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General Articles
Steven Salaita: A Legal Update
10.08.15

Editorial Note

 

IAM has followed closely the legal battle of Steven Salaita against the University of Illinois.   As well known, in the summer of 2014,  the University backed out of an agreement to hire Salaita, at the rank of Associate Professor with indefinite tenure, as part of the American Indian Studies Program. 

 

The decision was made after revelations pertaining to Salaita’s tweets during last year’s Israeli Operation Protective Edge in Gaza. Among others, Salaita stated, "If you're defending Israel right now  you are an awful human being” and "I repeat: if you're defending Israel right now, then 'hopelessly brainwashed' is your best prognosis".

 

The issue  has the potential to make case law history with regard to academic freedom - depending on the decision of the judge.  One possibility it that Judge Harry D. Leinenweber would limit himself to the more narrow issue of contract violation.  The other eventuality is that he would rule on the broader issue of First Amendment and academic freedom.

 

That the latter may be in the working is indicated in Judge Leinenweber’s reference to the 1968 U.S. Supreme Court case Pickering v. Board of Education.  At the time the Supreme Court ruled that public schools are in violation of the First Amendment when they fired a teacher for speaking out ex cathedra on an issue of public concern.  

Though the Judge stated that  “there’s not yet enough known about the Salaita's case to apply a Pickering balance test between educational and free speech interests. But he also wrote that about the “profanity and incivility in [Salaita’s] tweets and the views those tweets presented:”  “The contents were certainly a matter of public concern, and the topic of Israeli-Palestinian relations often brings passionate emotions to the surface. Under these circumstances, it would be nearly impossible to separate the tone of tweets on this issue with the content and views they express.”

IAM would bring further update on the case.


https://www.insidehighered.com/news/2015/08/07/judge-rejects-move-u-illinois-dismiss-salaita-lawsuit

Free Speech Trumps Civility

August 7, 2015

Steven Salaita’s yearlong fight against the University of Illinois got longer Thursday, when a judge said his civil lawsuit could proceed to trial. While trying to predict the outcome of any case based on a preliminary judgment is futile, the decision is favorable to Salaita in many ways and establishes the possibility that the university violated both the First Amendment and contract law when it revoked his job offer last August.

“Given the serious ramifications of my termination from a tenured professorship to a wide range of people,” Salaita said in a statement, “I am happy to move forward with this suit in the hope that restrictions on academic freedom, free speech and shared governance will not become further entrenched because of [the university’s behavior].”

Salaita lost his tenured position in American Indian studies program at the University of Illinois at Urbana-Champaign just weeks before the start of classes last year, after his anti-Israel tweets made headlines. In his suit against the university -- to include Urbana-Champaign Chancellor Phyllis Wise (who announced Thursday that she is stepping down), the Board of Trustees for the University System of Illinois and the John Doe donors whom he claims interfered in his job offer -- Salaita alleges various wrongdoings: First Amendment violations, breach of contract, tortious interference, intentional infliction of emotional distress and spoliation of evidence.

While Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois threw out the latter claims, he found a significant evidence of possible free speech and contract violations -- the two charges that have been central to the Salaita debate all along.

At a time when a number of academics have faced harsh criticism and calls for their dismissal over comments they have made on social media, the judge suggested that the First Amendment protects such comments made by public university faculty -- even if the comments might not be viewed as demonstrating civility.

Freedom of Speech

Leinenweber in his decision took on the university’s claim that Salaita was not fired because of his constitutionally protected speech and that even if he was, the university’s interest in providing a safe and disruption-free learning environment outweighs Salaita’s free speech interest under the 1968 U.S. Supreme Court case Pickering v. Board of Education. In that case, the court ruled that public schools are in violation of the First Amendment when they fire a teacher for speaking out on matters of public concern.

Leinenweber wrote that there’s not yet enough known about the Salaita's case to apply a Pickering balance test between educational and free speech interests. But he said there are immediately apparent similarities between Salaita’s case and that of 1971's Cohen v. California, in which the Supreme Court ruled that a public display of profanity is not on its own a criminal offense. (The case involved a young man who wore a jacket saying “Fuck the draft” in the corridor of a local courthouse.)

“The university’s attempt to draw a line between the profanity and incivility in [Salaita’s] tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s [jacket] protected by the First Amendment,” Leinenweber wrote. Quoting the Cohen ruling, he said, "We cannot indulge the facile assumption that one can forbid particular words without also running the substantial risk of suppressing ideas in the process."

Referring to Salaita’s social media profile, Leinenweber added, “The contents were certainly a matter of public concern, and the topic of Israeli-Palestinian relations often brings passionate emotions to the surface. Under these circumstances, it would be nearly impossible to separate the tone of tweets on this issue with the content and views they express.”

Breach of Contract

Regarding breach of contract, Leinenweber rejected the university’s argument that it did not yet have a binding contract with Salaita, since the Board of Trustees hadn’t yet signed off on his appointment.

“If the court accept the university’s argument, the entire American academic hiring process as it now operates would cease to exist,” the judge wrote in his decision, “because no professor would resign a tenure [sic] position, move states and start teaching at a new college based on an ‘offer’ that was absolutely meaningless until after the semester already started.”

In Salaita’s case in particular, Leinenweber said, “Nothing about the actual offer, nor the mode of acceptance, indicates that no contract would be formed until after the board’s approval.” He also offered various facts and scenarios suggesting that the university had an active agreement with Salaita. For example, he said, if Salaita had no binding agreement with the university, what would have prevented him from using its relocation funds and deciding at the last minute to teach elsewhere? And if the dean who appointed Salaita had no actual authority to do so, as the university has argued, “the university would have been confused as to why 120 [other new] professors showed up to work when no one with actual authority had offered them a job,” the judge said.

Salaita’s claims of conspiracy and violations of procedural due process also survived the decision. His tortious interference claim against the John Doe donors did not. Regarding that claim, Leinenweber said the donors were merely exercising their own free speech in expressing their distaste for Salaita and possibly threatening to pull their donations.

“The First Amendment is a two-way street,” Leinenweber said.

Robin Kaler, a spokeswoman for Illinois, said via email that the university was “gratified that [Leinenweber’s] ruling today dismissed four of the nine counts filed by Dr. Salaita.”

She added, “While Dr. Salaita has the right to continue his lawsuit, a much narrower version of the case will proceed.”

While the ruling is favorable to Salaita, Michael Leroy, a professor of labor and employment relations and law at Urbana-Champaign who’s studied the outcomes of free speech cases involving university professors, said there’s no telling how a trial might proceed. First, pretrial opinions are always more favorable to the plaintiff, Leroy said. Second, the judge’s ruling relies curiously on the 1971 Cohen decision while ignoring several more recent free speech cases involving public employees.

“What strikes me is that this case does not deal with any employer or educational setting,” Leroy said. “[Cohen] is sort of an unpredictable reference because most of these cases now are decided under public employment law cases, like the [2006 U.S. Supreme Court case Garcetti v. Ceballos].” In the Garcetti case, the court held that statements employees make pursuant to their official duties are not protected by the First Amendment.

“A lot has changed since [Cohen],” Leroy added.

Robert O’Neil, former president of the University of Virginia and a free speech scholar, said he agreed with the judge’s finding that a contract existed, and that its terms were “unambiguous.” Likewise, he said he agreed with the notion that the dean did have authority to offer Salaita a binding agreement.

O’Neil also seemed to find the Cohen reference more suitable, at least at this point in the case.

“Basic precedents like Cohen and Pickering (which established First Amendment protection for public employees) govern this part of the case and at least suffice to get it to a jury or judge sitting without a jury,” O’Neil said via email. That’s “enough to state a constitutional free speech claim even if not dispositive on the merits, which comes later.”


==================================





IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN SALAITA,
Plaintiff,
v.
CHRISTOPHER KENNEDY,
Chairman of the Board of
Trustees of the University
of Illinois, et al.,
Defendants.
Case No. 15 C 924
Judge Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss
Plaintiff Steven Salaita’s Complaint for failure to state a
claim under Rule 12(b)(6) [ECF No. 32]. For the reasons
stated herein, the Motion is granted to the extent that
Counts VI, VII, VIII, and IX are dismissed with prejudice, and
denied as to the rest.
I. BACKGROUND
This case involves Dr. Steven Salaita’s employment status
with the University of Illinois following controversial
statements he made via Twitter. The followings facts are
culled from the Complaint, which the Court must accept as true
in deciding a motion to dismiss. Dr. Salaita was a tenured
professor at Virginia Tech when he discovered that the
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Page 2
University of Illinois at Urbana-Champaign (“the University”)
was looking for a professor in its American Indian Studies
program. Dr. Salaita, who has expertise in Native American
and Indigenous Studies, applied for the position, and the
University began its vetting process. The process culminated
in the University sending a letter to Dr. Salaita that is
largely the subject of this lawsuit.
Because the letter is the source of most of the parties’
disagreements, the Court reproduces the relevant portions of
it here in full:
Dear Professor Salaita:
Upon the recommendation of Professor Jodi Byrd,
Acting Director of the American Indian Studies, I am
pleased to offer you a faculty position in that
department at the rank of Associate Professor at an
academic year (nine-month) salary of $85,000 paid
over twelve months, effective [August 16], 2014.
This appointment will carry indefinite tenure. This
recommendation for appointment is subject to
approval by the Board of Trustees of the University
of Illinois.
. . .
At the University of Illinois, like at most
universities in this country, we subscribe to the
principles of academic freedom and tenure laid down
by the American Association of University Professors
(AAUP). The Statement on Academic Freedom and
Tenure of the [AAUP] has been since 1940 the
foundation document in this country covering the
freedoms and obligations of tenure. . . . I am
enclosing copies of these documents for your
information, and commend them to your attention.
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Page 3
We would appreciate learning of your decision
by 10/14/2013. I have included an enclosure
describing some of the general terms of employment
at the University. If you choose to accept our
invitation, we would appreciate your returning a
photocopy of this letter with the form at the bottom
completed and signed. When you arrive on campus,
you will be asked to present proof of your
citizenship and eligibility to work (see the I-9
form). If you are not a U.S. citizen, this offer
will be contingent upon your being able to secure
the appropriate visa status. Should you accept our
offer, our Office of International Faculty and Staff
Affairs is available to assist you with this
process.
Please let me express my sincere enthusiasm
about your joining us. The University . . . offers
a wonderfully supportive community, and it has
always taken a high interest in its newcomers. I
feel sure that your career can flourish here, and I
hope earnestly that you will accept our invitation.
(Defs.’ Mem. in Support of its Mot. to Dismiss (“Defs.’
Mem.”), Ex. 1, ECF No. 33-1). The letter is then signed by
Interim Dean Brian Ross and includes a place for Dr. Salaita
to sign. The signature page says “I accept the above offer of
October 3, 2013” and includes spaces for Dr. Salaita’s date of
birth, citizenship status, and signature. Dr. Salaita signed
this page and returned it on October 9, 2013, and the parties
agreed that Dr. Salaita would start in his new position on
August 16, 2014. The University also assigned Dr. Salaita two
courses for the fall semester, assigned him an office, and
provided him a University email address.
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Page 4
With the expectation that he would be starting at the
University in August, Dr. Salaita resigned his position at
Virginia Tech and started the process of moving his family to
Illinois. The University paid a majority of Dr. Salaita’s
moving expenses. During this time, a skirmish between
Palestine and Israel resulted in the death of “approximately
2100 Palestinians, including more than 500 children.” (Pl.’s
Resp. to Mot. to Dismiss, ECF No. 43 at 4). Dr. Salaita took
to his personal Twitter account to voice his displeasure. The
Court need not reproduce Dr. Salaita’s tweets verbatim; to put
it mildly, they were critical of Israel’s actions and used
harsh, often profanity-laden rhetoric.
Dr. Salaita’s tweets soon garnered media coverage, which
prompted the University to respond publicly regarding Dr.
Salaita’s employment. In response to one newspaper’s request
for comment, a University spokesperson said 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.” (Compl., ECF No. 1
¶ 69). The spokesperson went on to tout the University’s
policy of “recognize[ing] the freedom-of-speech rights of all
our employees.” (Id. (emphasis added)).
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Page 5
Despite the initial show of support, however, the
University soon changed its tune. Letters and emails obtained
via Illinois’ Freedom of Information Act revealed that
students, alumni, and donors wrote to the University’s
Chancellor, Phyllis Wise (“Wise”), to voice their concerns
over Dr. Salaita joining the University. One writer in
particular claimed to be a “multiple 6 figure donor” who would
be ceasing support of the University because of Dr. Salaita
and his tweets.
Two other specific interactions are critical to Dr.
Salaita’s Complaint. The first involves an unknown donor who
met with Chancellor Wise and provided her a two-page memo
about the situation. (Compl., ECF No. 1 ¶ 80). Wise
ultimately destroyed the memo, but an email Wise sent
University officials summarized it as follows: “He [the
unknown donor] gave me [Chancellor Wise] a two-pager filled
with information on Professor Salaita and said how we handle
the situation will be very telling.” (Id.) The second
interaction involves a particularly wealthy donor who asked to
meet with Chancellor Wise to “share his thoughts about the
University’s hiring of Professor Salaita.” (Compl., ECF No. 1
¶ 79). The meeting took place on August 1, 2014, but what was
said during the meeting is currently unknown at this early
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Page 6
stage in the litigation. What is known, however, is that
Chancellor Wise sent Dr. Salaita a letter on the same day
stating that Dr. Salaita’s “appointment will not be
recommended” and that the University would “not be in a
position to appoint [him] to the faculty of the University.”
(Defs.’ Mem., Ex. A, ECF No. 33-1).
The University’s Board of Trustees met on September 11,
2014 to vote on new faculty appointments. The Board
unanimously and summarily appointed 120 new faculty members in
a single vote, and then voted separately on Dr. Salaita’s
appointment. Chancellor Wise stated that, despite the earlier
letter affirming that Dr. Salaita would be recommended for
appointment, she was not recommending him. The Board then
voted eight-to-one to deny Dr. Salaita’s appointment. The
vote occurred one month after the start of the semester, when
the other appointed professors had already started teaching,
and one month after Dr. Salaita’s agreed-upon start date.
According to the Complaint, this is the first time in the
University’s history that something like this has happened.
Following the Board’s vote, Dr. Salaita filed this
lawsuit. The Complaint contains nine counts against various
Defendants. Count I alleges that the Board of Trustees,
Chancellor Wise, and the University’s President and Vice
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Page 7
President violated § 1983 by retaliating against Dr. Salaita
for exercising his First Amendment free speech rights. Count
II alleges that the same Defendants robbed Dr. Salaita of his
procedural due process rights by depriving him of his job
without any pre- or post-deprivation measures. Count III
alleges that all Defendants engaged in a conspiracy to deprive
Dr. Salaita of his job in violation of § 1985. Count IV
alleges promissory estoppel against the Trustee Defendants.
Count V alleges breach of contract against the Trustee
Defendants. Counts VI and VII alleges that the various donor
Defendants
tortiously
interfered
with
Dr.
Salaita’s
contractual and business relations. Count VIII alleges that
all Defendants intentionally inflicted emotional distress on
Dr. Salaita. Finally, Count IX is a state-law spoliation of
evidence claim against Chancellor Wise for destroying the two-
page memo. Defendants now move to dismiss all counts under
Rule 12(b)(6).
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim under
Rule 12(b)(6) challenges the legal sufficiency of a complaint.
Hallinan v. Fraternal Order of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). A complaint must contain “enough facts
to state a claim to relief that is plausible on its face.”
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Page 8
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When considering a Rule 12(b)(6) motion to dismiss, a court
must accept the plaintiff’s allegations as true, and view them
in the light most favorable to the plaintiff. Meriwether v.
Faulkner, 821 F.2d 408, 410 (7th Cir. 1987). A court need not
accept as true “legal conclusions, or threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th
Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal quotations and alterations omitted).
The overriding focus in the Court’s analysis is notice —
that is, whether the factual allegations in the complaint
“give the defendant fair notice of the claim for relief and
show the claim has ‘substantive plausibility.’” Runnion ex
rel. Runnion v. Girl Scouts of Greater Chi. and Nw. Indiana,
No. 14-1729, 2015 WL 2151851, at *3 (7th Cir. May 8, 2015)
(quoting Johnson v. City of Shelby, 135 S.Ct. 346, 347
(2014)).
III. ANALYSIS
The crux of this case involves the agreement between Dr.
Salaita and the University. Dr. Salaita claims that, by
signing and returning the University’s offer letter, he
entered into an employment contract that the University
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Page 9
violated by firing him because of his political speech.
According to the University, Dr. Salaita was never an employee
and the parties never had a valid contract because Dr.
Salaita’s appointment was “subject to” the Board of Trustees’
approval. Many of the parties’ arguments hinge on whether
there is a contract; thus, the Court will start with the
breach of contract and promissory estoppel claims and then
consider the remaining arguments.
A. Breach of Contract (Count V)
The University’s central argument is that the parties
never entered into a valid contract. The University claims
that the “subject to” language in its initial letter made its
offer conditional on the Board’s approval, and thus Dr.
Salaita’s acceptance was likewise only conditional. Dr.
Salaita argues that the condition, if any, was a condition on
performance under the contract, not on the offer itself.
Moreover, Dr. Salaita argues that the condition was a mere
formality and that the Board’s approval was ministerial in
nature.
Under Illinois law, the elements for a breach of contract
claim are: “(1) offer and acceptance, (2) consideration, (3)
definite and certain terms, (4) performance by the plaintiff
of all required conditions, (5) breach, and (6) damages.”
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Page 10
Vill. of S. Elgin v. Waste Mgmt. of Ill., Inc., 810 N.E.2d
658, 669 (Ill. App. Ct. 2004). Defendants’ arguments go to
the offer element, and “the offeror has total control over its
own offer and may condition acceptance to the terms of the
offer.” McCarty v. Verson Allsteel Press Co., 411 N.E.2d 936,
944 (Ill. App. Ct. 1980). The ability to make an offer
conditional also extends to performance: that is, an offeror
may make performance under the contract subject to some other
condition. See, McKee v. First Nat’l Bank of Brighton, 581
N.E.2d 340, 343–44 (Ill. App. Ct. 1991). The difference is
crucial; if the condition applies to the offer, there is no
contract before the condition is satisfied, but if the
condition applies to performance, there is a valid contract
even if the condition is not satisfied. Moreover, if there is
a contract at all, then the obligation of good faith and fair
dealing — which is inherent in all contracts — applies.
Martindell v. Lake Shore Nat’l Bank, 154 N.E.2d 683, 690 (Ill.
1958).
The Court’s first task is to interpret the contract, and
“Illinois uses in general a ‘four corners’ rule in the
interpretation of contracts.” Bourke v. Dun & Bradstreet
Corp., 159 F.3d 1032, 1036 (7th Cir. 1998) (quoting Ford v.
Dovenmuehle Mortg. Inc., 651 N.E.2d 751, 755 (1995)). The
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Page 11
Court’s goal is “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).
Under the four corners rule, “the threshold inquiry is
whether the contract is ambiguous,” and a contract term is
“ambiguous only if the language used is reasonably or fairly
susceptible to having more than one meaning.” Bourke, 159
F.3d at 1036. There are generally two kinds of ambiguity:
extrinsic or intrinsic. Id.
The classic example of an
extrinsic ambiguity involved a contract term that required
cotton to be shipped aboard a ship named Peerless when there
were two identically named ships to which the contract term
could have referred. Id. (citing Raffles v. Wichelhaus, 2 H. &
C. 906, 159 Eng. Rep. 375 (Ex. 1864)). Nothing about the
contract term itself was ambiguous; the ambiguity arose from
the surrounding, external facts. See, id.
An intrinsic
ambiguity, on the other hand, occurs when the term itself is
susceptible to multiple reasonable interpretations without
reference to anything outside the contract. Id. at 1037.
As to the offer in this case, the basic terms are about
as unambiguous as they could possibly be. The offer letter
says that the University is “pleased to offer [Dr. Salaita] a
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Page 12
faculty position.” The offer then sets forth the important,
relevant terms in plain English. The offer is for a salary of
$85,000 and the position includes indefinite tenure. Finally,
the University used unambiguous terms in drafting the means by
which Dr. Salaita could accept: “I accept the above offer of
October 03, 2013.” Nothing about the actual offer, nor the
mode of acceptance, indicates that no contract would be formed
until after the Board’s approval.
The University points solely to the “subject to” language
as evidence that there was no contract, but that term, read in
light of the other contract terms, is at least plausibly a
term of performance. That term says that the University would
recommend Dr. Salaita’s appointment to the Board, but that the
Board would have ultimate say on whether to appoint Dr.
Salaita as a professor. The other concrete terms make clear
that the parties had a contract, but that the University might
be excused from performing if the Board rejected the
University’s recommendation. The University’s own offer
letter uses definite terms like “offer” and “acceptance”
without any qualification. If the University really felt that
there would be no contract whatsoever unless the Board first
approved, it could have drafted its offer letter in those
terms. It could have, for example, drafted the acceptance
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Page 13
that Dr. Salaita signed to say “If the Board ultimately
approves of my recommendation, I will accept the appointment.”
Or the letter could have said, “You are not employed until the
Board first approves of the University’s recommendation.”
This is precisely what Purdue University did in Lutz. See,
Lutz v. Purdue Univ., 133 F.Supp.2d 1101, 1109 (N.D. Ind.
2001) (granting summary judgment in favor of Purdue when a
professor’s contract stated that he was “not officially
employed until a completed and signed contract has been
approved by the President of Purdue University”).
Better still, the “subject to” provision could have used
the word “offer,” which courts have found “telling” when
deciding whether an offer is conditional. Allen, 236 F.3d at
381 (finding that the contract drafter’s “choice of the word
‘offer’ is telling” when he drafted a provision that said
“this offer is subject to” a certain condition). Here, the
University used the word “offer” when referencing the teaching
position, but did not use the word “offer” when referencing
the Board’s approval as a condition. And, elsewhere in the
letter, the University did explicitly impose a condition on
the offer itself: “If you are not a U.S. citizen, this offer
will be contingent upon your being able to secure the
appropriate visa status.” (Defs.’ Mem., Ex. 1, ECF No. 33-1
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Page 14
(emphasis added)). This suggests that the University knew how
to ensure that a condition related specifically to the offer,
yet did not do so in referencing Board approval. Thus, the
contract as a whole demonstrates that the parties intended to
enter into a valid contract.
Moreover, to the extent that the “subject to” language is
ambiguous as to whether it applies to contract formation or
performance, the Court would look to extrinsic evidence to
interpret the contract. Bourke, 159 F.3d at 1037. Taking the
facts alleged in the Complaint as true, there is no doubt that
the parties’ actions demonstrated their intent to enter into a
contract. The University paid for Dr. Salaita’s moving
expenses, provided him an office and University email address,
assigned him two courses to teach in the fall, and stated to a
newspaper that he would in fact join the faculty, despite his
unsavory tweets. The University spokesperson went so far as
referencing Dr. Salaita as one of “our employees.” The
University also did not hold a Board vote until after the
start of the semester. If the Board vote was truly a
condition to contract formation, then the University would
have the Board vote on appointments before the start of a
semester and before spending money on a new professor or
treating the professor as a full-fledged employee. Finally,
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Page 15
the University actually held the Board vote despite its claim
that it had no agreement whatsoever. If the University truly
felt no obligation to Dr. Salaita, the University could have
simply not put the appointment to a vote at all. Instead, the
University still went ahead with the vote, which is at least
some evidence that it felt obligated to hold a vote according
to the terms of the offer letter. Simply put, the University
cannot argue with a straight face that it engaged in all these
actions in the absence of any obligation or agreement.
Also, the University’s argument, if applied consistently,
would wreak havoc in this and other contexts. What if a
professor took the University’s money to move to Chicago, but
decided instead to teach at Northwestern University before the
Board voted on her appointment? According to the University,
that professor would be free to keep the money without fear of
a breach of contract claim. And what about the other
professors who started teaching classes before the Board voted
on their appointment? According to the University’s argument,
those teachers were not employees and had no contract, despite
working for, and presumably getting paid by, the University.
Finally, what if, before a Board vote, the University offered
a job to a different person after already receiving the signed
acceptance letter from someone else? According to the
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University, the person originally offered the job would have
no recourse because there was no contract. If the Court
accepted the University’s argument, the entire American
academic hiring process as it now operates would cease to
exist, because no professor would resign a tenure position,
move states, and start teaching at a new college based on an
“offer” that was absolutely meaningless until after the
semester already started. In sum, the most reasonable
interpretation of the “subject to” term in the University’s
offer letter is that the condition was on the University’s
performance, not contract formation.
Under the University’s reading of the law, however, any
“subject to” term in a contract is a talisman that offers the
drafter a get-out-of-contract-free card. But the cases the
University relies upon are distinguishable. In Allen,
discussed above, the drafter explicitly referenced “this
offer” when drafting a “subject to” condition. Allen, 236
F.3d at 381. Here, the University’s “subject to” condition
contains no similar explicit reference. And in Cobb-Alvarez,
the purported “offer” was a letter that invited employees to
apply for a program that would allow them to “quit in exchange
for [a] severance package[].” Cobb-Alvarez v. Union Pac.
Corp., 962 F.Supp. 1049, 1054 (N.D. Ill. 1997). Rather than
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provide a means for “accepting” the offer, the letter told
employees that “if [they] appl[ied], [their] application[s]
can be denied.” Id.
The plaintiffs tried to argue that the
letter was an “offer” that they could “accept” simply by
submitting an application, which the court found unreasonable.
Id.
Here, in contrast, Dr. Salaita is not arguing that he
“accepted” the job by submitting an application for it.
Instead, he argues that, by signing the University’s letter
that said “I accept the above offer,” he was, in fact,
accepting the above offer. In short, the cases the University
relies on involve contracts where the condition was, without
question, a condition to contract formation. In this case, at
the very least, there is a reasonable argument that the
condition went to performance and not formation, which
precludes dismissal.
In a related argument, the University asserts that, even
if the basic elements of a contract exist here, Dean Ross had
no actual or apparent authority to make a binding offer. The
University also argues that under Illinois law, apparent
authority cannot apply to bind the State of Illinois, which
the University is a part of. The Court can quickly reject
these arguments for two reasons.
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First, Dr. Salaita’s Complaint contains facts indicating
that the University gave “the faculty departments and dean”
the actual authority to make binding job offers. (Compl.,
ECF No. 1 ¶¶ 48–51). Although Dr. Salaita has not alleged
precisely how or when the University gave Dean Ross actual
authority, the facts alleged make it plausible that such a
delegation occurred. For example, the Board ultimately voted
on Dr. Salaita’s appointment pursuant to Dean Ross’s offer
letter, even though Chancellor Wise had already decided she
did not want Dr. Salaita to join the faculty. These facts
make it plausible that the University and the Board gave Dean
Ross actual authority to make a binding offer and in fact felt
bound by his offer. Otherwise, why hold a vote at all?
Moreover, for the other 120 professors mentioned above, the
Board voted on their appointment in one block, after they had
already started teaching, and without reference to any terms
of employment like salary. If the Board did not delegate
authority to these professors’ respective deans to make
binding offers that set essential employment terms, then how
did those terms get set? The Board apparently voted without
discussing any employment terms, and according to the
University’s argument, no one with actual authority has yet to
make a binding offer as to those essential terms. Also, if
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the University and Board had not delegated actual authority to
the deans, why did the University allow the other professors
to start working before the Board vote? If the deans had no
authority to make any binding offers, the University would
have been confused as to why 120 professors showed up to work
when no one with actual authority had offered them a job. In
short, the Complaint contains facts that make it plausible
that the Dean Ross had actual authority.
Second, to the extent that actual or apparent authority
is a disputed issue, the issue is best resolved at trial or on
a motion for summary judgment. See, Schoenberger v. Chi.
Transit Auth., 405 N.E.2d 1076, 1081 (Ill. App. Ct. 1980)
(upholding a trial court’s determination — based on extensive
evidence and testimony — that the plaintiff could not have
reasonably believed an agent to have apparent authority to
bind the defendant).
In sum, Dr. Saliata has pleaded an adequate breach of
contract claim.
B. Promissory Estoppel (Count IV)
Dr. Salaita’s Complaint also contains a promissory
estoppel count in the alternative to his breach of contract
claim. Under Illinois law, a plaintiff may plead both breach
of contract and promissory estoppel but cannot pursue both
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once a contract is found to exist, either by judicial
determination or by the parties’ admission. Discom Int’l,
Inc. v. R.G. Ray Corp., No. 10 C 2494, 2010 WL 4705178, at *5
(N.D. Ill. Nov. 10, 2010) (citing Prentice v. UDC Advisory
Servs., Inc., 648 N.E.2d 146, 150 (Ill. App. Ct. 1995)). As
discussed above, the Court has found that Dr. Salaita has
pleaded a breach of contract claim, but not that he has proved
it. Thus, even though Dr. Salaita cannot ultimately recover
under both claims, the Court must analyze whether Dr.
Salaita’s promissory estoppel claim survives a motion to
dismiss.
To establish a promissory estoppel claim, a plaintiff
must prove that “(1) defendant made an unambiguous promise to
plaintiff, (2) plaintiff relied on such promise, (3)
plaintiff’s reliance was expected and foreseeable by
defendants, and (4) plaintiff relied on the promise to its
detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor
Corp., 906 N.E.2d 520, 523 (Ill. 2009). Dr. Salaita argues
that the University made two unambiguous promises: first, it
promised to hire Dr. Salaita subject to limited Board
approval, and second, it promised that the Board would
consider Dr. Salaita’s appointment in “accord with principles
of good faith and fair dealing.” (Pl.’s Resp. to Mot. to
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Dismiss, ECF No. 43 at 30). The Court need not consider the
second promise because Dr. Salaita has adequately pleaded the
first, which precludes dismissing his claim.
The University’s key arguments are that any alleged
promise was either (1) subject to a condition, and therefore
ambiguous, or (2) made by someone without apparent or actual
authority. The Court already rejected these arguments and
need not discuss them again. Dr. Salaita’s Complaint contains
facts to support a promissory estoppel claim. According to
those facts, the University unambiguously promised to
recommend to the Board that Dr. Salaita be appointed as a
tenured professor. In reliance on that promise, Dr. Salaita
resigned a valuable tenured position at a respected
institution and moved his family to Illinois. The University
must have reasonably foreseen that Dr. Salaita would act on
its promise because it paid for most of his moving expenses
after he accepted the position. But after Dr. Saliata arrived
in Illinois, the University reneged on its promise when
Chancellor Wise informed the Board that Dr. Salaita was in
fact not recommended for appointment. Dr. Salaita is now left
with neither his previous job nor his prospective job. These
facts are sufficient to state a promissory estoppel claim in
the alternative to his breach of contract claim.
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C. First Amendment (Count I)
Count I in Dr. Salaita’s Complaint alleges that certain
Defendants violated his First Amendment free speech rights in
violation of § 1983. In order to state a First Amendment
retaliation claim, Dr. Salaita must allege fact showing that:
“(1) his speech was constitutionally protected, (2) he has
suffered a deprivation likely to deter free speech, and (3)
his speech was at least a motivating factor in the employer's
action.” Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006). For the purposes of this claim, it does not matter
whether the University’s action is characterized as firing Dr.
Salaita or simply not hiring him; failure to hire is enough to
constitute a deprivation under the second element. See,
George v. Walker, 535 F.3d 535, 538 (7th Cir. 2008). Dr.
Salaita alleges that the Board and individual Defendants
Robert Easter (the University President), Christephe Pierre
(Vice President), and Chancellor Wise either fired or refused
to hire him because of the content of his tweets.
The University’s Motion does not dispute that Dr.
Salaita’s speech was constitutionally protected or that he
suffered a deprivation in the form of either being fired or
not hired. Instead, the University argues first that Dr.
Salaita has not pleaded facts that implicate the specific
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Defendants named in Count I. The University also argues that
Dr. Salaita was not fired because of his constitutionally
protected speech, and that even if he was, the University’s
interest in providing a safe and disruption-free learning
environment outweighs Dr. Salaita’s free speech interest under
the balancing test in Pickering v. Bd. of Educ., 391 U.S. 563,
574 (1968).
1. Claims Against the Individual Defendants
As to the University’s first argument, “[a]n individual
cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation.”
Wolfe-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
This is the personal responsibility requirement, and “[a]n
official
satisfies
the
personal
responsibility
requirement . . . if the conduct causing the constitutional
deprivation occurs at her direction or with her knowledge and
consent.” Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)
(internal quotation marks omitted). Put another way, the
defendant “must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye.” Gentry v.
Duckworth,
65 F.3d 555, 561 (7th Cir. 1995) (internal
quotation marks omitted).
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The University argues that Dr. Salaita has not stated a
claim against the individual Board members because they acted
“within the scope of their statutory mandate” when they met to
discuss Dr. Salaita’s candidacy and when they ultimately voted
against his appointment. (Defs.’ Mem., ECF No. 33 at 16).
This argument ignores the other allegations in the Complaint
and reasonable inferences drawn from those allegations. The
Board did not meet to discuss Dr. Salaita’s candidacy until
after the inflammatory tweets, and it singled only him out for
an individual vote despite summarily affirming other
professors who do not appear to have made any inflammatory
tweets. Viewed in Dr. Salaita’s favor, these facts make it
plausible that the Board acted specifically because it
disagreed with Dr. Salaita’s political speech. And although
the Board may have met and voted in accord with statutory
requirements, that alone cannot immunize it from all
liability. If the University’s argument is correct, the
Board’s members would never be liable under § 1983 — no matter
how egregious the constitutional violation — as long as they
acted within their statutory authority. The Court therefore
finds that the Complaint states a claim against the individual
Board Defendants.
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The University also argues that Dr. Salaita has failed to
state a claim against President Easter, Vice President Pierre,
or Chancellor Wise. As for Chancellor Wise, the Complaint
contains more than enough allegations to state a claim against
her, and the University’s arguments go more to the merits than
the sufficiency of the complaint. Although Chancellor Wise
might ultimately win on the merits, the Court must view the
allegations in Dr. Salaita’s favor, and those allegations
state that Chancellor Wise fired or failed to hire Dr. Salaita
because she and various donors disagreed with his political
speech. These facts demonstrate that Chancellor Wise
facilitated, approved, and condoned the conduct that led to
Dr. Salaita’s deprivation, which is enough to state a claim.
See, id.
The allegations against President Easter and Vice
President Pierre, however, are not as abundant. The only
allegations in the Complaint that relate to President Easter
concern his attendance at a July 24, 2014 meeting where the
Board and the other individual Defendants decided to fire, or
at least not hire, Dr. Salaita. As to Vice President Pierre,
the only allegations against him demonstrate that he was also
at the July 24 meeting and that he joined Chancellor Wise in
sending the letter that informed Dr. Salaita he was fired or
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at least not being hired. These allegations are sparse
indeed, but they are just enough to raise a plausible
inference that President Easter and Vice President Pierre
condoned, or at least turned a blind eye, toward the decision
to fire Dr. Salaita because of his political views and speech.
See, id.
2. Sufficiency of Dr. Salaita’s First Amendment Claim
The University’s second argument is that its action was
not motivated by the content or viewpoint of Dr. Salaita’s
tweets, and that even if it was, its interest in providing a
disruption-free learning environment outweighs Dr. Salaita’s
free speech interest under the balancing test in Pickering.
The first part of the argument is premature; summary judgment
or trial will reveal the University’s actual motivation, but
the facts viewed in Dr. Salaita’s favor amply support a claim
that the University fired Dr. Salaita because of disagreement
with his point of view. The University’s attempt to draw a
line between the profanity and incivility in Dr. Salaita’s
tweets and the views those tweets presented is unavailing; the
Supreme Court did not draw such a line when it found Cohen’s
“Fuck the Draft” jacket protected by the First Amendment.
Cohen v. California, 403 U.S. 15, 26 (1971). The tweets’
contents were certainly a matter of public concern, and the
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topic of Israeli-Palestinian relations often brings passionate
emotions to the surface. Under these circumstances, it would
be nearly impossible to separate the tone of tweets on this
issue with the content and views they express. And the
Supreme Court has warned of the dangers inherent in punishing
public speech on public matters because of the particular
words or tone of the speech. See, id. (“[W]e cannot indulge
the facile assumption that one can forbid particular words
without also running a substantial risk of suppressing ideas
in the process.”) At the motion to dismiss stage, the Court
simply cannot find that the University was not at all
motivated by the content of Dr. Salaita’s tweets.
The University next argues that the Court should apply
the balancing test in Pickering and find that under no set of
facts could Dr. Salaita prove that his First Amendment rights
were violated. This argument is also premature. “Normally,
application of the Pickering balancing test will be possible
only after the parties have had an opportunity to conduct some
discovery.” Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir.
1997). Of course, there are some cases where a plaintiff has
“pled herself out of court,” but those are “rare cases”
indeed. Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853,
859 (7th Cir. 1999). The cases in which it is clear at the
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motion to dismiss stage that a First Amendment claim is
certain to fail usually involve speech that is not on a matter
of public concern or speech that is not protected at all.
See, e.g., id. at 858 (“[I]n the context of this complaint,
the association seems much more devoted to petty office
politics than to matters of public concern.”); Chi. Sch.
Reform Bd. of Trs. v. Substance, Inc., 79 F.Supp.2d 919, 928
(N.D. Ill. 2000) (“Defendants possessed no First Amendment
right to publish copyrighted tests.”). This is not one of
those rare cases because Dr. Salaita’s has alleged facts that
plausibly demonstrate he was fired because of the content of
his political speech in a public forum. In other words, Dr.
Salaita’s tweets implicate every “central concern” of the
First Amendment. Burson v. Freeman, 504 U.S. 191, 196 (1992)
(stating that there are “three central concerns in our First
Amendment jurisprudence: regulation of political speech,
regulation of speech in a public forum, and regulation based
on the content of the speech.”). The Court therefore declines
to engage in a full-fledged Pickering balancing analysis at
this early stage in the litigation.
Additionally, even if the Court were to apply the
balancing test, it would still have to view the facts in Dr.
Salaita’s favor. And when the plaintiff’s speech “more
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substantially involve[s] matters of public concern,” the
defendant must make a “stronger showing” of potential
disruption. Connick v. Myers, 461 U.S. 138, 151 (1983); see
also, McGreal v. Ostrov, 368 F.3d 657, 681–82 (7th Cir. 2004)
(“The employer bears the burden of justifying a particular
disciplinary action, and a stronger showing may be necessary
when an employee’s speech more substantially involves matters
of public concern.”). A cursory look at the Complaint reveals
facts that provide some evidence of potential disruption, but
also some evidence that there would be no disruption. For
example, the Complaint alleges that that University faculty
fully supported Dr. Salaita’s appointment, including faculty
members that disagree with Dr. Salaita on the substance of his
speech. (Compl., ECF No. 1 ¶ 99). Although Pickering
balancing is not appropriate at this stage in this case, it
appears that the evidence is conflicting as to the level of
disruption Dr. Salaita’s appointment would cause. Thus,
viewing this evidence in Dr. Salaita’s favor, it seems
unlikely that the University would win its Pickering challenge
at the motion to dismiss stage.
Dr. Salaita’s Complaint alleges facts showing that he was
fired or not hired because of the University’s disagreement
with his personal speech in a public forum on a matter of
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public concern. This is enough to survive a motion to
dismiss.
D. Procedural Due Process (Count II)
A procedural due process claim has two elements: “(1)
deprivation of a protected interest, and (2) insufficient
procedural
protections
surrounding
that
deprivation.”
Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th
Cir. 2008). The University’s Motion does not challenge the
second element; instead, the University argues that Dr.
Salaita had no property interest at all. The University’s
core argument stems from its earlier argument that Dr. Salaita
had no contract, which the Court already discussed above. Dr.
Salaita’s Complaint pleads a sufficient breach of contract
claim, and he was therefore deprived of a property interest
when the contract was allegedly breached. Thus, Dr. Salaita
has pleaded a procedural due process claim.
As an additional basis for alleging a due process
violation, Dr. Salaita alleges that the University deprived
him of his liberty interest when it made unflattering public
statements about him. Because Dr. Salaita’s due process claim
survives dismissal based on the property interest discussed
above, the Court need not address the parties’ arguments
related to this issue.
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E. Conspiracy (Count III)
Count III alleges that Defendants conspired to deprive
Dr. Salaita of his appointment to the University faculty. The
University argues that the claim is facially deficient and
that the intra-corporate conspiracy doctrine applies to bar
Dr. Salaita’s conspiracy claim.
The Seventh Circuit has noted that, even before Twombly
and Iqbal, “conspiracy allegations were often held to a higher
standard than other allegations.” Cooney v. Rossiter, 583
F.3d 967, 971 (7th Cir. 2009). “[M]ere suspicion that persons
adverse to the plaintiff had joined a conspiracy against him
or her [is] not enough.” Id.
To survive a motion to dismiss,
a plaintiff must “allege the parties, the general purpose, and
the approximate date of the conspiracy.” Loubser v. Thacker,
440 F.3d 439, 443 (7th Cir. 2006). The Court must be
realistic, however, in light of what information is available
to a plaintiff at the time a complaint is filed. Id. (“The
dates on which particular defendants joined the conspiracy are
not alleged, but that is not the kind of information that a
plaintiff can be expected to have when she files her
complaint.”) Under current pleading standards, the ultimate
issue is whether the factual allegations in the complaint
“give the defendant fair notice of the claim for relief and
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show the claim has ‘substantive plausibility.’” Girl Scouts
of Greater Chi. and Nw. Indiana, 2015 WL 2151851, at *3
(quoting Johnson, 135 S.Ct. at 347).
Dr. Salaita’s Complaint alleges facts that give a
conspiracy claim substantive plausibility. The parties are
clearly identified as the Board and its members and various
administration officials. The facts in the Complaint, viewed
in Dr. Salaita’s favor, detail the dates of the alleged
conspiracy and its general purpose: to retaliate against Dr.
Salaita because of his tweets. The University makes much of
the lack of allegations regarding precisely what words were
said in forming the alleged conspiracy, but Dr. Salaita cannot
know that information without discovery. See, Loubser, 440
F.3d at 443. He was not at that July 24 meeting, for example,
and so he cannot know exactly what was said there. But what
the Complaint does allege is that, after that July 24 meeting,
the administration Defendants and the Board collectively
decided that Dr. Salaita would not join the faculty. This
meeting occurred in short proximity to the publication and
news coverage of Dr. Salaita’s tweets, and the Complaint
alleges that these tweets were presented at the July 24
meeting. These facts, taken together, make it at least
plausible that Defendants collectively agreed to a course of
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action that would deprive Dr. Salaita of his job. The facts
also detail steps taken after that meeting to lay the
groundwork for justifying the decision, such as a public
explanation from the administration Defendants and a public
statement from the Board showing support for the
administration’s actions. Simply put, Dr. Salaita has pled
sufficient facts to put Defendants on notice as to the source,
dates, and members of the conspiracy. The Court cannot demand
that he also allege what was said at meetings that occurred
outside his presence. Were that the pleading standard, no
plaintiff could state a conspiracy claim if the conspiracy was
formed behind closed doors, as conspiracies often are. Cf.
id.
The University also argues that the intra-corporate
conspiracy doctrine bars Dr. Salaita’s claim. The general
thrust of that doctrine is that “managers of a corporation
jointly pursuing its lawful business do not become
‘conspirators’ when acts within the scope of their employment
are said to be discriminatory or retaliatory.” Wright v. Ill.
Dep’t of Children and Family Servs., 40 F.3d 1492, 1508 (7th
Cir. 1994). Since the Seventh Circuit recognized that
doctrine, it has been applied in other contexts. See, Payton
v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 633
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(7th Cir. 1999) (applying the doctrine to supervisors and
subordinates instead of just managers). To date, however, the
Seventh Circuit has not said whether the doctrine extends to
§ 1983 claims. See, Marshbanks v. City of Calumet City,
No. 13 C 2978, 2013 WL 6671239, at *3 (N.D. Ill. Dec. 18,
2013).
Without Seventh Circuit authority on point, both parties
claim that a majority of district courts support their
position. Dr. Salaita relies on § 1983 police misconduct
cases, where a majority of courts, including this Court, have
refused to apply the intra-corporate conspiracy doctrine.
See, Hobley v. Burge, No. 03 C 3678, 2004 WL 1243929, at *10–
11 (N.D. Ill. June 3, 2004) (collecting cases). The
University points out that other courts have found that “the
majority of district courts in the Seventh Circuit apply the
concept to § 1983 cases.” Mnyofu v. Bd. of Educ. of Rich Twp
Sch. Dist. 227, 832 F.Supp.2d 940, 948 (N.D. Ill. 2011).
Although the two statements appear inconsistent, the court in
Stenson noted the key difference between the two types of
cases: in one line of cases, the alleged illegal conduct
involved a “routine, collaborative business decision,” and in
the other line, the conduct was not routine. See, Stenson v.
Town of Cicero, No. 03 C 6642, 2005 WL 643334, at *8–9 (N.D.
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Ill. Mar. 15, 2005). That is why, in police misconduct cases,
most courts have found the doctrine inapplicable. In such
cases, the alleged conduct is usually “not the product of
routine police department decision-making.” Newsome v. James,
No. 96 C 7680, 2000 WL 528475, at *15 (N.D. Ill. Apr. 26,
2000).
Taking the facts in the Complaint as true, Defendants
actions were far from routine — they were unprecedented. At a
minimum, the University’s conduct here was not routine in
relation to the other professors who were all appointed
summarily and without individual consideration. The Complaint
alleges that never before has the Board or University singled
out a professor for similar treatment in response to
extramural speech on a matter of public concern. The only
difference between Dr. Salaita and the other 120 professors
who were treated differently appears to be Dr. Salaita’s
tweets. This increases the plausibility of Dr. Salaita’s
conspiracy claim generally and his specific claim that he was
being punished for his speech. None of these allegations
demonstrate the type of routine conduct that the intra-
corporate conspiracy doctrine was meant to protect; thus the
doctrine is inapplicable and Dr. Salaita has stated a
conspiracy claim.
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F. Tortious Interference with Contractual and Business
Relations (Counts VI and VII)
Dr. Salaita alleges that currently unknown John Doe
Defendants demanded that “the University terminate [Dr.]
Salaita’s employment . . . or else risk losing their financial
contributions to the University.” (Compl., ECF No. 1 ¶ 133).
The University’s main argument for dismissing these counts is
the lack of a contract, which the Court discussed above and
need not discuss again. The University also argues that the
Complaint does not allege facts satisfying the elements of the
two claims and that, even if it did, the unknown donors’
speech is protected by the First Amendment.
Dr. Salaita first argues that the University does not
have standing to seek dismissal of these counts. This is so,
according to Dr. Salaita, because the donor Defendants have
not yet been named or appeared in this case, and Counts VI and
VII apply only to those Defendants. But, as the University
correctly responds, the Court may dismiss any count sua sponte
if it is obviously deficient on its face. Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). Thus, the Court
may consider whether the claims are worthy of sua sponte
dismissal.
To state a claim for tortious interference with
contractual relations, the plaintiff must allege “a legally
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enforceable contract of which the defendant had knowledge, and
the defendant's intentional interference inducing a breach by
a party to the contract, resulting in damages.” TABFG, LLC v.
Pfeil, 746 F.3d 820, 823 (7th Cir. 2014). The facts alleged
support the existence of a legally enforceable contract,
discussed above, that the donor Defendants knew about. The
Complaint also alleges that those Defendants sought to induce
the University into breaking its contract with Dr. Salaita by
threatening the University to withhold donations. Finally,
the Complaint alleges facts establishing that Dr. Salaita was
damaged by the breach. This is sufficient to state a tortious
interference claim generally.
Aside from disputing the existence of the contract, the
University does not seriously dispute that the Complaint
alleges facts generally establishing tortious interference.
Rather, the University argues that the claim cannot survive
because the alleged conduct, i.e., the donors’ threats to
withhold donations, is protected by the First Amendment. The
Court agrees. Courts cannot apply state tort laws if doing so
violates the First Amendment. Nat’l Org. for Women, Inc. v.
Scheidler, No. 86 C 7888, 1997 WL 610782, at *31 (N.D. Ill.
Sept. 23, 1997). Scheidler is the only case the parties
discuss, and that case contains a thorough and convincing
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analysis for when economic pressure crosses the line from
protected speech to unprotected tortious interference. That
case involved a defendant that sent a letter “threatening
controversy and conflict with antiabortion activists if [the
plaintiff] were allowed to enjoy the benefits of [a] lease.”
Id. at *23 (internal quotation marks omitted). The plaintiff
argued that the letter constituted tortious interference
because it sought to induce one party to break its contract,
but the court rejected that argument. Id. at *23–31.
The court analyzed the contours of the First Amendment
and found that the defendant’s speech was protected from a
tortious interference claim. Id. at *31. The court found that
“nonviolent campaigns that are (1) politically motivated, and
(2) waged against an entity by a commercial noncompetitor are
protected under the First Amendment.” Id.
Because the
defendant only threatened peaceful protest, and because the
defendant was not a commercial competitor seeking to eliminate
competition, the court found that the First Amendment
protected the defendant from a tortious interference claim.
Id. at 30–31.
Moreover, the defendant’s speech was protected, even
though it was posed as a quid pro quo threat. Id.
Regarding
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the importance of being able to influence the government, the
court noted:
“It is inevitable, whenever an attempt is made to
influence legislation by a campaign of publicity,
that an incidental effect of that campaign may be
the infliction of some direct injury upon the
interests of the party against whom the campaign is
directed. To hold that the knowing infliction of
such injury renders the campaign itself illegal
would thus be tantamount to outlawing all such
campaigns.”
Id. at 28 (quoting Missouri v. Nat’l Org. for Women, Inc., 620
F.2d 1301, 1314-115 (8th Cir. 1980)). The court found that
this rationale applied to the defendant’s letter, even though
it sought to induce one party to break its contractual
obligations. Id. at 31.
This case is no different than Scheidler. The donor
Defendants exercised their First Amendment rights by
contacting the University to express their displeasure with
Dr. Salaita’s hiring. Similar activity was found to be
protected in Scheidler, and the Court sees no reason to rule
differently here. Dr. Salaita tries to distinguish Scheidler
by characterizing the donor Defendants’ speech here as a quid
pro quo demand, but this distinction is without merit. As
noted above, the letter in Scheidler was also of a similar
quid pro quo nature. Because it is clear on the face of the
Complaint that the donor Defendants’ allegedly tortious
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activity is protected by the First Amendment, Dr. Salaita
cannot possibly prevail on his tortious interference claims.
The First Amendment is a two-way street, protecting both Dr.
Salaita’s speech and that of the donor Defendants. The Court
therefore dismisses Counts VI and VII.
G. Intentional Infliction of Emotional Distress (Count VIII)
Dr. Salaita alleges that he suffered severe emotional
distress after Defendants induced him to resign his prior job
and move to Illinois before ultimately firing him. To state a
claim for intentional infliction of emotional distress, Dr.
Salaita must allege that (1) Defendants’ conduct was “truly
extreme and outrageous, (2) Defendants intended that their
conduct would inflict severe emotional distress or at least
knew that there was a “high probability” that the conduct
would cause severe emotional distress, and (3) that the
conduct “in fact cause[d] severe emotional distress.” McGrath
v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).
As to the conduct, it must be “‘so outrageous in
character, and so extreme in degree, as to go beyond all
bounds of decency.’” Pub. Fin. Corp. v. Davis, 360 N.E.2d
765, 767 (Ill. 1976) (quoting Restatement (Second) of Torts
§ 46 cmt. d (1965)). This is especially true in the
employment context. “Courts are cautious in their treatment of
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emotional distress claims in the employment domain, because if
‘discipline, job transfers, or even termination could form the
basis of an action for emotional distress, virtually every
employee would have a cause of action.” Safi v. Royal
Jordanian Airlines, No. 08 C 7365, 2010 WL 4339434, at *4
(N.D. Ill. Oct. 25, 2010) (quoting Welsh v. Commonwealth
Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1999)). Put
simply, a plaintiff must point to more extreme conduct than an
unlawful termination. See, Stoecklein v. Ill. Tool Works,
Inc., 589 F.Supp. 139, 146 (N.D. Ill. 1984) (finding that an
employer’s conduct was not sufficiently outrageous when the
employer terminated the plaintiff because he was “too old,” in
violation of age discrimination laws).
The facts in the Complaint, even viewed in Dr. Salaita’s
favor, do not demonstrate conduct that is beyond all bounds of
decency. Although the Complaint states First Amendment and
breach of contract claims, the mere fact that an employer
violated the law does not, by itself, constitute sufficiently
outrageous conduct. See, id.
The Court does not doubt the
severity of harm Dr. Salaita suffered to his career and
reputation, but the University’s decision to fire him, even if
illegal, is not the type of conduct that justifies an
emotional distress claim. See, e.g., Milton v. Ill. Bell Tel.
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Co., 427 N.E.2d 829, 833 (Ill. App. Ct. 1981) (finding that a
plaintiff stated an emotional distress claim when his employer
demanded that he violated criminal laws by filing false
reports, then continually harassed and eventually fired him
for not filing those reports). Because the conduct at issue
is nothing more than an allegedly unlawful termination, Dr.
Salaita’s claim for intentional infliction of emotional
distress must be dismissed.
H. Spoliation of Evidence (Count IX)
In this count, Dr. Salaita alleges that Chancellor Wise
wrongfully destroyed a two-page memo, and possibly other
evidence, that would have been helpful to Dr. Salaita in
pursuing his claims. Unlike some states, Illinois “does not
recognize a tort for intentional spoliation of evidence.”
Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 509 (7th
Cir. 2007). Instead, spoliation claims are analyzed as
general negligence claims, “which to prevail will eventually
require showing a duty (in this case to protect documents), a
breach of that duty, causation, and damages.” Id.
The
damages element for spoliation claims requires allegations
that the “destruction of evidence caused the plaintiff to be
unable to prove an underlying lawsuit.” Boyd v. Travelers
Ins. Co., 652 N.E.2d 267, 271 (Ill. 1995). Thus, Dr. Salaita
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does not have to first lose the underlying suit in order to
show damages, but the facts alleged must show that the
destruction prevents him from proving his underlying suit.
Id.
Dr. Salaita has not explained what claims in this suit he
is unable to prove due to the lost memo. Rather, he generally
alleges that the destruction “interfered with [his] ability to
prove his claims, thereby causing him further damages.”
(Compl., ECF No. 1 ¶ 145). This is insufficient to state a
negligent spoliation claim, especially to the extent that the
evidence was intended to help prove claims that the Court
already dismissed above. Boyd, 652 N.E.2d at 271 n.2 (“[I]f
the plaintiff could not prevail in the underlying action even
with the lost or destroyed evidence, then the defendant’s
conduct is not the cause of the loss of the lawsuit.”).
Furthermore, the Complaint’s allegations do not
demonstrate that Chancellor Wise owed Dr. Salaita a duty at
the time she destroyed the memo. Dr. Salaita claims that the
duty arose from the State Records Act, which outlines
Illinois’ requirements for retaining records. See, 5 ILCS
160/8. Dr. Salaita fails to cite a single case where this
statute formed the basis for a negligent spoliation claim, and
the Court cannot find such a case. Also, citing this general
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statute is not enough for negligent spoliation claims; Dr.
Salaita must show that Chancellor Wise specifically owed him a
duty to preserve this specific memo. Forsythe v. Clark USA,
Inc., 864 N.E.2d 227, 280 (Ill. 2007) (“[T]he touchtone of
this court’s duty analysis is to ask whether a plaintiff and a
defendant stood in such a relationship to one another that the
law imposed upon the defendant an obligation of reasonable
conduct for the benefit of the plaintiff.”). This requirement
is especially important in Illinois, where “the general rule .
. . is that there is no duty to preserve evidence.” Martin v.
Keeley & Sons, Inc., 979 N.E.2d 22, 28 (Ill. 2012).
Finally, any harm caused by the loss of the memo is at
least minimized by the fact that Chancellor Wise sent an email
to University officials briefly summarizing what was in the
memo. Although this is not as helpful as having the actual
memo, Dr. Salaita has at least some idea of what was in the
memo and will be able to explore that topic further in
discovery.
In sum, because Dr. Salaita has not established that
Chancellor Wise owed him a duty to preserve the memo or that
he was damaged by the destruction, Count IX must be dismissed.
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I. Immunity Issues
The University’s final argument is that various
Defendants are immune from suit, either on sovereign immunity
grounds or qualified immunity grounds. The Court will
consider each argument in turn.
1. Sovereign Immunity
Dr. Salaita’s Complaint implicates two sovereign immunity
issues. The first is whether the Eleventh Amendment bars all
of Dr. Salaita’s claims — state and federal — against the
Board and the individual Defendants in their official
capacities. If the Eleventh Amendment grants those Defendants
immunity, the inquiry is at an end and those Defendants would
be dismissed. If, however, the Eleventh Amendment poses no
obstacle to this lawsuit in general, the issue then becomes
whether this Court has jurisdiction to hear Dr. Salaita’s
state law claims in light of the Illinois Court of Claims Act,
705 ILCS 505/1 et seq.
The Court has already dismissed Dr.
Salaita’s state law claims in Counts VI, VII, VIII, and IX, so
the only remaining state law claims potentially at issue would
be Count IV (promissory estoppel) and Count V (breach of
contract).
Two additional factors make things much more complicated
here. First, the Eleventh Amendment issue applies to all of
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Dr. Salaita’s claims, state and federal. Benning v. Bd. of
Regents of Regency Univs., 928 F.2d 775, 777 (7th Cir. 1991).
The Illinois Court of Claims Act issue, however, applies only
to Dr. Salaita’s remaining state law claims. Id.
Second,
federal law applies in deciding whether the Eleventh Amendment
provides Defendants blanket immunity, whereas state law
applies in deciding whether the Illinois Court of Claims
(“ICC”) has exclusive jurisdiction over Dr. Salaita’s state
law claims, assuming the Eleventh Amendment allows such claims
at all. Id. The parties put their various arguments regarding
all of these issues into a hodge-podge rather than teasing
them out separately, thereby obscuring, rather than
clarifying, the Court’s task. Even worse, Dr. Salaita’s
response ignores entirely all applicable state law and focuses
solely on arguing that the Board should not be considered part
of the state. To make the analysis clearer, the Court will
first discuss the Eleventh Amendment issue and the application
of federal law to that issue. The Court will then discuss the
Illinois Court of Claims Act and the state law that applies.
The Eleventh Amendment 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
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Citizens or Subjects of any Foreign State.” Despite its plain
language, “the amendment has been construed to forbid suits
prosecuted against a state by its own citizens as well.” Id.
(citing Hans v. Louisiana, 134 U.S. 1 (1890)). Dr. Salaita’s
sole argument is that the Board should no longer be considered
part of the State of Illinois for sovereign immunity purposes
under the test set forth in Ranyard v. Bd. of Regents, 708
F.2d 1235, 1238 (7th Cir. 1983). The University responds that
the Court need not resort to that test because several cases
over the years have consistently reaffirmed that the Board is
an arm of the state. See, e.g., Pollak v. Bd. of Trs. of Univ.
of Ill., No. 99 C 710, 2004 WL 1470028, at *2–3 (N.D. Ill.
June 30, 2004).
Though the parties have spilled much ink on this issue,
the Court need not reach it for several reasons. First, the
Eleventh Amendment does not bar claims seeking injunctive
relief like Dr. Salaita seeks here. See, Mutter v. Madigan,
17 F.Supp.3d 752, 758 (N.D. Ill. 2014) (“[A] suit for
prospective injunctive relief is not deemed a suit against the
state and thus is not barred by the Eleventh Amendment.”)
(internal quotation marks omitted). Thus, to the extent Dr.
Salaita seeks an injunction reinstating him as a professor,
the Eleventh Amendment does not require dismissal of the Board
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or the individual Defendants sued in their official
capacities.
Second, the Eleventh Amendment only bars “unconsenting”
states from suits in federal court, Benning, 928 F.2d at 777,
and the Illinois Supreme Court has recently clarified that
state law allows claims like Dr. Salaita’s to be brought
outside the ICC. Leetaru v. Bd. of Trs. of Univ. of Ill., 32
N.E.3d 583, 595–98 (Ill. 2015). As discussed below, the
allegations in Dr. Salaita’s Complaint bring his suit outside
the ICC’s exclusive jurisdiction. Thus, the Court need not
decide whether the Board should still be considered part of
the state for Eleventh Amendment purposes because, even if it
is, state law allows Dr. Salaita’s claim to proceed in federal
court.
Turning to the state law issue directly, the University
argues that the ICC possesses exclusive jurisdiction over Dr.
Salaita’s state law claims. In Illinois, “[t]he doctrine of
sovereign immunity was abolished . . . by the 1970
Constitution ‘[e]xcept as the General Assembly may provide by
law.’” Id. (quoting Ill. Const 1970, art. XIII, § 4).
Shortly after abolishing constitutional sovereign immunity,
Illinois adopted statutory sovereign immunity when the General
Assembly enacted the State Lawsuit Immunity Act, 745 ILCS
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5/0.01 et seq. Id.
The statute provides that “the State of
Illinois shall not be made a defendant or party in any court,”
“except as provided in the . . . Court of Claims Act.” 745
ILCS 5/1. The Court of Claims Act, in turn, gives the ICC
exclusive jurisdiction over several matters, including “[a]ll
claims against the State founded upon any contract entered
into with the State of Illinois” and “[a]ll claims against the
State for damages in cases sounding in tort.” 705 ILCS
505/8(b), (d).
The University argues that this statutory language covers
Dr. Salaita’s breach of contract and promissory estoppel
claims and that he must therefore bring those claims before
the ICC. But the Illinois Supreme Court has made clear that
the analysis is not so simple. “Whether an action is in fact
one against the State and hence one that must be brought in
the Court of Claims depends on the issues involved and the
relief sought.” Leetaru, 32 N.E.3d at 595. Leetaru explains
that there are exceptions to when the ICC will have exclusive
jurisdiction: the Illinois Lawsuit Immunity Act “affords no
protection . . . when it is alleged that the State’s agent
acted in violation of statutory or constitutional law or in
excess of his authority.” Id. at 595 (emphasis added). The
court went on to explain that “not every legal wrong committed
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by an officer of the State will trigger this exception.” A
claim for “simple breach of contract and nothing more,” for
example, will not trigger the exception. Id. at 596. But when
the state’s action is alleged to be unauthorized or
unconstitutional, the state cannot “justifiably claim”
sovereign immunity. Id.
The court in Leetaru ultimately found that the ICC did
not have exclusive jurisdiction when the plaintiff alleged
that the University violated his due process rights in
investigating academic misconduct. Id. at 597. The court
found sovereign immunity inapplicable even though the
University was acting within its authority to investigate
academic misconduct. Id. Even when the state acts within the
scope of its authority, sovereign immunity will not protect it
from claims that it violated a plaintiff’s constitutional
rights. Id.
The University argues that the Board and its members were
acting within their authority whey they voted against Dr.
Salaita’s appointment. But Dr. Salaita has alleged in his
state-law counts that the Board and its members violated the
First Amendment in acting within that authority. If the
plaintiff in Leetaru could seek injunctive relief outside the
ICC based on the University’s allegedly unconstitutional
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conduct in investigating academic dishonesty, Dr. Salaita can
pursue similar injunctive relief here based on the Board’s
alleged violation of the First Amendment in voting against his
appointment. See, id.
Thus, at least as to his claims for
injunctive relief, Dr. Salaita can proceed in federal court.
That leaves Dr. Salaita’s state-law claims for damages.
This is the thorniest issue because Dr. Salaita’s Complaint
falls squarely between two competing principles. On the one
hand, the Illinois Supreme Court has said repeatedly that
“sovereign immunity affords no protection when agents of the
State have acted in violation of . . . constitutional law”
(the “No Protection Principle”). Id. (emphasis added). This
language is broad and implies that, so long as there are
allegations of constitutional misconduct, a state-law claim
can proceed in any venue. On the other hand, that court has
also made clear that there is a difference between seeking
damages and an injunction, and claims for damages against the
state belong in the ICC (the “Damages Principle”). See, id.
at 598. Thus, Illinois law is clear regarding the two
extremes. First, if a state-law claim alleges constitutional
violations and seeks only an injunction, the No Protection
Principle allows the claim to proceed outside the ICC without
violating the Damages Principle. Second, if a claim alleges
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no constitutional violation and seeks monetary damages, the
Damages Principle requires the claim to proceed in the ICC
without violating the No Protection Principle.
This case, however, pits the two principles against each
other. Under the No Protection Principle, Dr. Salaita’s claim
can proceed outside the ICC because his breach of contract and
promissory estoppel claims allege constitutional violations.
But under the Damages Principle, Dr. Salaita’s claim belongs
exclusively in the ICC because he is seeking damages in
addition to an injunction. Illinois law is not clear in this
gray area, with most cases falling into the two extremes
described above. Compare, id. at 594–98 (allowing the claim to
proceed outside the ICC when the complaint alleged a due
process violation and only sought an injunction), with Healy
v. Vaupel, 549 N.E.2d 1240, 1247–48 (Ill. 1990) (finding that
claim belonged in the ICC when the complaint did not allege a
constitutional violation and sought damages).
Although Illinois law is not clear on this issue, the
reasoning in past cases indicates that the No Protection
Principle likely wins over the Damages Principle. In Healy, a
case cited with approval in Leetaru, the Illinois Supreme
Court looked to the “basis for the . . . action” to determine
whether it belonged in the ICC. Healy, 549 N.E.2d at 1248.
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Importantly, the plaintiff sought damages as a remedy for
negligence that did not involve the violation of any
constitutional provision or statute. Id. The Illinois
Supreme Court found that the action belonged exclusively in
the ICC “[b]ecause the plaintiff does not allege that any of
the defendants acted . . . in violation of law.” Id.
(emphasis added). This indicates that if the claim at issue
had involved a constitutional violation, the ICC would not
have had exclusive jurisdiction, even though the claim sought
monetary damages. Thus, the Court finds that, because Dr.
Salaita’s remaining state-law claims (Counts IV and V) allege
that the Board acted in violation of the First Amendment,
sovereign immunity “affords no protection,” even as to claims
for damages. See, Leetaru, 32 N.E.3d at 597; see also, Healy,
549 N.E.2d at 1248.
As to the administration Defendants, the University
argues that Dr. Salaita cannot sue them in their official
capacities because they do not have the authority to provide
what Dr. Salaita seeks: reinstatement. According to the
University, only the Board has that power. The University is
correct that Dr. Salaita’s claims are no good against any
Defendant who does not have the power to grant him the
injunctive relief he seeks. See, Mutter, 17 F.Supp.3d at 758.
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But it is not clear on the face of the Complaint whether the
administration Defendants have control over Dr. Salaita’s
reinstatement. Thus, the Court cannot yet dismiss the
administration Defendants to the extent they are sued in their
official capacities. If, at summary judgment or trial, there
is no evidence that the administration Defendants have the
power to reinstate Dr. Salaita, then the Court would dismiss
those Defendants to the extent they are sued in their official
capacities. Dismissal at this stage, however, is premature.
In sum, neither the Eleventh Amendment nor the Illinois
Court of Claims Act prohibits Dr. Salaita’s state-law claims
for injunctive relief. As for his claims for damages, the ICC
does not have exclusive jurisdiction because Dr. Salaita’s
Complaint alleges that the Board acted in violation of the
Constitution.
2. Qualified Immunity
Lastly, the University argues that the individual
Defendants are all entitled to qualified immunity to the
extent that they are sued in their individual capacities.
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
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known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks omitted). The doctrine “balances
two important interests — the 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.” Id.
Although there are instances where qualified immunity is
decided at the motion to dismiss stage, see, e.g., Danenberger
v. Johnson, 821 F.2d 361, 365 (7th Cir. 1987), complaints are
“generally not dismissed under Rule 12(b)(6) on qualified
immunity grounds, Alvarado v. Litscher, 267 F.3d 648, 651 (7th
Cir. 2001). This is because qualified immunity is a defense,
and plaintiffs are not usually required to plead around a
defendant’s defenses. See, id.
Put bluntly, “‘Rule 12(b)(6)
is a mismatch for immunity and almost always a bad ground for
dismissal.’” Id. at 652 (quoting Jacobs v. City of Chicago,
215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J.,
concurring)).
This case is a prime example of why qualified immunity
would be inappropriate at the dismissal stage; the Court would
have to go well beyond the facts alleged in the Complaint to
resolve the qualified immunity issue here. Part of the
University’s argument is premised on the assumption that it
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will win on the merits of Dr. Salaita’s First Amendment claim.
As discussed above, Dr. Salaita has adequately pleaded such a
claim. Thus, to resolve the qualified immunity issue in the
University’s favor at the motion to dismiss stage would be
akin to predetermining that the University will ultimately win
on the merits. This, the Court cannot do. Thus, the Court
finds that the qualified immunity issue is best left for
summary judgment or trial.
IV. CONCLUSION
For the reasons stated herein, the University’s Motion to
Dismiss [ECF No. 32] is granted to the extent that Counts VI,
VII, VIII, and IX are dismissed with prejudice. The Motion is
denied as to the remaining counts.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 8/6/2015
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