Freedom for conservative academics

James Wigderson:

Marquette University Political Science Professor John McAdams prevailed at the Wisconsin Supreme Court in his lawsuit against the university to get his job back. McAdams, represented by the Wisconsin Institute for Law & Liberty (WILL), has been fighting the university since 2014 after being suspended over a blog post criticizing an instructor in the philosophy department.

In a statement released shortly after the decision was announced, WILL President Rick Esenberg said the ruling was “a major blow for free speech.”

“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.”

Esenberg said “this is a major day for freedom.”

“It is our sincere hope that Marquette University appreciates and learns from this episode and takes care to guard free speech on campus,” Esenberg said.

However, while Marquette University has said it will comply with the order, the university does not sound like they have had a sudden conversion to supporting free speech following the Court’s decision.

“Academic freedom must include responsibility. Unfortunately, Marquette can’t undo the significant harm that he caused to the former student teacher’s academic career,” Marquette University said in a statement Friday. “We must, however, ensure that this doesn’t happen to another student. Marquette will continue to uphold its values and protect its students.”

In a 4-2 decision written by Justice Daniel Kelly, the Court said Marquette violated McAdams’ contractual guarantee of academic freedom:

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”).

Chief Justice Patience Roggensack, Justice Rebecca Bradley, and Justice Michael Gableman joined Kelly in the majority. Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.

The Court’s decision is a reversal of a decision by Milwaukee Circuit Court Judge David Hansher who ruled that precedent required him to defer to the university on disciplinary matters.

Addressing that question, Justice Kelly wrote:

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.

McAdams was suspended indefinitely by the university in 2014 after a post on his blog, The Marquette Warrior, criticized philosophy instructor and graduate student Cheryl Abbate. In a recorded conversation, Abbate told a student at the Catholic university she would not allow discussion of viewpoints critical of same-sex marriage in her class.

When McAdams’ blog post about the incident went viral, Abbate said she received a number of harassing emails, and McAdams was suspended. Following an investigation, a faculty committee issued a report in January 2016 recommending unpaid suspension for McAdams through the fall 2016 semester.

However, Marquette University President Michael Lovell added extra requirements before McAdams could be reinstated. McAdams refused to comply, effectively ending his employment at Marquette, and he sued the university to get his job back.

While it was a conservative majority on the Court who decided in favor of McAdams, the academic freedom case sometimes cut across the normal political divisions. A number of liberal academics supported McAdams in the free speech case, while a Milwaukee business group, the Metropolitan Milwaukee Association of Commerce (MMAC), filed a brief in support of Marquette University. MMAC and Marquette University have a number of board members in common, and Marquette University is a member of The Business Council, a 501c3 affiliate of MMAC.

Justice Rebecca Bradley, in a concurring but separate opinion, answered the concerns of the business organization over an employer’s right to set work rules.

“The court received a variety of amicus briefs from private businesses concerned about the reverberations of this case on the private sector. Their fears are unfounded,” Bradley wrote. “University campuses inhabit a unique environment. The doctrine of academic freedom has no application within private enterprise, unless of course a private entity incorporates the doctrine into employee contracts. Marquette University, although a private institution, chose to guarantee academic freedom to McAdams in his contract.”

The Wall Street Journal adds:

The case stems from a blog post by Mr. McAdams about a graduate instructor who had told a Marquette student that opinions against same-sex marriage would not be tolerated in her ethics class. The university says Mr. McAdams proved himself unfit by naming the graduate instructor, Cheryl Abbate, and linking to her publicly available website in his post on the encounter, so it suspended him. Even after losing the case Friday, the university continues to accuse Mr. McAdams of having used his blog to intentionally expose “her name and contact information to a hostile audience that sent her vile and threatening messages.”

The court is categorical in rejecting this argument. “Our review of the blog post,” reads the majority opinion, “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.” a private institution Marquette has the right to set its own standards for fitness, as well as to limit the speech of its employees. The difference here, as the Wisconsin Institute for Law and Liberty noted in its defense of Mr. McAdams, is that the professor’s contract promised he could not be punished for exercising academic freedom or exercising his rights under the Constitution.

As the court put it, the “undisputed facts show that the University breached its contract” with the professor. So the ruling orders Marquette “to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation and benefits.” It also calls for “further proceedings to determine damages (which shall include back pay).” In short, it is a complete vindication for the professor.

From the start we urged Marquette to acknowledge its mistake and reach some accommodation with Mr. McAdams. In its statement responding to the decision, the school says it will comply with the court order but insists it was in the right. Apparently more than the students need instruction at Marquette.

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