Sydni Dunn

Staff Reporter at The Chronicle of Higher Education

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Can the Board of Trustees Really Revoke My Job Offer?

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Images: Ian Bogost (left) and Robert Warrior (right) say new hires almost never think about the fact that their final contracts might be contingent on approval from trustees.

As if there weren’t enough to consider when deciding to accept an academic job, there’s something new to add to the list: the offer’s stability.

Earlier this month the University of Illinois at Urbana-Champaign grabbed headlines when it revoked a written job offer to Steven G. Salaita, a professor who drew accusations of incivility for his fierce Twitter commentary about Israel. You’ve probably heard about the case several times over by now, but if not, here’s a quick recap: Salaita, an associate professor of English at Virginia Tech, was offered a tenured professorship in American Indian studies at Illinois, subject to approval by the university’s Board of Trustees. He gave notice to Virginia Tech and was expected to begin work at the Urbana-Champaign campus last week.

At the start of August—once the controversial tweets had drawn attention—Phyllis M. Wise, the campus’s chancellor, and Christophe Pierre, the university system’s vice president for academic affairs, told him in a letter they would not bring his appointment before the board, as “an affirmative board vote approving your appointment is unlikely.”

The news of Salaita’s job denial spread like wildfire: The #Salaita hashtag filled Twitter feeds, prominent academic associations weighed in, petitions demanding the administration reconsider circulated, and commentary about the situation littered the scholarly blogosphere.

One of the big things to emerge from all the chatter is the fact that Salaita’s offer had to be approved by the trustees, a stipulation that many job candidates or professors who are considering a job change rarely think twice about. And now that the loophole has been illuminated, some are questioning what exactly it means.

Does every institution require new hires to be approved by trustees?

Most of them do, says Andy Brantley, president and CEO of the College and University Professional Association for Human Resources. It’s common practice to have public and private university governing boards give the final say on academic appointments. The timelines and criteria for such decisions vary by school, but generally, the board votes on all matters related to the institution’s academic mission.

Why hadn’t I heard about this until now, then?

Up until now, the trustee vote had been widely considered a rubber stamp, says Robert Warrior, director of the university’s American Indian studies program, which Salaita would have joined this fall.

“I’ve never known someone to be denied hiring this late in the process,” he says. According to Warrior, Salaita had no reason to believe he wouldn’t be hired. “I think that anyone that would have talked to him would have shared their own experience, like I did”—that “the board approval is expected in every hire.”

In fact, it’s hard to find examples of trustees shooting down a professor’s hiring; if a job offer does get rescinded, that typically happens before a letter of intent is on the table. “Once a decision is reached by the provost, everything is essentially done,” Warrior says. “I didn’t receive final notification that my appointment was approved until after I arrived on campus.”

Wait, so Warrior came to the Urbana-Champaign area before he had final approval? Is that really common?

Yep, that’s true for many academics. “Every offer letter has a weird loophole, and I don’t think anybody thinks about it,” says Ian Bogost, professor of interactive computing at the Georgia Institute of Technology, who recently penned a column about Salaita’s debacle titled “Academic Paydom.”

If trustee approval is usually just a rubber stamp, why does it take so long?

Some policies, like this one at the University of North Carolina at Asheville, create at least a loose expectation of expediency in approving academic appointments: “Once a candidate accepts the offer, the prospective faculty member receives a Letter of Intent from the Office of Academic Affairs and a cover letter which includes the details of any start-up package. The prospective faculty member is encouraged to sign and return the Letter of Intent in a timely manner so that it can be presented to the Board of Trustees at its upcoming meeting.”

But many others, like the University of Illinois, leave it open-ended. While most boards hold monthly or bimonthly meetings, academic approvals aren’t always at the top of the heap. (Especially not appointments starting the next academic year.)

In the case of Salaita, he signed an offer letter last October, and it was slated to go before the board this September, just shy of a year later.

“I doubt there’s a policy that says the board must wait an inordinate amount of time to decide,” Warrior says. “It’s just not a priority for the board, the president, or the chancellor, which is why it takes so long.”

When he accepted his current position at Georgia Tech, Bogost didn’t fret over the potential of a trustee veto. In fact, he doesn’t even remember how long he had to wait for final approval—"which is interesting in and of itself,” he says. “I certainly don’t recall giving it a second thought. There weren’t stories like this.”

And now there’s one. So what does it mean?

To answer that, one must first ask: Was Salaita ever really employed?

The short answer: It’s unclear. Supporters of the university’s decision have been quick to note the difference between firing a tenured professor and just deciding not to hire him. Cary Nelson, a professor of English at the university and a former president of the AAUP who remains a member of its Committee A on Academic Freedom and Tenure, was among them.

"Academic freedom does not require you to hire someone whose views you consider despicable," Nelson said in a written statement. "It prevents you from firing someone from a job for their views." Because Salaita had not received the OK from the Board of Trustees, this line of thinking goes, he was not entitled to the same protection as a current member of the faculty.

But some experts think Salaita has a case. They point to a legal doctrine called promissory estoppel—which states if a party changes its position after “a gratuitous promise,” then that party can enforce that promise even if essential contract elements aren’t present. In other words, Salaita left a tenure-track job based on the promise of the Illinois professorship. So, the argument goes, he might have a claim.

“By giving up his position at Virginia Tech, Salaita gave up a job in which he had academic freedom,” writes Michael C. Dorf, a law professor at Cornell University who has weighed in on this issue. “Thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom.”

Then again, Dorf’s argument has its doubters, too. “There was a promise, but it didn’t unambiguously assure employment,” writes Dave Hoffman, a professor of transactional and business law at Temple University. “Under the facts as they’ve been reported, the offer letter … explicitly stated that it was contingent on final board approval.”

So if it’s murky, where does this leave Salaita?

We don’t know. We don’t even know if he’s pursuing legal action. He and the university have remained quiet in recent weeks, leading some to speculate they are working on a settlement. Only time will tell.

And where does this leave me? Should other job seekers worry?

Bogost thinks they should. “The harrowing thing for me,” he says, “is that there’s no reason why this couldn’t have been anybody. This is not a special case. This is a thing now. This is a thing we have to ponder and consider.”

Universities and applicants alike should consider the Salaita case as a “wake up call,” he adds. “Wouldn’t we all rather avoid these situations?”

Sure. How?

First off, there’s no real way to avoid these contract caveats. They’re part of the deal. “Professors are likely to have little leverage in negotiating this loophole away,” Bogost wrote on his blog.

But there are other spots where faculty members leaving one job for another may have some leverage. One possibility: negotiating unpaid leave, instead of immediately giving notice, as insurance against uncertainties in the job-transfer process. This has become an increasingly common way for soon-to-be-hires to hedge against the possibility that a new job will turn out not to be a match.

Anita Levy, associate secretary in the AAUP’s Department of Academic Freedom, Tenure, and Governance, agrees that taking a leave is an option, if it can be managed.

Great, so if I’m applying for a new tenure-track job, I can just do that?

There are some wrinkles. For one, taking an unpaid leave could have implications for the institution from which a candidate is departing, as every professorship frozen in temporary leave means one fewer job on the market. “We do like folks to give adequate notice to the institutions they are leaving so the institution can fill that position,” Levy says. The AAUP recommends professors resign no later than May 15, or 30 days after they accept a new offer. “But someone wouldn’t blame them for negotiating a leave.”

And if you’re already in a tenure-track slot, there’s another potential sticking point. Some institutions prohibit their employees from holding tenure lines at more than one school.

OK, so what if taking leave isn’t an option?

A job candidate could also attempt to resign a position effective upon board approval at a new institution, or to do so with an effective date or a reversal clause that expires after the expected approval takes place, Bogost says.

And, finally, there’s the most obvious option: Acknowledge that the period of transition from one institution to the next is a risky period. “Academics talk a lot about the decline of tenure, but we sure don’t respect the perks of tenure in so doing,” he wrote. “When giving up a job that’s guaranteed for life and taking on a new one, a sensible person should be aware that they are walking a tightrope.”

Either recognize that, Bogost jokes, or “don’t leave.”

Any chance universities might change this practice?

It’s not outside the realm of possibility, Warrior says: “It’s of great importance to a number of people now.”

Those people include administrators and faculty members at Illinois, who want to continue attracting top scholars. “It’s going to be more difficult to get people to agree to come to the University of Illinois without a much more firm offer in hand,” he says. “Before they are willing, they need to know the university is committed to their appointment.”

The same rings true for job candidates beyond Illinois, Levy says. “It would be good for any candidate to get an idea of when their offer would receive final approval before making their decision,” she says. This could be achieved through “some kind of policy that would give the appointee that extra security.”

Having a solid timeline for such decisions could also be a marketing tool for colleges, Bogost adds. “It could become a positive feature for recruitment if an institution or system says, ‘Hey. This is a problem, and we’re trying to fix it so an issue doesn’t arise here.’”

Gotcha. Any final takeaways?

Here’s a parting plea from Bogost: If you’re curious about this, go read your faculty handbook. See what your institution’s policy looks like.

“To me, these are things faculty can act on and think about,” he says. “I’m not sure if the things we’re doing instead, like petitions, are for the collective good. We need to think about broader, large-scale tactics. What we want is to reduce the risk. And that’s the sort of thing that requires looking at the boring stuff in the handbooks.”

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  • Per boards of trustees/visitors etc. having the final word, every offer letter, where such approval is the case, clearly states that the contract is subject to approval of "the board." So, this aspect isn't a big secret. Academic freedom, such as it is in most places, doesn't kick in until such approval is given. BTW, many non-academic organizations have very similar requirements.

    John Nemeth
    John Nemeth
  • At my institution, hiring, per se, does not require trustee approval (e.g., the provost has the final say on approving new tenure-track, visiting, and adjunct hires) but tenure does. As a small teaching college with limited resources, we virtually never hire at the senior level, and faculty generally go through the full tenure process, which is not final until the Board of Trustees approves each person standing for tenure at its spring meeting. Does the fact that Salaita was being hired into a tenured position make a difference here? It is my understanding that tenure always requires Board approval, and even when this is expedited, it is never purely a formality. After all, the trustees have fiduciary responsibility for the institution, and tenure is a million-dollar commitment, given a projected faculty career of 30 years or more.

    David Harvey
    David Harvey
  • I think this will and should create some real problems in all hiring. At my institution, hiring is approved by the Provost and takes usually a month or so. In the current case, the Board's approval was going to take 11 months and not occur until the guy was expected to have started teaching. So, from now on, an offer really isn't an offer until the Provost or Board approves. For new assistants, I think that means they should actively stay on the job market until then, and if a better offer comes along, take it.

    Kenneth Cissna
    Kenneth Cissna
  • If the Board has a significant role in a faculty appointment process, it is to see that the proposed tenure appointments are within the institution's overall strategic plan for resource allocation - a plan that has presumably been developed by a serious planning effort in which faculty have been involved. And if the Board plays such a role, then (1) no letter of appointment should go out until the process, including Board approval, is complete, and (2) the process needs to be timed in the context of the academic calendar so that appointments are made in a timely matter. Appointments with tenure represent open-ended commitments on the part of an institution and major life decisions on the part of candidates. They deserve better than what seems to be current practice at all too many institutions.

    Judith Shapiro
    Judith Shapiro
  • Does it make any difference legally that the signers of the original contingent offer then did not follow through to present that commitment to the Board of Trustees for consideration?

    William SKOCPOL
    William SKOCPOL
  • I think William Skocpol makes a good point that Salaita was rejected by an administrator and that the board never considered his appointment. Another consideration, what about adding a paragraph to the contract which says you will start the semester after board approval? Cut off dates could be included... board approval by May 15 to start in the fall, or by August 15 to start in the spring.

    Allen Gaetjens
    Allen Gaetjens
  • Salaita's case is an outlier and shouldn't result in extreme reactions from others seeking positions. Although it is the case that now one person has been denied a position he thought he had, denials by boards remain extremely rare. If job seekers don't flame out on social media or have a track record of destruction in their departments, almost no one has anything to worry about from boards. My experience has been that board members leave the heavy lifting of hiring to administrators and are strongly biased to vote yes on hiring recommendations.

    Randy Bergen
    Randy Bergen
  • And it's not just faculty who are put in limbo. I had already begun working at the University of Colorado for two months in an upper administrative position when my appointment came before the board. Let's just say it was an eye opener to have traveled cross-country after selling my house and starting a life in another state, only to realize that I wasn't "officially on board." But such is life.

    Marshall Collins
    Marshall Collins
  • I have noticed that no one is looking at the fact that university executive officials failed to actually SUBMIT Salaita's hire to the Board for approval. It seems to me that they have an obligation to do this, if they tell the candidate that his job is contingent upon its approval. Otherwise, the offer is disingenuous; they might have failed to submit the offer for any number of reasons, and were afraid the Board might "accidentally" approve it. While I certainly agree that Salaita's unfortunate comments about Netanyahu were most probably the reason his hiring was rescinded, let's not forget how odd it was that a Mideast scholar was being brought aboard a department whose focus was Native Americans. That would certainly be a head-scratcher for me.

    J. Patrick McGrail
    J. Patrick McGrail
  • Interestingly, I have also seen instances (in more than one institution) where because of a later hire or scheduling issues, the new hire is already on campus and teaching before the final Board approval happens. That would probably create an even more complex legal argument.

    Stephanie Walker
    Stephanie Walker
  • If the justification for tenure is freedom to say whatever you want, what is the rationale for people to test the same waters BEFORE they are granted tenure?

    Douglas Ferguson
    Douglas Ferguson
  • Award of tenure at time of hire does make the approval process longer, but a year seems surprisingly long. It is hard to remove this uncertainty-- boards won't want to vote without the offer letter because that is what they are voting to approve. But there should be a commitment to expedite the process. I do think this case is unusual in many ways, but it does highlight the issue of slow appointment processes.

    Harriet Hopf
    Harriet Hopf
  • It seems to be part of memory that Bertrand Russell had some such problem with CCNY and for some time listed among his honors on the fly-leaf of his books that he had been deemed unfit for a position at that institution. Not redress, but self satisfactory. I don't know if deemed unfit because of Israeli rants would have the same cache.

    William Pendleton
    William Pendleton
  • 1) if you have any leverage at all with the hiring institution, you simply say that you accept the offer, contingent upon the board of trustees approving it by May 1 (e.g.).

    2) Or, you don't give notice to your current university until August 31, when you get the letter from the board of trustees at the new University. When your (now) previous University screams about this, just tell them it is because you had to protect yourself against the hiring U's practice of using the hiring clause and not approving until last minute. Since your former U likely does the same thing, they have no leg on which to stand.
    After what happened to Salaita I am absolutely certain that I will never resign from a current position without a trustee-approved job offer again....ever! If the university offering me a job is not willing to ask the board of trustees (most of whom meet several times a year) to approve my contract and tenure, then they can go to their second choice.

    Earl Bothwell
    Earl Bothwell
  • The obvious answer is that one does not resign a tenured position until you obtain all the necessary approvals at the new institution. In this case, he jumped the gun and resigned before he had a new position.

  • It seems to me that this situation. i.e., the revocation of a solid job offer is emblematic of contemporary working conditions. In this sense I am not surprised.

    Paige McAdoo
    Paige McAdoo