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.

Academic Fascism: Bias Incident Reporting

From the Foundation for Individual Rights in Education:

The University of Northern Colorado (UNC) appears to have investigated two professors for asking students to simply consider all sides of the debate over today’s most controversial political and social issues. The investigations were prompted by student complaints made through UNC’s “Bias Response” system, which encourages students to file online reports of any “offensive classroom environment” to administrators, who may then intervene with the theoretically offending faculty.

The Bias Response Team’s reports are troubling—both in sheer quantity, and substance.

According to UNC documents obtained by Heat Street under Colorado’s Open Records Act, a professor asked his students to read The Atlantic’s “The Coddling of the American Mind” (co-authored by FIRE President and CEO Greg Lukianoff). The piece warns that the growing institutionalization of aversion to presenting views that students may find offensive or disagreeable deprives students of the opportunity to confront views they disagree with. The professor engaged students in a discussion about opposing viewpoints on, among other things, transgender issues, prompting one student to file a Bias Incident Report with university administrators. As characterized in the student’s complaint, the professor argued that “transgender is not a real thing, and no one can truly feel like they are born in the wrong body.”

The Bias Response Team contacted the professor, who responded that he was simply playing devil’s advocate to encourage a discussion amongst his students. University administrators encouraged him to avoid doing so:

A member of the Bias Response Team met with the professor, the report says, and “advised him not to revisit transgender issues in his classroom if possible to avoid the students expressed concerns.” The Bias Response Team also “told him to avoid stating opinions (his or theirs) on the topic as he had previously when working from the Atlantic article.”

This is a stunning violation of academic freedom. Campus bureaucrats telling a professor what he or she may say in class is outrageous. It would be out of bounds if a biased professor was told be more balanced. Telling a professor engaged in a balanced discussion to stifle discussion because somebody might hear something they dislike goes beyond outrageous.

The article goes on:

In another incident report, the Bias Response Team noted a “conversation” with a professor who encouraged students to question rhetoric about gay rights, assigning students to take a position and debate it in class. Heat Street summarized the encounter using the Bias Response Team’s notes:

“Specifically there were two topics of debate that triggered them and personally felt like an attack on their identity (GodHatesFags.com: is this harmful? Is this acceptable? Is this Christianity? And Gay Marriage: should it be legal? Is homosexuality immoral as Christians suggest?)”

The student, whose name is redacted and who is referred to as “they” in the report, complained that “other students are required to watch the in-class debate and hear both arguments presented.”

“I do not believe that students should be required to listen to their own rights and personhood debated,” the student wrote. “[This professor] should remove these topics from the list of debate topics. Debating the personhood of an entire minority demographic should not be a classroom exercise, as the classroom should not be an actively hostile space for people with underprivileged identities.

This is pure, distilled politically correct intolerance. A gay student claims he has an “underprivileged identity” and therefore should be protected from hearing arguments he does not like. He claims that his “personhood” is being challenged if he merely hears people disputing one of his favored public policies.

In the first place, gays are not an “underprivileged identity” on a modern university campus. They are a petted and pandered to minority, even at a supposed Catholic university like Marquette. But protecting the supposedly tender sensibilities of gays (or any other politically correct victim group) is to educate them poorly. It implies they will never learn to intellectually engage arguments they disagree with, but only whine and complain and demean the people who make those arguments.

This mentality is common at Marquette. It was shown when a Philosophy instructor told a student he could not disagree with gay marriage because that would be “homophobic” and would “offend” any gay students in class. When the student complained to Marquette, he was greeted with hostility. The instructor, one Cheryl Abbate, not only was not admonished or reprimanded for her behavior, she was told that the student was the problem. When we reported this misconduct on this blog, Marquette began trying to fire us.

And when an alumnus named Aaron Ledesma chimed in with an essay insisting that opposition to gay marriage ought to be banned at Marquette, the university “liked” the Tweet.

Marquette’s Policy

It won’t surprise readers to know that Marquette has a Bias Incident Reporting system. Marquette has everything that politically correct universities have these days. Marquette defines a “bias incident” as follows:

A bias incident is any discriminatory or hurtful act that appears to be motivated or is perceived by the victim or victims to be motivated by race, ethnicity, religion, age, national origin, sex, disability, gender identity or expression, sexual orientation, veteran or socioeconomic status. To be considered a bias incident, the act is not required to be a crime under any federal, state or local statutes. [emphasis added]

In the first place, an “act” can be a mere expression of opinion, and the mere “perception” that it is motivated by race, ethnicity, etc. is enough to make it a “bias incident.”

The Marquette statement is a bit vague about what happens when such a “bias incident” is reported, but it makes it clear that anybody who is reported could be in trouble.

Of course, real incidents of discrimination and harassment (but not mere differences of opinion) have always been something that could be reported to authorities at Marquette (and at any other university). But the current system resembles nothing so much as totalitarian political systems where authorities encourage citizens to rat out thoughts and ideas contrary to the orthodoxy of the regime.

And no, that is not hyperbole.

Free Speech on College Campuses: Can We Take a Joke?

Most important insight here: most recently, it is the students and not the administrators who demand censorship.

Why is this? First, the “liberal” students are less and less traditional liberals who favor free expression, and more and more social justice warriors, utterly sure of their own righteousness, and utterly intolerant of other views.

We see this among the Marquette students who blocked traffic on Wisconsin Avenue, who lamented “violence” in Marquette classrooms. But nobody has been physically assaulted in a Marquette classroom (and least not within memory), and “violence” must simply mean students are hearing things they disagree with.

On their side was a certain Zoe Del Colle, who put together a list of supposed “racist” posts on Yik Yak. The vast majority were not racist at all, but merely at odds with the views of the self-righteous activists. (Facebook login required to see the page.)

And then we have young alumnus Aaron Ledesma, who wrote a blog post explicitly calling for opposition to gay marriage to be banned and shut up at Marquette.

But then the issue is: where do these folks come from? Some of it might be leftist parents. But it might also reflect the increasing political correctness in elementary and secondary schools. Education schools have become a hostile environment for conservative students.

These intolerant students are typically not the majority of any given student body, but this loud minority are the people petted, pampered and pandered to by university administrators. This certainly happened at Marquette, when University President Michael Lovell and Provost Daniel Myers protested with students demonstrating in sympathy with students at the University of Missouri (in other words, a bunch of bullies), and with the family of Dontre Hamilton (a mentally ill man who attacked a police officer with the officer’s nightstick and got shot).

It has been PanderFest at Marquette.

Warrior Blogger on Marquette and Free Speech

Matt Kittle, filling in for Vicki McKenna, talked to us about our case at Marquette, and Marquette’s very dubious honor of being among “The 10 Worst Colleges for Free Speech: 2016.”

Marquette on FIRE Dishonors List / More on Academic Intolerance

On Vicki McKenna today, Ari Cohn of the Foundation for Individual Rights in Education, discussing Marquette’s attempt to fire this blogger, as well as other cases of speech suppression on college campuses.

Marquette Again on Dishonor Roll: Among 10 Worst Colleges for Free Speech

From the (liberal) Huffington Post: In a year when a large number of colleges did things to stifle speech, Marquette made the top ten:

Marquette University makes this year’s list for the same reason it made last year’s list: its ongoing campaign to strip the tenure of longtime professor John McAdams based on the writings on his personal blog. McAdams criticized a graduate student instructor for suppressing a student’s opinions against same-sex marriage during a class discussion. After the instructor received criticism from readers of McAdams’ blog, Marquette suspended McAdams without due process and without a hint of regard for his free speech or academic freedom rights.

But that was only the beginning. In public statements the university repeatedly insinuated, without any evidence, that McAdams had violated Marquette’s harassment policy, labeled him a threat to safety, and effectively held him directly responsible for the comments and actions of his readers — a position wildly opposed to basic free speech principles.

Marquette announced it was seeking his termination last January, and McAdams is now in his third semester of being banned from teaching and being on campus as he appeals his case. Unless it wants to take up permanent residence in this feature, Marquette must resolve McAdams’ case and return him to the classroom without further delay.

This is the second year Marquette has received this dishonor.

Not only has the Huffington Post (and numerous other outlets) weighed in, Minding the Campus has awarded Marquette President Michael Lovell the “3rd Runner Up” position among the worse college presidents of 2015. Why only “3rd Runner Up?” Because there was a lot of competition in a year when left-wing students bullied faculty and administrators, and college presidents pandered mightily.

It is difficult to know exactly what Marquette administrators are thinking. The people most adamant that we should be fired are a few dozen leftist faculty, virtually all in the humanities and social sciences. Certainly not alumni. And not even mainstream media, who (in spite of their liberal politics) have by a lopsided margin favored free expression in our case and in the many similar cases across the nation.

One has to conclude that Marquette administrators are simply personally offended that any faculty member would have the temerity to criticize them, or bring bad publicity on the institution by outing misconduct at Marquette.

Congress Moves to Protect Free Expression on College Campuses

A press release from the Foundation for Individual Rights in Education:

House Judiciary Chairman Wants Answers about First Amendment from Public Colleges

WASHINGTON, August 14, 2015—The Chairman of the U.S. House Judiciary Committee sent letters today to the presidents of 161 public colleges and universities across the country to ask them why their policies fail to protect the First Amendment rights of students and faculty.

The letters were sent by Representative Bob Goodlatte to leaders of institutions that received the Foundation for Individual Rights in Education’s (FIRE’s) lowest, “red light” rating in our annual report on campus speech codes. Colleges that receive this rating maintain at least one policy that clearly and substantially restricts protected speech.

The letters follow FIRE President and CEO Greg Lukianoff’s testimony before Congress earlier this summer. On June 2, Lukianoff testified in front of the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice about the state of free speech on America’s public college campuses.

“During my testimony, I shared FIRE’s deep concern that highly restrictive speech codes are the rule rather than the exception on public college campuses nationwide,” said Lukianoff. “A congressional hearing on campus censorship was an important first step. It is even more encouraging that Chairman Goodlatte is taking action to address the problem.”

In the letters, Chairman Goodlatte writes, “In FIRE’s Spotlight on Speech Codes 2015, your institution received a ‘red light’ rating. … We write to ask what steps your institution plans to take to promote free and open expression on its campus(es), including any steps toward bringing your speech policies in accordance with the First Amendment.”

No public college or university may legally maintain speech codes that violate the First Amendment rights of students or faculty.

“Students’ education suffers when colleges and universities infringe on free speech,” said Azhar Majeed, director of FIRE’s Individual Rights Education Program. “FIRE is eager to help these institutions bring their policies in line with the First Amendment and welcomes opportunities to work with administrators to do so.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Katie Barrows, Communications Coordinator, FIRE: 215-717-3473; katie@thefire.org
Robert Shibley, Executive Director, FIRE: 215-717-3473; robert@thefire.org

Marquette, being a private school, is not affected by this, in spite of having a speech code with a “red light” rating. Of course, private schools should be free to restrict speech if they choose to, although in virtually every case this is a bad idea. And private universities are acting immorally if they promise free expression and then stifle speech. Indeed, in most cases their proclaimed policies protecting speech constitute a contractual obligation.

Campus leftists and campus bureaucrats are likely to whine about “Congressional interference” in higher education. But of course, they have accepted (with enthusiasm on the part of the leftists, and supinely on the part of the bureaucrats) massive intervention on the part of the Federal government, especially the Obama Justice and Education departments. Obama administration bureaucrats have aggressively moved to vitiate due process rights of males accused of sexual assault, and to broaden the doctrine of “harassment” to outlaw speech to which any intolerant and overwrought black, gay or feminist objects.

So it’s good that there is some push back here. Unfortunately, the authoritarianism of campus leftist faculty and staff, and the vested interests of campus bureaucrats are firmly aligned behind the suppression of politically incorrect speech.

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

Foundation for Individual Rights in Education Takes Note of Harassment of Marquette Warrior

From the Foundation for Individual Rights in Education: an article on the fact that Marquette has “investigated” a complaint from a student who accused us of sexual harassment based on gender for our debunking of feminists’ bogus statistics on campus rape.

FIRE notes that the incident:

. . . provides a good example of how unwarranted investigations of campus speech can cause a deeply problematic “chilling effect” at a university. Universities must not pursue investigations of protected expression just because someone submits a complaint; as soon as it is clear that the expression in question is protected speech, the inquiry must end, even if there are other factual disputes. Prolonging the investigation tells everyone on campus that the university will pursue charges against you no matter how frivolous or malicious the complaint. The likely result is that people self-censor and keep their mouths shut rather than risk such investigation and a possible punishment.

Of course, for the politically correct types on campus, this is the point. They are deeply hostile to free and open debate.

FIRE goes on the quote Marquette’s own Student Handbook on the legitimacy of differences of opinion:

It is clearly inevitable, and indeed essential, that the spirit of inquiry and challenge that the university seeks to encourage will produce many conflicts of ideas, opinions and proposals for action.

Of course, Marquette’s Student Handbook also includes several very dangerous and over-broad statements that could be used to stifle speech. For example:

Harassment is defined as verbal, written or physical conduct directed at a person or a group based on color, race, national origin, ethnicity, gender or sexual orientation where the offensive behavior is intimidating, hostile or demeaning, or which could or does result in mental, emotional or physical discomfort, embarrassment, ridicule or harm.

Read at face value, this could mean that if a frank discussion of ghetto crime makes a black student feel “discomfort” that could be harassment. Of course, a feminist talking about the evils of male sexism could make a male student feel uncomfortable, but the odds of anybody seeing any problem with that are nil.

FIRE concludes:

Yet by pursuing this investigation, Marquette is letting a single student entangle a professor in disciplinary proceedings simply due to protected classroom expression. How many professors at Marquette are now going to steer clear of sensitive topics just to avoid an Ethics Point investigation?

The truth, of course, is that even without this kind of inquisition, any prudent junior faculty member, wanting to get tenure, better stifle any urge to say anything politically incorrect. And a lot of tenured people, not wanting to “make waves” or generate hostility, tend to “lay low” and keep their opinions to themselves.

Welcome to the modern politically correct university.