The McAdams Case ends in Victory for Contractual Rights and Academic Freedom | Eastern North Carolina Now

    Publisher's note: The James G. Martin Center for Academic Renewal is a nonprofit institute dedicated to improving higher education in North Carolina and the nation. Located in Raleigh, North Carolina, it has been an independent 501(c)(3) organization since 2003. It was known as the John W. Pope Center for Higher Education Policy until early January 2017.

    The author of this post is George Leef.

    At last, McAdams v. Marquette University is over, and the outcome is heartening for Americans who cherish free speech and adherence to contracts. Conversely, it has those who believe that speech that ofends any politically correct sensibilities must be punished gnashing their teeth.

    The Martin Center has been covering this case since it broke nearly four years ago, first with this piece by one of McAdams' colleagues, Howard Kainz. To briefly recount the facts of the case, Marquette banished from campus and sought to revoke the tenure of a political science professor and terminate his employment merely because of a blog post he wrote.

    In that post, McAdams criticized a young faculty member, Cheryl Abbate, for the way she dismissed a student's inquiry about whether the ethics course she was teaching would cover same-sex marriage. She didn't just say no, but told him that the matter was settled, that any discussion of it in class would be regarded as homophobic harassment, and that he should drop the class if he wasn't happy.

    In his post, McAdams said that Abbate's response exemplified the leftist tendency to declare that positions contrary to theirs are immoral and not worth considering. Debate is therefore stifled just because an argument might hurt someone's feelings. Universities, McAdams opined, should never become so close-minded.

    In all probability, nothing would have come of this little dispute if McAdams' post hadn't gotten national attention. But it did, and afterward, Abbate received some nasty emails, whereupon she decided that she had grounds for a harassment complaint against him. Her complaint lit a fire under the Marquette administration, which immediately convened a Faculty Hearing Committee (FHC) to investigate the matter and recommend action against McAdams.

    The FHC, which contained one member who had previously expressed her hostility to McAdams, concluded that his post had violated university norms and that he should be suspended from teaching for up to two semesters. Thereupon, dean Richard Holz suspended McAdams and told him that the university intended to revoke his tenure because his "conduct clearly and substantially fails to meet the standards of personal and professional excellence that generally characterizes University faculties."

    Marquette president Michael Lovell then enforced those recommended punishments and added another one of his own: Before McAdams could ever be reinstated, he would have to write a letter of apology to Abbate and the Marquette community.

    For its treatment of Professor McAdams, Marquette had the dubious distinction of earning a place on the list of the 10 worst schools for free speech published by the Foundation for Individual Rights in Education (FIRE).

    But rather than groveling to get his job back, McAdams filed suit, arguing that Marquette's actions put it in breach of their contract. Because Marquette is a private institution, the First Amendment doesn't apply, but still, the university must live up to its agreements with faculty members. The faculty handbook provides that professors have academic freedom and, when speaking as a citizen, "should be free from institutional censorship or discipline." Thus, the Wisconsin Supreme Court's job was to decide whether McAdams' post was an exercise of academic freedom protected from censorship or discipline.

    What could be more central to academic freedom than writing about how courses are taught?

    Before getting to that question, though, the Court had to deal with the lower court's decision that Marquette's administration was entitled to deference, meaning that the judiciary should simply step aside. The majority (the Court split 4-2 with one justice not participating) brushed aside that idea by observing that nothing in the contract between the university and its faculty members said that controversies over discipline were outside the scope of judicial review. Since the parties had never agreed that in such controversies the university's decision was final, McAdams was entitled to bring his suit, the report noted.

    Turning to the big issue-whether the blog post was a protected exercise of academic freedom-the Court wrote, citing the Association of American University Professors Statement of Principles on Academic Freedom,

• The controlling principle is that 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 her or her position.

    Marquette argued that academic freedom must be balanced against "other values core to its mission," but the Court rejected that position: "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 or no guidance on what it covers." Under the university's version of academic freedom, "It would be a fearless professor indeed who would risk a comment, knowing that it licenses the University to scrutinize his entire career and assay it against the care of 'all aspects of the lives of the members of the institution.'"

    What about the fact that McAdams' post led to some vicious criticism of Abbate? The Court replied, "Our review of the post reveals that it makes no ad hominem attack on Abbate, nor does it invite readers to be uncivil to her, either explicitly or implicitly." It refused to find McAdams responsible for what other people later did. Wisely, the Court foresaw a great erosion of academic freedom if writers always had to think, "If I write this, could my career be ruined because of what someone else might do?"

    Much of the outrage over the decision is rooted in the fact that Abbate received some threatening emails following McAdams' post. But long-standing First Amendment precedents such as Brandenburg v. Ohio (1969) establish that, as lawyer Hans Bader writes here, "Even speech that triggers illegal acts by third parties, such as threats, remains protected by the First Amendment unless the speaker intended to incite a violation of the law that is both imminent and likely."

    Since McAdams did not intend that any violence befall Abbate (much less that any was imminent and likely), his speech should be protected. The majority was right to disregard the arguments that McAdams had to be punished because of third-party conduct.

    The Court concluded that Marquette had no cause to suspend McAdams and had thereby breached its contract with him. It instructed the lower court to order the university to reinstate McAdams to his faculty position, with tenure, and to determine back pay and other damages.

    Discussing the decision, attorney and former FIRE president David French nailed the truth: "Elite private universities-often using flowery aspirational language-promise a marketplace of ideas and then deliver less academic freedom than the community college across town." But this time, that didn't fly.

    The two concurring opinions are well worth reading also.

    Justice Daniel Kelly pointed out that Marquette's discipline system was biased because "everyone in the disciplinary process was a University employee." That sets up the age-old problems with "allowing a party to decide its own case." Citing the 1987 federal case McConnell v. Howard University, Kelly wrote, "I agree with McConnell that it 'would make no sense for a court blindly to defer to a university's interpretation of a tenure contract to which it is an interested party.'"

    Justice Rebecca Bradley's opinion elaborated on the majority's pro-speech reasoning. Showing that she is fully aware of developments on many college campuses in recent years, she wrote:

• Would 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 without institutional discipline or restraint'"-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.

    Indeed so.

    This case serves as precedent only in the state of Wisconsin, but the Court's decision to uphold academic freedom and contractual rights of faculty in the face of administrators who want to punish professors who take the "wrong side" in heated social and political controversies may reach far beyond the borders of the Badger State. Thanks to the Court's stance, private college officials will have to think twice if they want to rid themselves of faculty members just because they've said things that annoy or offend them.