Free speech — and breach of contract.<\/b>
\nDid conservatives just win a battle in the campus-speech wars, or lose one on religious liberty? The Wisconsin Supreme Court ordered Marquette University to reinstate conservative poli-sci professor John McAdams immediately and restore all his privileges. The ruling encompasses both free-speech and contract considerations, ruling that the Jesuit school committed a breach of contract in firing him for sharp criticism of another instructor who attempted to shut down a debate over gay rights:
The Wisconsin Supreme Court ruled Friday that embattled Marquette University political science professor John McAdams was improperly suspended after he publicly criticized a graduate student by name on his politically conservative blog, leading to threats against her.
The court ordered the Jesuit university to immediately reinstate the professor and sent the case back to a Milwaukee County Circuit Court judge to award damages, including back pay.
\u201cThe undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract\u2019s guarantee of academic freedom,\u201d said the opinion written by Justice Daniel Kelly.
The state\u2019s high court ordered Marquette to \u201cimmediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits.\u201d
Jazz wrote about the case three years ago, but the case has dragged out at Marquette since November 2014. That was when McAdams posted an article on his personal blog, the Marquette Warrior, criticizing graduate student instructor Cheryl Abbate for shutting down a classroom debate in her poli-sci course over gay rights. The undergraduate student challenged Abate after class and recorded the conversation, in which Abbate insisted that \u201csome opinions are not appropriate, such as racist opinions, sexist opinions.\u201d Abbate then declared that the student didn\u2019t \u201chave a right in this class to make homophobic comments,\u201d and suggested that the student would be better off dropping her class. Identifying her and her contact information in the post, McAdams cited this as \u201ca tactic typical among liberals now\u201d on college campuses.
Marquette at first suspended then fired McAdams, and argued in court that it was his identification of Abbate and publishing of her professional contact information that provided the necessary cause to fire McAdams. Abbate had to leave Marquette after getting death threats and other unpleasant feedback. McAdams and some conservative groups argued that he wasn\u2019t responsible for the reaction of others and that he was fired for the content of his criticism. The court firmly sided with McAdams, but the ideological split was predictable.
In the lengthy opinion, the majority found Marquette\u2019s disciplinary review fundamentally flawed, especially in its appointment of a supposedly unbiased administrators. One person appointed to that Faculty Hearing Committee had already publicly criticized McAdams\u2019 actions in the case in an open letter to the Marquette Tribune, of which the opinion cites significant excerpts. Her failure to recuse deprived McAdams of due process even on Marquette\u2019s terms \u2014 and at any rate, his contract never stipulated that either party had to adhere to binding arbitration rather than recourse to the courts.
But the FHC and the disciplinary process issues wind up being \u201cdistractions from the necessary focus of our analysis,\u201d because it was Marquette\u2019s president that made all of these disciplinary decisions. The court ruled that it breached its contract with McAdams and the expectation of academic freedom by getting it backwards:
With the benefit of hindsight, the University reverse-engineered its conclusion that Dr. McAdams is a plainly unfit professor because of unknown third parties\u2019 reactions to his blog post. The blog post caused \u201charm,\u201d the University said, in the form of critical, sometimes vile, sometimes violently-worded, responses sent to Instructor Abbate after the story had received national attention. Its \u201cunfitness\u201d analysis proceeded as follows: Instructor Abbate suffered harm because she received offensive communications from third parties; the communications were prompted by Dr. McAdams\u2019 blog post (directly or indirectly); Dr. McAdams has a responsibility not to harm his students; a professor is unfit to serve if he violates his responsibilities to the University\u2019s students. Quod erat demonstrandum. But the University can reach this conclusion only because its analysis traveled in reverse. So quod non erat demonstrandum.
Performing the analysis in the correct direction leads to the unavoidable conclusion that the blog post has nothing relevant to say about Dr. McAdams\u2019 fitness as a professor.\u2026
The undisputed facts show that none of the aspects of the blog post about which the University is concerned could have violated Dr. McAdams\u2019 responsibility to Instructor Abbate. The FHC\u2019s Report acknowledged that there is no prohibition against naming a student in a blog post. Nor is it improper for a faculty member to link to a student\u2019s personal webpage, even when that webpage lists the student\u2019s contact information. The Report acknowledged this is still true even when the blog post is critical of the student. Nor do blogging faculty members have a general obligation to ensure every statement they make in a post is accurate.
Furthermore, the court argues that the university essentially traded academic freedom for a heckler\u2019s veto:
Finally, there is the University\u2019s assertion that Dr. McAdams drafted the blog post in such a way that it would subject Instructor Abbate to public contempt. The blog post is certainly critical of her, so one could reasonably foresee that it would engender critical responses. We do not understand the University to argue that an extramural comment that causes such responses is beyond the pale\u2014\u2014an extraordinarily unusual argument for an educational institution to make\u2014\u2014so we perceive its concern to be about the responses that go beyond the realm of reasonable criticism. But the University did not identify any aspect of what Dr. McAdams actually wrote to support its charge. Instead, it used third-party responses to the blog post as a proxy for its allegedly contempt-inducing nature. Here again, the University demonstrates that reverse-engineering a conclusion is not the most reliable method of conducting an analysis. In this instance, the University caught itself up in the \u201cpost hoc ergo propter hoc\u201d fallacy. Just because vile commentary followed the blog post does not mean the blog post instigated or invited the vileness. The University must identify which part of the blog post is supposed to have been responsible for eliciting the offensive remarks. It did not even attempt to do so. Our review of the blog post reveals that it makes no ad hominem attack on Instructor Abbate, nor does it invite readers to be uncivil to her, either explicitly or implicitly. Because the University\u2019s logical fallacy represents the entirety of its assertion that Dr. McAdams wrote the blog post to subject Instructor Abbate to contempt, we must reject it.
Judge Rebecca Glasser, in a concurrence, noted that Abbate herself was arguably as responsible for the all but one of the responses, if one buys Marquette\u2019s logic:
McAdams reached out to Abbate for comment, but Abbate declined the opportunity to respond. The blog post reported on the student\u2019s experience and discussed McAdams\u2019 political view of popular tactics used for \u201cshutting people up.\u201d It was critical of Marquette and of censorship. Unlike the Philosophy Department faculty\u2019s criticisms of J. D. [the student who made the recording], it did not contain any intemperate language or ad hominem attack. The blog post did not contain a call to action or make any demands inciting violence or attack. In fact, Marquette\u2019s Dean of Arts and Sciences did not believe the post was harmful to Abbate at all and Abbate apparently agreed, remarking: \u201cWhen I saw the blog I was pleasantly surprised.\u201d
Despite her pleasant surprise, Abbate flamed this fire. She drafted a formal letter of complaint insisting that Marquette discipline McAdams for the blog. Abbate also asserted she had been \u201cthe target of harassing emails, sent by [McAdams\u2019] followers,\u201d although as of the date of that statement, Abbate had only received a single email critical of her. Two weeks later, Abbate threatened to sue Marquette and subject it to adverse publicity, unless the University acceded to her demands that the University fire McAdams, punish J. D., and pay \u201creparations\u201d to her.
In a dissent, however, Judge Ann Bradley argued that the court was infringing on Marquette\u2019s ability to exercise its religious liberty as a private Catholic institution by ordering McAdam\u2019s full reinstatement and restitution:
The majority errs in conducting only half of the academic freedom analysis. It fails to recognize, much less analyze, the academic freedom of Marquette as a private, Catholic, Jesuit university. As a result, it dilutes a private educational institution\u2019s autonomy to make its own academic decisions in fulfillment of its unique mission. \u2026
McAdams\u2019 appeal focuses on his individual rights, and the majority follows suit. However, McAdams\u2019 rights to academic freedom are not the only rights at issue. An educational institution, here a private, Catholic, Jesuit institution, possesses the academic freedom to operate in accordance with its principles as long as it does not violate governing laws. Such a right should be given some consideration, rather than the silent treatment the majority offers.
This \u2026 is a curious assertion, one which Bradley extends to the disciplinary process as well. It\u2019s curious because she\u2019s essentially asserting that the ministerial exception to employment law extends to all employees of religious-based institutions regardless of whether they have a teaching role in religious doctrine or not. That exemption would extend to the disciplinary process regardless of whether it seems unfair or not, which would certainly be a major change in direction for American courts. If churches started firing support staff with no ministerial duties over their outside political speech or sexual orientation without any recourse to due process, would Bradley assert the same liberty in upholding those actions? That seems quite doubtful.
FIRE is pretty stoked about the decision:
\u201cAs FIRE has argued since the beginning, Marquette was wrong to fire John McAdams simply for criticizing a graduate student instructor who unilaterally decided that a matter of political interest was no longer up for debate by students,\u201d said FIRE Executive Director Robert Shibley. \u201cThis ruling rightly demonstrates that when a university promises academic freedom, it is required to deliver.\u201d
FIRE wrote to Marquette in 2015, calling on the university to restore McAdams\u2019 standing on campus and arguing that the school \u201crepeatedly ignored its own policies governing faculty speech and due process, and has severely imperiled free speech and academic freedom through its unjust actions.\u201d FIRE also noted that Marquette\u2019s actions were in direct conflict with a statement from former Marquette President Fr. Robert Wild, who, while defending a faculty member facing similar criticism, said that faculty members\u2019 academic freedom rights are subject \u201cto the criticism of their peers.\u201d
\u201cAdministrators cannot simply decide that they do not like the results of certain faculty speech, and then work backwards to find a justification for firing them,\u201d said Ari Cohn, director of FIRE\u2019s Individual Rights Defense Program. \u201cThe court\u2019s decision recognized that allowing a university to do so is incompatible with any meaningful understanding of academic freedom. Colleges and universities across the country that are facing calls to discipline faculty members for their online speech should pay attention to today\u2019s decision.\u201d
In some ways, this is the mirror image of the Fresno State professor who cheered Barbara Bush\u2019s death earlier this year. FIRE took a consistent stand on that case, arguing that academic freedom does indeed mean you can\u2019t fire people for being jerks in public. If Randa Jarrar can keep her job at Fresno State, then John McAdams should be similarly protected, especially given that his criticism was specific and relevant to the campus atmosphere \u2014 the very kind of speech academic freedom purports to protect. If Marquette promises that freedom as part of its contract with its tenured professors, then the Wisconsin supreme court wisely ruled that they have to deliver on it.<\/p>\n

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