Another Academic Freedom Group Weighs In on Marquette’s Attack on the Warrior Blog

January 30, 2015

President Michael R. Lovell
Marquette University
Zilber Hall 441
1250 West Wisconsin Avenue
Milwaukee, Wisconsin 53233

Sent via U.S. Mail and Facsimile (414-288-3161)

Dear President Lovell:

The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned by Marquette University’s suspension of Professor John McAdams, whom the university has banned from campus and whose classes have been unilaterally and punitively cancelled on the basis of opinions expressed on his blog. Marquette has repeatedly ignored its own policies governing faculty speech and due process, and has severely imperiled free speech and academic freedom through its unjust actions. We call on the university to promptly restore McAdams’s full privileges as a tenured faculty member and to reaffirm its commitment to freedom of expression before the university’s reputation is further damaged.

The following is our understanding of the facts. Please inform us if you believe we are in error. Since 2002, political science professor John McAdams has published the Marquette Warrior blog, in which he expresses personal views that are often outspoken and critical of university affairs. In an entry dated November 9, 2014, McAdams drew attention to an undergraduate student’s recorded interaction with Cheryl Abbate, the student’s instructor in a “Theory of Ethics” course; Abbate was at the time also a Ph.D. student in Marquette’s Department of Philosophy. In this interaction, recorded following the end of class, Abbate expressed her opinion to the student that it was inappropriate to voice opinions opposing same-sex marriage in class. McAdams wrote in this entry, describing the encounter:

Abbate explained that “some opinions are not appropriate, such as racist opinions, sexist opinions” and then went on to ask “do you know if anyone in your class is homosexual?” And further “don’t you think it would be offensive to them” if some student raised his hand and challenged gay marriage? The point being, apparently that any gay classmates should not be subjected to hearing any disagreement with their presumed policy views.

[. . .]

She went on “In this class, homophobic comments, racist comments, will not be tolerated.” She then invited the student to drop the class.

McAdams further noted that the undergraduate student’s attempt to raise his concerns with the philosophy department was unsuccessful.

McAdams’s November 9 entry received widespread attention, with various persons defending or criticizing both McAdams’s and Abbate’s positions. In the weeks following this initial post, McAdams publicly defended his writing on the issue, highlighted media attention garnered by the controversy, and disputed criticisms directed at him by other faculty.

On December 16, Klingler College of Arts and Sciences Dean Richard C. Holz informed McAdams of the following in a letter:

The university is continuing to review your conduct and during this period — and until further notice — you are relieved of all teaching duties and all other faculty activities, including, but not limited to, advising, committee work, faculty meetings and any activity that would involve your interaction with Marquette students, faculty and staff.

McAdams was prohibited from entering the Marquette campus while suspended except with permission from the university. McAdams requested that Holz provide specific charges to justify his suspension via email on December 16; Holz did not respond to this email.

Though McAdams had not been presented with any formal charges, Marquette cancelled both of his scheduled courses for the current semester, informing students in emails sent December 18.

While Holz did not inform McAdams of any suspected policy violations, he provided McAdams with a copy of Marquette’s harassment policy, suggesting that Marquette was investigating McAdams for violating this particular policy. On December 17, Marquette released a statement on its suspension of McAdams, publicly insinuating that he was suspected of violating Marquette’s harassment policy. The statement read in part:

Our president has been very clear, including in a recent campus-wide letter, about university expectations and Guiding Values to which all faculty and staff are required to adhere, and in which the dignity and worth of each member of our community is respected, especially students.

[. . .]

Lovell noted that Marquette listens to any member of the campus community who expresses concerns alleging inappropriate behavior. As stated in our harassment policy, the university will not tolerate personal attacks or harassment of or by students, faculty and staff.

“To be clear, we will take action to address those concerns.” he said. “We deplore hatred and abuse directed at a member of our community in any format.”

[Emphasis added.]

On December 22, the Wisconsin Institute for Law & Liberty (WILL) wrote to Marquette on McAdams’s behalf, arguing that Marquette, by declining to provide any alleged policy violations committed by McAdams or specifying precisely what conduct merited his suspension, violated McAdams’s rights as a faculty member. WILL further argued that McAdams had not committed any policy violations and that his suspension was wrongfully imposed.

Holz elaborated on Marquette’s position in a January 2 letter to McAdams, in which he took the position—while still not specifying any alleged policy violations—that McAdams had impermissibly used Abbate’s name in his Marquette Warrior posts. Holz told McAdams he “had no justification to put our graduate student’s name in [his] internet posts” and referred to his decision to do so as “dishonorable and irresponsible.” Holz further wrote that Abbate had subsequently received threatening letters and emails, and that Marquette had placed a security officer outside her classroom as a result. Abbate transferred to a graduate program at another university shortly thereafter. Holz referred to this entire sequence of events as “plainly foreseeable.”

Though Abbate is apparently no longer at Marquette, McAdams remains suspended by the university, prohibited from teaching and from entering the campus except with Marquette’s advance permission. Marquette, meanwhile, has framed McAdams’s suspension as justified by the need to protect students’ physical safety and has continued to publicly suggest that McAdams is being investigated under Marquette’s harassment policy. A January 12, 2015, Fox6Now article, for instance, carried a statement from Marquette stating in part:

The safety of our students and campus community is our top priority. The university has a policy in which it clearly states that it does not tolerate harassment and will not stand for faculty members subjecting students to any form of abuse, putting them in harm’s way. We take any situation where a student’s safety is compromised extremely seriously.

Professor McAdams’s suspension is an affront to faculty due process rights, in brazen disregard of Marquette’s established, written policies. This suspension also raises serious concerns for free speech and academic freedom at Marquette, with deeply chilling implications for all faculty. We urge Marquette to promptly restore McAdams’s campus and teaching privileges in light of its serious and numerous failures to respect his rights in this matter.

We note first the duplicity with which Marquette has publicly presented its suspension of McAdams. In a December 18, 2014, article, Marquette spokesperson Brian Dorrington told the Milwaukee Journal Sentinel that McAdams was “under review” as opposed to having been suspended for cause, and claimed, “Our definition of suspension is without pay.” This is transparently false by any plain reading of Marquette’s faculty policies. Section 307.02 of Marquette’s Faculty Handbook states, for instance:

In all cases of nonrenewal, suspension, or termination for absolute or discretionary cause (except resignation), a faculty member’s entitlement to salary and fringe benefits shall continue, irrespective of any suspension from duties:

(1) for a period of at least thirty days after the cause arises;

Further, Marquette’s faculty policies recognize no such disciplinary category as “under review.” In effect, Marquette has invented a new category of discipline to suit its public needs in this particular instance, while ignoring the procedures it does maintain. Section 307.3 of the Faculty Handbook states, for instance, that any notice of suspension should include:

(1) The statute allegedly violated; the date of the alleged violation; the location of the alleged violation; a sufficiently detailed description of the facts constituting the violation including the names of the witnesses against the faculty member.

(2) The nature of the University’s contemplated action, with a specification of the date or dates upon which such action is to become effective with respect to faculty status, duties, salary, and benefit entitlements, respectively.

[Emphases added.]

Holz’s December 16 suspension notice to McAdams satisfied neither of these requirements. It outlined no specific charges against McAdams, only suggesting (by enclosing a copy of the policy) that Marquette was investigating him for violating its harassment policy. Likewise, it did not provide McAdams with any indication of what action the university was contemplating beyond the suspension, or any timeline as to when its review of his conduct would be completed. Holz’s January 2 follow-up letter to McAdams, while providing more detail on the substance of McAdams’s alleged conduct violations, nonetheless failed again to outline any specific charges or detail the planned course of its investigation—it provided nothing more than a rudimentary notification that his conduct was still being “reviewed.”

Marquette’s rationale for suspending McAdams, cancelling his classes, and banning him from entering the Marquette campus appears to be based on the questionable assertion that publicly identifying a graduate student as a course’s instructor in the midst of disputing and criticizing her statements to a student violated Marquette policy in some way. Yet no Marquette policy explicitly shields graduate student instructors from criticism by faculty, nor do generally accepted precepts of academic freedom. In fact, Marquette’s academic freedom promises seem to explicitly forbid taking such action against McAdams. We note that section 306.03 of the Faculty Handbook—concerning “Cause for Nonrenewal, Suspension, Termination”—states:

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.

This warning should carry particular weight in light of McAdams’s original concern that sparked this incident in the first place: The quality of liberal education diminishes if certain opinions are deemed unwelcome in the classroom simply because they may prove subjectively hurtful to some people. Indeed, the issue of whether overly sensitive campus environments or overly broad university policies have the effect of inhibiting discussion on matters of public interest is a concern McAdams has written about previously,¹ and one with implications for the Supreme Court’s long-cherished holding that the college environment is “peculiarly the ‘marketplace of ideas.’” Healy v. James, 408 U.S. 169, 180 (1972).

If criticism of the ideas proposed, and pedagogical choices made, by fellow instructors in this context are not protected by Marquette’s seemingly robust promises of academic freedom, then it is not clear what is. While in its public statements Marquette professes that “all of our graduate student teaching assistants are students first,” the fact is that teaching and its associated public responsibilities are a pillar of doctoral studies and that they inevitably introduce the possibility of having one’s teaching methods critiqued, perhaps publicly. Of course, graduate instructors in such positions enjoy the same rights of

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¹ John McAdams, Marquette’s Bizarre Training on “Harassment”, MARQUETTE WARRIOR, September 21, 2014, http://mu-warrior.blogspot.com/2014/09/marquettes-bizarre-training-on.html.

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free speech and academic freedom to defend their ideas and pedagogical choices against such criticisms as their faculty peers.

Marquette’s repeated and damaging public insinuations that McAdams has violated its harassment policy are also deeply problematic, given the policy’s definition:

Harassment is defined as verbal, written or physical conduct directed at a person or a group … where the offensive behavior is intimidating, hostile or demeaning or could or does result in mental, emotional or physical discomfort, embarrassment, ridicule or harm.

[. . .]

Harassment includes not only offensive behavior that interferes with a person’s or group’s well-being or development, but also such behaviors that interfere with one’s employment, educational status, performance, or that create a hostile working, academic or social environment.

McAdams has committed no such harassment. Furthermore, there is no right to be free from all subjective feelings of “discomfort,” “embarrassment,” or “ridicule” that may result from others’ comments, a fact of which Marquette seems aware. Dorrington acknowledges in the Milwaukee Journal Sentinel, for example, that “[u]nder faculty conduct rules, a professor cannot be relieved of teaching duties for voicing an opinion about whether a potentially controversial offensive subject should be allowed by a TA to be discussed in class.” But it is clear that Marquette seeks to hold McAdams accountable not only for his own remarks but also for those of third-party individuals who contacted Abbate after reading his blog, despite the fact that McAdams had no control whatsoever over their actions. Our basic traditions of free speech thoroughly reject this imposition of vicarious responsibility on the speaker in all but the narrowest of circumstances. With the exception of incitement, which the Supreme Court held in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) must be “directed to inciting or producing imminent lawless action” and must be “likely to incite or produce such action,” speakers are not responsible for the actions taken by listeners in response to their protected speech. If they were, speech would cease to be free in any meaningful form, and what is left of our discourse would be awash with perverse incentives to censor individuals by distorting and weaponizing their messages to suit malicious ends.

We further note that more recently, Marquette has publicly justified McAdams’s extended banishment from campus by referring to “[t]he safety of our students and campus community”—a wholly unfounded and insulting implication that McAdams is a physical threat to campus safety. To put Marquette’s error into full relief, the Supreme Court has defined “true threats” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).

Just as McAdams’s expression does not come close to crossing the threshold into harassment, it does not come close to crossing the threshold into true threats, either as a matter of common sense or as legally defined by the Supreme Court. McAdams himself did not express any intent to commit any act at all, let alone an act of unlawful violence. Whatever legitimate threats to Abbate’s safety existed were entirely the doing of third-party individuals over whom McAdams had no control. While Marquette bears the duty to ensure safety in the face of such threats, McAdams is not responsible for the conduct of those making illegal threats against an instructor’s safety simply because they read his blog before making the threats. Further, any claim—now that Abbate has transferred from Marquette—that McAdams remains a general threat to campus safety is baseless.

Marquette has not provided a single piece of evidence to suggest that McAdams is guilty of anything other than exercising his own right to free expression through his blog—for which he has now been banned from the Marquette campus for six weeks and forced to forfeit an entire semester of teaching.

Marquette has totally disregarded John McAdams’s due process and free speech rights throughout this case. Its actions have deeply chilling implications for academic freedom. As the Wisconsin Institute for Law & Liberty put it in its December 22 letter, “If Dr. McAdams’ reporting of a fact about a Marquette instructor’s conduct and offering his opinion on that fact are grounds for punishment, then academic discourse would dissolve in the face of a war of all against all.” Marquette’s unjust course of action requires no less than the immediate end of McAdams’s suspension and banishment from the Marquette campus, and his return to teaching as soon as possible. We hope that Marquette will not risk further damaging its public standing with this misguided and chilling attack on faculty rights.

We request a response to this letter by February 13, 2015.

Sincerely,

Peter Bonilla
Director, Individual Rights Defense Program

cc:
Margaret Faut Callahan, Interim Provost
Richard C. Holz, Dean, Klingler College of Arts and Sciences

Campus Free Speech Advocate On Marquette’s Attack on Warrior Blog

Donald Downs, a Professor at the University of Wisconsin, Madison, is one of the most important academics (and perhaps the most important academic) defending freedom of speech and expression on the university campus. Thus it’s no surprise when he weighs in on Marquette’s attempt to punish The Marquette Warrior for a blog post.

Donald A. Downs
Department of Political Science
303 North Hall
University of Wisconsin
Madison, WI 53706

January 27, 2015

Dr. Michael R. Lovell
President, Marquette University
1250 West Wisconsin Avenue
Milwaukee, WI 53233

Dear President Lovell:

I am writing to express my concern about how Marquette University has handled the case of Professor John McAdams. As of this writing, Professor McAdams remains suspended, which entails being barred from campus and prohibited from interacting with any students. These are substantial penalties that typically are reserved for the most severe cases.

My main concern in the case is very straightforward. As others around the country have publicly expressed, the due process aspects of the case have been very problematic from the start. In mid-December, when the University took its first actions in the case, Professor McAdams was not adequately informed of the charges against him, as the letter from his attorneys (made public) makes evident. Contrary to Marquette’s own rules, the letter addressed to Professor McAdams did not provide notice of what conduct had been violated, nor did it specify what procedures would be followed.

When the University finally made the offending conduct known, it stated the problem was Professor McAdams’ blog commentary criticizing an instructor’s comments to a student, in particular the teacher’s decision to not allow discussion regarding the pros and cons of gay marriage in class on the grounds that such discussion could constitute a form of homophobic harassment. A tape the student made of his post-class conversation with the teacher supports the interpretation of the teacher’s reasoning that Professor McAdams posted on his blog. But it was not until later that Dean Holz finally wrote a letter to Professor McAdams articulating this basis for the University’s action.

More importantly, the severe temporary sanction applied to Professor McAdams—being banned from campus and not allowed to teach—was issued even before an adequate review of the case was carried through. According to generally understood standards governing discipline in higher education (standards that are reflected in Marquette’s own rules), such “severe” sanctions are allowable, but only after the fundamental norms of due process have been conscientiously been adhered to. The Policy Statements and Reports of the American Association of University Professors constitute the most authoritative standards regarding what could be called “common law” for the profession of higher education. The following AAUP statement on suspensions captures the essence of my present concern in respect to due process in this case:

If the administration believes that the conduct of a faculty member, although not constituting adequate cause for dismissal, is sufficiently grave to justify imposition of a severe sanction, such as suspension from service for a stated period, the administration may institute a proceeding to impose such a severe sanction; the procedures outlined in regulation 5 will govern such a proceeding. (AAUP: Policy Documents & Reports, 1990 Edition, p. 27)

Based on my own observations and research germane to the practices of higher educational institutions, the sanction Marquette has imposed upon Professor McAdams is remarkable in this context. Suspension based on the facts in Professor McAdams’ case is exceptionally severe under the circumstances, especially given the lack of due process that appears to have accompanied the decision. The AAUP’s position is similar to this assessment:

an administration also may suspend a faculty member pending a dismissal hearing, but only if immediate harm to the faculty member or others is threatened by continuance. Before suspending a faculty member, pending an ultimate determination of the faculty member’s status through the institution’s hearing procedures, the administration will consult with the Faculty Committee on Academic Freedom and Tenure [or whatever other title it may have] concerning the propriety, the length, and the other conditions of the suspension. A suspension that is intended to be final is a dismissal and will be treated as such. (AAUP, 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings)

Some critics have disapproved of the manner in which the student surreptitiously recorded his conversation with the teacher. And, of course, genuine and strong disapproval is merited regarding the threatening emails some very misguided individuals have sent to the instructor in the wake of Professor McAdams’ disclosure of the conversation. I share such disapproval. But three facts should be noted in relation to these critiques. First, Professor McAdams had no hand in making this recording. Second, to my knowledge he has made no threats of any kind to the instructor or to anyone else. Third, the topic addressed in Professor McAdams’ blog commentary addresses an important issue in higher education today: the status of intellectual diversity and free thought on campus. Numerous supporters and practitioners of higher education have expressed serious misgivings about the way in which improperly expansive harassment policies can stifle free discussion of sensitive intellectual and moral topics. Professor McAdams’ critique in this case dealt with this important concern.

I sincerely hope that the suspension of Professor McAdams is in no way related to the fact that he has publicly criticized the way the University has dealt with harassment training and free thought on campus. Unfortunately, the severity of the punishment, in conjunction with the due process problems associated with the infliction of this sanction, raise questions in this regard.

With all due respect, I urge you and the University to take the concerns others and I have raised into genuine consideration.

Sincerely,

Donald A. Downs
Alexander Meiklejohn Professor of Political Science
University of Wisconsin, Madison

Marquette Attack on Warrior Blog: AAUP Weighs In

1133 19th Street, NW, Suite 200
Washington, DC 20036

January 26, 2015
VIA ELECTRONIC MAIL AND USPS

Dr. Michael R. Lovell President
Marquette University
P.O. Box 1881
Milwaukee, Wisconsin 53201-1881

Dear President Lovell:

Dr. John McAdams, associate professor of political science at Marquette University, has sought the assistance of the American Association of University Professors as a result of having been informed, by letter of December 16, 2014, that the university was suspending him with pay “until further notice” from his teaching responsibilities "and all other faculty activities" and banning him from campus. The letter, from Dr. Richard C. Holz, dean of the Klingler College of Arts and Sciences, stated, without further elaboration, that the suspension was pending a review of his “conduct.”

Responding by letter of December 22, Professor McAdams’s attorney stated that the university had not followed its own regulations governing suspension of a faculty member-in particular, that the university must provide the faculty member with notice of cause for a suspension-and that Professor McAdams had done nothing to warrant this sanction.

Dean Holz replied by letter of January 2 with an explanation of the grounds for the suspension: “Your recent actions in publicizing on the internet the name of our now-former graduate student . . . require University review.” In a November 9 post in his blog, “Marquette Warrior,” Professor McAdams had criticized a graduate teaching assistant for telling one of her students in a private conversation, surreptitiously recorded by the student, that she would not tolerate expressions of opposition to gay marriage in her classroom. Dean Holz charged that, because of Professor McAdams’s “unilateral, dishonorable, and irresponsible decision to publicize” her name, the teaching assistant had “received a series of hate-filled and despicable emails” which caused her to fear for her safety and, eventually, to transfer to another university. “You have been asked, advised, and warned not to publicize students’ names in connection with your blog posts,” the dean wrote. “With this latest example of unprofessional and irresponsible conduct we have no confidence that you will live up to any additional assurances on your part that you will respect and protect our students. . . . Accordingly, we are continuing our review of your conduct and considering all appropriate responses.”

Professor McAdams’s attorney replied to Dean Holz’s letter in a January 21 letter addressed to university counsel. He defended the propriety of Professor McAdams’s conduct, asserted that it was protected by academic freedom, and called “preposterous” a recent statement by a university

January 26, 2015 Page 2

spokesperson that Professor McAdams’s suspension and banishment from campus was necessitated by concern for the “safety” of students. The attorney also noted that the terms “dishonorable” and “irresponsible” employed by the dean to characterize Professor McAdams’s conduct are both to be found among grounds for dismissal for cause in Section 306.03 of the Faculty Statutes.

We understand that, as of this writing, Professor McAdams’s suspension remains in effect and that the administration has given no indication of when it will end.

As you are doubtless aware, our Association’s interest in the case of Professor McAdams stems from its commitment to fundamental tenets of academic freedom, tenure, and due process articulated in the 1940 Statement of Principles on Academic Freedom and Tenure. That document was jointly formulated by the AAUP and the Association of American Colleges and Universities and has been endorsed by more than 240 scholarly groups and higher-education organizations. On suspension, see the complementary joint 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. Derivative procedural standards are set forth in the AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure. The three documents are enclosed for your convenience.

A faculty member’s suspension for a definite time from his or her primary responsibilities is on occasion imposed as a severe sanction, second only to dismissal, following a faculty hearing on stated cause. Under the 1958 Statement, amplified as follows in Regulation 5(a) of the Recommended Institutional Regulations, an administration also may suspend a faculty member pending a dismissal hearing, but

only if immediate harm to the faculty member or others is threatened by continuance. Before suspending a faculty member, pending an ultimate determination of the faculty member’s status through the institution’s hearing procedures, the administration will consult with the Faculty Committee on Academic Freedom and Tenure [or whatever other title it may have] concerning the propriety, the length, and the other conditions of the suspension. A suspension that is intended to be final is a dismissal and will be treated as such.

Given the facts reported to us, it is difficult to see how members of the academic community would perceive Professor McAdams’s continuing to teach as constituting a “threat of immediate harm” to himself or others. Nor are we aware of the administration’s having consulted a duly constituted faculty body at Marquette University about the propriety of the suspension or its conditions.

The information in our possession concerning the case of Professor McAdams has come to us primarily from him, and we appreciate that you may have other information that would contribute to our understanding of what has occurred. We would therefore welcome your comments. Assuming the essential accuracy of the foregoing account, we would urge you to reach an arrangement with Professor McAdams which will return him to his teaching responsibilities rather than to allow his suspension to linger on indefinitely, an untenable situation that assumes the

January 26, 2015 Page 3

characteristics of a summary dismissal. The alternative, which we suspect neither you nor Professor McAdams would prefer, would be for the administration to attempt to demonstrate adequate cause for Professor McAdams’s dismissal, following procedures-such as those incorporated in Section 301.07 of the Faculty Statutes-that comport with AAUP-recommended standards.

We look forward to your response.

Sincerely,

Gregory F. Scholtz
Associate Secretary and Director
Department of Academic Freedom, Tenure, and Governance Enclosures (via electronic mail)
Cc: Dr. Richard C. Holz, Dean, Klingler College of Arts and Sciences
Professor Timothy Melchert, Chair, Academic Senate
Professor John McAdams

A scan of the actual hard copy letter can be found here.

Debunking Myths About Campus Sexual Assault

Marquette Outlines Charges Against Warrior Blog / Our Lawyer Responds

Almost three weeks ago, we got the following letter from Richard Holz, in response to a demand from our lawyer, Rick Esenberg, that Marquette specify what we are charged with, and what is the reason for our suspension. We have reproduced Holz’ letter below, along with a response from Esenberg (just released today).

January 2, 2015

Dr. John McAdams

Dear John:

I am writing in response to your request for additional information about what prompted the current review of your conduct by Marquette University. As you know, tenure and academic freedom carry not only great privileges but also vital responsibilities and obligations. In order to endure, a scholar-teacher’s academic freedom must be grounded in integrity, including a respect for others’ opinions and the exercise of appropriate restraint. Otherwise, those such as yourself who are invested with the power that tenure affords will intimidate and silence the less-powerful – especially students. Such intimidation and silence negates the very academic freedoms that tenure is intended to enhance. Your recent actions in publicizing on the internet the name of our now-former graduate student, who had been secretly recorded by one of her students [redacted], require University review. Whatever your views of this secretly-recorded exchange in the graduate student’s office, and whatever your thoughts about separate classroom interactions that you did not observe (and putting aside the multiple other ways any concerns you had about our graduate student could have been advanced) you had no justification to put our graduate student’s name in your internet posts. The personal impact on her was plainly foreseeable, as detailed (only in part) as follows.

As a result of your unilateral, dishonorable and irresponsible decision to publicize the name of our graduate student, that student received a series of hate-filled and despicable emails including one suggesting that she had committed “treason and sedition” and as a result faced penalties such as “drawing, hanging, beheading, and quartering.” Another note, delivered to her campus mailbox, told the student, “You must undo the terrible wrong committed when you were born. Your mother failed to make the right choice. You must abort yourself for the glory of inclusiveness and tolerance.” Accordingly, and understandably, the student feared for her personal safety and we posted a Campus Security Officer outside her classroom. In addition, as a result of your conduct and its consequences, she now has withdrawn from our graduate program and moved to another University to continue her academic career. You have been asked, advised and warned on multiple prior occasions not to publicize students’ names in connection with your blog posts. With this latest example of unprofessional and irresponsible conduct we have no confidence that you will live up to any additional assurances on your part that you will respect and protect our students. Indeed, you specifically discussed in your blog the fact that your conduct would negatively impact the student’s opportunities in the future and you expressed pride in that result.

Accordingly, we are continuing our review of your conduct and considering all appropriate responses. As before, your salary and benefits continue. We also expect you to stay away from campus now that the “few days” you requested on December 16 have expired.

Sincerely,
Richard C. Holz, Ph.D.
Dean

Just today, our lawyer, Rick Esenberg, replied:

January 21, 2015

Ralph Weber
Gass, Weber and Mullins
309 N. Water Street
Milwaukee, WI 53202

Re: Dr. John McAdams

Dear Ralph:

Although we met over a week ago, I have still not heard from you. While I am waiting, I thought it would be useful to reply to Dean Holz’ January 2 letter to Dr. McAdams. If it reflects the university’s position – and not just Dean Holz’ personal views – I am afraid that we are headed for litigation and continued controversy that I fear will profoundly damage Marquette.

The need for a response is bolstered by the article that appeared in Tuesday’s Journal Sentinel. In it, a university spokesperson says that Dr. McAdams remains banned from campus and implies that this is somehow necessary for the “safety” of students. I am normally not one given over to harsh adjectives, but this is preposterous.

In his letter, Dean Holz says, for the first time, that the allegedly improper conduct by Dr. McAdams was to identify Cheryl Abbate as the instructor who told a student that opposition to gay marriage would not be tolerated in her class. He does not claim that anything that Dr. McAdams said is false. He does not say that it was uncivil or constituted “harassment” under university rules. It was wrong, he says, because, even though Marquette made Ms. Abatte solely responsible for the class in question and placed her in a position of authority over undergraduates, she was still “only” a graduate student. As such, she apparently cannot be publicly criticized.

It is, of course, customary for persons engaged in debate or criticism to identify the person with whom they differ. Perhaps Dean Holz feels that, in this case, Dr. McAdams should not have done so. But regardless of what Dean Holz might prefer, Marquette does not retain the same level of discretion over its tenured faculty that an employer would normally have over its employees. Section 306.01 of the Faculty Statutes provides that the University may suspend the appointment of a faculty member only for cause as defined in Sections 306.02 and 306.03.

Dean Holz calls Dr. McAdams’ conduct “dishonorable and irresponsible,” presumably intending to invoke the Faculty Statutes’ description of conduct that may constitute cause for termination. There is no sense in which Dr. McAdams conduct can reasonably be called either of these things. Even were it otherwise, Marquette has made absolutely clear that what he writes may not be the basis for termination. Section 306.03 specifically states that in no case shall “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.” These Faculty Statutes are expressly incorporated into Dr. McAdams’ contract with Marquette.

Under this contract, Dr. McAdams has been promised at least the same level of protections as university professors employed by the government receive under the First Amendment. That freedom has been described by various courts in various ways. In Sweezy v. New Hampshire, 354 U. S.234, 250 (1957), the Supreme Court said:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

As the U.S. Supreme Court noted in Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603, 87 S. Ct. 675, 683, 17 L. Ed. 2d 629 (1967), “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues,’ (rather) than through any kind of authoritative selection. [citations omitted]”

Apparently Dean Holz believes that there is an exception – unstated in or to be reasonably implied from the Faculty Statutes – for speech responding to the arguments of graduate students – even when Marquette places graduate students in the position of instructors and gives them control over a classroom. But that is surely not the case. In fact, the university’s spokesperson was quoted in the media as saying otherwise. Faculty, he said, are free to “voice an opinion about whether a potentially controversial offensive subject should be allowed by a TA to be discussed in class.” Perhaps Dean Holz thinks there is some unwritten (and, as far as we know, unstated) codicil somewhere that says no one must publicly identify a graduate instructor – even if, as it was here, one is responding to a position that the instructor expressed from a position of authority.

There is no such codicil. As we pointed out in our previous letter addressed to President Lovell, Dr. McAdams’ conduct does not violate any Faculty Statute or other university requirement. Nothing in the statutes or any other university policy prohibits a faculty member from publicly disagreeing with a graduate student, much less someone who has been given sole responsibility for a course and authority over every student enrolled in it. Having accepted that authority and responsibility, the instructor in question chose to express her view on what can and cannot be permitted in academic discourse. In fact she relied on her authority as a “professor of ethics” in order to do so. That was her right. But Dr. McAdams is free to offer his differing view. Punishing him for doing so violated his right to academic freedom.

Dean Holz claims that Dr. McAdams has been “asked, advised and warned on multiple prior occasions not to publicize students’ names in connection with [his] blog posts.” Apart from the fact that there would be no basis for doing so – particularly with respect to a person that the university has placed in charge of a class – this is simply false. Some months ago, Dean Holz told Dr. McAdams that representatives of a Palestinian student organization had felt “intimidated” during an interview by Dr. McAdams. Dean Holz’ letter dated September 24, 2014 says that he “trusts” Dr. McAdams will be “mindful” of the need to be sensitive with respect to his questions and status as a tenured faculty member. (Dr. McAdams believes that he was.) The letter says nothing about not publicizing any students’ names – much less those that the university has placed in charge of courses.

Dean Holz complains that Ms. Abbatte received nasty e-mails from unknown persons after her views were exposed. That is regrettable just as it is regrettable that Dr. McAdams and many others receive hostile – and often anonymous - criticisms in response to the positions that they take. But there is also no “heckler’s veto” exception to the university’s guarantee of academic freedom. Dr. McAdams has blogged on matters related to the university for many years, often sharply criticizing persons with whom he disagrees. None of these persons were ever subject to threatening e-mails. If this was the first time, the responses were “forseeable” only in the sense that, human nature being what it is, one’s views will sometimes elicit uncivil responses. Certainly Ms. Abbatte, if she wishes a career engaged in public and academic discourse over matters of ethics, is going to have to get used to this. Judging from her personal website, she is certainly capable of fending for herself.

But whatever the provenance of these nasty comments or the reasonableness of the university’s response, academic freedom is not limited by the responses it provokes. One would hope, in light of recent events in France, that the university does not believe that freedom of expression must be restricted less it provoke illiberal extremists.

During our conversation, you took some time to “defend” Ms. Abbatte’s comments, claiming that she offered to allow students to address the issue of same sex marriage in a subsequent class and denying (without explanation) that she meant what she quite clearly said. At no time did she qualify her remarks to the student by indicating, for example, that one could not oppose same sex marriage under Rawls’ equal liberty principle or that only certain types of arguments against same sex marriage are homophobic and offensive. You were critical of the undergraduate student to whom she expressed the views in question. We could debate these points but they don’t matter. Dr. McAdams’ academic freedom is not qualified by whether or not he was “right” or by what we think of the conduct of others.

Finally, as to the comments reported in yesterday’s newspaper, spokesperson Dorrington is reported to have said that, in banning Dr. McAdams from campus, the “safety of our students and campus community is our top priority.” He adds that the university will not tolerate “abuse” or “harassment” of students. Tell me, is it the university’s position that disagreement with someone constitutes endangering their “safety? Is it the university’s position that criticism is tantamount to “abuse” and “harassment?” These would be extraordinary positions and hard to reconcile with Mr. Dorrington’s concession that “a professor would not be subject to a review of this nature simply for voicing an opinion.”

Is it the university’s position that Dr. McAdams has done something other than voice an opinion? If so, we have not heard it say so. That leads us to yet another topic – the procedural irregularity of what is being done to Dr. McAdams. It says it has not suspended him (that would require compliance with the provisions of section 307 of the Faculty Statutes), so what, exactly is it doing and where is the authority for doing it?

In addition to the substantive problems with the university’s actions, it has failed to provide Dr. McAdams with the procedural protections that his contract requires. It has suspended him in violation of the Faculty Statutes and in breach of his contract. The University has publicly suggested that Dr. McAdams has engaged in an expression of “hate or abuse.” Spokesperson Dorrington has implied that his presence on campus would endanger students and this conduct somehow constitutes “abuse” and “harassment.” These statements are false and defamatory, and have aggravated the injury to Dr. McAdams. Dean Holz now says that Dr. McAdams has engaged in conduct that is dishonorable and irresponsible. If Dean Holz has repeated those words to any third party it would be a further act of defamation.

Ralph, Dr. McAdams does not desire litigation or to be in a position of conflict with the university. He respects the right of Dean Holz and Ms. Abbatte and anyone else to disagree with him and criticize his views. But I can assure that, if the university wants a national controversy over this, it shall have it. If it wants to make itself a poster child for overweening political correctness and Dr. McAdams a martyr to the cause of free expression, it need only continue on its current course.

We have already submitted a formal objection on behalf of Dr. McAdams. Dr. McAdams expects the University to reverse Dean Holz’ actions to date, to formally reinstate Dr. McAdams and reserves his right to proceed against the University if it does not do so promptly.

Very truly yours.

Richard Esenberg
President and General Counsel

We’ll have some further comments later. At the moment, Esenberg’s letter stands as a cogent rebuke to Marquette.

Support for Marquette Warrior from Dan Maguire

We were quite pleased to get the following e-mail, sent to several university officials, copied to us. We are publishing it with the permission of the author.

Dear Doctor Lovell,

[Discussion of two other issues omitted]

L’affaire McAdams:

At a faculty meeting on last Thursday, our theology chair Bob Masson recommended that we write our views on this case to you if we wished.

I was at dinner with several local attorneys when the banishment of Professor McAdams was in the press. From what they read in the press (and the story has gone national) they could not understand, nor could I, how the punishment would be inflicted before the promised “review.” It struck them as a blatant violation of due process legal requirements that exposed the university to unnecessary liabilities and risks. (General Counsel cc’d above)

The AAUP allows for the suspension of a professor, but never without due process. The penalty you imposed on Professor McAdams is, in AAUP terms, “a severe sanction.” According to the norms of the academe it cannot be imposed without well spelled out procedures. Courts are often influenced by the established norms of the organization involved in a case, in this case the academe.

If the administration believes that the conduct of a faculty member, although not constituting adequate cause for dismissal, is sufficiently grave to justify imposition of a severe sanction, such as suspension from service for a stated period, the administration may institute a proceeding to impose such a severe sanction; the procedures outlined in regulation 5 will govern such a proceeding.” (Policy Documents & Reports: American Association of University Professors, 1990 Edition, p. 27)

The sanction you imposed is not just a “severe sanction.” In almost half a century in the academe, I have never seen a similar punishment imposed on a professor in this “blunt instrument” fashion. The banning of the professor from campus unless he gets permission from the dean strikes me as bizarre, demeaning, and unjust. It announces on the public record that Professor McAdams is some sort of threat to the persons in this academic community.....leaving volatile suspicions in the air as to what that threat could be. Is he less a threat when he has the dean’s permission to be on campus? If the unavoidable inference that Professor McAdams is so threatening as to merit banishment is true, has campus security been alerted to protect us from Professor McAdams?

Over the years Professor McAdams and I have disagreed on many issues–and he has excoriated me on his blog—but all my personal interactions with him have been uniformly civil and urbane. Again, as Cardinal Newman said, in a university many minds are free to compete. That’s the glory of it.

This “unnecessary roughness” to borrow a term from the NFL, has already inflicted damage on Professor McAdams’ professional reputation. I am not surprised at the report that he has retained counsel.

I believe you owe us more explanation that you have given on your decision on this matter. Since reports on this situation have gotten national attention and stirred up remembrance of the Dr. Jodi O’Brien contract violation Marquette’s reputation is affected. We are all affected. The incident has a chilling effect on all members and staff since it implies that due-process protections may be brittle and uncertain at this university and specifically under your presidency. It is certainly not an aid in recruiting quality faculty.

Finally, I have not heard the possibility broached that better mentoring of graduate student teachers re handling student inquiries and requests could have obviated this brouhaha. Experienced teachers know that there were better ways the student teacher could have handled this situation.

As a courtesy, I will copy in those referenced in this letter.

Daniel C. Maguire

Professor

Given our disagreements on various issues, one might say this is support from “an unexpected source.” But it isn’t really.

Maguire has enjoyed the benefits of academic freedom at Marquette while supporting abortion and gay marriage, and calling on the President of Marquette to resign.

So in supporting our academic freedom, he’s being consistent. Yes, people coming from very different ideological perspectives can support the right of free expression for those who differ.

We, of course, published the form letter that Marquette sent to people who wrote demanding that Maguire be fired. We characterized it as “a rather good letter that makes a cogent case.” We also insisted that people disappointed in the increasingly secular direction of Marquette “get clear on the areas in which the University has been derelict, and those in which the University has done the necessary thing in protecting academic freedom.”

Failures in Philosophy

Maguire raises “the possibility . . . that better mentoring of graduate student teachers re handling student inquiries and requests could have obviated this brouhaha.”

Indeed it could have.

In the wake of the after-class discussion, in which the student was told that any class comments opposing gay marriage would be homophobic and would “offend” any gay students in the class, he talked to a university employee who advised him that he had a right to complain. A complaint to the Arts & Sciences Dean’s office got him referred to Nancy Snow, Chair of the Philosophy Department. According to The College Fix (which interviewed the student):

The student said he only wants Marquette to acknowledge the instructor was wrong to tell him he couldn’t bring up gay marriage, and ensure that students in the future will be allowed to speak in similar classroom situations.

But not having received any redress at all, the student told us about it.

Snow, of course, could hardly be expected to be sympathetic.  In 2008, Snow was talking about “racial profiling” in her class and a student chimed in with a police perspective on the issue.  Snow not only tried to shut him up in class, but after class she insisted he write an e-mail of apology to two black students in the class, whom she presumed were offended.

Marquette, in other words, blundered in allowing someone like Snow to hear the complaint.

So what we have here is a blatant case of the political correctness that increasingly dominates academia.

A politically-correct instructor told a student that his views were homophobic and “offensive.”  A politically correct department chair not only failed to respond to the students complaint, she reacted in a hostile manner.  And when we blew the whistle on this whole fiasco, we were suspended.

Universities and Free Expression: Canada is as Bad as the U.S.