John McAdams, the associate professor of political science at Marquette University who, in the fall of 2014, launched a political attack on philosophy graduate student Cheryl Abbate based on falsehoods, misleading claims, and a surreptitious recording of her, and who was later suspended from his position for it, is suing Marquette. The Milwaukee Wisconsin Journal Sentinel reports:
According to a news release, the lawsuit against Marquette is for “illegally suspending” McAdams and “making the decision to terminate his tenure and fire him from Marquette.”
In response to the lawsuit, Marquette released a number of documents related to the case, including a 123-page report by a faculty committee charged with investigating what happened and recommending action based on their findings.
Though I did not read it in its entirety, I looked through the report and was struck by how careful, thoughtful, and thorough it is. Here are a few excerpts:
From the introduction:
The issues at the heart of this matter are a mix of longstanding disputes and novel contexts. The story of academic freedom over the last century is the story of mapping the boundary between the freedom necessary to encourage scholarly inquiry and the responsibilities faculty members owe to their communities, institutions, colleagues, and students. For much of that history, the core disputes concerned efforts by administrations and outside observers to police what was said in the classroom, and efforts to sanction professors for their extramural activities, including public criticism of their own institutions. Those conflicts have ebbed as the boundary between faculty freedoms and faculty responsibilities has increasingly moved toward the freedom end of the spectrum since 1915, to the point where today disputes are rare. But need for balance still exists; faculty members still have responsibilities, and the line between rights and responsibilities is no easier to draw for having been moved. Universities have sought to become more inclusive at the same time that First Amendment law has become more permissive. Technological advances have enabled audio or video monitoring of the classroom to an extent never before possible; and ordinary individuals now have the power to instantaneously distribute communications worldwide, with little preparation or expense. The political environment on college campuses and in the nation at large has experienced a fundamental transformation within the last generation that heightens anger at perceived offenses. Amid all this, faculty members have, at base, some inescapable responsibility to other members of the university community, not to be “civil,” or “nice,” or uncritical, but to avoid recklessly causing them harm, even indirectly.
The Committee finds that Dr. McAdams violated that obligation in this case, on the facts contained in the record before us. But as we mentioned at the outset, this is a difficult case, and readers are cautioned that the conclusions we set forth below are carefully worded to avoid both excessive severity and excessive leniency. The Committee is aware that a number of observers, perhaps even most, believe this to be a simple case. Many observers appear to believe that it is painfully obvious that Dr. McAdams should be absolved of all wrongdoing, as he is accused only of writing a single, critical blog post that is clearly protected by academic freedom, and that any failure to admit this is due either to malice or myopia. Other observers appear to believe that it is equally obvious that Dr. McAdams should be terminated, arguing that he attacked a female grad student on his blog as part of a campaign against gay rights, and that failure to take action can be due only to either timidity or insincere concerns about free speech.
The Committee unanimously and strongly disagrees with both of these points of view. This case appears simple only if one ignores one side or the other of the fundamental tension between rights and responsibilities that is inherent in the notion of academic freedom. Absolution may seem obvious only if one ignores the obligations professors have to their students or colleagues arising from their positions as faculty members and members of the academic community. It is a mistake to regard faculty speech as unbounded except by the faculty member’s own conscience; membership in a university community comes with those responsibilities that are essential to maintaining that community as a space where all are free to speak, inquire, and teach as they see fit. Discipline may seem obvious only if one concludes that academic freedom does not apply when someone’s views are distasteful or out of the mainstream. But freedom to express one’s views, even critical views, is a foundational principle of modern universities, and it is most needed when a faculty member’s views are out of the mainstream— either too retrograde or too avant-garde. Freedom of thought, as Justice Oliver Wendell Holmes Jr. once wrote, is “not free thought for those who agree with us but freedom for the thought that we hate.”
From part of the section on their findings of whether McAdams violated his professional responsibilities (p.84):
The Committee finds that Dr. McAdams’s blog post was reckless and seriously irresponsible in posing a significant, albeit indirect, risk of harm both to Ms. Abbate and to the Marquette community. Given an account and a surreptitious recording by his student advisee that appeared to catch an instructor in the Philosophy Department banning discussion of same-sex marriage, Dr. McAdams rushed over a weekend to post the sensational details publicly on his blog, apparently without considering other means of addressing his advisee’s concerns. But there was no compelling urgency to upload the post so quickly. The only truly newsworthy aspect of the post, as Dr. McAdams himself has stated—the Philosophy Department’s alleged mishandling of JD’s complaint—had occurred over a week before. And in any event Dr. McAdams in his post expressed only a glancing interest in that portion of the story, even though it seems to have been the part that most troubled his student advisee. Rather than centering the post on the Philosophy Department’s unresponsiveness to JD’s complaint, Dr. McAdams instead dwelled on snippets of Abbate’s statements during a single, brief, unguarded after-class conversation that had been recorded without her knowledge. The primary urgency in publishing the blog post thus appears to be its revelation of embarrassing details about a member of the Philosophy Department—a department Dr. McAdams has tangled with frequently before—and holding her up to public opprobrium. Dr. McAdams further sought to maximize the impact of the post by purporting to quote Ms. Abbate as saying—airily—that everyone agrees on same-sex marriage, even though he had not witnessed her make that statement. He described her as clearly maintaining that opposition to same-sex marriage would be homophobic, even though near the end of the recording, challenged point-blank on whether she had said exactly that, Ms. Abbate disagrees, only to cut herself off when she notices that the conversation is being recorded. Dr. McAdams also clearly implied that Ms. Abbate had quite outrageously forced JD to drop the class based on their disagreement, without any basis for making that assertion and indeed apparently contrary to fact.
Dr. McAdams hurried to post these assertions based on incomplete or ambiguous evidence without making any attempt, beyond a single unanswered email to Ms. Abbate, to confirm them. That alone may not be a sufficient breach of obligations to rise to the level of discretionary cause. But it is when combined with four other aspects of the post that magnified its impact. First, Dr. McAdams did not simply make erroneous or misleading assertions about what Ms. Abbate said on October 28; he made those assertions with no hint of any doubt. Second, Dr. McAdams focused attention in the post on Ms. Abbate’s exact words spoken, first in the context of a class discussion, and later in the context of a vigorous after-class discussion that was secretly recorded. Ms. Abbate had no reason to expect she was speaking for a wider audience, and had no reason to expect that she needed to phrase her statements carefully to guard against extraction from context. Third, although his concern was with a wider phenomenon, Dr. McAdams identified the instructor who had allegedly made the statements, and linked to her webpage, in order to associate those statements and views with a particular individual and email address. And finally, Dr. McAdams maximized his appeal to indignation by connecting Ms. Abbate’s secretly recorded statements to a broader, “totalitarian” effort to suppress free speech.
Dr. McAdams did all this without considering the consequences to Ms. Abbate. His actions, if not intentional, were certainly reckless in creating a risk of harm to Ms. Abbate. The harm risked was of two sorts: first, that Ms. Abbate would suffer harm to her career from having been branded as intolerant in managing student discussion; and second, that Ms. Abbate would receive abusive communications in response to Dr. McAdams’s post. While it is too soon to say if the first danger has come to pass, the second was realized: Dr. McAdams’s post, once it was picked up and had reverberated around the Internet and cable news channels, led to an online shaming campaign against Ms. Abbate that eventually drove her from the university.
This result is all the more striking in that it appears that Ms. Abbate had had no prior interaction with Dr. McAdams and had only randomly come to his attention. The purpose of using Ms. Abbate’s exact words and attributing them to her by name appears to have been to strike a blow at the broader claimed phenomenon of liberal political correctness, and more particularly at the Philosophy Department, by attracting maximum publicity to sensational soundbites extracted from classroom or private conversation. Ms. Abbate was essentially a casualty in that wider battle, one that Dr. McAdams does not appear to feel much regret over. Indeed, to this day, Dr. McAdams only grudgingly admits that there were consequences for Ms. Abbate, but he takes no responsibility for them. Dr. McAdams exacerbated the harm caused by continuing to post about Ms. Abbate by name, without taking any steps to tamp down the furor he had initiated, in the ensuing months. He has only half-heartedly admitted that he may have been incorrect about what was said in class. And he has attempted to offset the effect of the abusive messages Ms. Abbate received by claiming that it was her own actions that made her a subject of his blog post, and that he has received negative communications as well.
There is still more that must be true before a professor who has caused harm may be held accountable for it under the Faculty Statutes. As indicated above, there are four additional conditions: the harm must be substantial, it must be foreseeable, it must be easily avoidable, and it must lack justification. The Committee finds all four of those conditions satisfied in this case.
Following a detailed and well-researched account of academic freedom and its protection of extramural utterances (p. 115):
The question before the Committee is whether Dr. McAdams’s conduct concerning his Nov. 9 blog post, despite giving rise to a prima facie case for discretionary cause justifying suspension, nevertheless falls within the “safe harbor” for academic freedom. Since Dr. McAdams’s blog posts were extramural utterances, he enjoyed the academic freedom to write whatever he wished “free from institutional censorship or discipline,” limited only by the “special obligations” attendant to his position as a university professor. Those obligations include fundamental “responsibilities to [his] subject, to [his] students, to [his] profession, and to [his] institution;” the responsibility to “avoid creating the impression of speaking or acting for their college or university;” and the “particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.” Extramural speech in violation of any of those obligations, however, can only constitute discretionary cause if “it clearly demonstrates the faculty member’s unfitness for his . . . position,” considering his “entire record as a teacher and scholar.”
In this case, these questions have already been answered by our inquiry above into the prima facie case for discretionary cause. The Committee has already determined that Dr. McAdams, through his conduct, violated his fundamental responsibilities to the university, to the scholarly profession, and to colleagues. In the course of reaching that determination, the Committee considered the balance between rights and responsibilities inherent in academic freedom, and nevertheless concluded that Dr. McAdams’s conduct rose to the level of clearly and substantially failing to meet the standard of professional excellence which generally characterizes University faculties. Furthermore, the Committee concluded that Dr. McAdams’s breach of his obligations clearly demonstrates his current unfitness for his position, even considering his entire record as a teacher and scholar, although only to the extent necessary to support a penalty of suspension.
Dr. McAdams has a considerable amount of academic freedom to express whatever opinions he wishes on his blog, no matter how offensive some find them, and he has exercised that freedom without formal sanction from the University administration for ten years and three thousand blog posts. But academic freedom has its limits, limits that are slightly more pronounced in the case of extramural statements, and Dr. McAdams’s Nov. 9 blog post exceeded those limits by recklessly causing harm indirectly to Ms. Abbate that was substantial, foreseeable, easily avoidable, and not justified. The Committee concludes that our determination that discretionary cause exists to a level sufficient to justify a penalty of suspension will not “impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.”
From the conclusion (p. 120):
In summary, the Committee concludes that the University has established by clear and convincing evidence that Dr. McAdams’s conduct with respect to his November 9, 2014 blog post violated his obligation to fellow members of the Marquette community by recklessly causing indirect harm to Ms. Abbate through his conduct, harm that was substantial, foreseeable, easily avoidable, and not justifiable. The Committee therefore concludes that this conduct clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties. Furthermore, the Committee concludes that the University has demonstrated by clear and convincing evidence that Dr. McAdams’s conduct was seriously irresponsible, and his demonstrated failure to recognize his essential obligations to fellow members of the Marquette community, and to conform his behavior accordingly, will substantially impair his fitness to fulfill his responsibilities as a professor unless corrective action is taken.
The Committee therefore concludes that Dr. McAdams’s value will probably be substantially impaired if he continues on his current course. The Committee also concludes that our determination that discretionary cause exists will not “impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action,” and that FS § 307.07 ¶ 2 likewise does not prohibit imposing a sanction on Dr. McAdams for his conduct. The Committee therefore concludes that discretionary cause under FS § 306.03 has been established, but only to the degree necessary to support a penalty of suspension. The Committee concludes that the University has established neither a sufficiently egregious failure to meet professional standards nor a sufficiently grave lack of fitness to justify the sanction of dismissal. Instead, the Committee concludes that only a lesser penalty than dismissal is warranted. The Committee thus recommends that Dr. McAdams be suspended, without pay but with benefits, for a period of no less than one but no more than two semesters.
In a letter dated April 13, 2016, Marquette University president Michael Lovell reiterates what he had previously told McAdams regarding the conditions of his suspension ending. Those conditions, stated in an earlier letter, are:
- Your acknowledgment and acceptance of the unanimous judgment of the peers who served on the Faculty Hearing Committee.
- Your affirmation and commitment that your future actions and behavior will adhere to the standards of higher education as defined in the Marquette University Faculty Handbook, Mission Statement and Guiding Values.
- Your acknowledgment that your November 9, 2014 blog post was reckless and incompatible with the mission and values of Marquette University and you express deep regret for the harm suffered by our former graduate student and instructor, Ms. Abbate.
McAdams and his lawyer have characterized these conditions as saying that McAdams must “apologize” and that he is unlikely to do so. However, the above conditions do not explicitly demand an apology.