Steven Salaita’s Promissory Estoppel Claim is Weak

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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17 Responses

  1. Jack says:

    Interesting post. My question is: Would it make a difference if, say, 1) no recommended appointment had ever been denied by the board, and 2) the person who made the offer had been authorized by all higher ups to engage in the search and to make an offer?

  2. Dave,

    Nowhere in the post do you acknowledge what seems to be a central fact: after waiting 10 months, Chancellor Wise never submitted Salaita’s appointment to the Board for approval. Perhaps if she had and the Board rejected the appointment, Salaita might not be entitled to promissory estoppel. (Although, as Dorf points out in his convincing response to you today, the University’s regular practice was to seek Board approval after an employee had already started working for the University.) But Chancellor Wise did not submit the appointment; she rejected it herself (again, 10 months after it was accepted) on the ground that in her view the Board would not approve it. Maybe she’s right — or maybe she was afraid that it would appoint someone she found offensive. Either way, I do not see how you could deny promissory estoppel to Salaita, given that he certainly had a right to rely, at a minimum, on the University following the procedure set forth in his letter for the confirmation of his appointment.

    • I’m with Kevin on this cause of action for promissory estoppel. The letter does say it is subject to Board approval but continues to talk of offer and the only thing left being the prof to be’s acceptance of the offer. The facts of the case as known so far are that he accepts in October and makes changes in his life over months thereafter and there is nothing but silence from the Board and the administration is talking about him being a part of the faculty for the fall. That is surely a case that goes to a jury at least and survives summary judgment on the question of promissory estoppel. As someone who handles contracts with tort implications and personal injury cases from the defense, and advises insurers who are covering part or all of the claims, I can assure you I would not be as blithe about the lack of success as Mr. Hoffman is being. And I doubt he would if he was advising the university as to their chances to completely smoke Salaita (I guess I’m pulling rank here myself! :-)). And I also say this as someone who found Salaita’s comments very harsh and deeply intemperate….

  3. Dave Hoffman says:

    Kevin

    Do you have a copy of the actual letter? (If you do, please email to me, as I can’t find it online.)

    I don’t know what Illinois practice was. If, in fact, people ordinarily begin teaching before the approval comes through, the case might be different. The actual – not hypothetical or anecdotal – facts matter, *as my post clearly states.* But I do know that merely delaying 10 months doesn’t matter if, as in most universities, many different hires are considered by the provost and board together over the summer.

    Jack, yes I think that the university’s practice matters. I don’t think approval to make an offer alone so long as the board retained authority to say no to particular people on the back end. Else why retain that authority at all?

  4. Dave,

    You can find it here — along with the recission email (!).

    http://www.news-gazette.com/sites/all/files/pdf/2014/08/13/14-529.Documents.pdf

    Would be curious to know how it affects your analysis.

  5. You might also take the time to read this analysis of Salaita’s tweeting:

    http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html

    You may still find the tweets highlighted by Cary Nelson and the University to be offensive, but they need to be read in context — which Nelson didn’t. (Indeed, he admitted he knows nothing about twitter and claimed that each individual tweet stands on its own, which is obviously unfair.) If nothing else, a fuller look at Salaita’s tweets make clear that however critical of Israel he may be (which is not surprising, given his Palestinian background), he is anything but some kind of anti-Semite.

  6. Query says:

    A tenured position at a public university — particularly when given to a young scholar — means the commitment of several million dollars from the public fisc. It’s certainly reasonable for state law to provide that such commitments can only be made by the highest level actors responsible for the university’s budget — i.e., the regents.

    If actions by a lower-level administrator, such as a department chair, can result in an enforceable promise that is in all intents and purposes the same as that action by the regents, then that check-and-balance, designed to safeguard the management of the public institution, will be defeated. It seems to me that, as a matter of state governance law, that’s a terrible result. And perhaps it should be considered barred by sovereign immunity. (Compare the antideficiency act in federal law — which makes promises of federal payment a crime if they’re in excess of congressional lay granted authority.)

    To the extent there’s an estoppel claim, then, perhaps it should be limited to the one academic year that he was evidently prepared to begin teaching while he waited for the tenure approval.

  7. Lawrence Cunningham says:

    Interesting debate. There is a further problem concerning promissory estoppel under Illinois law, which is the statute of frauds. It likely applies to a promise of life time tenure and I cannot tell from the facts whether a written memorandum of the promise was ever rendered. See generally Dumas v. Infinity Broadcasting Corp., 416 F.3d 671 (7th Cir. 2005) (applying Illinois state law). Here is the relevant section of the Illinois statute of frauds:

    “No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

  8. Lawrence,

    Not my area of law, but the offer letter, which Salaita accepted, specifically noted that the appointment included indefinite tenure. You can find the letter at the link I posted above.

    • Bloix says:

      The letter you link to says it is a “recommendation for appointment” and that it is “subject to approval.” This is not ambiguous language – it clearly provides that Salaita cannot form a binding contract by accepting. This sort of thing goes on all the time – Agent A solicits B to agree to terms, which do not become a binding contract until A’s principal C agrees.

      This is why Salaita’s supporters have to spin a promissory estoppel theory instead of asserting a straight contract claim. Their problem is that their leading case (Newton Tractor) did not involve a written disclaimer like this. Until someone shows me a case in which PE trumps a contrary writing (and the case may exist), I’m going to continue to believe that PE is irrelevant to this dispute.

  9. Andrew F. says:

    Dorf fails to recognize that the letter is only part of the correspondence sent to Salaita.

    Enclosed with the letter is a statement containing general terms. This statement reiterates that the Board must approve any appointment.

    Moreover, and perhaps most damning, the statement explicitly notes that it only provides excerpts, and that for the full terms the applicant should consult the governing Illinois statutes, which are cited.

    Those statutes clearly state that the hiring process is as follows: the dean transmits a recommendation to the Chancellor or applicable Vice President, who then may recommend appointment to the Board, who then may decide whether to actually make the appointment.

    See my comment here for the relevant quotations.

    I link to the full correspondence in earlier comments.

  10. Andrew F,

    It’s a bit convenient that you ignore the text of the actual offer letter that Salaita signed, which clearly states that the appointment is subject — and by implication only subject — to approval by the Board of Trustees. Nowhere in the actual offer letter does it state that the process for confirming the appointment specified is subject to modification by a provision in a University statute that the letter does not directly reference and that was not even included with the letter. Indeed, the actual offer letter refers to the included partial document as containing “general terms of employment,” not “general terms of appointment,” and the “general terms of employment” specifically state that the terms apply to “academic staff members” — ie, those that have already been appointed. The idea that a court would ignore the plain text of the actual offer letter in favour of a provision never referred to in that letter and only available by clicking a l, especially in the context of promissory estoppel is thus more than a little unconvincing, especially in the context of promissory estoppel.

    • Andrew F. says:

      The letter doesn’t stand by itself. It does not purport to set out the full conditions of Salaita’s appointment, and it is for that reason that more specific terms are included in the enclosed document and in the statutes referenced in that document. Those specific terms are as plain, as clear, and as important as the information contained in the letter. The title of the document means little given that the very first section governs the procedure to be appointed. Content ordinarily trumps a questionable interpretation of a title or section heading. When the cover letter explicitly describes itself as a recommendation subject to approval, when the general terms attached further state as much, note that they are not exhaustive, and direct the reader to the specific statute describing the process, it is very hard to believe that it is reasonable to ignore all of this and construe the letter as though it were sent by itself. The case for PE here relies on the court finding reasonable an entirely selective ignorance by the potential plaintiff of material terms and conditions that constituted in large part the substance of what he was being offered. I recommend the court reject that proposal, but my recommendation is subject to their approval.

  11. Stash says:

    Am I missing something, or is the reliance here not on the promise, but on the representation that the trustees would approve the appointment? If the latter, isn’t this just a prediction or opinion that would not be actionable, unless it was fraudulent because it was said knowing that approval was actually unlikely or not forthcoming as a certainty? It may be a prediction on which a reasonable person would rely, but there is no estoppel for predictions.

    Is the argument here then that he was “promised” that the trustees would grant approval? The words might matter, but even if it was framed as a promise, it seems that a reasonable listener would construe it as a prediction, because the speaker is representing what others will do. E.g., “I promise so-and-so will win the election” is generally not taken to be a promise at all, even if made by Nate Silver.

    Or, have I missed the boat entirely because representations concerning the promise served to transform it from a conditional promise to an unconditional one?

    Second, is “indefinite tenure” an industry term that takes this out of Illinois’ harsh employment-at-will doctrine that tends to trump promissory estoppel in the employment context? Seems like it would if “tenure” carries with it the agreement that he could only be fired for cause.

    Just asking.

  12. Karen says:

    Promissory Estoppel is an equitable claim and, as such, a “clean hands” element will come into play. I have a hard time believing that a court would give the benefit of such a claim, under these facts, to a person who publicly wrote the following:

    “Rednecks need a new slogan. Instead of “kick their ass and take their gas,” how about “#Gaza is a disaster, but Netanyahu is my master”? (Aug 2)

    “Republicans are such tough guys, eager to kill 4 God and country. #Israel slaps around the US of A, though, and all they do is ask for more.” (Aug 2)

    “#Israel is rounding up people and murdering them at point-blank range. The word “genocide” is more germane the more news we hear. #Gaza” (Aug 1, without referencing any source for the charge)

    “#Israel’s message to #Obama and #Kerry: we’ll kill as many Palestinians as we want, when we want.

    p.s.: fuck you, pay me.

    #Gaza”

  13. Eric Rasmusen says:

    How about this argument? —The Department led Salaita to believe that the Trustees *had* approved the offer at some point after he accepted it. We’d need evidence, but I’m sure it exists, in the form of telling him his office number, what courses he would teach, helping him find a house, and so forth.

    Otherwise, could a university hire a professor on the condition that the Trustees approve the offer, deliberately hold off on putting his name before the Trustees, and then say two years later, “Sorry, you were never approved. You don’t have a job here.”

    (Note that in the Salaita case the biggest problem is that apparently Illinois doesn’t allow contract claims based on the apparent authority of a government agent. But it’s interesting to ask what would happen in the absence of such a statute.)