The University will argue that the refusal to hire was based on a reasonable prediction that Salaita's vitriolic attacks on Israel and Zionists would disrupt his ability to deliver education to the students and work with his colleagues, and that it was this concern that motivated the University's revocation of the job offer.
The KBOR policy also quotes from Pickering:
3. The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:I just spoke at length with a student reporter about this issue. I'll post a link to her story when it comes out.
i. is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;
iii. discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or
iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.
In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.
*I don't understand the contractual issues very well. His appointment was contingent on Board of Trustees approval, but there is a theory of "promissory estoppel" which basically says that you cannot induce someone to take actions on a promise and then yank the rug out from under them. For him to have first amendment rights not to be fired, he first has to prove a contractual case, in my opinion, but I am very unsure about that.
Leiter's point is that once the case goes forward, the university will have to settle, because the discovery phase will reveal a lot of embarrassing things in how this was handled.