academic staff, as defined in
Article IX, Section 4a, shall be made by the Board of Trustees on the recommendation of
the chancellor/vice president concerned and the president. This recognizes that the
delegation of authority passes from the Board to administrative officers, who in turn
delegate those to the faculty as described in Article III, Section 3d, which assigns to the
departments comprising relevant faculty the responsibility to initiate academic (faculty)
appointments: Recommendations to positions on the academic staff shall ordinarily
originate with the department, or in the case of a group not organized as a department
with the person(s) in charge of the work concerned. This is consistent with the concept
that academic appointments should be formulated by those most knowledgeable in the
subject area.
Procedures at the University of Illinois at Urbana-Champaign for approving
tenured faculty appointments are memorialized in the Provosts Communications.
Communication #3, Section 1, outlines the specific delegations made for the appointment
of faculty with tenure:
All academic appointments are authorized by the Board of Trustees (BOT)
upon the recommendation of the President; thus a recommendation for
such an appointment must be forwarded to the Provost through the
appropriate reporting chains, whether it concerns a permanent or visiting
faculty position, an academic professional position (regular or visiting), or
a postdoctoral appointment for a fixed term. The President has delegated
administrative authority over academic appointments on this campus to
the Chancellor, who has in turn delegated it to the Provost and Vice
Chancellor for Academic Affairs.
18
Section 2.C.2 of the same Communication specifies the review process in place at the
campus level for the appointment of faculty with tenure: The Provost solicits comments
from the Chancellor, the Vice Chancellor for Research, Dean of the Graduate College,
and the Chair of the Campus Committee on Promotion and Tenure. When the
consultations are complete, the Provost acts on the case and notifies the unit.
Provosts Communication #2 establishes policies and procedures for offering
academic positions. Section I describes the approvals necessary for an offer of
appointment to be made:
recommendations to the academic staff shall ordinarily originate with the
department. [...] They are then presented to the dean of the college for
transmission with the deans recommendation to the provost, who acts as
the chancellors designee. When a recommendation for appointment has
been approved through the appropriate channels (see Communication No.
3), a letter of invitation may be written by the dean/director.
Section II of the same Communication describes the process after a candidate accepts an
offer of appointment: copies of the candidates acceptance of the letter of invitation and a
vita must be forwarded to the Office of Academic Human Resources (AHR) so that
office can develop the required Board of Trustees agenda item and biographical sketch,
and provide a copy to the Board of Trustees. Thus, offers of appointment that have been
approved by the Provosts Office and accepted by the candidate pass, according to the
Provosts Communication #2, directly to AHR, a unit that reports to the Provost, which in
turn submits them to the Board of Trustees. This is because the President and Chancellor
have delegated their authority to the Provost.
Article III, Section 3d, of the Statutes contains language outlining the distribution
of responsibilities after a recommendation is formulated. It:
19
shall be presented to the dean for transmission with the deans

recommendation to the chancellor/vice president. In case a
recommendation from a college is not approved by the chancellor/vice
president, the dean may present the recommendation to the president, and,
if not approved by the president, the dean with the consent of the Board of
Trustees may present the recommendation in person before the Board of
Trustees in session.
This asserts that the President formally recommends to the Board of Trustees
appointments that have been vetted and passed from the faculty through the officers of
the college and campus. In those cases where the Chancellor does not approve an
appointment, provision is made for the Dean of the college to present the
recommendation to the President, or directly to the Board of Trustees in the event that the
President does not approve it. Currently, however, these provisions are moot, because
the President and Chancellor have delegated their authority to the Provost.
In the case of Dr. Salaita, the department assembled a tenure dossier, which was
approved at the department, college, and campus levels by all appropriate faculty and
officers. A letter of invitation was sent by the Acting Dean of LAS, in accordance with
the Provosts Communications. Dr. Salaitas acceptance of the invitation and his vita
were forwarded to the Office of Academic Human Resources, which normally would
have placed it on the Board of Trustees agenda.
Chancellor Wises intervention, which may well have been planned jointly with
the President and the Trustees and was certainly done with their knowledge, violated both
existing procedures and understood practices of shared governance when she did not
consult with any of the directly-concerned officers or units in the chain of those
recommending the appointment before she acted to notify Dr. Salaita, on August 1, 2014,
that she would not submit his appointment to the Board of Trustees. Further, without
20
revoking the specific delegation of powers in faculty appointment matters to the Provost,
she took action without notice or consultation of the Provost.
Chancellor Wise later submitted the appointment to the Board of Trustees in
conformity with this requirement on September 11, 2014, accompanied by her
recommendation that they not appoint Dr. Salaita.
The Chancellors, the Presidents, and the Trustees disregard for the principles of
shared governance and the very specific policies and procedures of the university and the
campus is a serious matter. It violates the foundational arrangements designed to assure
excellence as well as the trust necessary for a complex web of interdependent
relationships to function well and with integrity.
21
VI. The Bases of Decision

We understand that the decision to disapprove Dr. Salaitas appointment was
grounded in the series of tweets he disseminated prior to and in the midst of the war in
Gaza during the summer of 2014, well after his dossier had been compiled and reviewed.
These caused the Chancellor to review his dossier afresh and to reconsider his status in
light of her own negative reaction and that of members of the Board of Trustees.
The Chancellor informed CAFT that her conclusion was not based on the
substance of these messages criticism of Israel, of the U.S., of American Jews and
others insofar as they supported Israeli action, and the like but on the manner of the
criticism, the language in which it was couched. The Chancellor deemed it hate
speech, characterized variously as inflammatory, harassing, or intimidating. The
Chancellor stressed that in no way was she walling off controversial subjects from public
discussion. It is rather that, in her view, the university has an obligation to provide an
atmosphere welcoming to students, where critical and controversial discussions can
take place in an environment allowing multiple viewpoints to be exchanged.
Dr. Salaitas tweets gave concern that his classroom environment would not be a safe
or welcome one, that students would be placed in a position inimical to learning.
The Chancellor maintained that faculty have obligations in their manner of
utterance irrespective of the medium of communication they use. She expressed her
conviction that in a small community such as Champaign-Urbana, there is little
distinction between faculty members, community members, and bloggers, noting that
in her own life she sees no distinction between and among these roles. Importantly, the
22
Chancellor declined to draw a bright-line distinction between professional and political

speech as the latter, she believed, could and, in this case, did color the former.
We take the Universitys Statutes and the understandings of the academic
community with respect to academic freedom and public political utterance to provide the
standards against which these stated concerns should be measured. Both draw a
distinction between speech in ones professional capacity and speech as a citizen on
matters of political, economic, or ethical concern to the larger community. In other
words, they are more categorical than the Chancellor was willing to recognize. But, as
we will explain, this is not to assert that an impermeable wall separates one from the
other. There are circumstances where political speech can legitimately trigger inquiry
into professional fitness, the question, however, being one of professional fitness, not
political acceptability. Because drawing these lines is difficult and subject to the emotion
of the minute, great care must be exercised when both are present.
It is helpful to understand the origins of the ideas in the Statutes and AAUP
policies regarding political speech. Prior to 1965, the Universitys Statutes, while
affording protection for a faculty members speech as a citizen without institutional
censorship or discipline, attached to it special obligations in its exercise: to be
accurate, forthright, and to display dignity. The 1940 Statement contained a
parallel provision. Whether these set out standards subject to institutional sanction or
admonitions free of possible sanction was tested when the University of Illinois
dismissed Professor Leo Koch in 1960 for a letter published in the Daily Illini. In it,
Professor Koch criticized the sexual mores of the time, which he deemed regnant on
campus the hypocritical and downright inhumane moral standards engendered by a
23
Christian code of ethics, the brainwashing by our religious and civil authorities. In
their stead, Professor Koch endorsed safe, consensual, pre-marital sex by university
students.
The letter outraged alumni and parents. It resulted, first, in summary action by
the President and, later, in hearings before CAFT and the Board of Trustees. Eventually,
the Board held that even as Professor Koch had a right to express views contrary to
commonly accepted beliefs and standards, the tone, language, and content of the letter
constituted a grave breach of his academic and professional responsibility and duty to
the University of Illinois, the students attending the University, and the citizens of the
state of Illinois.9 The Board drew a distinction between the subject of his address,
which was within the bounds of public debate, and the manner in which he expressed
himself. The latter, the Board held, was irresponsible; Koch was dismissed.
The AAUPs ad hoc committee of investigation addressed that ground of action.
There is no requirement, the committee opined,
that the citizen speak with restraint, dignity, respect for the opinion of
others, or even accuracy. To impose any such official limitation would
effectively cut off any real discussion of controversial issues of either fact
or opinion. This is a cardinal principle of freedom of expression.10
Echoing John Stuart Mill, the committee saw much evil to flow from the exceedingly
vague standard of irresponsibility applied to sanction intemperate discussion
employing invective, sarcasm, personality, and the like. We fail to see, the
committee opined, why the university need stand censor over the language and tone of
its faculty members. It read the Statutes of the University of Illinois and the 1940
Statement in that light.
9
Academic Freedom and Tenure: The University of Illinois, 49 AAUP Bull. 25, 31 (1963).
Id at 36.
10
24
Following the AAUPs imposition of censure on the University, the Statutes were
amended in 1965. Those amendments persist to this day and represent the current
language of the Statutes. They added a qualification to the treatment of a faculty
members speech as a citizen: If, in the presidents judgment, a faculty member []
fails to heed the admonitions of responsible utterance set out in the Statutes, the
president may publicly disassociate the university from those expressions and express
disapproval of such objectionable expressions. That is the prescribed limit of
institutional power over political speech.
Turning to national norms, in 1964, in the wake of the Koch case, the AAUP
issued a Statement on Extramural Utterances, which was appended six years later in a
joint Interpretive Comment to the 1940 Statement. This was included in the copy of the
1940 Statement sent to Dr. Salaita to accompany the offer of appointment. It provides in
pertinent part:
The controlling principle is that a faculty members expression of opinion
as a citizen cannot constitute grounds for dismissal unless it clearly
demonstrates the faculty members unfitness for his or her position.
Extramural utterances rarely bear upon the faculty members fitness for
the position.
25
VII. Dr. Salaitas Speech

Dr. Salaitas tweets unquestionably express strong sentiments and beliefs about
controversial political ideas and events, particularly those related to Zionism, the State of
Israel, and its treatment of Palestinians. For some, the tweets are offensive, hateful, and
bigoted; for others they express desperate resistance in the face of unbearable oppression;
and for yet others it is both. Let it be said, however, that the Chancellors own shocked
reaction was shared by many, and it should not surprise. Regardless of the tweets tone
and content, they are political speech part of the robust free play of ideas in the
political realm that the Statutes insulate from institutional sanction, even in the case of
ideas we may detest.
The Chancellor has emphasized that it was not the political content of
Dr. Salaitas tweets, but their emotive content that caused her concern. The Chancellor,
President, and Trustees have argued that Dr. Salaitas tweets reveal him to lack sufficient
civility for an appointment at the University of Illinois. In Appendix B we demonstrate
the perils of this line of reasoning and its unsuitability as a standard of conduct.
However, the Chancellor also suggested that Dr. Salaitas tweets raise a question
of his professional fitness, which in universities is judged primarily through teaching and
scholarship. The Chancellor addressed herself mainly to the first aspect, questioning
whether Dr. Salaitas presence on campus would create a welcome or safe learning
environment.
The question raises difficult issues. While universities surely benefit from being
welcoming and safe places, they must also be open to the expression of a broad spectrum
of ideas and invite students to confront and debate controversial topics. Suffice it to say,
26
there is no evidence that Dr. Salaita has functioned improperly as a teacher. As part of
his application for employment at the University of Illinois, he submitted his teaching
evaluations from Virginia Tech University, which indicate that he was well received as a
teacher; there were no allegations of misuse of the classroom. Whether the current
controversy that surrounds Dr. Salaita, or which might arise in the future, could affect his
success as a teacher is pure speculation.
The second aspect of professional fitness scholarship raises questions of a
different nature, pertaining to the distinction between liberty of political speech and
academic freedom. Political advocacy can be and often is robust, wide open, uninhibited,
unconstrained by any concern for accuracy and driven only by the speakers singleminded desire to advance a cause. The University Statutes and the AAUPs Interpretive
Comment to the 1940 Statement give free reign to speech of that kind, subject only to
such constraints as the law might impose. Academic freedom, on the other hand, attaches
to speech as teacher and researcher that is, to professional speech. Unlike political
speech, professional speech is held to professional standards of care.11 As the seminal
1915 Declaration of Principles on Academic Freedom and Tenure put it, the liberty of
the scholar to set forth conclusions, be they what they may is conditioned by their
being conclusions gained by a scholars methods and held in a scholars spirit.
Distortion or mischaracterization of facts, willful neglect of relevant evidence, assertions
grounded in little or nothing more than the zealous advancement of a cause fall afoul of a
professional standard of care.
11
The distinction is critical to defining and defending academic freedom. See generally, Matthew
Finkin and Robert Post, For the Common Good: Principles of American Academic Freedom (New Haven,
2009).
27
We have noted earlier that the line between the political and the professional can
blur. When a professor of philosophy posts a political argument via social media, when a
professor of English posts a book review on an electronic forum, is this speech held to a
professional standard of care? The question is of the capacity in which the person speaks,
which, to complicate the matter further, may actually be a dual one. Whence the 1940
Statements coupling of a robust freedom for political speech with an allowance for
inquiry into professional fitness instigated by its exercise: that the speakers political
utterances may be so devoid of fact, so obdurate in refusing to acknowledge evidence to
the contrary, so single-minded in pursuit of the speakers personal agenda as to give rise
to a legitimate question of whether his treatment of issues within the orbit of his
professional writ is similarly characterized. Such an inquiry is not a sanction for political
outspokenness. It is a necessary exercise of collegial responsibility.
In the case of Dr. Salaita, this inquiry is complicated because of how he has
positioned his understanding of his professional speech. He has stated that his address to
the subject of his appointment, Indigenous Studies, is informed by certain critical ethical
tenets, one of which is, for example, a proactive analysis of and opposition to
neoliberalism, imperialism, neocolonialism, and other socially and economically unjust
policies, which not only affect Indigenous peoples most perniciously, but rely on
Indigenous dispossession to fulfill their ambitions.12 This tenet almost
indistinguishable from a political purpose is taken by Dr. Salaita to be an intrinsic part
of his work. Nonetheless, Dr. Salaitas conception of his professional mission does not
absolve him of meeting the academys standards of professional care.
12
Steven Salaita, The Ethics of Intercultural Approaches to Indigenous Studies: Conjoining Natives and
Palestinians in Context, The International Journal of Critical Indigenous Studies 1:1 (2008): 2. Dr. Salaita
submitted this article as part of the materials accompanying his application.
28
As we have seen, the Statement on Government allows that Trustees may

legitimately question the granting of tenure in rare instances and for compelling reasons
which should be stated in detail. Further, the 1940 Statement allows that political
speech, though rarely in itself evidencing professional unfitness, can give rise to
legitimate questions for example, whether Dr. Salaitas passionate political
commitments have blinded him to critical distinctions, caused lapses in analytical rigor,
or led to distortions of facts. These are questions that have arisen in the present
controversy.
The Chancellor, in providing the Committee with her judgment of the Trustees
reasons for rejecting the appointment of Dr. Salaita, conflated political speech with
professional speech. The former, we have concluded, is beyond the Universitys remit to
regulate. But the latter raises legitimate questions. The Statement on Government and
the Statutes assert that faculty status and related matters are primarily a faculty
responsibility, yet no university policy provides guidance for soliciting the expertise of
the faculty in the present case. We recommend that the matter be remanded to the
College of Liberal Arts and Sciences for reconsideration by a body of qualified academic
experts. Dr. Salaita should be provided the opportunity to respond to any proposed
findings of professional unfitness before the body concludes its proceedings.
Dr. Salaitas scholarship has already been reviewed rigorously, according to all
normal and appropriate procedures, so we allow only that his reviewers may not have
attended to questions that have arisen from the present controversy. There is a danger
that our opinion in this matter might appear to allow the Trustees to ask for a review of
the professional fitness of any candidate who makes remarks that they deem unpopular or
29
offensive. Our opinion derives from circumstances that are extraordinary and unlikely to
be replicated.
30
VIII. Conclusions
In the matter of the complaint of Professors Robert Warrior and Vicente Diaz, we
find no violation of their academic freedom nor of those who had recommended
Dr. Salaita for appointment. They were not penalized for having made the
recommendation. The academic freedom of those recommending an appointment is not
abridged by the Board of Trustees rejection of it, which is allowed under university
policies and national norms of institutional governance. However, as the forgoing makes
clear, neither was observed.
Accordingly, we turn to the complained-of ground for that rejection, Dr. Salaitas
series of tweets. The 1970 Interpretive Comment to the 1940 Statement provides that
extramural utterances political speech rarely bear upon a faculty members fitness
for office. The Chancellor elided the distinction between the two. They should be
disaggregated. We do not believe that Dr. Salaitas political speech renders him unfit for
office. Further, we find that civility does not constitute a legitimate criterion for rejecting
his appointment, and we recommend that statements made by the Chancellor, President,
and Trustees asserting civility as a standard of conduct be withdrawn.
We do believe, however, that the Chancellor has raised a legitimate question of
whether his professional fitness adheres to professional standards. In light of these
allegations, we recommend that Dr. Salaitas candidacy be remanded to the College of
Liberal Arts and Sciences for reconsideration by a body of qualified academic experts.
Dr. Salaita should be provided the opportunity to respond to any proposed findings of
professional unfitness before the body concludes its proceedings.
31
We further recommend that the university take responsibility for the financial
consequences to Dr. Salaita of its irregular adherence to its own policies and procedures.
32
XI. Appendices
Appendix A
Chronology
May 23, 2012
July 10, 2012
February 3-5, 2013
April 29, 2013
September 6, 2013
September 23, 2013
September 25, 2013
September 26, 2013
September 27, 2013
October 3, 2013
October 3, 2013
October 7, 2013
July 21, 2014
c. July 21, 2014
July 21, 2014
July 21, 2014

July 21, 2014
July 22, 2014
Professor Robert Warrior, Director, American Indian Studies,

submits hiring request.
Ruth Watkins, Dean of LAS, approves the search.
Dr. Steven Salaita visits campus as part of his application for the
position.
Professor Warrior requests external letters for tenure review of
Steven Salaita.
Professor Warrior submits departmental P&T review of
Dr. Salaita.
Professor Charles Gammie, Chair of Campus P&T Committee,
approves tenure.
Associate Chancellor Reginald Allston (in note forwarded by
Andrea Fain) approves tenure. Deba Dutta, Dean of Graduate
College, approves tenure.
Chancellor Wise approves tenure.
Provost approves tenured appointment. Document indicates that
the Department and College approved tenure.
Brian Ross, Interim Dean of LAS, sends offer letter sent to
Dr. Salaita.
Professor Jodi Byrd, Acting Director of American Indian Studies,
writes to Dr. Salaita with supplementary details about offer.
Dr. Salaita accepts offer and postpones start date to August 16,
2014.
Chancellor Wise begins receiving emails protesting appointment
of Dr. Salaita. They increase greatly in number over the course of
the next ten days.
Chancellors Office begins forwarding such emails to the Board
of Trustees.
Robin Kaler, Associate Chancellor for Public Affairs, informs
Christine des Garennes of the News-Gazette that Faculty have a
wide range of scholarly and political views, and we recognize the
freedom of speech rights of all of our employees.
President Easter tells Chancellor Wise they should discuss the
Salaita matter and attaches an email protesting the appointment of
Dr. Salaita.
Robin Kaler informs Provost of controversy.
Chancellor answers an inquiry from Provost and informs him that
there are several emails protesting the hire of Dr. Salaita.
33
July 23, 2014

July 24, 2014
August 1, 2014
August 16, 2014
August 22, 2014
September 4, 2014
September 5, 2014
September 11, 2014
Phyllis Mischo, Assistant to the Chancellor, asks Paula Hays,

Administrative Assistant to the Dean of LAS, if Dr. Salaita has
accepted the position and informs Chancellor Wise that he has.
Meeting of the Board of Trustees at which the appointment of
Dr. Salaita is discussed in executive session.
Date of the letter from Christophe Pierre, Vice President for
Academic Affairs, and Phyllis Wise informing Dr. Salaita his
appointment will not be submitted to the Board of Trustees.
Date at which Dr. Salaita had been scheduled to start his
employment at University of Illinois.
Chancellor publishes The Principles on Which We Stand.
Supporting statement issued same day via mass mail by President,
Trustees, and other administrators.
Chancellor forwards Dr. Salaitas appointment to the Board.
Professor Robert Warrior and Vicente Diaz file grievance with
CAFT.
Trustees reject appointment for Dr. Salaita.
34
Appendix B
Civility as a Speech Standard
In the wake of the uproar over the rejection of Dr. Salaitas appointment, the
Chancellor issued a statement, The Principles on Which We Stand (Document 8), soon
to be echoed by a statement from the Trustees, the President and other university officials
(Document 9). The Chancellor declared disrespectful words, words that demean the
viewpoints of others or of the persons who express them, to be intolerable. All points of
view must be discussed, even outside the classroom, in a scholarly, civil, and productive
manner. The Trustees went further: disrespectful speech that promotes malice is not an
acceptable form of civil argument: it has no place [] in our democracy.
However well intentioned, this is all quite mistaken. The United States Supreme
Court has made clear that the nations commitment is to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks13 that may be false (albeit
not knowingly so), vehement, or offensive. As Oliver Wendell Holmes, Jr., famously put
it, with respect to the utterance even of allegedly seditious speech in a time of war,
we should be eternally vigilant against attempts to check the expression of
opinions that we loathe and believe to be fraught with death, unless they
so imminently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to save
the country.14
13
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964). The Court relied on Justice Brandeis famous
dissent in Whitney v. California, 274 U.S. 357, 375-76 (1927), in which he opined, the fitting remedy for
evil counsels is in good ones. Those who won our independence, Brandeis wrote, believed in the
power of reason as applied through public discussion, they eschewed silence coerced by law the argument
of force in its worst form.
14
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting).
35
Nor can we separate the use of highly charged emotive language from the content
of the message. As the Supreme Court put it, disallowing punishment because of the
offensiveness of the expletive the speaker deployed in that case, an expletive
Dr. Salaitas tweets are much given to:
We cannot sanction the view that the Constitution, while solicitous of the
cognitive content of individual speech, has little or no regard for that
emotive function which practically speaking, may often be the more
important element of the overall message sought to be communicated.15
Further, and as the ad hoc committee of investigation in the Koch case pointed
out, civility and all its cognates responsible, respectful, temperate or its antonyms
disrespectful, demeaning, intemperate provide no objective standard of measure.
Speakers are at their peril depending on where their listeners would draw the line. The
natural consequence of such ambiguity is for the speaker to steer clear of the zone of
uncertainty. The resulting self-censorship does not elevate debate; it stifles it. For this
reason, among others, every university speech code that has been adopted to forbid
intolerable or demeaning utterance has been held to be unconstitutional.16
In sum, although the Chancellor, the President, and the Trustees are quite correct
in drawing attention to the university as an educational community, what follows from it
is quite the opposite of what they would have the university do. The consequences of the
vagueness of the prohibition have specific historical purchase here. Civility has served to
ostracize individuals or entire social groups on the grounds that they are savage,
barbarous, primitive, infantile, ill bred, or uncouth. This is surely not the intent of the
15
Cohen v. California, 403 U.S. 15, 26 (1971).

Doe v. University of Michigan, 721 F.Supp.2d 852 (E.D. Mich. 1989); UWM Post, Inc. v. Board of
Regents of the University of Wisconsin System, 774 F.Supp.2d 1163 (E.D. Wis. 1991); Blair v.
Shippensburg University, 280 F.Supp.2d 357 (M.D. Pa. 2003); College Republicans at San Francisco State
Univ. v. Reed, 523 F.Supp.2d 1005 (N.D. Cal 2007).
16
36
Chancellor or the Board, and yet, the criterion was used, for example, to silence African
Americans in Greensboro, North Carolina, in the years around 1960 by asserting,
paradoxically, that their peaceful protests demanding civil rights violated standards of
civility.17
More than twenty years ago, the American Association of University Professors
issued On Freedom of Expression and Campus Speech Codes, in the wake of efforts on
numerous campuses to promulgate rules the terms of which are echoed in the
Chancellors and Trustees messages. The AAUPs Statement captures the tenor of the
debate and the reasons why civility, surely desirable in many contexts, cannot be
deployed as a standard of speech. The Statement is well worth reading in its entirety, for
it appreciates that conflicts spawned by slurs and insults create an environment inimical
to learning.18 It argues, however, that an institution of higher education fails in its
mission if it asserts the power to proscribe ideas, and uncivil speech, howsoever
repugnant at times, expresses ideas. CAFT appreciates that the value of emotive, hateladen speech is of a rather low order. Yet, as the AAUP Statement observed, a university
sets a perilous course if it seeks to differentiate between high-value and
low-value speech, or to choose which groups are to be protected by
curbing the speech of others. A speech code unavoidably implies an
institutional competence to distinguish permissible expression of hateful
thought from what is proscribed as thoughtless hate.
Inevitably, the university will be drawn to decide which groups are worthy of solicitude
and which are not, what words are unacceptably offensive and what are within the margin
17
See William H. Chafe, Civilities and Civil Rights (New York and Oxford, 1980), 8-10, 137-41, 353-55.
For more examples of the use of civility to silence protest and promote white supremacy during the civil
rights movement, see Joseph Crespino, Civilities and Civil Rights in Mississippi, in Manners and
Southern History: Essays, ed. Ted Ownby (Jackson, MS, 2007), 114-136.
18
The statement is available in its entirety at http://www.aaup.org/report/freedom-expression-and-campusspeech-codes.
37
of acceptability. Distinctions of this type the AAUP Statement observes, are neither
practicable nor principled; their very fragility underscores why institutions devoted to
freedom of thought and expression ought not adopt an institutionalized coercion of
silence.
We believe that the Chancellor, the President, and the Trustees acted sincerely out
of a commitment to inclusiveness, yet in this instance holding civility up as a standard of
conduct conflicts with academic freedom and causes some to feel excluded from the
university community. The AAUP Statement addresses this dilemma directly and
provides a list of measures as alternatives to banning types of speech. It concludes:
To some persons who support speech codes, measures like these
relying as they do on suasion rather than sanctions may seem
inadequate. But freedom of expression requires toleration of ideas we
hate, as Justice Holmes put it. The underlying principle does not change
because the demand is to silence a hateful speaker, or because it comes
from within the academy. Free speech is not simply an aspect of the
educational enterprise to be weighed against other desirable ends. It is the
very precondition of the academic enterprise itself.
In her conversation with the committee the Chancellor disagreed with the notion
that her or the Trustees pronouncements should or even could be taken to constitute a
speech code. However, both pronouncements contain strong language. In text and tone
they are more than avuncular urgings for the observance of good manners. Both are de
facto justifications of the decision to halt an employment process and suggest a standard
to be observed in the future. CAFT recommends that they be withdrawn.
38
Appendix C
Selection of Dr. Salaitas Tweets Provided by Counsel to the Trustees
Parties who provided evidence for the investigation are entitled to read its
Findings of Fact (Section III) and ask for changes. The Counsel for the Trustees has
asked that the following be included in the report:
Prior to Chancellor Wise meetings with the Board of Trustees, all of the following were
widely discussed publicly:
You may be too refined to say it, but Im not: I wish all the f**king West
Bank settlers would go missing. [Note: this statement was in reference to a
report that three Israeli teens had been kidnapped and were presumed
murdered.] (June 19)
Lets cut to the chase:
If youre defending #Israel right now youre an awful human being. (July
8)
By eagerly conflating Jewishness and Israel, Zionists are partly
responsible when people say antisemitic sh*t in response to Israeli
terror. (July 10)
Zionist uplift in America: every little Jewish boy and girl can grow up to
be the leader of a murderous colonial regime. (July 14)
The @IDFSpokesperson is a lying motherf**ker. (July 15)
Do you have to visit your physician for prolonged erections when you see
pictures of dead children in #Gaza? (July 16)
If it werent for Hamas, Israel wouldnt have to bomb children. Look,
motherf**cker, if it werent for Israel thered be no #GazaStrip. (July
18)
If #Israel affirms life, then why do so many Zionists celebrate the
slaughter of children? Whats that? Oh, I see JEWISH life. (July 18)
Zionists, take responsibility: if your dream of an ethnocratic Israel is worth
the murder of children, just f**king own it. (July 19)
39
At this point, if Netanyahu appeared on TV with a necklace made from the

teeth of Palestinian children, would anybody be surprised? (July 19)
I repeat, if youre defending #Israel right now, then hopelessly
brainwashed is your best prognosis. (July 19)
Zionists: transforming antisemitism from something horrible into
something honorable since 1948. (July 19)
F**k you, #Israel. And while I'm at it, f**k you, too, PA, Sisi, Arab
monarchs, Obama, UK, EU, Canada, US Senate, corporate media, and
ISIS. (July 20)
Ever wonder what it would look like if the KKK had F-16s and access to a
surplus population of ethnic minorities? See #Israel and #Gaza. (July 20)
When I am frustrated, I remember that, despite the cigarettes and fatty
food, I have a decent chance of outliving #Israel. (July 21)
After Chancellor Wise met with the Board on July 24, but prior to her letter to Dr. Salaita
of August 2, Dr. Salaita also posted the following:
We can argue into eternity, but in the end this is what matters most: the
people in #Gaza are there because theyre not Jewish. (July 26)
If you havent recently been called a terror-loving anti-Semite, then Im
sorry to say your critique of #Israel is totally weak. (July 29)
Its silly when white American kids pretend to be Middle Eastern. Its
unconscionable when they go play solider in the Middle East. (July 31)
#Israels message to #Obama and #Kerry: well kill as many Palestinians
as we want, when we want.
p.s. fuck you, pay me. (August 1)
40
X. Documents
41
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Document 9
August22,2014
Earliertoday,youreceivedathoughtfulstatementfromChancellorPhyllisWiseregardingtheuniversitys
decisionnottorecommendProf.StevenSalaitaforatenuredfacultypositionontheUrbana-Champaign
campus.
Inherstatement,ChancellorWisereaffirmedhercommitmenttoacademicfreedomandtofosteringan
environmentthatencouragesdivergingopinions,robustdebateandchallengingconventionalnorms.Those
principleshavebeenattheheartoftheuniversitysmissionfornearly150years,andhavefueleditsriseas
aworldleaderineducationandinnovation.
But,asshenoted,ourexcellenceisalsorootedinanotherguidingprinciplethatisjustasfundamental.Our
campusesmustbesafeharborswherestudentsandfacultyfromallbackgroundsandculturesfeelvalued,
respectedandcomfortableexpressingtheirviews.
Weagree,andwritetodaytoaddourcollectiveandunwaveringsupportofChancellorWiseandher
philosophyofacademicfreedomandfreespeechtemperedinrespectforhumanrightsthesearethesame
corevalueswhichhaveguidedthisinstitutionsinceitsfounding.
Intheend,theUniversityofIllinoiswillneverbemeasuredsimplybythenumberofworld-changing
engineers,thoughtfulphilosophersorgreatartistsweproduce.Wealsohavearesponsibilitytodevelop
productivecitizensofourdemocracy.Asanation,weareonlyasstrongasthenextgenerationof
participantsinthepublicsphere.TheUniversityofIllinoismustshapemenandwomenwhowillcontributeas
citizensinadiverseandmulti-culturaldemocracy.Tosucceedinthismission,wemustconstantlyreinforce
ourexpectationofauniversitycommunitythatvaluescivilityasmuchasscholarship.
Disrespectfulanddemeaningspeechthatpromotesmaliceisnotanacceptableformofcivilargumentifwe
wishtoensurethatstudents,facultyandstaffarecomfortableinaplaceofscholarshipandeducation.Ifwe
https://illinois.edu/massmail/massmail/27181.html
1/3
8/22/2014
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Case: 1:15-cv-00924 Document #: 33-1
Filed: 02/25/15
educateagenerationofstudentstobelieveotherwise,wewillhavejeopardizedtheverysystemthatsomany
havemadesuchgreatsacrificestodefend.Therecanbenoplaceforthatinourdemocracy,andtherefore,
therewillbenoplaceforitinouruniversity.
ChancellorWiseisanoutstandingadministrator,leaderandteacher.Heracademiccareerhasbeenbuilton
hercommitmenttopromotingacademicfreedomandcreatingawelcomingenvironmentforstudentsand
facultyalike.Westandwithhertodayandwillbewithhertomorrowasshedevotesherconsiderabletalent
andenergytoservingourstudents,ourfacultyandstaff,andoursociety.
WelookforwardtoworkingcloselywithChancellorWiseandallofyoutoensurethatouruniversityis
recognizedbothforitscommitmenttoacademicfreedomandasanationalmodelofleading-edgescholarship
framedinrespectandcourtesy.
Sincerely,
ChristopherG.Kennedy,Chair,UniversityofIllinoisBoardofTrustees
RobertA.Easter,President
HannahCave,Trustee
RicardoEstrada,Trustee
PatrickJ.Fitzgerald,Trustee
LucasN.Frye,Trustee
KarenHasara,Trustee
PatriciaBrownHolmes,Trustee
TimothyN.Koritz,Trustee
DanielleM.Leibowitz,Trustee
EdwardL.McMillan,Trustee
JamesD.Montgomery,Trustee
PamelaB.Strobel,Trustee
PaulaAllen-Meares,Chancellor,Chicagocampus,andVicePresident,UniversityofIllinois
SusanJ.Koch,Chancellor,Springfieldcampus,andVicePresident,UniversityofIllinois
DonaldA.Chambers,ProfessorofPhysiologyandBiochemistryChair,UniversitySenatesConference
JerryBauman,InterimVicePresidentforHealthAffairs
ThomasR.Bearrows,UniversityCounsel
ThomasP.Hardy,ExecutiveDirectorforUniversityRelations
2/3
8/22/2014
An atmosphere
Case: 1:15-cv-00924 Document #: 33-1
Filed: 02/25/15
SusanM.Kies,SecretaryoftheBoardofTrusteesandtheUniversity
WalterK.Knorr,VP/ChiefFinancialOfficerandComptroller
ChristophePierre,VicePresidentforAcademicAffairs
LawrenceB.Schook,VicePresidentforResearch
LesterH.McKeever,Jr.,Treasurer,BoardofTrustees
AbouttheUniversityCampusesTrusteesPresidentAdministration
Copyright2014TheBoardofTrusteesoftheUniversityofIllinois|WebPrivacyStatement
108HenryAdministrationBldg.Urbana,IL61801|Contact|InfoSource@uillinois.edu
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10Document #: 33-1 Filed: 02/25/15 Page 68 of 141 PageID #:232

Salaita v. Kennedy - Motion To Dismiss and Memorandum in Support

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Case: 1:15-cv-00924 Document #: 32 Filed: 02/25/15 Page 1 of 4 PageID #:114

IN THE UNITED STATES DISTRICT COURT

Case No. 15-cv-00924

Honorable Harry D. Leinenweber

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In the Complaint, Plaintiff alleges First Amendment retaliation in violation of 42

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Accordingly, the claims brought against Defendants must be dismissed as Plaintiff

Dated: February 25, 2015

By: /s/ Christopher B. Wilson

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/s/ Christopher B. Wilson

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IN THE UNITED STATES DISTRICT COURT

Case No. 15-cv-00924

Honorable Harry D. Leinenweber

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#Israels message to #Obama and #Kerry: well kill as many Palestinians as we

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Plaintiffs Breach of Contract and Promissory Estoppel Claims Are Precluded

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The Offer Was Subject to the Approval of the Board of Trustees

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B. Plaintiff Is Not Entitled To Equitable Relief for His Unreasonable Reliance on a

The Board Never Made an Unambiguous Promise of Employment

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Defendants Did Not Violate Plaintiffs Constitutional Rights

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Plaintiff Did Not Have a Property Interest in a Contingent Offer

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Plaintiffs Remaining State Law Causes of Action Fail to State a Claim

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of an [intentional infliction of emotional distress] claim).

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