The Wisconsin Supreme Court Strikes a Blow for Academic Freedom

By David French

Friday, July 06, 2018

This morning, the Wisconsin Supreme Court sent a powerful message to America’s elite private universities: If you’re going to promise academic freedom, you’d better deliver academic freedom.

In a stinging 63-page ruling, the court held that Marquette University violated its own faculty handbook when it effectively terminated professor John McAdams for writing a blog post criticizing a graduate student instructor’s attempts to silence debate about gay rights in her ethics class.

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 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.

On the surface — regardless of what you think of either Abbate’s or McAdams’s actions — this seemed like an easy case. Marquette should win. Private religious universities like Marquette should and do enjoy broad latitude to implement disciplinary rules consistent with their unique mission and purpose. Conservatives should not want any arm of the government (including courts) substituting its judgment for the leaders of private universities.

There’s an important exception, however, to this general rule. 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.”

And indeed, McAdams’s post plainly constituted an “extramural comment protected by the doctrine of academic freedom.” Professors have the freedom to make personal comments about political or academic matters without fear of reprisal unless those comments are so egregious that they show the professor is “unfit to serve.” Any other ruling would have dramatically shrunk the bounds of academic freedom and exposed hosts of professors to discipline for their statements on Twitter, in the media, and on personal blogs.

The Wisconsin court’s ruling is obviously binding only in Wisconsin, but the decision was being closely watched by attorneys and universities across the country. It’s a persuasive precedent that will heighten the risk for any university that attempts to replicate Marquette’s mistake.

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. McAdams was represented by the Wisconsin Institute for Law and Liberty in his case. (Full disclosure: Last year I delivered a paid fundraising speech for WILL). Other plaintiffs in other cases have sought help from groups such as my former colleagues at the Alliance Defending Freedom and the Foundation for Individual Rights in Education.

At long last there exists a thriving network of pro bono lawyers who defend individual liberty on campus. Collectively, they are sending universities a clear message: The lawsuits will continue until the incentives change. Embrace a robust academic freedom, or the costs of censorship will grow too high to bear.