The Wisconsin Supreme court ruled today that it was impermissible for Marquette University to fire John McAdams, an associate professor or political science, for his hostile and misleading online writings about a philosophy graduate student at the school.
Cheryl Abbate, a Marquette PhD student working on a dissertation in ethics… currently teaches an ethical theory class. At one class meeting in October, the topic was Rawls’s equal liberty principle. To help elucidate the principle, Abbate asked her students for examples of policies that would violate the principle. Suggestions from students included a ban on marijuana use and seat belt laws. One of the students also suggested that a ban on gay marriage would violate this principle, since it involves denying a group of people a basic right the granting of which would not at all limit the liberties of others. Other policies were then discussed.
After class, a student approached Abbate and complained that she had not allowed a discussion of gay marriage and so he was not able to voice an objection he had to it. His objection concerned research which purported to show that children raised by same-sex parents turn out worse than children raised by heterosexual couples. Abbate pointed out that adoption by same-sex couples had not been under discussion, and that, further, there was no sound empirical research she knew of that supported his claim. She invited him to email her references to such research. She also noted that certain objections to gay marriage would be offensive to homosexual students in the class.
During the conversation, Abbate noticed that the student kept rephrasing what she was saying in terms of “homophobia.” She also noticed that he was holding his phone towards her. She asked if he was recording the conversation. He said he wasn’t. She then asked to see the phone, and it was, indeed, recording the conversation without her permission.
At the next class meeting, Abbate, thinking that other students might have thoughts similar to the one who approached her, decided to address such concerns directly. She mentioned the objection, described her replies to it, elaborated on the criticisms of the study the student had been referencing… and noted that class time is limited and that there isn’t time to adequately discuss all topics of interest.
A couple of weeks later, Marquette associate political science professor John McAdams wrote a blog post about the incident. He apparently based his post solely on the report of the complaining student. This is how he describes what happened in class: “She listed some issues on the board, and came to ‘gay rights.’ She then airily said that ‘everybody agrees on this, and there is no need to discuss it.’” That is not merely a condensed version of the events; it is entirely misleading. McAdams continues in his blog post to heap scorn on Abbate. He accuses her of being the type of person who thinks that “opinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.” She is described as having “intolerant views.” The post rails against “the politically correct world of academia” and the idea that we should be concerned with offending people and yet laments that “Christians and Muslims are not allowed to be ‘offended’ by pro-gay comments.” He adds: “it is a free fire zone where straight white males are concerned.”
McAdams’ post led to a series of abusive and threatening emails and comments directed at Abbate.
Marquette University deemed McAdams’ behavior to be part of a pattern of unprofessional conduct in conflict with the school’s values, and at the recommendation of a faculty panel that produced a 123-page report on the case, suspended him and asked that he write a private note to Abbate saying that he regretted what had happened to her. He refused and was fired. McAdams sued, lost in circuit court, and appealed to the Wisconsin Supreme Court, which overturned the circuit court’s judgment.
The ruling states:
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.
Discussion of the issues begins on PDF page 17 of the 120-page document with a consideration of the university’s argument that its disciplinary processes and judgments should be deferred to, and on PDF page 43 takes up the merits of the university’s suspension decision in light of academic freedom.
The majority of the court writes that the university erred in taking McAdams comments on his blog as sufficient evidence of his unfitness for his position without considering “the broader context of the faculty member’s complete record.” Additionally, they argued that Marquette
uncoupled the doctrine of academic freedom from any stable reference points. 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.
Combined, these two problematic aspects allow the University to use any extramural comment as an excuse to reconsider a faculty member’s association with the institution, which is what occurred here.
The court also stated 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.” It continues:
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.
In a dissent (which begins on PDF page 96), Justice Ann Walsh Bradley writes:
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.
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.
Additionally, the majority conducts its analysis with a selective view of the facts. Missing from its opinion are key facts that informed McAdams’ action. After publishing the blog post, McAdams actively promoted it to local and national media outlets. The record reflects that McAdams did so by “distributing copies of the audio recording to interested journalists and bloggers, posting follow-up stories linking back to the Nov. 9 post, creating a category of posts linked to Abbate by name, and arranging to appear on radio and television interviews about the story and subsequent controversy.” McAdams wrote that he was aware that “‘[w]hen one does something that gets national publicity, some jerks are going to say nasty things.”
That prophecy was fulfilled here. Within hours of the blog post, Abbate started receiving negative emails, which only multiplied in the following weeks. She feared for her safety at Marquette and within weeks withdrew her dissertation proposal and transferred to another university despite adverse consequences to her academic progress.
The travesty of the majority opinion lies not just in its decision for Marquette University. Because Marquette has adopted a definition of academic freedom and uniform procedures that have been embraced by many other colleges and universities, the decision is far reaching. The majority’s decision to so readily discard institutional academic freedom and to disrespect part of the time-honored and bargained-for shared governance procedures will reverberate throughout this state.
Finally, because I determine that the doctrine of academic freedom does not protect McAdams from discipline, I address his argument that the First Amendment does. McAdams is wrong. His contract does not give him the full-throated First Amendment rights that would be given a private citizen vis-à-vis the government.