Wednesday, January 21, 2015

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.

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4 Comments:

Blogger David Stahl said...

Dear Prof. McAdams,

Your post is nearly too much to process for a mere layman, let alone the experienced Esquire you retained. Marquette clearly does not want open, fair or even a legal "due process" debate.

As a undergraduate (class of 96) in many of both your and Professor Emeritus Rhodes classes, I was rightfully taught that the free, passionate, non-discriminatory and reason based exchange of ideas the key to academic and intellectual achievement. Anything less is Totalitarianism and should be feared.

It is sad and unfortunate that this traditionally honorable form of intellectual growth and development (Rhodes employed the Socratic methodic, actually) now suddendly wreaks of the loathsome democratic 1st Amendment, God-given rights you are defending and also we have asked our armed forced to protect for centuries.

Ironically, how dare you try to drive a wedge into the slamming door of free speech and 1st ammendment at this progressive and "Catholic" University?

Shame on you! :)

9:37 PM  
Blogger frankly said...

As I suspected, MU's case against you amounts to a FERPA allegation. Sen. Buckley's (irony alert) amendment removes the publcizing of academic information by University personnel from free speech protection. You may have to eat a generous helping of crow, or look for a new job. Good luck; you'll need it.

10:39 AM  
Blogger James Pawlak said...

That dean is a fascist tyrant very much like the book burning Nazi "academics" of the 1930s.

Students employed as instructors have the same rights AND duties as to Academic freedom as do such as Professor McAdams.

6:07 PM  
Blogger Scott Reid said...

This is not a FERPA violation - the name of the instructor was public record. No academic information was publicized that was not already public record.

11:45 AM  

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