Marquette professor John McAdams vows appeal after setback in suit against university

For more than two years now, FIRE has covered the case of Marquette University professor John McAdams, who was suspended by Marquette in December 2014 for criticizing a graduate student instructor on his personal blog. McAdams sued the university over his treatment last year. Yesterday, McAdams’ claims were dismissed by the Milwaukee County Circuit Court, which granted Marquette’s request for summary judgment, finding that McAdams was not unduly punished.   

In its press release yesterday, the Wisconsin Institute for Law & Liberty, which represents McAdams in his lawsuit against Marquette, summarized McAdams’ case as follows:

In November, 2014, McAdams shared a story on his blog, Marquette Warrior, 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. The story went national, resulting in a lot of bad press for Marquette.

In response, Marquette summarily suspended McAdams from his teaching duties and banned him from campus, then initiated proceedings to revoke his tenure and fire him. An internal faculty hearing committee (FHC) was convened to judge the dispute, but it suffered from serious procedural flaws, as Marquette withheld evidence from McAdams and allowed a clearly-biased professor to sit on the FHC. The FHC eventually recommended McAdams be suspended for two semesters. Instead, Marquette President Michael Lovell suspended McAdams indefinitely without pay unless he issued a written apology for his behavior – effectively firing him.

WILL takes the court’s ruling to task, making clear the threat it presents:

Judge Hansher adopted the FHC’s cramped and unsupported view of academic freedom and the First Amendment.  He concluded that because naming Abbate could conceivably bring negative attention to her, McAdams was prohibited from doing so.

“No college professor in Wisconsin has any real protection if that’s the standard,” explained Rick Esenberg, President and General Counsel of WILL.  “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.  By that standard, every professor who was publicly critical of McAdams should be fired too.”

Tom Kamenick, Deputy Counsel at WILL, sharply criticized the court’s decision to defer to Marquette’s own internal committee: “When two parties to a contract disagree about its application, courts cannot simply let one side decide how to interpret it.  That’s like saying an employee who brings a sexual harassment complaint against another employee has to abide by the employer’s internal review that finds no wrong-doing occurred.”

The court also found no problem with Marquette allowing a clearly-biased member to sit on the FHC.  Professor Lynn Turner signed an open letter shortly after the controversy broke out condemning McAdams and concluding he had violated his professional responsibilities.  McAdams asked that she be removed, but the FHC refused.  The court decided that as long as the FHC had considered the request, that was good enough – it didn’t matter how biased she was.

Esenberg said in the release that an appeal is forthcoming.

“We will take this case as far as it needs to be taken to vindicate McAdams’ – and all professors’ – rights to freedom of speech and academic freedom.”

FIRE has been a frequent and harsh critic of McAdams’ treatment by Marquette, expressing our myriad concerns in a letter to Marquette and in our frequent writings about his case on our Newsdesk. Marquette has also repeatedly appeared on FIRE’s annual list of America’s worst colleges for free speech due to its handling of McAdams’ case.

Marquette, unsurprisingly, praised the court’s ruling in its favor. But scholar John K. Wilson, who served as an expert witness in the case, denounced the outcome as a major threat to academic freedom. At the American Association of University Professors’ Academe Blog, Wilson writes:

It is absolutely astonishing for a college to ban a professor permanently for the crime of disagreeing with the administration’s punishment of him, particularly when there has been absolutely no due process involved in this new thoughtcrime punishment of McAdams. McAdams has never had a hearing for the crime of “not apologizing.” No faculty committee has ever endorsed punishing him for disagreeing. And there is no rule requiring faculty who are punished to agree with the punishment, so McAdams is not in violation of any Marquette policies.

So how can this judge possibly dismiss a lawsuit over the ongoing suspension? Because the FHC Report criticized McAdams for not expressing regret, the judge claimed this “confirms that President Lovell’s condition of reinstatement was consistent with the recommendation of the FHC.” No, it actually confirms the exact opposite, because it means that FHC took into account McAdams’ lack of regret in determining his punishment, which they explicitly declared should be a two-semester suspension and nothing more.

According to the judge, “It would not have been prudent” to reinstate McAdams. This is the essence of “pre-crime”: McAdams is now being suspended because of the possibility that he might criticize another student instructor, and for failing to agree to a forced apology.

FIRE will continue monitoring McAdams’ case closely as he appeals the court’s ruling. In the meantime, Newsdesk readers can read up on this latest development in the Wisconsin Institute for Law & Liberty’s press release, John K. Wilson’s piece at Academe Blog, Inside Higher Ed, and, of course, through FIRE’s extensive coverage and documentation of this case.