Amicus in Our Case: Foundation for Individual Rights in Education

Among several organizations what have filed amicus briefs in our case against Marquette University is the nation’s top organization protecting free expression on campus: the Foundation for Individual Rights in Education.

Their brief is here.

The whole thing is worth reading, but here are some highlights:

The lower court’s ruling threatens professors’ free speech and academic freedom rights. While this case may, at first blush, seem to present a relatively narrow contract dispute between a private religious university and a tenured member of its faculty, the core dispute between Professor John McAdams and Marquette University must be viewed in the broader context in which it arose. Around the country, the free speech and academic freedom rights of faculty are being eroded by students, administrators, and members of the general public demanding censorship and by administrations caving to those demands. This capitulation is to the serious detriment of American higher education and ultimately the health of our democracy.

If a faculty member is not free to criticize, even publicly, the pedagogy of a fellow instructor, or to respond in kind to his or her critics, important institutional dialogues about teaching, scholarship, politics, and more will be deeply chilled. Faculty already report being reluctant to speak out and even to teach about sensitive issues for fear of professional repercussions. If the lower court’s ruling stands, the increasing chill on faculty expression will only intrude further as administrators around the country seize on the decision to justify disciplining faculty for public dissent on topics both internal and external to the university.

. . .

Echoing this national commitment to academic freedom, Marquette vows to protect the “the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action” — a promise bolstered by the assurance that “dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed by the United States Constitution.” Handbook for Full-Time Faculty, Marquette Univ. (Aug. 27, 2013), available at http://www.marquette.edu/provost/307.php. This Court should grant review to hold Marquette true to its word. [link in document updated]

The lower court’s ruling threatens free speech and academic freedom by sanctioning the termination of a tenured professor simply for publicly criticizing what he believed to be dangerous pedagogical practices. The lower court correctly recognizes that “[a]cademic freedom allows both faculty members and students to engage in intellectual debate without fear of censorship or retaliation and it establishes a faculty member’s right to remain true to his or her pedagogical philosophy and intellectual commitments.” McAdams v. Marquette Univ., No. 16-cv-003396, at 24 (Wis. Cir. Ct. May 4, 2017). But despite seeming to grasp academic freedom’s crucial importance, the court dramatically undermines its utility by finding that criticizing a graduate student instructor by name in extramural writing is “professional misconduct” — indeed, a violation of the “protection against harassment and criticism” from faculty members to which graduate students are “entitled.” Id. at 25.

This broad limitation upon what faculty may say, both professionally and as citizens, is flatly incompatible with the lower court’s own understanding of academic freedom. How may a faculty member “engage in intellectual debate without fear of censorship or retaliation” if, by naming the proponent of an opposing view, he or she risks sanction? How might a faculty member “remain true to his or her pedagogical philosophy and intellectual commitments” if he or she is prohibited from rebutting critics by name? If termination is an acceptable consequence of the heated debate and sharpelbowed public criticism that pedagogical dispute may spark, then academic freedom is a dead letter.

The lower court attempts to justify McAdams’ punishment by arguing that his blog post violated the graduate student’s rights. “In short,” the court argues, “academic freedom gives a professor, such as Dr. McAdams, the right to express his views in speeches, writings and on the internet, so long as he does not infringe on the rights of others.” McAdams, supra, at 25. But the court fails to explain exactly how publicly criticizing a graduate student’s performance as an instructor “infringe[s]” upon his or her rights. As FIRE explained to Marquette University President Michael R. Lovell:

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

Like Marquette during its disciplinary proceedings, the lower court fails to satisfactorily explain why McAdams may be punished, and his academic freedom abridged, because of the actions of others over whom he had no control. McAdams’ criticism was not incitement; it was neither “directed to inciting or producing imminent lawless action” nor “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). He cannot fairly be held responsible for whatever those who read his blog entry may have communicated to the graduate student. If others unlawfully threatened or harassed the graduate student McAdams criticized, any proper remedy lies against them. Holding otherwise leaves faculty in the impossible position of being professionally liable for the unlawful actions of independent and unknown third parties.

The brief then gives accounts of professors who have been fired because of controversial statements they made. Interestingly, most of the cases involve leftist professors. This smacks of an argument being made to leftists saying, in effect “if you don’t stand up for the rights of a conservative professor, some of your buddies could be next to be fired.”

Whether this has any resonance, or whether leftists are so confident in their power on a typical campus that they are unmoved, is an interesting question.