FIRE files amicus brief with Wisconsin Supreme Court in McAdams v. Marquette

FIRE has filed an amicus brief with the Wisconsin Supreme Court in the case of John McAdams, the tenured Marquette University professor who was fired after criticizing a graduate student instructor’s pedagogical techniques on his personal blog. FIRE filed the brief this afternoon, along with a request that the court consider it as it decides whether to hear McAdams’ case.

McAdams said in May that he would appeal the decision of a Milwaukee circuit court judge who ruled that, despite Marquette’s contractual promises of free speech and academic freedom, Marquette was within its rights when it effectively fired McAdams back in 2014 by suspending him indefinitely without pay.

McAdams’ attorneys at the Wisconsin Institute for Law & Liberty appealed the ruling in September. But earlier this month, they took the additional, rare step of asking the Supreme Court of Wisconsin to hear McAdams’ case on bypass, meaning that the Supreme Court would hear the case directly before waiting for the appeals court to rule on the case first.

The Wisconsin Supreme Court can elect to hear such cases when, among other considerations, it believes the matter is one it would ultimately decide to hear, regardless of the outcome at the appellate level, in order to develop the law at issue in the case.

FIRE’s brief supports McAdams’ position that his appeal warrants this unusual and important step. As we write in our brief:

The lower court’s ruling significantly compromises faculty members’ free speech and academic freedom rights at a critical juncture, so a correction from the Court that protects faculty rights and further develops the law in this area is needed. Because FIRE defends faculty from threats to academic freedom on a daily basis, we know faculty and administrators nationwide will closely watch this Court’s decision.

Marquette suspended McAdams in December 2014 after he wrote an entry on his personal blog the previous month criticizing the teaching methods of a graduate student instructor in a philosophy course. As WILL summarized in its announcement of McAdams’ appeal, the blog post shared the story “of an undergraduate student who had been told by a graduate student instructor, Cheryl Abbate, that he could not express his disagreement with same-sex marriage in her theory of ethics class because doing so would be homophobic and offensive.”

McAdams named Abbate in the post and criticized her methods. The story received nationwide press, and Abbate was subject to threats and harassment by unknown individuals following the story. Marquette blamed McAdams directly for these threats, something FIRE has long argued is severely misguided.

FIRE believes professors must be allowed to engage in speech germane to the subjects they teach; this includes identifying people with whom they disagree. If allowed to stand, we wrote in our brief, “[t]he lower court’s ruling threatens free speech and academic freedom by sanctioning the termination of a tenured professor simply for publicly criticizing what he believed to be dangerous pedagogical practices.”

We explained why the ruling, if left unchallenged, would have implications beyond McAdams’ case and even beyond higher education — threatening the very health of American democracy:

If a faculty member is not free to criticize, even publicly, the pedagogy of a fellow instructor, or to respond in kind to his or her critics, important institutional dialogues about teaching, scholarship, politics, and more will be deeply chilled. Faculty already report being reluctant to speak out and even to teach about sensitive issues for fear of professional repercussions. If the lower court’s ruling stands, the increasing chill on faculty expression will only intrude further as administrators around the country seize on the decision to justify disciplining faculty for public dissent on topics both internal and external to the university.

McAdams argued that the lower court adopted a “cramped and unsupported view of academic freedom and the First Amendment” when it ruled that McAdams was prohibited from naming Abbate because doing so “could conceivably bring negative attention to her.”

“No college professor in Wisconsin has any real protection if that’s the standard,” said McAdams’ attorney Rick Esenberg.

“If a professor can be held responsible for the actions of every person who reads or even hears about what the professor writes, then they have no protections at all,” he said. “By that standard, every professor who was publicly critical of McAdams should be fired too.”

FIRE hopes the Wisconsin Supreme Court will take this opportunity to hear this important case. By developing legal guidance on the issue and ensuring McAdams’ expressive rights, the Wisconsin Supreme Court will help do the same for faculty throughout the state of Wisconsin and beyond.

FIRE would like to express its gratitude to our local counsel, attorney and FIRE Legal Network member Daniel M. Adams, for his assistance.