Marquette gets its ass kicked

I never attended Marquette University, but it's always had a place in my heart, especially from my childhood memories of Al McGuire's great basketball teams of the 1970s, which was about the only successful sports entity in Wisconsin in those days. I always rooted for those teams. To this day, I still root for Marquette's basketball team, even when they are playing my otherwise beloved Wisconsin Badgers.

Having said that, I'm delighted that Marquette lost yesterday. And they lost a big way:

The Wisconsin Supreme Court is ordering Marquette University to give a suspended professor his job back.

"That feels very good. My case has finally been vindicated," John McAdams said Friday, July 6.

It's been nearly four years -- seven semesters -- since John McAdams taught a political science course at Marquette University.

"It's frustrating. I don't like being out of the classroom. I like teaching," McAdams said.

McAdams was suspended in 2014 for a blog post that criticized another instructor who had refused to allow a debate over gay marriage in her classroom.

As a reminder, Marquette is a Catholic university. And as a reminder, in 2014 gay marriage was still very much a topic of conversation and debate -- the Obergfell case did not come down until 2015. Writing for National Review, David French provides a succinct summary of what happened:

The facts of the case are relatively simple. In late 2014, a student approached Professor McAdams and told him that his instructor, a graduate student named Cheryl Abbate, had “listed a number of issues on the board” — including “gay rights” — and then said, “Everybody agrees on this, and there is no need to discuss it.”

After class, the student approached the instructor and attempted to engage her in a discussion about gay marriage. After an initially appropriate exchange, the instructor shut down the discussion, saying that “you don’t have a right in this class to make homophobic comments” and “in this class, homophobic comments, racist comments, will not be tolerated.” She then “invited the student to drop the class.”

The student recorded the encounter and played the recording for McAdams. McAdams wrote up the encounter on his blog, the “Marquette Warrior,” named the instructor, and linked to her public personal webpage. As his post gained increasing public attention, Abbate received a series of hateful messages from third parties, including some that threatened violence.

Marquette decided that McAdams had doxxed Abbate. Back to French:

Marquette responded to this incident by rallying behind Abbate and immediately placing McAdams under investigation. It convened a Faculty Hearing Committee (FHC) that featured a member who’d signed a statement condemning McAdams and then laughably claimed that the statement showed no disqualifying bias. After a four-day proceeding, the FHC recommended that the university suspend McAdams for “no less than one and no more than two full semesters.”

The president of the university then suspended McAdams without pay and said that his reinstatement would be contingent upon his signing a letter that — among other things — acknowledged his blog post “was reckless and incompatible with the mission and values of Marquette University.” McAdams refused to sign the letter and thus remained suspended. He filed suit, seeking reinstatement and back pay.

As a matter of law, this is easy. Marquette and McAdams had a contract. Marquette breached the contract and McAdams is entitled to relief. While I would prefer that private universities have latitude in how they run things, a contract is a contract. Back to French:

When a private university makes binding promises to its employees, courts can and must hold the university to its word. In my more than 20 years of battling censorship on college campuses, I’ve seen the same pattern time and again. 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. They use their academic freedom to make a poetic promise, and then claim that same freedom allows them to go back on their word.

The Wisconsin Supreme Court rejected this reasoning, noting that the university could not “excuse its breach of the Contract as an exercise of its academic freedom.” Instead, the analysis was simple: If McAdams’s blog post fit within the scope of protected academic expression, then the university was barred — by the terms of its own faculty handbook — from punishing McAdams for it. The handbook was crystal clear: “In no case, however, shall discretionary cause [for discipline] 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.”

For its part, Marquette doesn't get it. The university posted a remarkably snotty response on its webpage:

The McAdams vs. Marquette case strikes at the core of who we are as a university. When a professor violates professional responsibility toward one of our students, Marquette must be able to respond with discipline. This is not about academic freedom or freedom of speech – it is about a professor’s unprofessional conduct toward a student teacher that resulted in direct, irreparable harm. John McAdams treated our student in a manner that does not represent our Guiding Values as a Catholic, Jesuit university, and in doing so, violated his contract.

Not to put too fine a point on it, but that's a pile of crap. The only contract that matters in this case is the employment contract Marquette had with McAdams. McAdams did not violate his contract in any way. Marquette knows that, which is why they aren't going to appeal. There's more:

This case has never been about academic freedom or a professor’s political views. Had the professor published the same blog without the student-teacher’s name or contact information, he would not have been disciplined. Marquette has been, and always will be, committed to academic freedom. Marquette welcomes a wide variety of views and perspectives and is a place where vigorous, yet respectful, debate happens every day.

The point of publishing the name of Cheryl Abbate was simple -- to warn people who might take her classes that the academic freedom Marquette claims to revere was not operative in her classroom. People have a right to know that. As for the claim that she received threats after McAdams published his blog post, I would hope that law enforcement would seek out the individuals who made those threats and deal with them appropriately.

At bottom, the problem here is hardly unique to Marquette. Plenty of colleges have decided to set themselves up as judge, jury, and executioner by setting up one-sided and frankly ludicrous disciplinary processes. French asks the relevant question:

How many times must universities lose in court before they learn to embrace true academic freedom? Time and again, they’ve lost challenges to their speech codes, speech zones, and restrictive rules that defund conservative and religious organizations. McAdams’s case represents the latest loss to a conservative professor who cried foul. At present, however, the calculation seems to be that universities would rather endure litigation than face the internal consequences of defying the most radical members of their academic communities — the professors, students, and administrators who demand censorship and repression.

Conservative students and professors have precious little internal leverage, so they are forced to appeal to courts to vindicate their rights. 

Or, in the case of the University of Missouri, universities face other consequences:

In an effort to manage a $49 million budget shortfall, the University of Missouri will eliminate 185 positions and lay off 30 staff members.

In addition, the university will reduce travel, eliminate some courses with low enrollment, cut down on sponsorships of some events and convert several printed products into online-only publications, said MU Chancellor Alexander N. Cartwright and Vice Chancellor for Finance Rhonda Gibler in an announcement made public Thursday.

Marquette could turn this around by affirming it is a place where academic freedom is revered and available to all. It does not appear they are ready to do so yet. Al McGuire isn't going to be able to help them.