Wisconsin’s Marquette Decision Is A Big Win For Free Speech And A Sign Of Trouble

Wisconsin’s Marquette Decision Is A Big Win For Free Speech And A Sign Of Trouble

The high court ruled the Jesuit university breached its employment contract with John McAdams by suspending him for publishing a blog post criticizing a fellow faculty member.
Margot Cleveland
By

On Friday, the Wisconsin Supreme Court vindicated Marquette University professor John McAdams in a high-profile free speech case. The high court ruled the Jesuit university breached its employment contract with McAdams by suspending him for publishing a blog post criticizing a fellow faculty member.

McAdams’ November 9, 2014 post at his Marquette Warrior blog condemned philosophy instructor Cheryl Abbate for announcing to her Theory of Ethics class that “everybody agrees” on “gay rights,” and later telling a student who believed gay marriage deserved classroom discussion that “[i]n this class, homophobic comments, racist comments, will not be tolerated.”

McAdams’ blog post identified Abbate by name and linked to her webpage. Later, after national outlets picked up the story, Abbate began receiving emails and letters, some positive, some negative, and a few vile and threatening. Marquette held McAdams responsible for the third-party threats and suspended him.

Here, Sign This Confession and Recant

Then a Faculty Hearing Committee held a hearing to determine whether the Milwaukee-based university had “discretionary cause” to suspend the professor. The committee unanimously held McAdams deserved a suspension of one or two semesters and recommended that discipline to Marquette University’s president, Michael Lovell.

Lovell adopted the Faulty Hearing Committee’s recommendation, but additionally required McAdams to provide a written statement that included an “acknowledgement and acceptance of the unanimous judgment of the peers who served on the Faculty Hearing Committee,” an “affirmation and commitment that [his] future actions and behavior will adhere to the standards of higher education as defined in the Marquette University Faculty Handbook, Mission Statement and Guiding Values”; an acknowledgment that the “blog post was reckless and incompatible with the mission and values of Marquette University;” and a statement of “deep regret for the harm suffered by our former graduate student and instructor, Ms. Abbate.” McAdams refused to write the required letter and instead sued Marquette for breach of contract.

In his lawsuit, McAdams argued Marquette violated the university’s contractual promise to protect academic freedom, as stated in Faculty Statute § 306.03: “In no case, however, shall discretionary cause be interpreted so as to impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.”

A state trial court rejected McAdams’ claim. It concluded that because McAdams had agreed to the Faculty Hearing Committee provisions, the court must defer to Marquette’s disciplinary decision suspending him. McAdams appealed, and the Wisconsin Supreme Court agreed to take the case directly, bypassing the normal appeal to an intermediate appellate court.

I have previously highlighted many more disturbing details, but this sketch provides a sufficient background to understand the Wisconsin Supreme Court’s decision and its import.

You Can’t Blame This Guy for Other People’s Actions

As predicted, the Wisconsin Supreme Court reversed the lower court’s decision. But the justices went farther. While the court could have sent the case back for a jury trial, the high court instead ruled Marquette had legally violated the terms of the employment contract and ordered Marquette to reinstate McAdams.

In reaching this decision, the court first rejected Marquette’s argument that the justices owed deference to the Faculty Hearing Committee’s judgment. The court reasoned that nothing in the contractual provisions equated the hearing committee to binding arbitration. Because the parties had not agreed to be bound by the Faculty Hearing Committee’s decision, or to grant that decision deference, the court evaluated the contract without regard to the committee’s decision.

Next, the court considered whether Marquette had “discretionary cause” to suspend McAdams. The court began by citing the relevant contractual provisions, which defined “discretionary cause” as conduct that “clearly and substantially fail to meet the standard of personal and professional excellence which generally characterizes University faculties.”

However, as the court highlighted, the faculty contract expressly stated that discretionary cause will not “be interpreted so as to impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.” The court then methodically considered Marquette’s rationale for suspending McAdams, stressing that it was McAdam’s conduct—and not the response of third parties—that mattered, explaining:

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’s 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.

After reviewing the entire record, the Wisconsin Supreme Court concluded that McAdams established, as a matter of law, that Marquette had violated his contractual rights. It ordered the university to reinstate the professor. The court also remanded the case to allow the lower court to determine an appropriate damage award, which must include back pay.

In addition to serving as a complete vindication of McAdams and his right to publicly criticize another faculty member, the Wisconsin Supreme Court’s decision offers three broader take-aways.

1. Marquette Remains Blind to Its Wrongdoing

Following the Wisconsin Supreme Court’s decision, Marquette issued a news release defending its conduct, writing it was “proud that we have taken a stand for our students, our values and our Catholic, Jesuit mission.”

The university then continued its attack on McAdams, writing: “This case has always been about Associate Professor John McAdams’ conduct toward a student teacher. The professor used his personal blog to mock a student teacher, intentionally exposing her name and contact information to a hostile audience that sent her vile and threatening messages.” Marquette added that “[t]o us, it was always clear that the professor’s behavior crossed the line.”

Given the Wisconsin Supreme Court’s holding, this response is shocking: The court did not merely reverse judgment in favor of Marquette, it entered judgment in favor of McAdams. Legally, to do this the court was required to view the facts in the light most favorable to Marquette, then to prevail the court had to find that “no reasonable person could conclude” that McAdams’s suspension was justified. If a reasonable person might believe the suspension justified, a jury trial would be required. So the high court’s judgment for McAdams means that no one could reasonably find that Marquette acted properly.

That leaves two options: Either Marquette’s president is unreasonable or disingenuous, and the university suspended McAdams, not because of his blog post, but because it sought an excuse to rid itself of the conservative firebrand and saw the threats on Abbate as presenting the perfect opportunity. However, as the Wisconsin Supreme Court’s decision made clear, he was wrong.

2. McAdams Wasn’t the Problem, Our Society Is

Marquette’s continued defense of its decision to suspend McAdams also reveals the administration’s misguided view on free speech. Marquette blamed McAdams for the vile messages Abbate received from third parties, even though McAdams had not “invite[d] readers to be uncivil to her, either explicitly or implicity,” as the Wisconsin Supreme Court put it.

The university called McAdams’ post “doxxing” because he identified Abbate by name and linked to her public webpage. But when scholars criticize colleagues’ professional conduct, identifying them by name only makes sense. The link to Abbate’s webpage shared the same information a simple Google search would.

Further, Marquette’s attempt to hold McAdams responsible for threats meted out by third parties upends academic freedom. It implies a faculty member must self-censor and limit criticism out of a fear that others will respond with threats or even violence. Yet nothing McAdams wrote reeked of an incitement to harassment or violence. The Wisconsin Supreme Court published the entire blog post and a quick read confirms the court’s view that McAdams had not invited the vile emails Abbate received.

Yet Abbate did receive emails that made her fear for her safety. I am not unsympathic to Abbate’s concerns, and few conservative journalists or politicians would be. But McAdams isn’t the problem. The problem is a society that teaches that words spoken in a classroom debate are so offensive that they must be silenced; a society that resorts to doxxing to silence speech instead of countering speech; and a society that views harassment and violence as appropriate responses to “offensive” speech.

This says nothing about McAdams, who criticized Abbate on the merits of her conduct, and everything about the decline of civility facing our country.

3. The Dissent Had Some Good Points

Two Wisconsin Supreme Court justices dissented from the majority’s decision in favor of McAdams. The dissent merits consideration, not because of the faulty analysis of McAdams’ case, but because of the helpful discussion of academic freedom.

Marquette could have hired only faculty members willing to instruct students consistent with the university’s professed Catholic mission.

Many wrongly believe academic freedom rests solely with faculty members, but the dissent, authored by Justice Ann Walsh Bradley, highlights that academic freedom includes two components: academic freedom of the faculty and academic freedom of the institution. Marquette’s “institutional academic freedom is inclusive of four ‘essential freedoms’: ‘to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’”

As a Catholic, Jesuit institution, Marquette possesses the right to exercise these four “essential freedoms” consistent with its guiding values, described by the dissent as the “holistic development of students” and a “commitment to the Jesuit tradition and Catholic social teaching.” Marquette could, then, have hired only faculty members willing to instruct students consistent with the university’s professed Catholic mission, in which case it could fire faculty members who do not live up to that commitment.

But it didn’t, as is obvious from the university’s decision to employ an instructor who, in contradiction of clear church teaching, taught students that “everybody agrees” on “gay rights.” Marquette instead promised faculty members the right to individual academic freedom, without regard to the university’s Catholic character. By committing itself “not to impair the full and free enjoyment of legitimate personal or academic freedoms,” Marquette forfeited its right to rein in McAdams’ speech as purportedly contrary to the university’s mission.

In its news release, Marquette hinted that it intends to reassert its institutional right to academic freedom, explaining that “in light of today’s decision, Marquette will work with its faculty to re-examine its policies, with the goal of providing every assurance possible that this never happens again” (emphasis added). Of course, by “this,” Marquette means public criticism of an instructor. If only the Jesuit university meant assuring faculty members do not silence student speech, especially speech defending Catholic teaching against a professor’s heresy. That is something I could get behind.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

Copyright © 2018 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.