A Landmark Victory for Academic Freedom

The Wisconsin Supreme Court on Friday handed down what could be a landmark decision on academic freedom in higher education.

In the widely watched case of McAdams vs. Marquette, the court ruled that the Jesuit university violated professor John McAdams’s free speech rights and its own contractual obligations when it suspended him for writing a blog post.

“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,” Justice Daniel Kelly wrote for the court’s majority.

The high court reversed a lower court decision and ordered it 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.”

The case was viewed as a test of the scope of academic freedom protections, even in private universities. “The Wisconsin Supreme Court has struck a major blow in favor of free speech,” McAdams’s lawyer, Rick Esenberg said in a written statement.

Esenberg, the president of the Wisconsin Institute for Law and Liberty (WILL), had argued McAdams’s case before the court in April. “Since the beginning, the only thing professor McAdams wanted to do was to teach students without having to compromise his principles,” Esenberg said.

“Yet Marquette refused to honor its promises of academic freedom and now, thanks to the Supreme Court, he will be able to teach again. Make no mistake about it, this is a major day for freedom.”

According to Marquette’s Faculty Statute, a tenured professor was subject to “discretionary” dismissal only for “serious instances of illegal, immoral, dishonorable, irresponsible, or incompetent conduct.” The university’s rules make it clear that a tenured professor cannot be fired for anything that is protected by academic freedom:

In no case, however, shall discretionary cause [for dismissal] 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.

The statute reiterates Marquette’s commitment to protecting academic freedom: “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.”

As Esenberg explained to me, because “the contract used terms that are generally used in academia, this could have a very significant impact.”

Marquette had vigorously defended its punishment of McAdams, enlisting support from several business groups for its case and taking out full page ads in the Wall Street Journal and the Milwaukee Journal-Sentinel touting the support of the “business community.”

But in the end, the state’s high court rejected the attempt to equate private businesses with academic institutions that had explicitly promised to protect free speech rights.

Ironically, the blog post at the center of the center of the controversy dealt with the question of academic freedom. Some background on the case from WILL:

In Fall 2014, John McAdams, a political science professor at Marquette University, blogged about a graduate instructor who refused to allow debate about same sex marriage in her classroom (in a situation where same-sex marriage was relevant to the class discussion), claiming that any opinion against gay marriage was homophobic and would not be permitted in her class. On his blog, Dr. McAdams wrote that the topic should be debated, not suppressed. Marquette responded by first suspending Dr. McAdams and banning him from campus as if he posed a physical threat.

Marquette then sent Dr. McAdams notice that it would terminate his tenure and fire him from the faculty. The suspension, banishment, and termination were then reviewed by a faculty hearing committee. That process, however, was significantly flawed. For example, Marquette allowed Dr. Lynn Turner to sit on the faculty hearing committee, despite the fact that she signed a public letter condemning Dr. McAdams before all of the facts were known.

Friday’s ruling flatly rejected Marquette’s defenses of its handling of the case, including its argument that McAdams should be held responsible for the third-party reactions to his blog post. The court forcefully rejected the university’s case:

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.

Justice Rebecca Bradley filed a concurrence supporting the majority opinion, underlining the importance of academic freedom in the current environment on campus. The question before the court, she wrote, was whether “the sacred ‘right of faculty members to speak as citizens’—that is, ‘to address the larger community with regard to any matter of social, political, economic or other interest without institutional discipline or restraint’— [would] succumb to the dominant academic culture of microaggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence?”

In this battle, only one could prevail, for academic freedom cannot coexist with Orwellian speech police. Academic freedom means nothing if faculty is forced to self-censor in fear of offending the unforeseen and ever-evolving sensitivities of adversaries demanding retribution.

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