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?