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Marquette University must immediately reinstate and pay damages to John McAdams, the political science professor who criticized a graduate student by name on his personal blog over how she handled a classroom discussion that turned to gay marriage. So ruled the Wisconsin Supreme Court on Friday, overturning a lower court’s determination that Marquette was within its rights to suspend McAdams over the incident in 2014.
Wisconsin’s high court split along conservative and liberal lines in the case, voting 4-2 in favor of McAdams. While the professor’s case was about an alleged breach of contract, the decision touched on the current campus speech climate, especially for political conservatives, such as McAdams. It also broke with a long judicial tradition of deferring to colleges and universities on tenured personnel matters.
Academic freedom “and concomitantly, free speech, is increasingly imperiled in America and within the microcosm of the college campus,” Justice Rebecca Grassl Bradley wrote in concurring with the majority opinion.
Describing McAdams’s case as an “unprecedented dispute between a university and a professor” in which “academic freedom was put on trial,” Bradley said the question was whether that freedom would "succumb to the dominant academic culture of microaggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence.”
In this “battle,” she said, “only one could prevail, for academic freedom cannot coexist with Orwellian speech police. Academic freedom means nothing if faculty is forced to self-censor in fear of offending the unforeseen and ever-evolving sensitivities of adversaries demanding retribution.”
The Wisconsin Institute for Law and Liberty, which represented McAdams in the case, said in a statement that “across the country, academic freedom is under assault on campuses. Universities are treating academic freedom as the right to say only what administrators or the loudest factions on campus approve of.”
Yet the Wisconsin court “struck a major blow in favor of free speech, delivering the unequivocal message that ‘academic freedom’ means just that,” the institute said.
Marquette said it will comply with the ruling but maintained that McAdams’s case isn’t, and never was, about academic freedom.
“A tenured professor put a graduate student’s name and contact information on the internet so that people could go after her,” said Ralph Weber, a lawyer for the university. “That’s not academic freedom, that’s cyberbullying. Marquette, as a private, Catholic, Jesuit university enforces codes of conduct, and cyberbullying violates those codes.”
McAdams via email to Inside Higher Ed disagreed with that characterization, saying he merely linked his blog to the graduate student’s now-defunct public web page (the student has since left the university for another program). He said he intends to return to teaching at Marquette, but didn’t say when.
Rick Esenberg, McAdams’s attorney, said that “Criticizing someone is not cyberbullying. Disagreeing with someone -- even sharply -- is not cyberbullying. The Wisconsin Supreme Court explained that what Marquette is doing is holding [McAdams] responsible for the actions of others,” who contacted the student after the fact.
Background
In 2014, a Marquette undergraduate secretly recorded a conversation he had with a graduate student instructor in philosophy. In the recording, the student complained to the instructor that she had, in his view, dismissed a second student's comment about gay marriage during a class discussion on a separate philosophical issue. The instructor responded that the student didn’t “have the right, especially [in an ethics class], to make homophobic comments or racist comments.
The first student shared his recording with McAdams, who wrote about it in a post called “Marquette Philosophy Instructor: ‘Gay Rights’ Can’t Be Discussed in Class Since Any Disagreement Would Offend Gay Students” on his blog, Marquette Warrior, which has a wide following in conservative circles. McAdams named the graduate student, who he did not otherwise know, linked to her blog and accused her of “using a tactic typical among liberals now.” That is, "Opinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up,” he wrote.
In the “politically correct world of academia, one is supposed to assume that all victim groups think the same way as leftist professors,” McAdams said in the post. While certain groups “have the privilege of shutting up debate,” he added, academe is a “free fire zone where straight white males are concerned.”
The student soon complained to Marquette that she’d received hate mail as a result of the blog post and write-ups elsewhere. Marquette suspended McAdams, pending a faculty review.
In 2016, a seven-professor panel recommended that McAdams be suspended without pay for a period of up to two semesters -- not for writing about the student but for using her name and thus making her vulnerable to harassment. Michael Lovell, university president, took the advisory faculty panel’s suggestion but went a step further, instructing McAdams to write a letter of apology to the student, as well.
McAdams refused and the university moved to terminate him.
McAdams’s Suit
Around the same time, McAdams sued Marquette, alleging breach of contract. He said that his terms of employment, as articulated in the Faculty Handbook and other university documents, indicated that he could only be dismissed with good cause and that tenure afforded him academic freedom. In suspending him indefinitely for extramural speech, he argued, Marquette was violating both contractual obligations.
A district court sided with Marquette in the suit last year, saying McAdams erred in identifying the philosophy student by name and that the university was within its rights to punish him. That court afforded Marquette the special deference it argued it had in faculty matters, and that institutions typically enjoy in such cases, particularly at private colleges.
But Justice Daniel Kelly, in his Supreme Court opinion reversing that ruling, wrote that Marquette’s disciplinary process is “not a substitute for [McAdams’s] right to sue.” He also called the lengthy faculty panel report a “distraction” from the issues at hand, since it was merely an advisory group to the president under university bylaws. And the report was compromised anyway, he said, because a faculty member on the committee had publicly disparaged McAdams over the blog post but continued to serve on the committee.
In any case, Kelly disagreed with the faculty and administrative finding that McAdams's post was not protected by academic freedom in its entirety.
“We conclude that McAdams's blog post qualifies as an extramural comment protected by the doctrine of academic freedom,” he wrote. “The post is incapable of clearly demonstrating McAdams is unfit to serve as a professor because, although the university identified many aspects of the blog post about which it was concerned, it did not identify any particular way in which the blog post violated McAdams' responsibilities to the institution's students.”
Justice Ann Walsh Bradley wrote in her dissent that at its core, academic freedom is a “professional principle, not merely a legal construct,” which “embraces the academic freedom of the faculty as well as the academic freedom of the institution.” The majority opinion only looked at academic freedom from McAdams’s perspective, she said, ignoring the shared governance aspect of academic freedom, and the fact that a faculty panel had approved of his suspension.
Moreover, Bradley argued, the majority did not mention key facts surrounding the case, such as that McAdams actively promoted his blog post criticizing the student to news media, including Inside Higher Ed.
Weber said Marquette will work with its faculty to make clearer going forward that deference should be given to institutional decision-making. Yet he said that Friday’s decision has serious implications for institutions beyond Marquette.
Judgments of Professional Conduct
“The Faculty Hearing Committee were people from across the university -- dentistry, law, engineering professors -- who found, unanimously, that what was done here crossed the line, ‘This is beyond what a Marquette professor can do,’” Weber said. “And yet you have a court saying, ‘We’re better equipped to make that judgment of professional conduct.”
Weber also highlighted the dissent’s notes that McAdams had not only promoted the blog but also threatened administrators involved in his disciplinary process that he would write about them on it. So the question of whether the incident reflects on his professional fitness is determined by how one looks at it, he said. “If you look within the four corners of the blog post, you’re not seeing the full picture.”
Hank Reichman, professor emeritus of history at California State University at East Bay and vice president of the American Association of University Professors, referred comments about the decision to the amicus brief the association filed about the case in February.
That brief cites AAUP policies defining academic freedom in extramural speech, saying that “a college or university administration cannot discipline a faculty member unless it proves that extramural speech ‘clearly demonstrates the faculty member’s unfitness to serve,’” taking into account the faculty member’s entire record as a teacher and scholar.”
The brief also argues that Marquette violated McAdams’s due process rights by “unilaterally imposing” a new penalty -- the letter of apology.
“This severe sanction would compel McAdams to renounce his opinions, a fundamental violation of his academic freedom,” and amounted to a “de facto termination,” it said.
The Foundation for Individual Rights in Education, which also filed an amicus brief in the case, applauded the court's decision.
"Administrators 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,” Ari Cohn, director of the group's Individual Rights Defense Program, said in a statement. “The court's 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."
