Monday, August 13, 2018

Going Nowhere

Sunday, August 12, 2018

Marquette Paid PR Firm Big Bucks to Counter Negative Publicity Over Attempt to Fire Warrior Blogger

We recently got an e-mail from an academic outlining an exchange he had with a public relations firm hired by Marquette to deal with the negative fallout from the university’s attempt to fire us. He explained:
FYI - see below. I received a very odd email from Marquette’s PR firm re: your case a few months ago. I had forgotten about it, but was reminded when I saw the recent court ruling. Anyway, I’m not sure why they contacted me, but thought you should know.
The e-mail exchange started with this message from an executive at the Edelman firm:
On Tue, Mar 6, 2018 at 1:58 PM, Diaz, Ricky wrote:

Professor, I hope you are doing well. Because of your background and previous commentary on doxing, I thought you might be interested in a recent development happening at Marquette. The Wisconsin State Supreme Court has agreed to hear a high profile case in which a Professor (and later, George Will) doxed a student and it led to terrible consequences. Marquette is looking to connect with experts such as yourself interested in doxing to discuss the case and I think you would find it to be fascinating given your background.

Please let me know if you’d like to talk with Marquette and I could put you in touch with a few folks at the University to speak with directly about the case. Look forward to hearing from you,

Ricky
Of course, the claim that we doxed Cheryl Abbate is a flat out lie. Webster’s defines “doxing” as
. . . to publicly identify or publish private information about (someone) especially as a form of punishment or revenge.
In fact, we published zero “private information.” We did link to a toxic feminist essay on Abbate’s blog. Her e-mail address was elsewhere on the blog (not on the page we linked to). But it could also be found by a simple google search. If your e-mail address is all over the web, it’s not “private information.” Nothing in our post suggested anybody should harass or even contact her.

Even more bizarre is the notion that George Will doxed Abbate. All he did was mention her name. Did the editors at the Washington Post allow doxing? Marquette’s position is apparently that Marquette Instructor Abbate must somehow never be named.  But in the wake of our post criticizing how she told a student that he was not allowed to oppose gay marriage in class, since “you don’t have a right in this class to make homophobic comments,” she went to a philosophy blog to attack us.

Back to the E-mail Exchange

From: <[redacted]@redacted.edu>
Sent: Tuesday, March 6, 2018 3:08 PM
To: Diaz, Ricky
Subject: Re: Doxing

Is Marquette’s administration seeking my legal and/or crisis communications advice?
Diaz’ response:
From: “Diaz, Ricky”
Date: March 7, 2018 at 9:33:13 AM EST
To: <[redacted]@redacted.edu>
Subject: RE: Doxing

Hi, [redacted]. Specifically, Marquette is interested in giving you a briefing on the case that’s headed to the Wisconsin State Supreme Court. They would like to ask for feedback on the case, particularly the privacy/doxing issues at play and any other reactions you have. Media coverage of the case will likely increase as the oral arguments get closer, and the school feels that the public doesn’t quite understand doxing or the consequences. While there’s no specific ask or commitment after the initial briefing at the moment, they are trying to build relationships with people such as yourself who may be able to shed light on these issues to media or other groups down the road if there’s interest.

Please let me know if you’re interested in an introduction to the University’s team.

Ricky
The professor didn’t respond, explaining to us that:
I really didn’t understand what the controversy was all about when Edelman contacted me or why they chose me — considering the email’s author is a VP at a major PR firm, he doesn't seem to express himself very clearly. I was also kind of annoyed that a highly profitable PR firm apparently expected me to do free work for them . . .
He gave us permission to publish this exchange, but instructed us not to publish his name, since there are “too many crazy, vindictive SJWs [social justice warriors] out there.”

The Edelman Firm

If you are an institution that has done something really evil, or really stupid, and are trying to manage the resulting firestorm, Edelman is the firm for you. Which is not to say they don’t do legitimate PR work. Their website shows a lot of PR work for a lot of interests, and it’s impressive until you remember they are as good at puffing their own work as they are puffing their clients.

But two things are similar to what they did for Marquette. First, a PR disaster when a crock-pot explodes, burns down a home and kills a man. Edelman claims:
Thrust into an unexpected firestorm, we cooked up a strategic recipe for Crock-Pot® to extinguish the misdirected hatred, defend the brand and playfully remind the world that #CrockPotIsInnocent.
Then there was the bad PR when Samsung released a defective smartphone.
Twitter had become a hostile environment for the brand after the Galaxy Note7 recall, so we couldn’t let this go. This was our chance to stand up for anyone who’s ever received an unwanted picture. Within minutes, we responded with a savagely simple reply: The microscope emoji.

We knew the one-character tweet was a clever retort, but we didn’t predict the viral sensation that followed: More than 80 news stories worldwide — all from a single emoji.

We had already identified that we could rebuild trust with our community by being “real” and transparent after the Note7 recall. After all, millennials expect more from brands; they’re drawn to those that take risks and feel human. Our strategy had become confronting negativity head on, in real-time.

Unfortunately, you never know what the Internet will serve up next. So we stacked our team with community managers and strategists who not only deeply understood Twitter, but could act on the unexpected quick. They knew what to look for, and how to react to it with brevity and incisive wit.
In fact, they have an entire division devoted to “crisis and reputation risk.”  And the fellow who wrote the professor (Ricky Diaz) identifies himself as expert in “crisis communications, research, digital, media relations and public affairs.”

Interestingly, a Google Advanced Search of edelman.com shows no mention of the work they did for Marquette.

Wikipedia has a long list of Edelman’s clients. Some of their work involves legitimate activities supporting controversial policies (eg. the Keystone Pipeline), but at other times they seem to have used questionable tactics (setting up front groups claiming to be grassroots support for their clients).

How Much Did it Cost

Of course, neither Marquette nor Edelman is going to say how much the campaign against this blogger (which included an attack website, ads on Google, an ads in major newspapers) has cost them.

But some public information comes from another case: Michigan State’s response to sexual abuse accusations against former Olympic gymnastics doctor Larry Nassar. According to NPR:
Michigan State University spent more than $500,000 to keep tabs on the online activities of former Olympic gymnastics doctor Larry Nassar’s victims and journalists covering the case, according to the Lansing State Journal.

The public-relations company Weber Shandwick billed the university $517,343 for more than 1,440 hours of work tracking social media in the month of January, the Journal reports.

Michigan State’s Office of Communication and Brand Strategy monitored social media and news media activity involving the Nassar case previously and concurrently with Weber Shandwick, the newspaper notes.

“The firm billed for work done by 18 different employees, whose hourly rates ranged from $200 to $600 per hour,” the Journal writes. “Five of those employees billed MSU for more than $50,000, including one who billed for $96,900 and another who billed for $120,893.”
Weber Shandwick is a major PR firm, but apparently no more prestigious than Edelman, so it is almost certain that Marquette got billed at similar rates.

The Total Cost

We can add whatever Marquette paid for the services of Edelman to the legal fees the university paid, which were in the range of $750,000 to a million dollars, according to informed sources.

Then there are lost alumni contributions. We have no way to estimate those, but literally dozens of alunni have told us that they discontinued contributing to Marquette because of our case.

And while the attempt to fire us may have increased Marquette’s reputation among a politically correct fringe, it has doubtless hurt it among parents who actually want a Catholic education for their children. That is, hurt it among the sort of parents who might prefer Marquette to a much less expensive state school, or an overtly secular private college. But now they have no reason to.

All because of Michael Lovell’s rigid, authoritarian jihad against this blogger.

Updated 8/13 with information on Diaz.

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Thursday, August 09, 2018

ACLU Likely Won’t Defend Politically Incorrect Speech

From the Wall Street Journal, a description of an internal ACLU document that explains how the ACLU justifies failing to defend speech that offends leftist, politically correct sensibilities:
The American Civil Liberties Union has explicitly endorsed the view that free speech can harm “marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU declares in new guidelines governing case selection and “Conflicts Between Competing Values or Priorities.”

This is presented as an explanation rather than a change of policy, and free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders previously avoided acknowledging that retreat, however, in the apparent hope of preserving its reputation as the nation’s premier champion of the First Amendment.

But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.

The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.

One half of this balancing test is familiar. The “impact of suppressing speech”—the precedents that suppression might establish, the constitutional principles at stake—is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.

Tension between competing values isn’t new to the ACLU. Given its decades-old commitment to defending civil rights and liberties, the organization has long navigated conflicts between equality rights and freedoms of religion, speech and association. The guidelines assert that “no civil liberties or civil rights value should automatically be privileged over any other.” But it’s clear that free speech has become second among equals. Where is the comparable set of guidelines explaining when the ACLU should decline to defend gay-rights claims that infringe on religious liberty or women’s-rights cases that infringe on due process?

The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.

In Brandenburg v. Ohio (1969), for example, the ACLU defended the First Amendment rights of a Ku Klux Klan leader prosecuted for addressing a small rally and calling for “revengence” against blacks and Jews. The U.S. Supreme Court reversed Clarence Brandenburg’s conviction, narrowly defining incitement to violence as speech both intended and likely to cause imminent illegal action. Brandenburg made an essential distinction between advocacy and action, which progressives who equate hate speech with actual discrimination or violence seek to erase.

The ACLU would be hard pressed to take Brandenburg’s case today, given its new guidelines. The organization hasn’t yet endorsed a ban on hate speech, or a broader definition of incitement. The guidelines affirm that “speakers have a right to advocate violence.” But even if Brandenburg managed to pass the new balancing test for speech cases, some participants at his rally were armed, and, according to the guidelines, “the ACLU generally will not represent protesters who seek to march while armed.”

All this is the ACLU’s prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They’re contained in an internal document deceptively marked, in all caps, “confidential attorney client work product.” I’m told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the “leak” of its new case-selection guidelines. President Trump might sympathize.
Actually reading the document shows it to be even more mendacious than this article suggests. For example:
The ACLU has also made many other rights priorities, including religious liberty, privacy, autonomy, reproductive freedom, the rights of people with disabilities, and criminal defendants’ rights. In deciding how to use our limited resources, no civil liberties or civil rights value should automatically be privileged over any other. There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.
Of course, for people who believe in free speech, it does trump other issues. It’s called the “preferred position” doctrine, and holds that no other liberties mean much if people aren’t free to speak in support of them.

And if you have free speech, you have a right to “directly further an agenda that is antithetical to [the ACLU’s] mission and values.”

And what kind of “harm” might be “inflicted on listeners?”

The ACLU seems to have adopted the position of intolerant campus snowflakes: that merely hearing opinions with which you differ is a form of “harm.” This, of course, enables a robust heckler’s veto, in which people can stifle speech by merely claiming to have been harmed.

And undermining “relationships with allies or coalition partners” and making it “difficult to recruit and retain a diverse staff and board” simply means we have to be team players. We are leftists, and if defending free speech alienates other leftist groups, we will back off. Of course, the ACLU doesn’t have to be part of a team. And their team could consist of groups that actually favor free speech, like the Foundation for Individual Rights in Education. But in fact, their team is all the usual leftist suspects.
Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.
Translation: if we think speech is harmful to our “justice work” (read: leftist political agenda) we might decide that government can suppress it, and we will stand aside.

Conclusion

The document admits that the ACLU might need to defend unpopular speakers, in order to maintain its own credibility. But it outlines a huge bunch of other considerations that can be “balanced” against free speech. All of these, of course, amount to excuses not to defend speech that the intolerant left does not like.  That is quite a lot of speech.

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Monday, July 30, 2018

Facebook Censorship: Can’t Criticize Transgenderism

This speaks for itself as an example of how transgenderism has become an intolerant orthodoxy in large sectors of U.S. society.


Update

The above was posted on our Facebook timeline, and embedded here.

Facebook censored it on our timeline. So here is the post for all to see:

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Sunday, July 29, 2018

Time to Face the Truth on the Mueller Investigation

Tucker: There's No Denying it Now
"Even as ominous signs accumulated, we struggled against calling the Mueller investigation a partisan witch hunt designed to topple a president. We didn't want to think that it was. Unfortunately, it's getting harder to deny that now." — Tucker Carlson https://fxn.ws/2HYcyH5
Posted by Fox News on Monday, May 7, 2018

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Saturday, July 28, 2018

Disobedience Will Not Be Allowed

Tuesday, July 24, 2018

Rick Esenberg: Facts and Implications of Our Legal Case

From a Federalist Society Teleforum, the head of our legal team (Rick Esenberg) discusses the facts of our academic freedom case against Marquette university, as well as the implications for the judicial protection of free expression on campus.

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Monday, July 23, 2018

No Plastic Straws at Marquette: More Dumb Virtue Signalling

A really terse announcement by Marquette: “Marquette Dining Services retail locations (e.g., Marquette Place, Brew cafes) are phasing out plastic straws and transitioning to eco-friendly paper straws.”

The announcement seems to say nothing about the three traditional dorm dining halls on campus.

This, of course, is yet another example of virtue signalling that just inconveniences people and does nothing significant for the environment.

What is, supposedly, the environmental problem with plastic straws? NBC is typical when it explains that:
Activists are pressuring businesses to ditch plastic straws because they can end up in the ocean and hurt marine life.
And just how will plastic straws at Marquette end up in the ocean and hurt marine life?

Do Marquette students, when their finish their soda, run down to Lake Michigan and throw the straw in? Really?

Straws go in the trash, and then go into landfills. Yes, environmentalists hate landfills, but they are in fact pretty benign, and certainly no threat to marine life.

Then what is the basis of the “marine life” claim? Christian Britschgi of Reason explains:
Pictures of turtles with straws up their noses are certainly jarring. However most plastic, whatever form it enters the ocean as, will eventually be broken up into much smaller pieces known as micro-plastics. It is these micro-plastics that form those giant ocean garbage patches, pile up on the ocean floor, and leech into the stomachs and flesh of sea creatures.

Reducing the amount of micro-plastics in the ocean thus requires cutting down on the aggregate weight of plastics entering the ocean each year. It cannot be stressed enough that straws, by weight, are a tiny portion of this plastic.

At most, straws account for about 2,000 tons of the 9 million tons of plastic that are estimated to enter the ocean each year . . . —.02 percent of all plastic waste.
This figure is derived from data here:
. . . a ban may be a bit of a straw man in the discussions about plastics pollution. Straws make up about 4 percent of the plastic trash by piece, but far less by weight.

Straws on average weigh so little—about one sixty-seventh of an ounce or .42 grams—that all those billions of straws add up to only about 2,000 tons of the nearly 9 million tons of plastic waste that yearly hits the waters.
Back to Britschgi:
The pollution problem posed by straws looks even smaller when considering that the United States is responsible for about one percent of plastic waste entering the oceans, with straws being a smaller percentage still.

As countless experts have stressed, truly addressing the problem of marine plastic pollution will require going after the source of this pollution, namely all the uncollected litter from poorer coastal countries that lack developed waste management systems.
A scholarly treatment in the journal Science lists the twenty countries that put the most waste plastic in the oceans. The United States barely makes the list, putting an estimated 0.04–0.11 million metric tons of plastic per year. This is all plastics, not just straws. As we have seen, straws are a tiny proportion.  And this compares to 1.32–3.53 million metric tons from China.

The U.S. only makes the list by being large and rich, with a lot of people consuming all sorts of things. All the other countries on the list are poorer countries, with a much higher level of mismanaged waste.

Which raises the question: what happens when a Marquette student puts a plastic straw in the trash? Does the firm that handles Marquette’s solid waste take it and dump it into Lake Michigan? Or perhaps into the Wisconsin River? If they do, that’s a vastly bigger problem than plastic straws. If they don’t, the ban on plastic straws will have zero effect on plastic in the oceans.

Britschgi concludes:
Straw banners have proven stubbornly resistant to this logic. Instead, they have chosen to rely on either debunked statistics (such as the claim that Americans use 500 million straws a day, which was the product of a 9-year-old’s research) or totally unproven notions (like the theory that straws are a “gateway plastic”) in order to justify petty prohibitions on innocuous straws. And they have been helped along by an uncritical media.
The simple fact about environmentalists is that they are busy-bodies, wanting to control people’s behavior. They are also adverse to any sort of sophisticated analysis, latching onto simple-minded crusades (anti-fracking, anti-nuclear, anti-Keystone pipeline).

A university ought not pander to such people, but rather insist that environmental issues be discussed and analyzed. But such is anathema to social justice warriors, who might find that some of their crusades are a bad idea, or that improving the environment might require them to make sacrifices they don’t want to make.

In a university intent on pandering to every fad of the social justice warriors, they will never be challenged. Which means they will never be educated.

[Update 7/25/2018]

The dining manager at Cobeen Hall informs us that the dining hall there has never had straws, so far as he can remember. He is fairly certain that other dorm dining halls have not had straws either.

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Saturday, July 21, 2018

Getting to Be Way Too Routine

Friday, July 20, 2018

Wisconsin Supreme Court Trashed Marquette, Faculty Hearing Committee

A victory for academic freedom was a massive fiasco for Marquette, as the Wisconsin Supreme Court laid waste to Marquette’s attempt to fire us for a blog post where we reported about a graduate philosophy instructor who insulted and demeaned an undergraduate who wanted to express his opposition to gay marriage.

Marquette has touted a “123 page report” from the Faculty Hearing Committee to support its claim that we should be disciplined. Somehow, the fact that it’s a long report is supposed to mean it’s really good. The sensible people, in contrast, will suspect that anybody with a cogent argument doesn’t need to drone on for 123 pages.

Worse, the university tried to use the Faculty Hearing Committee report as an excuse to fire us, when in fact it only recommended we be suspended for one or two semesters.

Supreme Court Unimpressed

The Wisconsin Supreme Court was entirely unimpressed with the report of the Faculty Hearing Committee. One problem (and a damning one in the view of at least some justices) was that Prof. Lynn Turner had attacked us in an open letter signed by a few dozen leftist faculty. The Court found:
¶42 Under any reasonable standard of impartiality, Dr. Turner would be disqualified. She publicly inserted herself into the dispute and expressed a personal interest in its outcome. And she did not just express her opinions on these matters in passing—she committed herself to them in writing. Having done so, she could not decide the FHC proceedings in favor of Dr. McAdams without contradicting what she had already said to the entire Marquette University campus. These are not anonymous members of the public to whom she would be admitting that her initial convictions were mistaken. They are her professional colleagues and students. The natural human impulse to resist acknowledging a mistake, especially in light of the audience to whom she would be making the acknowledgement, is sufficiently powerful to affect Dr. Turner’s consideration of the dispute. If an arbitrator evidenced this level of bias, we would set aside the resulting award. The FHC’s composition was unacceptably compromised by Dr. Turner’s bias.
But more basic was the faulty logic the FHC (and Marquette) used:
¶72 The defects inherent in the University’s alternative analytical structure, however, represent just one of two problems with its assessment. The second is that the University conducted the analysis 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’ reactions to his blog post. The blog post caused “harm,” 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 “unfitness” analysis proceeded as follows: Instructor Abbate suffered harm because she received offensive communications from third parties; the communications were prompted by Dr. McAdams’ 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’s students. Quod erat demonstrandum. But the University can reach this conclusion only because its analysis traveled in reverse. So quod non erat demonstrandum.

¶73 Performing the analysis in the correct direction leads to the unavoidable conclusion that the blog post has nothing relevant to say about Dr. McAdams’ fitness as a professor. The University’s end point is where we start—that is, we consider first whether the challenged extramural comment, on its face, violated Dr. McAdams’ “responsibilities to . . . [the University’s] students.” Although Instructor Abbate was functioning as a University instructor, we will consider only her status as a student for purposes of this analysis. The University identified several aspects of the blog post that it believes were problematic. For instance, it says Dr. McAdams relied on improperly obtained information (the surreptitious recording of the conversation between Instructor Abbate and the student); he identified Instructor Abbate by name; he linked to her contact information; he drafted the post in a way that would subject Instructor Abbate to public contempt; and the post contains factual errors.

¶74 The undisputed facts show that none of the aspects of the blog post about which the University is concerned could have violated Dr. McAdams’ responsibility to Instructor Abbate. The FHC’s 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’s personal webpage, even when that webpage lists the student’s 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.
Note that it sounds nice to say “professors should always be accurate.” But if any inaccuracy — even a trivial one — can be used as an excuse to fire a troublesome professor, academic freedom doesn’t mean much. Further, what is “accurate” is often a matter of opinion. Can a professor who expresses skepticism about man-made, catastrophic global warming be fired for being “inaccurate?” What about a professor who says that Donald Trump would not have been elected without the interference of the Russians?

But worse, nothing about our blog post was inaccurate.
¶76 Finally, there is the University’s 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—an extraordinarily unusual argument for an educational institution to make—so 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 “post hoc ergo propter hoc” 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’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.
The Supreme Court decision was a humiliating defeat for Marquette generally, and specifically for the Faculty Hearing Committee and President Michael Lovell.

Both the FHC and Lovell actually believed they could ignore Marquette’s contractual promise to faculty of free expression. The Faculty Statutes say:
“Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.”
What sort of arrogance on the part of Michael Lovell and mendacity on the part of the Faculty Hearing Committee made them think they could trample on that legally binding promise?

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Wednesday, July 18, 2018

Needing Repair

Tuesday, July 17, 2018

Marquette’s Lame Arguments to Wisconsin Supreme Court: Must Defer to Faculty Hearing Committee

Although we were never completely sure before the decision was announced, the implausible, tortured arguments Marquette presented to the Wisconsin Supreme Court in our legal case should have made it obvious the court would come down on our side.

Exhibit 1: Marquette’s Claim that the court should defer to the verdict of the Faculty Hearing Committee, which claimed that our blog post was grounds to suspend us without pay for one or two semesters.

Of course, the Faculty Hearing Committee did not say we should have to render a Stalinist apology for the blog post. That was entirely Michael Lovell. So Marquette was demanding that the FHC be deferred to in one issue, but contravened on another.

The Decision

The Supreme Court trashed that notion:
The University denies Dr. McAdams’ right to litigate his breach of contract claim in our courts. Instead, it says, we must defer to its procedure for suspending and dismissing tenured faculty members. It claims we may not question its decision so long as it did not abuse its discretion, infringe any constitutional rights, act in bad faith, or engage in fraud.

¶2 The University is mistaken. We may question, and we do not defer. The University’s internal dispute resolution process is not a substitute for Dr. McAdams’ right to sue in our courts. The University’s internal process may serve it well as an informal means of resolving disputes, but as a replacement for litigation in our courts, it is structurally flawed.

¶3 The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom. Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by § 307.09 of the University’s Statutes on Faculty Appointment, Promotion and Tenure (the “Faculty Statutes”).
Why did the court refuse to defer to Marquette? For several reasons.
¶25 The most obvious reason we will not defer to the University is simply that the parties never agreed that its internal Discipline Procedure would either replace or limit the adjudication of their contract dispute in our courts. They certainly could have agreed to an extra-judicial resolution of their contract dispute. This is a common feature in society today and is accomplished most often through an arbitration agreement. [...]

¶26 Our exhaustive review of the Faculty Statutes reveals no indication that the University and Dr. McAdams agreed the Discipline Procedure would supplant the courts or limit their review of a contractual dispute. Two of the Faculty Statutes acknowledge Dr. McAdams’ right to seek judicial adjudication of his claims. The first describes the right negatively by demarcating a period of time in which the parties agree not to litigate. . . .

¶27 The Faculty Statutes also contain an explicit, positively-stated recognition of Dr. McAdams’ right to litigate. . . .

This provision unambiguously recognizes that the University’s suspension and dismissal decisions are subject to litigation in our courts. It was with good reason that the University conceded, during oral arguments, that it had no express agreement with Dr. McAdams that the Discipline Procedure would preclude his right to litigate his cause here.

¶28 The University and Dr. McAdams could have agreed that the court would defer to the Report and Discipline Letter in the same way we defer to arbitration decisions. They could have done that, but they did not. They did the opposite: The University agreed it would defer to the court’s adjudication of Dr. McAdams’ right to reinstatement.

Why Defer to the Faculty Hearing Committee?

Marquette was touting the Discipline Procedure of the Faculty Hearing Committee as authoritative, but the court saw no reason to treat it that way:
¶49 As a matter of process, therefore, there is a hard break between the Discipline Procedure and the actual decision to suspend Dr. McAdams. While the dispute was in the hands of a body that had no authority to resolve it (the FHC), the case was subject to the detailed Discipline Procedure. However, once it reached the actual decision-maker (President Lovell), there were no procedures to govern the decision-making process. The Discipline Procedure does not tell President Lovell how to reach his decision, and nothing in the record before us suggests the president’s decision must have any relationship to the FHC’s work. As far as the Faculty Statutes and Faculty Handbook are concerned, the president may proceed as if the Report said nothing but that the FHC had completed the Discipline Procedure. Consequently, the efficient cause of Dr. McAdams’ suspension without pay was the Discipline Letter, and there is no evidence that it resulted from any prescribed procedure at all. It was the product of President Lovell’s exercise of unfettered discretion. Even if we were inclined to defer to the authoritative resolution of Dr. McAdams’ case (as opposed to the FHC’s Report), there is quite literally nothing to which we could apply an arbitration-style review.

The Court Liberals Speak

The two liberal justices dissented. This is not surprising, given that liberals less and less believe in free speech. Both Ann Walsh Bradley and Shirley Abrahamson sided with Marquette, invoking the “academic freedom” of the university.
¶140 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’s autonomy to make its own academic decisions in fulfillment of its unique mission.

¶141 Further, the majority compounds this error by rendering meaningless a key component of shared governance, reducing the faculty’s bargained-for role in reviewing dismissal for cause to “nothing” or a mere “distraction.” In disregarding the faculty hearing committee’s expertise and unanimous recommendation, it throws aside a process that is mutually agreed upon and time-honored. Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day.
This, of course, is complete nonsense. The “group of tenured faculty members” (the Faculty Hearing Committee) does not “live by academic freedom.” Most of them have nothing much controversial to say, or if they do, they express the leftist opinions approved by most of the faculty (and thus safe from faculty-centered disciplinary procedures).

Further, most faculty who participate in “shared governance” are, to put it bluntly, sycophants. Administrators have a lot of goodies to hand out to faculty (raises, promotions, grants, reduced teaching loads, administrative positions, etc.) and few faculty are inclined to get on the wrong side of the campus bureaucrats.

Marquette’s Choice

Marquette, of course, had the academic freedom to refuse to give faculty a contractual guarantee of free expression. Some schools (mostly religious ones) don’t guarantee academic freedom, and are honest about the fact that they will fire faculty they consider heretical.

But Marquette made a different choice.

The Majority Responds

The majority responded to the liberal judges as follows:
¶58 The dissent says we should nonetheless defer to the University, and that failing to do so “renders meaningless a key part of shared governance, reducing the faculty’s role in this decisionmaking to nothing.” Dissent, ¶173. The author, however, does not identify the key part of shared governance we have rendered meaningless, nor could she. The faculty’s authority to share in the University’s governance comes from the Faculty Statutes and Faculty Handbook, not some formless notion of what shared governance ought to be. We have taken these authorities as they are, and scrupulously examined their provisions. The faculty’s role is what our opinion says it is because that is the arrangement upon which the University and its faculty members have agreed. It is not our place to rewrite their management structure to give the faculty a more muscular role in the University’s affairs than they currently have. Because the dissent identified no Faculty Statute or Faculty Handbook provision that we have overlooked or misconstrued, we decline the implicit invitation to disregard what these authorities so plainly say.
Marquette’s case was so poor we are left wondering “what were they thinking?” Quite likely, when they began their jihad against us, they expected we would just take some money and walk away. But when they found that wasn’t so, why did they not back off?

It is difficult to avoid the conclusion that Marquette President Michael Lovell is so rigid, and so arrogant, that he was unable to cut the university’s losses. Those losses have been huge.

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Saturday, July 14, 2018

Off the Cliff!

Friday, July 13, 2018

Zach Petrizzo/Vicki McKenna on Student Expelled from Marquette

The student was expelled in due to a supposed “racist” photo that circulated among black students on campus. This in spite of the fact that the image that caused all the uproar was not racist, and fell into the hands of a black student due to the expelled student’s careless use of AirDrop on his smart phone, with no intention to do any harm to anybody.

Zach Petrizzo has been on top of the story for Campus Reform, and he discusses it with Vicki McKenna.

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Thursday, July 12, 2018

You are Stuck With It

Michael Lovell’s Fiasco: The Cost

Marquette’s defeat in the Wisconsin Supreme Court for its attempt to fire us was epic. The Court trashed Marquette’s lame arguments, one of which was that it should defer to a Faculty Hearing Committee that said we had been guilty of misconduct and should be suspended without pay for one or two semesters.

The court noted that we had not agreed in our contract to accept the judgment of a bunch of other professors as to whether we could express our opinions on our blog. Further, Marquette President Michael Lovell went beyond the Faculty Hearing Committee in punishing us, demanding a Stalinist apology. Marquette, in other words, was arguing that Faculty Hearing Committee was binding when it was convenient for the university, but not binding when it was inconvenient.

“Guiding Values”

The university claimed it could invoke its “Guiding Values” to override our black letter guarantee of free expression. The Court trashed this notion:
The University posited that educational institutions assume academic freedom is just one value that must be balanced against “other values core to their mission.” Some of those values, it says, include the obligation to "take care not to cause harm, directly or indirectly, to members of the university community,” “to respect the dignity of others and to acknowledge their right to express differing opinions,” to “safeguard[] the conditions for the community to exist,” to “ensur[e] colleagues feel free to explore undeveloped ideas,” and to carry out “the concept of cura personalis,” which involves working and caring “for all aspects of the lives of the members of the institution.” These are worthy aspirations, and they reflect well on the University. But they contain insufficiently certain standards by which a professor’s compliance may be measured. Setting the doctrine of academic freedom adrift amongst these competing values would deprive the doctrine of its instructive power; it would provide faculty members with little to no guidance on what it covers.
The Court was doubtless unimpressed with Marquette’s pious rhetoric about “values” in light of the fact that our blog post highlighted an instructor who insulted a student, telling him that his opposition to gay marriage would sound homophobic, would be offensive, and could not be expressed in her class. When he complained to authorities he was blown off, and indeed insulted.

Even if the Court had been inclined to defer to Marquette’s real values, why should they defer to hypocritical rhetoric about values?

Michael Lovell

Marquette President Michael Lovell has, quite simply, been responsible for a huge fiasco. His obtuseness in not recognizing our binding contractual right to the same free expression guaranteed in the Constitution, and his stubbornness pushing the issue all the way to the Wisconsin Supreme Court has been stunning.

The Cost

Three sources of ours intimately familiar with this case and with lawyers’ billing rates estimate the legal fees Marquette has incurred at between $750,000 and $1,000,000.

But there were further costs. The Chronicle of Higher Education quotes Lovell (paywall):
The university has forcefully pushed back against McAdams’s narrative that the key issue is academic freedom. It pressed its case in advertisements in newspapers, including The Wall Street Journal. It set up a web page, complete with a timeline and fact-vs.-myth section. It hired a public-relations firm with a storytelling team.

“In terms of our brand and public perception,” Lovell says, “we were taking a beating. We thought it was important to at least try to get the truth out about what we felt our side of the story was.”
Marquette, in fact, even bought Google ads to lead web surfers to a page that attacks us.

None of this came out of Lovell’s pocket. He has spent other people’s money. It was either endowment, or tuition, or a combination of the two. His jihad against this blogger has been expensive.

Lovell’s Motivation

There are two theories about what moves Michael Lovell. One is that he is simply a careerist bureaucrat wanting to “move up” to a more prestigious institution. The theory is that his incessant pandering to the forces of political correctness is his strategy for doing this. Thus he demonstrated in sympathy with students at the University of Missouristudents who latched onto bogus grievances and began bullying everybody else on campus.

Thus he piously claimed to “stand against racism” when black students at Marquette were in an uproar about a “racist” photo that was not, in fact, racist.

The other theory, one we are beginning to favor, is that Lovell is an actual social justice warrior. That, instead of being an opportunist, his pandering to the forces of political correctness is sincere, and his campaign to fire us was was a matter of conviction.

Unfortunately, having a president who is a sincere social justice warrior is even more toxic than having an opportunist bureaucrat. The latter might back off of a disastrous policy.

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Wednesday, July 11, 2018

Jerry Bader: Two Important Takeaways from the McAdams Victory

Scapegoated for “Racist” Picture that Wasn’t Racist: Update

From Zachary Petrizzo of Campus Reform, who has been following the case closely, and investigating in-depth: an update on the student who was expelled from Marquette in a racial hysteria. All due to a supposed “racist” photo that was not at all racist. Some cogent points:
  • A Marquette University student was recently expelled after coming forward to explain the context of a photo that had sparked fears of racism on campus.
  • Alex Ruiz said he took responsibility for accidentally sharing the photo with a classmate in hopes of mollifying the outrage on campus by explaining that there was no racist intent.
  • Instead, Marquette subjected him to a disciplinary hearing that led to his expulsion for “discriminatory harassment,” a verdict that was upheld on appeal.
More details:
One night, according to a campus police “Incident Report” obtained by Campus Reform, Alex and friends were playing a “game” in which they would randomly scroll through their phones while the “Apple Airdrop” function was on, which allows photos to be sent to all nearby devices without specifying a recipient, resulting in the photo being unintentionally shared with a classmate.

According to the university, “sending [photos] to another person is harassment.” Ruiz and his father both told Campus Reform that they are deeply “apologetic” about what occurred, but feel that the university was not fair in its handling of the matter.
Sending photos to random people who happen to be connected to the same Wi-Fi hotspot is pretty dumb. But undergraduates do dumb things. Intentions matter. There was no intention to send the photo to a black female student, and the photo was not racist — unless you really, badly want it to be racist.
Ruiz’s father asserted that he had made “multiple attempts” to contact university officials, even calling President Michael Lovell, but said Lovell ignored “multiple requests” to speak to the family even after they flew from Colorado to Marquette to meet with school administrators.

Ruiz’s family originally immigrated to the United States three years ago from Mexico, and continues to struggle with English fluency. The father claims that the university summarily “dismissed” his outreach, and was looking to “out a student” to calm the outrage on campus.
Note that Ruiz would be a “person of color” and entitled to special treatment in other circumstances. But when it’s convenient for Marquette officials, he’s just another privileged white male.

Another Photo

In addition to the widely circulated photo of four guys pretending to be gangsta rappers, there was another photo of “an edited image of a black male’s face on a gorilla.” That certainly sounds racist. But in fact, it’s probably largely irrelevant.

In the first place, nobody seems to have the image. While the gangsta rapper image is all over Twitter, and posted with news articles on the incident, we have been unable to find the other one. It appears that all the fuss has been over the benign image, and not this second one.

Secondly, Ruiz explained this image to the campus cops:
RUIZ stated that the photos were not racially motivated other than some friends taking random pictures for fun. RUIZ stated the second photo of a gorilla with a M/B, face attached to the body of the gorilla, is a cropped photo of his high school. RUIZ identified the M/B as HS Friend. RUIZ stated the circumstances surrounding this photo was just more friends having fun and sending out funny pictures among each other via group massaging.
Given that Ruiz was a teenager, and migrated to the U.S. from Mexico only three years ago, it’s unlikely he would know how toxic the meme of associating black people with simians has been.

The campus cops, who had both photos and had talked to Ruiz, explained:
I contacted Milwaukee County District Attorney Kelly HEDGE and informed her of the incident and due to the lack of intent by RUIZ no criminal charges for harassment would be issued.

I then spoke with [the complainant] at MUPD and informed her that the investigation was wrapping up and informed that the individual that sent the photos had no intent to harass her and was not targeting her.

What Did He do Wrong?

Marquette outlined his supposed crime in a letter expelling him. It says the images he sent were “discriminatory and racist,” but doesn’t explain how.

Why not? Because any such explanation (especially when addressed to the image everybody saw) would be unconvincing, and the university is committed to the view that anything that anybody calls “racist” must actually be. Doing otherwise would be to admit that some students have a racial chip on their shoulder, and may claim racism falsely.

The letter then goes on to outline the uproar on campus that resulted when black students widely distributed the rapper image.

The clear implication is that Ruiz was punished for the reaction of black students, rather than for what he actually did.

This constitutes a kind of “heckler’s veto” where people can shut up expression merely by taking offense. Admittedly, this expression was pretty trivial, but campus leftists have used the heckler’s veto to shut up important discussions of real issues.

Perhaps some punishment was merited, simply because of the sheer recklessness of sending random photos to random people. But again, intention matters, and Ruiz had no evil intention.

Marquette Stonewalls

Lovell’s bull-headed refusal to talk to the Ruiz family was of a piece with his disastrous attempt to fire this blogger, which was slapped down by the Wisconsin Supreme Court last Friday.

We have always wondered about Lovell. Is he simply a bureaucrat pandering to the forces of political correctness on campus, such as the leftist faculty who wanted us fired? Or is he a rigid fanatic, who fully believes in his own righteousness?

This case has us leaning toward “fanatic.”

[Update]

Updated 7/13 to discuss the “second photo.”

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Monday, July 09, 2018

What Marquette Could Have Done, But Didn’t



From Margot Cleveland, writing in The Federalist: an analysis of our recent Wisconsin Supreme Court victory. Cleveland sides with us and the court, and explains:
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 McAdams’ 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.
But Cleveland goes on to highlight the fundamental social problems behind this whole incident:
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.

What Marquette Could Have Done

Cleveland goes on to highlight a grain of truth in the two leftist justices’ dissent.
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.

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.
Marquette claims the right to hire “for mission.” This means Marquette has the right to hire people loyal to Catholic teaching, and even to prefer practicing Catholics.

This is perfectly consistent with academic freedom if, once hired, faculty are free to write and speak as they please. In some departments, this has largely been ignored. In Political Science we have always hired on the basis of pure scholarly credentials. This blogger has been as guilty of that as anybody else in the department.

In many departments, hiring is anti-mission. Somebody who opposes abortion, or gay marriage, or who believes homosexual acts are illicit would be quickly vetoed in the job search.

If Marquette is unwilling to hire for mission (which it certainly is), it could at least demand that faculty be tolerant of arguments on different sides of an issue. But in fact, Marquette doesn’t mind politically incorrect arguments being shut up — even when those arguments support Catholic teaching.

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Sunday, July 08, 2018

You Get What You Deserve / Unfortunately