Rick Esenberg: Facts and Implications of Our Legal Case

From a Federalist Society Teleforum, the head of our legal team (Rick Esenberg) discusses the facts of our academic freedom case against Marquette university, as well as the implications for the judicial protection of free expression on campus.

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?

Marquette’s Lame Arguments to Wisconsin Supreme Court: Must Defer to Faculty Hearing Committee

Although we were never completely sure before the decision was announced, the implausible, tortured arguments Marquette presented to the Wisconsin Supreme Court in our legal case should have made it obvious the court would come down on our side.

Exhibit 1: Marquette’s Claim that the court should defer to the verdict of the Faculty Hearing Committee, which claimed that our blog post was grounds to suspend us without pay for one or two semesters.

Of course, the Faculty Hearing Committee did not say we should have to render a Stalinist apology for the blog post. That was entirely Michael Lovell. So Marquette was demanding that the FHC be deferred to in one issue, but contravened on another.

The Decision

The Supreme Court trashed that notion:

The University denies Dr. McAdams’ right to litigate his breach of contract claim in our courts. Instead, it says, we must defer to its procedure for suspending and dismissing tenured faculty members. It claims we may not question its decision so long as it did not abuse its discretion, infringe any constitutional rights, act in bad faith, or engage in fraud.

¶2 The University is mistaken. We may question, and we do not defer. The University’s internal dispute resolution process is not a substitute for Dr. McAdams’ right to sue in our courts. The University’s internal process may serve it well as an informal means of resolving disputes, but as a replacement for litigation in our courts, it is structurally flawed.

¶3 The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom. Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by § 307.09 of the University’s Statutes on Faculty Appointment, Promotion and Tenure (the “Faculty Statutes”).

Why did the court refuse to defer to Marquette? For several reasons.

¶25 The most obvious reason we will not defer to the University is simply that the parties never agreed that its internal Discipline Procedure would either replace or limit the adjudication of their contract dispute in our courts. They certainly could have agreed to an extra-judicial resolution of their contract dispute. This is a common feature in society today and is accomplished most often through an arbitration agreement. [...]

¶26 Our exhaustive review of the Faculty Statutes reveals no indication that the University and Dr. McAdams agreed the Discipline Procedure would supplant the courts or limit their review of a contractual dispute. Two of the Faculty Statutes acknowledge Dr. McAdams’ right to seek judicial adjudication of his claims. The first describes the right negatively by demarcating a period of time in which the parties agree not to litigate. . . .

¶27 The Faculty Statutes also contain an explicit, positively-stated recognition of Dr. McAdams’ right to litigate. . . .

This provision unambiguously recognizes that the University’s suspension and dismissal decisions are subject to litigation in our courts. It was with good reason that the University conceded, during oral arguments, that it had no express agreement with Dr. McAdams that the Discipline Procedure would preclude his right to litigate his cause here.

¶28 The University and Dr. McAdams could have agreed that the court would defer to the Report and Discipline Letter in the same way we defer to arbitration decisions. They could have done that, but they did not. They did the opposite: The University agreed it would defer to the court’s adjudication of Dr. McAdams’ right to reinstatement.

Why Defer to the Faculty Hearing Committee?

Marquette was touting the Discipline Procedure of the Faculty Hearing Committee as authoritative, but the court saw no reason to treat it that way:

¶49 As a matter of process, therefore, there is a hard break between the Discipline Procedure and the actual decision to suspend Dr. McAdams. While the dispute was in the hands of a body that had no authority to resolve it (the FHC), the case was subject to the detailed Discipline Procedure. However, once it reached the actual decision-maker (President Lovell), there were no procedures to govern the decision-making process. The Discipline Procedure does not tell President Lovell how to reach his decision, and nothing in the record before us suggests the president’s decision must have any relationship to the FHC’s work. As far as the Faculty Statutes and Faculty Handbook are concerned, the president may proceed as if the Report said nothing but that the FHC had completed the Discipline Procedure. Consequently, the efficient cause of Dr. McAdams’ suspension without pay was the Discipline Letter, and there is no evidence that it resulted from any prescribed procedure at all. It was the product of President Lovell’s exercise of unfettered discretion. Even if we were inclined to defer to the authoritative resolution of Dr. McAdams’ case (as opposed to the FHC’s Report), there is quite literally nothing to which we could apply an arbitration-style review.

The Court Liberals Speak

The two liberal justices dissented. This is not surprising, given that liberals less and less believe in free speech. Both Ann Walsh Bradley and Shirley Abrahamson sided with Marquette, invoking the “academic freedom” of the university.

¶140 The majority errs in conducting only half of the academic freedom analysis. It fails to recognize, much less analyze, the academic freedom of Marquette as a private, Catholic, Jesuit university. As a result, it dilutes a private educational institution’s autonomy to make its own academic decisions in fulfillment of its unique mission.

¶141 Further, the majority compounds this error by rendering meaningless a key component of shared governance, reducing the faculty’s bargained-for role in reviewing dismissal for cause to “nothing” or a mere “distraction.” In disregarding the faculty hearing committee’s expertise and unanimous recommendation, it throws aside a process that is mutually agreed upon and time-honored. Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day.

This, of course, is complete nonsense. The “group of tenured faculty members” (the Faculty Hearing Committee) does not “live by academic freedom.” Most of them have nothing much controversial to say, or if they do, they express the leftist opinions approved by most of the faculty (and thus safe from faculty-centered disciplinary procedures).

Further, most faculty who participate in “shared governance” are, to put it bluntly, sycophants. Administrators have a lot of goodies to hand out to faculty (raises, promotions, grants, reduced teaching loads, administrative positions, etc.) and few faculty are inclined to get on the wrong side of the campus bureaucrats.

Marquette’s Choice

Marquette, of course, had the academic freedom to refuse to give faculty a contractual guarantee of free expression. Some schools (mostly religious ones) don’t guarantee academic freedom, and are honest about the fact that they will fire faculty they consider heretical.

But Marquette made a different choice.

The Majority Responds

The majority responded to the liberal judges as follows:

¶58 The dissent says we should nonetheless defer to the University, and that failing to do so “renders meaningless a key part of shared governance, reducing the faculty’s role in this decisionmaking to nothing.” Dissent, ¶173. The author, however, does not identify the key part of shared governance we have rendered meaningless, nor could she. The faculty’s authority to share in the University’s governance comes from the Faculty Statutes and Faculty Handbook, not some formless notion of what shared governance ought to be. We have taken these authorities as they are, and scrupulously examined their provisions. The faculty’s role is what our opinion says it is because that is the arrangement upon which the University and its faculty members have agreed. It is not our place to rewrite their management structure to give the faculty a more muscular role in the University’s affairs than they currently have. Because the dissent identified no Faculty Statute or Faculty Handbook provision that we have overlooked or misconstrued, we decline the implicit invitation to disregard what these authorities so plainly say.

Marquette’s case was so poor we are left wondering “what were they thinking?” Quite likely, when they began their jihad against us, they expected we would just take some money and walk away. But when they found that wasn’t so, why did they not back off?

It is difficult to avoid the conclusion that Marquette President Michael Lovell is so rigid, and so arrogant, that he was unable to cut the university’s losses. Those losses have been huge.

Michael Lovell’s Fiasco: The Cost

Marquette’s defeat in the Wisconsin Supreme Court for its attempt to fire us was epic. The Court trashed Marquette’s lame arguments, one of which was that it should defer to a Faculty Hearing Committee that said we had been guilty of misconduct and should be suspended without pay for one or two semesters.

The court noted that we had not agreed in our contract to accept the judgment of a bunch of other professors as to whether we could express our opinions on our blog. Further, Marquette President Michael Lovell went beyond the Faculty Hearing Committee in punishing us, demanding a Stalinist apology. Marquette, in other words, was arguing that Faculty Hearing Committee was binding when it was convenient for the university, but not binding when it was inconvenient.

“Guiding Values”

The university claimed it could invoke its “Guiding Values” to override our black letter guarantee of free expression. The Court trashed this notion:

The University posited that educational institutions assume academic freedom is just one value that must be balanced against “other values core to their mission.” Some of those values, it says, include the obligation to "take care not to cause harm, directly or indirectly, to members of the university community,” “to respect the dignity of others and to acknowledge their right to express differing opinions,” to “safeguard[] the conditions for the community to exist,” to “ensur[e] colleagues feel free to explore undeveloped ideas,” and to carry out “the concept of cura personalis,” which involves working and caring “for all aspects of the lives of the members of the institution.” These are worthy aspirations, and they reflect well on the University. But they contain insufficiently certain standards by which a professor’s compliance may be measured. Setting the doctrine of academic freedom adrift amongst these competing values would deprive the doctrine of its instructive power; it would provide faculty members with little to no guidance on what it covers.

The Court was doubtless unimpressed with Marquette’s pious rhetoric about “values” in light of the fact that our blog post highlighted an instructor who insulted a student, telling him that his opposition to gay marriage would sound homophobic, would be offensive, and could not be expressed in her class. When he complained to authorities he was blown off, and indeed insulted.

Even if the Court had been inclined to defer to Marquette’s real values, why should they defer to hypocritical rhetoric about values?

Michael Lovell

Marquette President Michael Lovell has, quite simply, been responsible for a huge fiasco. His obtuseness in not recognizing our binding contractual right to the same free expression guaranteed in the Constitution, and his stubbornness pushing the issue all the way to the Wisconsin Supreme Court has been stunning.

The Cost

Three sources of ours intimately familiar with this case and with lawyers’ billing rates estimate the legal fees Marquette has incurred at between $750,000 and $1,000,000.

But there were further costs. The Chronicle of Higher Education quotes Lovell (paywall):

The university has forcefully pushed back against McAdams’s narrative that the key issue is academic freedom. It pressed its case in advertisements in newspapers, including The Wall Street Journal. It set up a web page, complete with a timeline and fact-vs.-myth section. It hired a public-relations firm with a storytelling team.

“In terms of our brand and public perception,” Lovell says, “we were taking a beating. We thought it was important to at least try to get the truth out about what we felt our side of the story was.”

Marquette, in fact, even bought Google ads to lead web surfers to a page that attacks us.

None of this came out of Lovell’s pocket. He has spent other people’s money. It was either endowment, or tuition, or a combination of the two. His jihad against this blogger has been expensive.

Lovell’s Motivation

There are two theories about what moves Michael Lovell. One is that he is simply a careerist bureaucrat wanting to “move up” to a more prestigious institution. The theory is that his incessant pandering to the forces of political correctness is his strategy for doing this. Thus he demonstrated in sympathy with students at the University of Missouri — students who latched onto bogus grievances and began bullying everybody else on campus.

Thus he piously claimed to “stand against racism” when black students at Marquette were in an uproar about a “racist” photo that was not, in fact, racist.

It bears repeating: We shouldn’t expect only students of color to respond to racism. I’m asking all of @MarquetteU to join me and share why you #StandAgainstRacism pic.twitter.com/ZzS4nlSxqU

— Michael Lovell (@PresLovell) April 30, 2018

The other theory, one we are beginning to favor, is that Lovell is an actual social justice warrior. That, instead of being an opportunist, his pandering to the forces of political correctness is sincere, and his campaign to fire us was was a matter of conviction.

Unfortunately, having a president who is a sincere social justice warrior is even more toxic than having an opportunist bureaucrat. The latter might back off of a disastrous policy.

Jerry Bader: Two Important Takeaways from the McAdams Victory

WILL: Academic Freedom Wins at State Supreme Court

Our client, Dr. John McAdams, gets to teach at Marquette again

July 6, 2018 – Milwaukee, WI -- Today the Supreme Court of Wisconsin delivered a clear, decisive victory for our client, Dr. John McAdams, a conservative political science professor who was indefinitely suspended by Marquette University for blogging on a controversial topic. The victory ends a nearly four year fight between the Wisconsin Institute for Law & Liberty and Marquette University to have McAdams reinstated.

As we have argued since the beginning, the only thing Professor McAdams wants to do is to teach students with the academic freedom protections promised by Marquette University. And, because of today’s ruling, McAdams will be back in the classroom very soon.

The Wisconsin Supreme Court, in a decision written by Justice Dan Kelly, found that Professor McAdams’ blog post in defense of an undergraduate student - and criticizing a graduate student instructor - could not possibly have shown him to be unfit as a member of Marquette’s faculty, and Marquette’s decision to fire him violated its contractual promise to protect his academic freedom.

In addition, according to the Court, a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. The Court rejected the notion that disciplinary decisions regarding free speech by faculty members should be made by administration or faculty. The concept of academic freedom is worthless unless it protects expression which is opposed by the institution and is unpopular with most of the faculty.

Furthermore, today’s decision from the Wisconsin Supreme Court relies on one of the simplest rules of fairness – you cannot punish somebody for violating a rule that did not exist when it was supposedly “broken.” Universities are free to create rules – even strict rules – about what their tenured professors can and cannot say publicly. What they cannot do is make up rules after the fact to punish a professor they want to get rid of.

We sincerely hope Marquette University learns from its mistakes and takes the utmost care at preserving free speech on campus. Unfortunately, the response today from Marquette gives us some pause. Marquette’s statement hints at curtailing academic speech for all their professors, which should alarm students and professors across the political spectrum. They repeat the claim– first made by the Metropolitan Milwaukee Association of Commerce (MMAC) – that private employers must have the right to set their own standards for employees. Their attorney declared that today’s decision “should be of grave concern to private businesses.”

That is, of course, nonsense. As explained by Justice Rebecca Bradley in her concurrence, “the doctrine of academic freedom has no application within private enterprise, unless of course a private entity incorporates the doctrine into employee contracts.” The only entities that should be concerned of today’s decision are universities who promise free speech to their professors and do not keep that promise.

All across the country, academic freedom is under assault on campuses. Universities are treating academic freedom as the right to say only what administrators or the loudest factions on campus approve of.

But today, the Wisconsin Supreme Court struck a major blow in favor of free speech, delivering the unequivocal message that “academic freedom” means just that.

###

Warrior Blogger Discusses Campus Free Speech

Journal-Sentinel on McAdams v. Marquette

Appearing today, a very good article in the local paper by columnist Christian Schneider titled “In the case of professor John McAdams, Marquette lost its way.”

Schneider gives some history:

In 1853, the Rev. Anthony Urbanek of the newly minted Catholic Diocese of Milwaukee reported back to Vienna on the state of Catholics in the fledgling city. Urbanek expressed optimism at how quickly Catholicism had taken root in Milwaukee, especially among its German and Irish settlers.

“What an encouraging sight it is to witness crowds of young and old on Sundays, coming from all sides out of the woods, as though they arose out of the ground,” Urbanek wrote, noting many churches weren’t large enough to hold all the people who wanted to attend services.

Not so with schools. If parents wanted to send their children to Catholic schools to “preserve their children from Yankee-ism,” he said, they would have to pay for the schools themselves. Trying to educate Catholic children in public schools, he said, “soon deteriorates into heathenism.”

And so, led by Archbishop John M. Henni and funded with a $16,000 gift from a rich Belgian, the diocese founded a small Jesuit college. The purpose of Marquette was to allow for academic freedom, distinct from the pressures of the secular world.

Schneider then outlines the basics of Marquette’s attempt to fire us, and concludes:

Marquette’s contract with faculty contains the promise that they will not be disciplined for “legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.” It vows not to “restrain…rights guaranteed (faculty) by the United States Constitution.”

McAdams’ treatment vaporizes those promises; in this case, freedom of speech ended when an offended graduate student and sympathetic faculty advisers said it did. And the university capitulated to the very outside forces it was founded to resist.

Biased Reporting

Schneider’s column is in stark contrast to the slanted reporting the Journal-Sentinel usually provides, courtesy of Karen Herzog. In an absurdly biased story back on January 23, she pretty much acted as a mouthpiece for Marquette, suppressing information and giving a biased version of events.

The story, as it now exists online, is slightly sanitized relative to the one originally posted (but Google cache is the friend of people wanting to document embarrassing things posted and then changed).

In the original story, Herzog wrote “McAdams argued that he could say anything he wanted on his blog because of academic freedom protections.” This is nonsense, since we never claimed we could say anything we wanted. We never claimed the right to libel anybody, for example. Herzog changed that to “McAdams argued what he writes on his blog has academic freedom protections,” which is correct.

Much worse is Herzog’s description of what our original post was about. She said: “McAdams said he did it because he felt the graduate student was trying to impose her liberal views on students she taught.” In fact, we blogged about a graduate instructor (Cheryl Abbate) who told at student who wanted to argue against gay marriage (which had come up in class) that he could not do so, since he was not allowed to say “homophobic” things, and any such argument would “offend” any gay students in class.

Herzog apparently believed that an accurate account of what Abbate did would leave readers much less sympathetic to her, and would make it obvious that a serious issue of campus political correctness was involved.

Naming Wrongdoers

Herzog repeats Marquette’s claim that we should not have named Abbate. But Herzog knows perfectly well that the Journal-Sentinel (or any other news outlet) will name people accused of misconduct. This would apply to (say) an athletic coach accused of sexually molesting athletes or a county employee accused of embezzling funds. But Marquette wants to claim that a graduate instructor, who was 27 years old and had been in the military, and was the “instructor of record” in the course, should be exempt.

Herzog uncritically accepts Marquette’s claim that “the graduate student instructor reportedly started receiving threats as a result of the blog post.” Had Herzog simply bothered to read what was at the time the most current post on our blog, she would have known this was flatly untrue.

Herzog, without bothering to check, repeated Marquette President Michael Lovell’s claim that I had “expos[ed] her [Abbate’s] personal contact information as recently as last month.” I was puzzled reading this, until it was brought to my attention that a link to an Abbate page was included in a column by George Will in the Washington Post, which I republished on my blog. It seems Lovell’s real beef is with the Washington Post. Herzog could have checked this out.

Read Only One Side

Finally, at the very bottom of the story as it first appeared, was the notation “While in the national spotlight over the case, Marquette posted a list of frequently asked questions and answers about the case on its website.” This is linked to a Marquette “FAQ.”

An unbiased story would also refer readers to the website of the Wisconsin Institute for Law and Liberty, to get the other side of the issue. But Herzog has chosen to be, essentially, a sock puppet for Marquette.

Again: Wall Street Journal on Marquette v. Warrior Blogger

The paper chimes in again:

Marquette and the First Amendment
Wisconsin’s Supreme Court will judge a promise of academic freedom.

A political-science professor who says Marquette University violated his employment contract’s guarantee of academic freedom will get his day in court. Though a judge for a lower state court earlier ruled for the university, last week the Wisconsin Supreme Court agreed to John McAdams’s request that it bypass the appeals courts and take up his suit directly.

Professor McAdams is now in his seventh semester outside the classroom because of a November 2014 post on his Marquette Warrior blog. The post criticized a graduate instructor, Cheryl Abbate, for telling a student with more traditional views that she would tolerate no dissent on same-sex marriage in her class on ethics.

After the post Ms. Abbate received several ugly emails. Mr. McAdams was blamed and punished, though he had nothing to do with those messages. The university contends that Mr. McAdams’s offense is having identified a student by name—Ms. Abbate. The characterization is telling, because though Ms. Abbate was indeed a grad student she was also a paid employee of the university teaching a course. If any student was harmed here, it was the Marquette undergraduate who was told there was no room for his views in Ms. Abbate’s classroom.

No one forced Marquette to enter into an employment contract with Mr. McAdams. But it did. And that contract says he cannot be fired for exercising a right guaranteed by the U.S. Constitution. By any reasonable standard that would include the First Amendment—even at a Jesuit university.

The First Amendment is relevant here since, although Marquette is a private university, faculty have a contractual guarantee of the free speech rights embodied in the U.S. Constitution. This most certainly includes the First Amendment.

Since we did absolutely nothing that would not be protected speech under the First Amendment, Marquette is trying to weasel out of this promise by claiming that we violated some “expectations” that bind faculty. But those “expectations” are not written down anywhere, not supported by any precedent, and were in fact merely concocted because Marquette (under pressure from leftist faculty) wanted to get rid of us.

If Marquette can get away with that, faculty at public universities (who are protected under the First Amendment even without any explicit contractual language) are vulnerable to the same tactic.

Lovell’s Falsehood: Abbate Received Threats

Marquette President Michael Lovell, to support the narrative that graduate instructor Cheryl Abbate was terribly victimized has claimed that Abbate received threats. Recall that we reported that she told a student that he was not allowed to argue against gay marriage since that would be “homophobic” and “offensive.”

He claimed this in a letter to the Wall Street Journal:

Instead of expressing his concerns through established internal channels, he chose to blog about our graduate student—publicly shaming her, questioning her values and including a link to her contact information. Through those actions, he exposed her to a flood of violent threats and hateful messages.

He has done this multiple times, for example on an April 2016 FAQ posted on Marquette’s website:

Dr. McAdams disagreed with the way one of our graduate students led a classroom discussion. Instead of expressing those concerns through established internal channels, he chose to blog about our graduate student — publicly shaming her, questioning her values and including a link to her contact information. He sought opportunities to amplify his public shaming of her on cable news and talk radio. Through those actions, he exposed her to a constant stream of threats and hateful messages.

The “hateful messages” part is true. But “threats” is an entirely different matter. Threats are a matter for law enforcement.

Abbate Says No Threats

It’s odd that Marquette would make this claim, since Abbate herself says she received no threats.

She discusses her experience in a long essay on her blog. Amid the usual rhetoric about the evils of patriarchy and violence against women, she said this:

As you will note, none of the men who e‐mailed me or left a violent comment about me directly stated “I am going to blow your brains out,” “I am going to rape you”, or “I am going to physically assault you.” Yet, although these men were careful not to frame their messages in the form of a direct threat, their comments and emails should not be dismissed as just “harmless comments.” First of all, it is often the case that there are violent intentions that motivate these somewhat carefully constructed comments (they are careful in the sense that they do not express direct threats). To write‐off these abusive comments by saying “he didn’t say he is going to rape you; he just said he hopes you are raped!” is to wrongly trivialize the real threats of harm that very well might be contained within these comments.

Furthermore, even if these comments do not express actual threats of violence, these comments are harmful in the sense that they are intended to engender fear in women by reminding them of the very real and prevalent violence women experience.

Translation: since feminists are obsessed with violence against women, comments that are not threats can be viewed as threats.

Another interesting thing shown in Abbate’s essay is that she apparently spent considerable time looking around rather marginal websites (she mentions IOTW Report and Auto Admit) for comments about her. So many of the nasty comments she quotes did not come in e-mails to her, but were posted in some obscure corner of the web.

Conclusion

Why Marquette would keep repeating something that not only is false, but can easily be shown to be false, is a mystery. If it is mere carelessness on their part, it shows how little they care about facts in their jihad against this blogger. If it’s not that, they have simply chosen to lie.

Lovell’s Falsehood: Linked to Abbate’s Contact Information

Marquette President Michael Lovell has repeatedly claimed that we, in a November 9, 2104 blog post, linked to the “contact information” of one Cherly Abbate, the philosophy instructor who told an undergraduate that he was not allowed to voice opposition to gay marriage in her class since it would be “homophobic” and “offensive.”

He made this claim most recently in a letter to the Wall Street Journal, and in an “FAQ” posted on Marquette’s website in April of 2016.

This is important because Marquette wants to claim that we somehow encouraged or incited the unkind e-mails Abbate got when the story went national.

When our case was being argued before the District Court, Marquette’s lawyer (Ralph Weber) told the judge that we had “linked to Abbate’s contact information.” The judge, David A. Hansher, asked why we would do that. Weber responded “because he wanted to hurt her.”

Unfortunately, the claim that we linked to her contact information is flatly untrue.

Linking to Her Blog

We linked to Abbate’s blog twice, once in the original November 9, 2014 post, and again in a November 13, 2014 post.

Here is the link. As you can see, there is nothing there now.

But courtesy of archive.org, this is what it looked like in November 2014. Is there any contact information there? No, there is not.

But suppose, on that page, you go to Abbate’s toxic feminist essay “Yes All Men… Contribute to the Prevalence of Rape” at the bottom left of the page. You end up here.

Still no contact information.

But then you might click on “Cheryl E Abbate” at the bottom of the page, and you end up here. This is promising. At the top right-hand part of the page, it says “How to contact Cheryl.” When you click on that, and then go back to the December 2013 version of the page, you finally find her e-mail address.

Did Anybody Actually Do That?

So if somebody dug hard enough, they could have found her e-mail address on her blog. But suppose they just Googled up a list of Marquette Philosophy graduate students? There Abbate is, along with her e-mail.

If we want to be generous, we might say Marquette has been stretching the truth. If we want to be less generous, Marquette has been out and out lying.

Our Case v. Marquette Goes Direct to the Wisconsin Supreme Court

Wisconsin Supreme Court Agrees to Hear McAdams v. Marquette

WILL, McAdams had petitioned for the state Supreme Court to take case because of its effect on all colleges, universities in state

January 22, 2018 – Milwaukee, WI – The Wisconsin Supreme Court has agreed to bypass the Court of Appeals and immediately hear Professor John McAdams’ case against Marquette University. McAdams sued Marquette after the university fired him for blogging about a graduate student instructor who mistreated her undergraduate pupil. The court will likely hear oral argument in April or May and issue a ruling by July.

“We are pleased that the state Supreme Court has agreed to hear our case on behalf of John McAdams,” said Rick Esenberg, President and General Counsel at WILL. “It is very important to have clarification on this important issue and I’m glad that John will have his day in court sooner than later.”

WILL asked the court to take the case because there is no binding precedent on the question of how far academic freedom extends. A ruling from the court will also provide a standard for the rights of professors at UW System schools and private universities and colleges that also promise their faculty academic freedom.

In November 2014, McAdams shared a story on his blog, Marquette Warrior, of an undergraduate student who had been told by a graduate student instructor, Cheryl Abbate, that he could not express his disagreement with same-sex marriage in her theory of ethics class because doing so would be homophobic and offensive. The story went national, resulting in significant amounts of bad press for Marquette.

In response, Marquette summarily suspended McAdams from his teaching duties and banned him from campus, initiating proceedings to revoke his tenure and fire him. An internal faculty hearing committee (FHC) was convened to judge the dispute, but it suffered from serious procedural flaws, as Marquette withheld evidence from McAdams and allowed a clearly-biased professor to sit on the FHC. The FHC eventually recommended McAdams be suspended for two semesters. Instead, Marquette President Michael Lovell suspended McAdams indefinitely without pay unless he issued a written apology for his behavior – effectively firing him.

More information about the case is available here. ###

President Lovell Attacks Warrior Blogger, We Respond

When the Wall Street Journal came down on our side in our academic freedom case against Marquette, Marquette President Michael Lovell responded with a letter published in the Journal.

The paper then kindly gave us a chance to respond to Lovell. We are reprinting Lovell’s letter, and our response, as well as a few of the comments both letters provoked.

First Lovell:

Your editorial “A Jesuit School Gets Dogmatic” (Jan. 8) describes Associate Professor John McAdams’s interaction with one of our former graduate students as “normal give and take of debate.” That couldn’t be further from the truth. Mr. McAdams inflicted a public and personal internet attack on our student. Instead of expressing his concerns through established internal channels, he chose to blog about our graduate student—publicly shaming her, questioning her values and including a link to her contact information. Through those actions, he exposed her to a flood of violent threats and hateful messages.

In January 2016, Marquette’s faculty hearing committee unanimously concluded in a 123-page report that Mr. McAdams violated his core obligations as a tenured professor when he used his blog needlessly and recklessly to harm our student. In May 2017, a Milwaukee County judge issued a 33-page decision dismissing all claims against Marquette University. The judge’s decision states: “academic freedom does not mean that a faculty member can harass, threaten, intimidate, ridicule, or impose his or her views on students.”

John McAdams has the right to talk about controversial topics on his blog and to disagree with and debate Marquette-related positions freely. But he crossed the line when he launched a personal, demeaning internet attack on a Marquette student, choosing to publicly shame her to advance his narrative and draw attention to himself and his blog. Tenure and the freedoms that come with it also have obligations and responsibilities. These disturbing, harassing actions will never have a place on our campus. Just as they have no place in any work environment.

Michael R. Lovell

President, Marquette University

Now, our response:

Marquette University President Michael Lovell claims to be upset because in a blog post I exposed the misconduct of a graduate instructor who told one of her students that arguing for the Catholic position on gay marriage was forbidden, being “homophobic” and “offensive” (Letters, Jan. 12). The instructor in question (Cheryl Abbate) was 27 years old and had been in the U.S. military. She was the “instructor of record” in the class—to her students “the professor.”

Mr. Lovell claims I had “shamed” and “harassed” Ms. Abbate. But any journalist who exposes misconduct could be said to have “shamed” or “harassed” the subject of the reporting. Journalists (including faculty bloggers) expose misconduct. Exposing misconduct that politically correct folks dislike would never be labeled “shaming” or “harassment.” And I certainly questioned her “values” which are shamefully too prevalent on college campuses. That was why the incident mattered.

The claim that I linked to her “contact information” is flatly false. I linked to her toxic feminist blog post of Sept. 20, 2014 titled “Yes All Men . . . Contribute to the Prevalence of Rape.” Possibly people dug around on her blog and found her email address, or simply used Marquette’s standard formula.

Mr. Lovell claims I should have fought a quiet internal battle for redress. Of course bureaucrats want misconduct in their organizations handled quietly and internally. But journalists are under no obligation to accommodate them.

Mr. Lovell notes that a faculty panel recommended that I be suspended. But academic freedom for conservative faculty is pretty precarious in the hands of other faculty. Further, the faculty panel did not suggest I should render a Stalinist apology to get my job back. That was Mr. Lovell.

John McAdams

Milwaukee

And a few of the more interesting comments:

Responses to Lovell’s letter:

I have been involved and effective at raising millions of dollars for Marquette University. Recently I observed the law of unintended consequences working when a fellow dental alum rescinded his six-figure donation because of President Lovell’s action.

Paul A. Gruber, DDS

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“But he crossed the line when he launched a personal, demeaning internet attack on a Marquette student”

In other words, he told the truth about a 27 year old graduate student teaching a class. It may be inconvenient to the dual objectives of fundraising from alumni while adhering to campus leftist dogma, but it’s still the truth, n’est-ce pas? — Catherine Pate

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President Lovell states: The judge’s decision states: “academic freedom does not mean that a faculty member can harass, threaten, intimidate, ridicule, or impose his or her views on students.”

Isn’t that what his leftist graduate student was doing? — Matt Burkholder

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President Lovell claims that Professor McAdams “shamed” the graduate student. I read the blog and he factually reported what the graduate student did. No one disputes what took place. If what she did was not shameful, then nothing Professor McAdams said could be considered shaming. — Christopher Iliff

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Comments in response to our letter:

I have fond memories of growing up in Milwaukee in the days when Marquette was still an unabashedly Catholic university. Guess the same folks who brought us Liberation Theology are running the place. — St.Clair Tweedie

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McAdams was employed by Marquette. As such, he has an implicit responsibility to try to improve the University and at a minimum, not to damage it. He could have done so by going through the appropriate channels to have the situation addressed. He chose not to and his hiding behind his role as a journalist. He had a choice; carry out his responsibilities to his employer, or to pursue his freedom as a “journalist.” He chose to be a “journalist.” Given the potential and apparently intentional damage that he caused to Marquette, he was fired. — Stephen OBrien

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@STEPHEN OBRIEN It is quite possible he did evaluate how to improve the University and in his own personal determination felt that the best way to do that was to “out” the situation because the sunshine was needed so it didn’t get brushed under the rug. — Michelle Madsen

Marquette Attempt to Fire Warrior Blogger / Update

First, a briefing on the current state of the case from our lawyers at the Wisconsin Institute for Law & Liberty.

John McAdams was a conservative professor at Marquette University, teaching political science. When he blogged criticizing a liberal graduate instructor who refused to permit debate about gay marriage, claiming that any opinion against gay marriage was homophobic and would not be permitted in her class, Marquette administration threw the book at McAdams. He was suspended from his teaching duties and banned from campus as if he were a dangerous criminal – all in violation of his teaching contract, which requires various procedures be followed before a suspension may be imposed.

Marquette then moved to formally fire McAdams. The university convened a “faculty hearing committee” that failed to provide McAdams his contractual due process rights, such as unbiased members and the right to access all of the university’s evidence and witnesses. After a weeklong hearing, the committee issued a convoluted report that created new rules it could then claim McAdams violated. The committee recommended he be suspended without pay for one or two semesters.

Marquette President Michael Lovell went beyond that recommendation, however, not only suspending him but giving him a few days to issue a Soviet-style admission of wrongdoing or be fired. McAdams refused to engage in such coerced speech, and has been indefinitely suspended without pay – effectively terminated.

McAdams sued Marquette for breach of his employment contract. The trial court ruled in favor of Marquette, concluding that it had to defer to the faculty hearing committee, and adopted all of its findings of fact and conclusions of law, despite McAdams proving that Marquette had withheld key information from the committee. We appealed and asked the Wisconsin Supreme Court to bypass the Court of Appeals, hearing the case immediately.

An organization on our side is the Foundation for Individual Rights in Education, the nation’s most important defender of academic freedom, both for faculty and students. They published a recent article on the case, and noted:

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.

Finally, three radio interviews about the case. First, Tom Kamenick (one of our legal team) on the Jerry Bader show out of Green Bay.

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Second, our interview with Right Wisconsin.

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Finally, Rick Esenberg (head of our legal team) on the Jim Bohannan show (national).

Wall Street Journal on Marquette Attempt to Fire Warrior Blogger

A Jesuit School Gets Dogmatic
Is Marquette’s promise of academic freedom worth anything

By The Editorial Board

Marquette is a Jesuit university in Milwaukee. Which is appropriate, because jesuitical is the word that fits its explanation for firing a tenured political science professor who defended a student who was badly treated by an intolerant graduate instructor.

The sacked professor is John McAdams, who in 2014 wrote a blog post criticizing by name Cheryl Abbate, who taught a course on ethics. Ms. Abbate had told a student he could not express his disagreement with same-sex marriage in her ethics class because it was “homophobic” and on that issue there could be no debate.

In his post on the incident, Mr. McAdams made no judgment on same-sex marriage. But he noted that liberals are inclined to deem views they disagree with as offensive and then use that to shut down debate. The story went national.

Marquette officials took action—against Mr. McAdams. He was blamed for the hate mail that Ms. Abbate received after he named her, even though there’s no evidence he was part of any of it. Marquette President Michael Lovell gave him an ultimatum: apologize or be suspended without pay indefinitely. Mr. McAdams refused to apologize and has been effectively fired.

He’s also suing, and last May a Wisconsin trial court backed the university’s dismissal. But Mr. McAdams has appealed and wants to go straight to the state Supreme Court. The Wisconsin Institute for Liberty and Law, which has taken his case, says the firing violates Mr. McAdams’s contract with Marquette, which promises freedom from threats of dismissal over constitutional rights such as free speech.

As a private institution, Marquette has the right to set its own employment standards and it needn’t abide by the First Amendment. But it is hard to square Mr. McAdams’s dismissal with any reasonable understanding of Marquette’s contract guaranteeing him academic freedom.

We wish these issues weren’t left for courts. But when institutions such as Marquette are unable to handle what should be the normal give and take of debate, they invite that intervention. How much better we’d all be if Marquette would acknowledge its mistake and give the professor his job back.

George Will on Marquette Attempt to Fire Warrior Blogger

Academic freedom goes on trial

Wisconsin’s Supreme Court can soon right a flagrant wrong stemming from events set in motion in 2014 at Milwaukee’s Marquette University by Cheryl Abbate. Although just a graduate student, she already had a precocious aptitude for academic nastiness.

On Oct. 28, in an undergraduate course she was teaching on ethics, when the subject of same-sex marriage arose, there was no debate, because, a student said, Abbate insisted that there could be no defensible opposition to this. (Marquette is a Jesuit school.) After class, the student told her that he opposed same-sex marriage and her discouraging of debate about it. She replied (he recorded their interaction) that “there are some opinions that are not appropriate that are harmful. . . . Do you know whether anyone in the class is homosexual? . . . In this class homophobic comments . . . will not be tolerated.” The student’s appeals to Abbate’s superiors were unavailing (the chairman of her philosophy department referred to the student as an “insulin [sic] little twerp”), so he gave John C. McAdams his recording of Abbate rebuffing him.

McAdams, a tenured professor then in his 41st year at Marquette and a conservative who blogs about the school’s news, emailed Abbate seeking her version of the episode. Without responding to him, she immediately forwarded his email to some professors. She has called McAdams “the ringleader” of “extreme white [sic] wing, hateful people,” a “moron,” “a flaming bigot, sexist and homophobic idiot” and a “creepy homophobic person with bad argumentation skills.” This aspiring philosopher’s argumentation skills can be inferred from her reliance on epithets.

Before McAdams had written a syllable, she claimed for herself the coveted status of victim, branding as “harassment” his request for her side of the story. Striking a pose of bravery, she accused him of trying “to scare me into silence.” When, on Nov. 9, 2014, McAdams blogged, his post took no position on same-sex marriage but said this should be a debatable issue. The next day, Abbate drafted a letter asking that McAdams be disciplined. He was.

After this matter earned national media attention, she received some critical emails, some of them vile, and Marquette rightly branded them “hate mail.” However, for these, and for the unspecified “harm” they supposedly caused Abbate, McAdams was held to be somehow blameworthy. Marquette, however, offered no evidence that he had anything to do with the emails. After a committee drawn from the university’s monochrome culture recommended suspending McAdams without pay for two semesters, Marquette’s president insisted that McAdams also express in writing “deep regret” and confess that his blog post was “reckless and incompatible” with Marquette’s mission and values. McAdams refused and has been unemployed ever since.

Being a private institution, Marquette had a right to be as hostile as it obviously is to the First Amendment — except for this: Its contract with tenured faculty says no one shall be disciplined for exercising “legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action” and that the threat of dismissal shall not be used to “restrain” constitutional rights. A circuit court, ignoring Marquette’s ignoring of a Wisconsin contract, refused to adjudicate this dispute. Deferring to Marquette, the court essentially held that a professor’s academic freedom exists only until some other professors and university administrators say it does not. So, the deferential court allowed Marquette an unconstrained right to settle a contract dispute in which it was an interested party.

Because there is almost no Wisconsin case law concerning academic freedom that could have guided the circuit court, McAdams is asking the state supreme court to bypass the appeals court and perform its function as the state’s “law-developing court.” He is also asking the court to be cognizant of the cultural context: Nationwide, colleges and universities “are under pressure” — all of it from within the institutions — “to enact or implement speech codes or otherwise restrict speech in various ways.”

This episode, now in its fourth year, began because McAdams tried to assist a student who suffered unprofessional behavior by a bullying instructor. Abbate has moved on. Now at the University of Colorado, she is still a (perhaps career) graduate student, writing a doctoral dissertation on the importance of the rights of . . . animals.

The wreckage she left in her wake illustrates how rights are imperiled when judicial deference becomes dereliction of judicial duty. Prospective Marquette students, and Marquette alumni, must decide whether this school, awash with the current academic hysteria and corruption, merits their confidence and support. Wisconsin’s Supreme Court must lay down the law that can stop some of the rot this case illustrates.

Exposing the American Association of University Professors: Politicized Guild

From Campus Reform, an article that deals with our legal battle with Marquette, but also with similar cases nationwide.

A key point: the AAUP is less than forthcoming when the academic freedom of conservative professors is attacked. Some key passages:

“In the aftermath of [Trump’s] election, it has become evident that his election poses a grave threat to the principles that lie at the very heart of the AAUP: academic freedom, shared governance, and economic security for those engaged in teaching and research in higher education,” AAUP President Rudy Fichtenbaum declared at his organization’s 2017 annual meeting.

So the simple election of a president you don’t like is a threat to academia freedom? Thanks, AAUP, for making your political biases clear.

The article goes on to mention cases where the AAUP defended extreme and inflammatory statements from leftist professors, and notes the lack of support for conservative academics. And further:

The same goes for more politically-neutral professors who simply challenge campus orthodoxy, like the Christakis’s and, even more recently, Evergreen State College Professor Bret Weinstein, who was forced to hold classes off-campus after campus police were unable to protect him from a mob of students who had angrily confronted him for questioning the legitimacy of an event in which white people were requested to leave campus for a day.

The AAUP did not release a single statement in support of Weinstein’s “academic freedom,” even after the student protesters held the school’s president hostage in his own office to demand, among other things, that Weinstein be summarily suspended without pay.

“My thoughts regarding the AAUP are much like my thoughts about the ACLU,” said George Leef, director of research for the John William Pope Center for Higher Education Policy. “It avoids battles where it doesn’t like one of the combatants, principle be damned.”

David Randall, director of communication for the National Association of Scholars (NAS), expressed similar sentiments, acknowledging that while the AAUP did play an instrumental role in [conservative Mike] Adams’ lawsuit, “it is easy to find cases in which conservatives on campus have suffered significant infringements of their academic freedom in which the AAUP has been mute.”

The author (Anthony Gockowski) devotes considerable attention to our case. While the AAUP objected to our suspension in December, 2014, it had no problem with Marquette’s attempt to fire us, and with the punishment imposed by a faculty panel.

An AAUP official informed us that we had received “due process” from the faculty panel.

“Their position was that I had received ‘due process’ from the Faculty Hearing Committee, and that was all I deserved,” McAdams told Campus Reform. “They seem to view ‘academic freedom’ as a collective right the faculty have, not a right that each faculty member has. Thus, views unpopular with the faculty generally will get little support from the AAUP.”

. . . McAdams noted that due process—especially on a “contemporary campus”—offers “scant protection to views unpopular among the faculty,” pointing out that “in addition to ideological bias, there is the fact that campus bureaucrats can load committees with people who are keen on currying favor with the administration.”

Worse, however, was the fact that there were several gross violations of due process on Marquette’s part. As we told AAUP official Greg Scholtz:

1. I was suspended in violation of Marquette’s own rules. You have already taken notice of this.
2. The Faculty Hearing Committee was supposed to issue a report within 90 days of the end of the hearings, but failed to meet that deadline by almost a month, finally delivering a report on January 19, when the deadline was December 23.
3. One member of the Faculty Hearing Committee had signed a statement attacking me for my blog posts, but declined to recuse herself.
4. Marquette refused to provide my legal team with evidence, possibly relevant to the case, that my legal team requested.
5. President Lovell, while claiming to follow the recommendation of the Faculty Hearing Committee, in fact added a proviso that I had to apologize for the blog post, and provide a loyalty oath pledging allegiance to vaguely defined “Marquette Guiding values” and “Marquette’s Mission.”
6. Marquette could point to no rule that I had violated, but the Faculty Hearing Committee engaged in what [my attorney] called a “multi-part balancing test” to come to the conclusion that I should be disciplined (but not fired). Restrictions on academic freedom (like all restrictions on speech) should be based on “bright line” prohibitions, and not vaguely defined and subjective “balancing tests.”

Scholtz blandly replied that he “never encountered a dismissal process that all parties agreed was entirely free of irregularities.”

Free Speech to Criticize Professors

But going beyond merely defending the right of leftist professors to say extreme and inflammatory things, the AAUP has condemned those media outlets that publicize those extreme and inflammatory things. For the organization, “academic freedom” means a lack of free speech when that speech criticizes leftist professors.

As David Randall suggested, the AAUP has to be viewed as a “politicized guild, and not as disinterested partisans of academic freedom.”

Setback: Judge Rules Against Warrior Blogger in Academic Freedom Case

VOWS TO APPEAL DECISION UPHOLDING MARQUETTE’S DECISION TO TERMINATE HIM

May 4, 2017 – Milwaukee, WI – In a 33-page ruling today, Milwaukee County Circuit Court Judge David Hansher found that Marquette University had the legal right to terminate tenured political science professor, Dr. John McAdams. The judge treated the Marquette committee that sat in judgment of McAdams as the equivalent of a neutral, third-party arbitrator, adopting its reasoning and conclusions wholesale. McAdams has already vowed to appeal the ruling.

In November, 2014, McAdams shared a story on his blog, Marquette Warrior, of an undergraduate student who had been told by a graduate student instructor, Cheryl Abbate, that he could not express his disagreement with same-sex marriage in her theory of ethics class because doing so would be homophobic and offensive. The story went national, resulting in a lot of bad press for Marquette.

In response, Marquette summarily suspended McAdams from his teaching duties and banned him from campus, then initiated proceedings to revoke his tenure and fire him. An internal faculty hearing committee (FHC) was convened to judge the dispute, but it suffered from serious procedural flaws, as Marquette withheld evidence from McAdams and allowed a clearly-biased professor to sit on the FHC. The FHC eventually recommended McAdams be suspended for two semesters. Instead, Marquette President Michael Lovell suspended McAdams indefinitely without pay unless he issued a written apology for his behavior – effectively firing him.

Judge Hansher adopted the FHC’s cramped and unsupported view of academic freedom and the First Amendment. He concluded that because naming Abbate could conceivably bring negative attention to her, McAdams was prohibited from doing so.

“No college professor in Wisconsin has any real protection if that’s the standard,” explained Rick Esenberg, President and General Counsel of WILL. “If a professor can be held responsible for the actions of every person who reads or even hears about what the professor writes, then they have no protections at all. By that standard, every professor who was publicly critical of McAdams should be fired too.”

Tom Kamenick, Deputy Counsel at WILL, sharply criticized the court’s decision to defer to Marquette’s own internal committee: “When two parties to a contract disagree about its application, courts cannot simply let one side decide how to interpret it. That’s like saying an employee who brings a sexual harassment complaint against another employee has to abide by the employer’s internal review that finds no wrong-doing occurred.”

The court also found no problem with Marquette allowing a clearly-biased member to sit on the FHC. Professor Lynn Turner signed an open letter shortly after the controversy broke out condemning McAdams and concluding he had violated his professional responsibilities. McAdams asked that she be removed, but the FHC refused. The court decided that as long as the FHC had considered the request, that was good enough – it didn’t matter how biased she was.

“This is another example of the increasing unwillingness of colleges to stand up for free speech. Hardly a day passes without an example of a speaker being shouted down, or disinvited, or a student being punished for some innocuous (but politically incorrect) comment on social media,” commented Dr. McAdams.

“This is just another step in a long process,” said Esenberg. “As Ronald Reagan said, ‘Freedom is never more than one generation from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.’ We will take this case as far as it needs to be taken to vindicate McAdams’ – and all professors’ – rights to freedom of speech and academic freedom.”

Background on the case can be found here.

CPAC Speech

CPAC was a hoot! We got to see only a couple of the panels, being involved in interviews most of the time, but we got the Jeane Jordan Kirkpatrick Award on Friday night. Here is our acceptance speech.

You’ll need to go forward to 41:15 to see Rick Graber read the citation, and 47:36 to see our speech.

Also, an article and interview with James Wigderson of Wisconsin Reporter.

Warrior Blogger Receives Jeane Jordan Kirkpatrick Award

We are extremely honored to receive the Jeane Jordan Kirkpatrick Award from the Bradley Foundation.

The award will be presented Friday night at CPAC (The Conservative Political Action Conference).

According to the Foundation:

McAdams was selected for his outspoken criticism of political correctness on college campuses.

Actually, one campus (Marquette) which led Marquette to attempt to fire us.

Bradley says:

“Professor McAdams is a fearless defender of free speech and open inquiry, and a martyr to political correctness,” said Richard Graber, President and CEO of the Lynde and Harry Bradley Foundation, which supports the Kirkpatrick Award. “His dismissal from Marquette University flies in the face of the traditions of academic freedom.”

And now the really good part:

The award carries a $10,000 stipend and honors the memory of Jeane Jordan Kirkpatrick, a former U.S. Ambassador to the United Nations, who was known for her outspokenness in hostile environments, her clarity and determination in the midst of oppression, and her fierce dedication to American ideals and academic freedom.

Kirkpatrick earned the enmity of the academic left by being an anti-communist. Further, she claimed that “moderate autocrats friendly to American interests” were better than communist (or other totalitarian) regimes which entirely suppressed civil liberties and where hostile to U.S. interests. History has proven her right, but at the time, leftist academics claimed that any less-than-fully democratic government might as well be replaced by a communist (or Islamist) regime.

We, of course, are not nearly as important as Jean Kirkpatrick, having done nothing but defy an attempt by a nominally Catholic (but actually secular and politically correct) university to fire us.

But we’ll accept the award anyway.