Jim Dey: Free speech for professors? Maybe not for all

Jim Dey: Free speech for professors? Maybe not for all

Faculty members at the University of Illinois take it for granted that their rights to free speech and academic freedom prevent them from being fired for what they say and write on education-related issues.

But the UI is a public institution, and that same right does not apply at private universities like Marquette University in Milwaukee, where ousted political science Professor John McAdams is taking his fight to get his job back to the Wisconsin Supreme Court.

McAdams was effectively dismissed from his tenured position when he criticized the teaching techniques of graduate-student instructor Cheryl Abbate, who made it clear she would not tolerate any expressions of opposition to same-sex marriage in the philosophy class she was teaching.

Milwaukee County Judge David Hansher upheld Marquette's decision to fire McAdams on May 4, holding that the university acted within its contractual rights when it dismissed the veteran professor.

But the Wisconsin Supreme Court recently agreed to hear a direct appeal from McAdams, holding that the case and the issues it poses are important enough to justify skipping the state's appellate court. The Milwaukee Journal-Sentinel recently reported that oral arguments will be held in April or May with a ruling expected in the summer.

The case will test the boundaries of free speech and academic freedom, and the final result, whatever it is, will have an impact on private colleges and universities across the country.

Questions abound in the McAdams case.

Is it a contract dispute? Or is it about freedom of speech and inquiry? Or is it about both, because Marquette's contract with McAdams affirmatively states that he is protected from arbitrary dismissal based on his free speech rights?

Is the target of McAdams' criticism a student, and if so, does that matter? Or is she an instructor and employee of the university? Or is she both, and, if so, which status gets more weight, if any?

McAdams is being represented by the Wisconsin Institute for Law & Liberty.

The Foundation for Individual Rights in Education, based in Washington, D.C., also filed a friend-of-the-court legal brief.

Both organizations state that, having committed itself to academic freedom contractually, Marquette must "live up to its commitments."

"The court is surely aware that this is an issue of great importance, as all (institutions of higher learning) are under pressure to enact or implement speech codes or otherwise restrict speech in various ways," lawyer Richard Esenberg wrote on McAdams' behalf.

The controversy dates back to Nov. 9, 2014, when McAdams wrote an article on his web log (Marquette Warrior) about a philosophy class Abbate was teaching.

She was discussing philosophical issues as they relate to current controversies.

When Abbate got to gay rights, she said, "Everybody agrees on this, and there is no need to discuss it."

One of Abbate's students disagreed with her abrupt dismissal of the "gay rights" issue and approached her after class to tell her the "issue deserved to be discussed." He complained it set a "terrible precedent" for the instructor to dismiss an argument because of her personal views.

Abbate, according to the transcript of the tape-recorded conversation, said some opinions are so vile as to be unmentionable, including the airing of opposition to same-sex marriage. The conversation deteriorated to the point that Abbate suggested the student drop her class.

The student complained to the head of the philosophy department, gaining no satisfaction. The head of the department called the student an "insulin (sic) little twerp," apparently meaning "insolent."

That's when the student went to McAdams, who described the events to his readers and concluded that "Marquette is less and less a real university. And when gay marriage cannot be discussed, certainly not a Catholic university."

The criticism drew public attention, including from the news media, and Abbate received supportive emails as well as critical ones that were extremely intemperate. She demanded the university president punish McAdams and threatened to sue.

Soon, McAdams was suspended and banned from campus. A faculty committee, which included a member who signed a letter to the editor condemning McAdams, held a hearing and urged that McAdams be suspended for at least one semester. University President Michael Lovell ordered a two-semester suspension, conditioned on McAdams' apologizing to Abbate. The president ordered McAdams' to express "deep regret" and acknowledge his article was "reckless and incompatible with the mission and values of Marquette University."

McAdams refused to apologize because he felt he had done nothing wrong, and his contract was not renewed.

At the trial court, McAdams asserted a variety of breach of contract claims that maintained Marquette had no cause to suspend or fire him and that its action violated contractual guarantees of free speech and academic freedom.

Judge Hansher dismissed all of McAdams' claims, granting summary judgment to the university.

He harshly criticized McAdams' identification of Abbate, saying that he had a "duty to her as a graduate student" and that he should have known she would become a target of critics as a result of his article.

"The harm to Ms. Abbate was foreseeable, easily avoidable and not justified. It is undisputed he could have posted the article without her name or contact information and made the same point," the judge stated.

Of course, the facts McAdams outlined in his article also are undisputed, and it's not clear at all that Abbate, who did receive nasty messages, didn't ultimately benefit.

Abbate received multiple messages affirming her conduct, and according to court records, "within a few days," she was invited to transfer to the more prestigious University of Colorado, which earlier had rejected her application. Abbate accepted that offer.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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