Marquette University "Breached Its Contract with Dr. McAdams When It Suspended Him for Engaging in Activity Protected by the Contract's Guarantee of Academic Freedom"

So holds this morning's important Wisconsin Supreme Court decision, by a 4-2 vote.

I'm on the run today, so I likely won't have time to discuss this in detail; but you can read the opinions here (McAdams v. Marquette University), and here's the Foundation for Individual Rights in Education's write-up:

In a win for academic freedom, the Wisconsin Supreme Court ruled today that Marquette University wrongly fired Professor John McAdams for comments he made on his personal blog in 2014.

The Foundation for Individual Rights in Education filed a "friend of the court" brief last November urging the court to hear McAdams' case and reach this result.

McAdams criticized a graduate teaching instructor by name for her refusal to allow a student to debate gay rights because "everybody agrees on this." Marquette effectively fired McAdams later that year, suspending him indefinitely without pay.

Today, the Wisconsin Supreme Court said Marquette's decision violated its guarantee of academic freedom to McAdams and ordered his immediate reinstatement.

"The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom," the court wrote. "Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits."

McAdams, a professor of political science, wrote on his personal blog, Marquette Warrior, about a recorded interaction in which a graduate student philosophy instructor told her student that his opinions opposing gay marriage "are not appropriate."

A month later, without presenting him with any formal charges, Marquette suspended McAdams, cancelled his classes, and banned him from campus. The college later insinuated that McAdams violated a harassment policy, and that his punishments stemmed from his naming the instructor in his blog post and linking to her own, publicly available, blog.

"As FIRE has argued since the beginning, Marquette was wrong to fire John McAdams simply for criticizing a graduate student instructor who unilaterally decided that a matter of political interest was no longer up for debate by students," said FIRE Executive Director Robert Shibley. "This ruling rightly demonstrates that when a university promises academic freedom, it is required to deliver."

FIRE wrote to Marquette in 2015, calling on the university to restore McAdams' standing on campus and arguing that the school "repeatedly ignored its own policies governing faculty speech and due process, and has severely imperiled free speech and academic freedom through its unjust actions." FIRE also noted that Marquette's actions were in direct conflict with a statement from former Marquette President Fr. Robert Wild, who, while defending a faculty member facing similar criticism, said that faculty members' academic freedom rights are subject "to the criticism of their peers."

"Administrators cannot simply decide that they do not like the results of certain faculty speech, and then work backwards to find a justification for firing them," said Ari Cohn, director of FIRE's Individual Rights Defense Program. "The court's decision recognized that allowing a university to do so is incompatible with any meaningful understanding of academic freedom. Colleges and universities across the country that are facing calls to discipline faculty members for their online speech should pay attention to today's decision."

The state Supreme Court's decision overturns the Milwaukee County Circuit Court, which sided with Marquette.

Though Marquette is a private, Roman Catholic institution not bound by the First Amendment, the university promises faculty "the full and free enjoyment of legitimate personal or academic freedoms," and it explicitly guarantees that "dismissal will not be used to restrain faculty members in their exercise of academic freedom of other rights guaranteed by the United States Constitution."

McAdams was represented in his lawsuit by the Wisconsin Institute for Law and Liberty.

Comments

[JonFrum]

"Though Marquette is a private, Roman Catholic institution ..."

Wasn't it Lenin who said that the last capitalist would sell him the rope he used to hang the last capitalist? Something like that.

[Smooth Like a Rhapsody]

I think it was something like "the revolution will end when the last aristocrat is strangled with the entrails of the last priest."

[Eddy]

Diderot said something similar.

[TwelveInchPianist]

More right-wing weaponization of the first amendment, as the NYT would say.

[BillyG]

I think this one goes more to contracts law. The University signed a contract, then decided to breach said contract.

[TwelveInchPianist]

Holy shit, the right is weaponizing contracts law now too... where will it end.

[Bored Lawyer]

There are many areas of law to weaponize. I like the archane ones -- trover and replevin are personal favorites. 😉

[DjDiverDan]

I'll see your trover and replevin and raise you the doctrines of emblements and borough English.

[Smooth Like a Rhapsody]

Let's, while we're at it, revisit bills of marque and reprisal.

[great Unknown]

How about weaponizing, "...I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same..."?

[letters2mary]

Replevin is not arcane. Gimme my stuff and we'll sort it out.

[Perseus`]

More than a century ago Progressive muckrakers (e.g., Beard, Parrington, et al.) started complaining about how oligarchic it was to enshrine the right of contract in the Constitution, so the rhetorical ploy fits a bad pattern.

[Rock Lobster]

"FUCK THE LAW!!!"

Respectfully,
CUNY School of Law

[MatthewSlyfield]

A very ironic choice of law school for that statement.

cunny

[letters2mary]

Exactly. It really is a contract case, much as those in favor of limiting institutional speech inhibitions (raises hand) would like to think otherwise.

[Krayt]

The alternative is weaponization of hurt feelings to bypass the First Amendment.

"The debate is settled. To argue aloud against it is harassment."

Seriously? Is this where we are?

Also, some around here complain sites like this only care about government school surpression of speech. Here they acknowledge a private university is not bound by the first, but they self-bound to it both in contract and general patter referencing the first, so FIRE was happy to jump in.

[letters2mary]

Definitely many, particularly those in academe, believe that this is where we are and if not, where we should be. Emotional injury (anxiety) is argued to confer Article III standing. In ordinary discourse, few have escaped the dual coercive powers of the Swords and Shields of Victimhood.

[Eddy]

It sounds like Marquette should either clean house or drop its claim to be a Catholic institution (including getting the Jesuits out of the administration).

[great Unknown]

Given current management in the Vatican, this kind of behavior is precisely up the Jesuits' alley.

[ActualRightWingPatriot]

As long as Pope "Leave gays alone and let them get married" Francis is at the helm, the entire Church needs housecleaning.

[Eddy]

A recent op-ed in the UK Independent was headlined: "Don't applaud Pope Francis's stance on homosexuality ? it's still in line with Catholic teachings."

[swood1000]

As long as Pope "Leave gays alone and let them get married" Francis is at the helm, the entire Church needs housecleaning.

Where did he say to let them get married? He said that merely having sinful desires is not a sin if one does not act upon those desires, and so the chaste homosexual should not be condemned any more than the person who is tempted to steal but does not do so.

[Lee Moore]

As an "orthodox Catholic" myself - only kidding - I think the correct word here would be "celibate" rather than "chaste." The latter implies abstinence from immoral sex, ie sex outside marriage, whereas the latter implies no nookie at all. A legally married homosexual couple could claim to be as chaste as you like.

[swood1000]

As an "orthodox Catholic" myself - only kidding - I think the correct word here would be "celibate" rather than "chaste."

I agree.

[letters2mary]

Perhaps it is time to revisit your comment -- you seem to have two "latters."

[MarkW201]

Everyone should take a look at the extensive review of this case published by the Marquette University Faculty Senate:

http://marquette.edu/leadershi.....cAdams.pdf

Briefly, they conclude that the University did not have grounds for firing McAdams, but that McAdams was far from being a saintly martyr for the cause of free speech.

[Rigelsen]

Is your point that only "saintly martyrs" deserve free speech protection, or even have their contracts honored? If not, what is your point?

[Sarcastr0]

That's the thing about free speech.

It's never the saints that need defending.

[Krayt]

It's the ones disfavored by those in power who need it most, as those in power will try to silence criticism to help consolidate their hold on power.

If only someone had written a warning about right-think and thought crimes.

[letters2mary]

Wikipedia (today's excuse for an authoritative resource) publishes a "List of Newspeak Words," which may be kept handy for reference in moments of confusion (whether to cause or to cure them to be determined as circumstances demand):

[letters2mary]

Suitable for needlepoint!

[ThePublius]

The Catholic Church as become as solidly embedded in progressive liberal, even radical left philosophy as the Democratic party. There is nothing in the church for conservatives or libertarians. I didn't leave the Catholic Church, it left me.

[apedad]

Yeah, it really sucks the Catholic Church is adopting positions that Jesus would support.

[swood1000]

Yeah, it really sucks the Catholic Church is adopting positions that Jesus would support.

The really remarkable thing is that nobody realized for over 2000 years that Jesus was a defender of LGBT rights. Maybe the mistake was in thinking that when Jesus said 'For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh,' that "wife" referred to a female.

No doubt part of the misunderstanding was the fault of the apostle Paul. For example when he said "and likewise also the males, having left the natural use of the female, were inflamed by their lust for one another, males with males, committing what is shameful?" he can justly be blamed for allowing the inference to be made that he was condemning homosexuality.

[regexp]

The really remarkable thing is that nobody realized for over 2000 years that Jesus was a defender of LGBT rights

If Jesus was around today - He would not only bake the cake for the ceremony but would also officiate the ceremony.

[swood1000]

If Jesus was around today - He would not only bake the cake for the ceremony but would also officiate the ceremony.

This is the "living bible" approach to Christianity, analogous to the living Constitution where the topmost allegiance is that the meaning must be in harmony with current day progressive sensibilities. While the living constitution guarantees that constitutional amendments will no longer be necessary, the living bible approach does away with the need for any further revelation. People only need to determine what is true for them.

[Sarcastr0]

This is something well beyond a Constitution we are expounding.

You can't have a personal relationship with Christ and reduce him to only exactly what he said on the page.

You can say you don't share regexp's imputations, but it's a pretty pinched faith to say 'if it ain't on the page, Jesus doesn't care.'

[swood1000]

You can say you don't share regexp's imputations, but it's a pretty pinched faith to say 'if it ain't on the page, Jesus doesn't care.'

I'm talking about directly contradicting what has been understood for 2000 years to be the plain meaning of the text. Take this text: "and likewise also the males, having left the natural use of the female, were inflamed by their lust for one another, males with males, committing what is shameful?"

Some contend that really Paul is not condemning homosexuality here but rather idolatry, promiscuity and shrine prostitution, or perhaps serving one's own self-seeking desires rather than worshiping the one true God, or maybe only homosexual acts by heterosexual persons. I think that those arguments appeal only to those who have other reasons for believing them. Does it strike you that these are reasonable interpretations?

[Ben of Houston]

If you believe homosexuality to be a state of being, then yes, that would be covered under the revelation to Peter on the rooftop at the beginning of Acts (the "nothing is inherently unclean" speech that revoked Kosher). However, the Christian Bible regulates homosexuality not as a state of being, but as a criminal act. Leviticus includes it in between the rules on incest, bestiality, and child sacrifice.

There is no way to pluck this law out without essentially making up rules and ignoring the most straightforward text of the Bible or allowing things that we definitely do not want to allow. While many or most Christians do this as a matter of course, the church should at least justify it legally. Instead, I've seen such extreme ideas as throwing out the entire book of Leviticus or just flat-out ignoring the rule.

I can understand people wanting to treat it as a state of being.
I can even understand and respect people who abandon their faith over this issue.
However, I cannot understand someone who claims to be a minister of a religion and then just ignores the thing they claim to believe in.

[ReaderY]

Doubtless conspirators are celebrating this victory, but I find myself more troubled.

Justice Frankfurter's concurrence in Sweezy v. New Hampshire recognized the four essential freedoms of a unIversity, freedom to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

Academic freedom, from this point of view, is fundamentally the freedom of a university to decide these matters, and not the freedom of individual academics to interfere with their decisions.

In light of this, I would have wanted the Wisconsin Supreme Court to begin its analysis with a reference to Sweezy, start with the academic freedom of a university as a presumptive freedom requiring deference, and then explain why this case involves an exception.

But to treat the relationship between a professor and a university as a matter of pure commercial contract interpretable under contract law bodes I'll, overall. It permits the state, in its role of regulator of commercial contracts,
to interfere in the life of private universities any time it wants.

Another victory like this and we may all be done for.

[Eddy]

The Wisconsin court addressed this - they showed how Marquette's contract with its faculty specifically contemplates the possibility of judicial review. Also how the faculty contract *could* have provided for arbitration of disputes outside the court system, but failed to do so.

Universities can deal with such situations by some tweaks to the faculty contract, providing for arbitration of disputes by bona fide academics, rather than by courts.

Or in the case of a church-affiliated university, provide that faculty behavior will be evaluated based on church doctrine, which in itself will minimize the role of outside courts in second-guessing university decisions, thanks to the First Amendment's freedom of religion.

If they're going to sign a commercial-style, secular contract, the courts may well hold them to that decision - a decision which wasn't forced on them as far as I know.

[Stephen Lathrop]

Points well made.

More generally, given the facts of McAdams' conduct, it seems possible that there were other contractual obligations which he violated, but which have not been discussed in this account. But maybe not. It was bad conduct.

[MatthewSlyfield]

"More generally, given the facts of McAdams' conduct, it seems possible that there were other contractual obligations which he violated, but which have not been discussed in this account."

If that were the case, the University could have pursued it as a breach of contract from the beginning, but they didn't.

It's also my understanding, that a prior breach by the complaining party is an available defense in a breach of contract suit, so again, if that was the case, why didn't the University raise that issue in court?

[RoyMo]

I can think of several but the administrators decided not to fight on that hill but this one. The problem is that a lot of his actual ethical lapses are ones that the University probably felt uncomfortable pursuing since they would probably bite them later, so they went with"you can't say that" instead.

[The original jack burton]

Catholic parents sending their kids to Marquette is akin to a cattle rancher hiring a PETA board member to nanny his kids.

[Rev. Arthur L. Kirkland]

Too much reason, reality, science, modernity, and freedom at Marquette for your taste?

[The original jack burton]

well, artie (if it is really you and not a spoofer), "reason and freedom" seemed in such short supply at Marquette that the court ruled against them and in favor of McAdams, eh.

[TwelveInchPianist]

I guess Marquette is one of those Conservative institutions that FIRE gives a pass to.

[swood1000]

I guess Marquette is one of those Conservative institutions that FIRE gives a pass to.

FIRE gave them a red light speech code rating. What else are they supposed to do?

[Eddy]

Let's see...among other things, overly-broad sexual harassment policy (overly broad from FIRE's point of view in any event), and this from the policy on student organizations:

"All advertising and publicity that contravenes the moral teachings of the Catholic faith or is contrary to Marquette's Jesuit mission and philosophy will not be approved."

I'm confused because I thought FIRE gave a pass to an institution which publicly advertised that it has limits on academic freedom.

[Eddy]

Also from the student organization policies:

"The University has final discretion in all decisions regarding the distribution of literature and publicity, the sponsorship of visiting speakers and public performances, and the screening of films. In keeping with the intellectual imperative of the University and the instructive value of dialogue, educational or artistic merit and a balanced perspective will be the normative basis for decisions by the Office of Student Development."

[swood1000]

I'm confused because I thought FIRE gave a pass to an institution which publicly advertised that it has limits on academic freedom.

Maybe the problem is that Marquette fired McAdams for criticizing a graduate instructor on his personal blog, not for contravening the moral teachings of the Catholic faith. Furthermore, Marquette is seemingly in the position of punishing someone for defending the moral teachings of the church. Also, McAdams asserted (and the court held) that his contract guaranteed to him the right to be free of disciplinary repercussions for engaging in activity protected by either the doctrine of academic freedom or the United States Constitution, but that Marquette did not honor this. So the complaint is that Marquette is not adhering to its own stated policy.

[Eddy]

I suppose I have to spell it out.

These are the policies which prompted F.I.R.E. to give Marquette its "red light" rating.

The red light rating wasn't because of the McAdams situation.

It was because of these published policies.

But I thought they cut colleges a break if they openly published policies declaring they didn't support academic freedom.

[MatthewSlyfield]

"But I thought they cut colleges a break if they openly published policies declaring they didn't support academic freedom."

You shouldn't pay so much attention to the ramblings of Arthur Kirkland.

[Eddy]

Then let's not quote Arthur Kirkland.

From FIRE's home page (per staff member Laura Beltz) -

"On the other hand, some private colleges don't promise students free speech rights, and even go so far as to clearly state that the school's mission or values override student speech rights. At FIRE, we classify colleges that outright state in their policies that they place other values above free expression as "warning" institutions in our Spotlight database, meaning that students should be warned beforehand that they won't possess the same free speech rights as their peers at public institutions or other private institutions that explicitly promise free speech rights. As our database explains, "FIRE believes that free speech is not only a moral imperative, but also an essential element of a college education. However, private universities are just that?private associations?and as such, they possess their own right to free association, which allows them to prioritize other values above the right to free speech if they wish to do so." Of the over 450 institutions we currently include in our Spotlight database, 10 colleges and universities earn a warning rating, including Brigham Young University and Yeshiva University."

[Eddy]

So...how explicit does a college have to be before it gets the "Warning" rather than the "Red Light" label?

Here are the institutions which got a "Warning" rather than a red light:

Baylor University
Brigham Young University
California Institute of Integral Studies
Gonzaga University
Pepperdine University
Saint Louis University
United States Military Academy
United States Naval Academy
Vassar College
Yeshiva University

[swood1000]

But I thought they cut colleges a break if they openly published policies declaring they didn't support academic freedom.

FIRE describes that policy here. It gives a pass to schools that unmistakably make it clear to incoming students that normal freedoms on those campuses will be severely restricted. Example schools are: Brigham Young University, the United States Military Academy, and Liberty University. However, they also say about other schools:

It is therefore fraud of the highest order for these schools to induce students to attend based on promises of the utmost freedom and then deliver repression, censorship, and viewpoint discrimination. The Constitution protects the right of freedom of association. It does not protect the right to defraud, lie, fraudulently induce, and otherwise misrepresent an institution in order to trick people into sending their children, attending, or donating to a college. That's why FIRE battles with private colleges that promise freedom of speech and then deliver censorship.

FIRE's position is that Marquette is operating just such a bait and switch operation. They are saying that it's not acceptable if a University makes bold declarations of freedom and then takes it back in the fine print.

[branford]

I was very troubled by quite obvious conflict of interest of the Faculty Senator member professor who participated in the report recommending McAdam's suspension.

[Rev. Arthur L. Kirkland]

Are we to believe that right-wingers have developed a sudden respect for academic freedom?

Or will guys like Prof. Volokh continue to offer free passes to conservative-controlled schools that mock academic freedom (a right-wing school that sidelines a professor for saying Muslims are people, for example, or for challenging childish dogma) and engage in vigorous censorship?

Carry on, clingers, with the nipping at the ankles of your betters. Marquette's offense, in the eyes of FIRE and other right-wingers, was not being sufficiently conservative and superstitious. Marquette's apparent mistake was refraining from invoking the superstition-based defense.

[Faxsibnatibng]

Whine, clinger, but remember, the conservative-libertarian alliance has been shoving freedom of speech, freedom of religion, freedom to own guns, and the freedom to point and laugh at moronic bitches down your throat for forty years now. That, combined with America's improving electorate as backward bigots such as yourself die out, ensures that America will continue to grind your bigoted ideas into dust and sweep them into the dustbin of history. Now open wide, just in case we decide to start shoving it down sideways.

[Rev. Arthur L. Kirkland]

That big talk from the losing, bigoted side of the American culture war.

Be nice, or perhaps your betters will stop affirmative action for conservatives and toss all of the right-wing professors out of our strongest schools, so that they can teach at Regent, Grove City, and Ouachita Baptist, where they belong.

[Faxsibnatibng]

The losing, bigoted side of the American culture war cannot stand that gun rights are being enshrined in American law once again. Cannot stand that free speech is a principle being respected. Cannot stand that people are allowed to worship whatever they please without fear of governmental censorship.

Don't worry. It's only been going down your throat for forty years now. I'm sure at any moment your betters in the conservative-libertarian alliance will stop forcing you to gag on it.

Or not. Maybe they'll force it down sideways. Either way, carry on, clinger.

[TwelveInchPianist]

"Marquette's apparent mistake was refraining from invoking the superstition-based defense."

Huh? Marquette's apparent mistake was signing a contract promising free expression. Perhaps your hatred of religion is clouding your thinking?

[Rev. Arthur L. Kirkland]

Free expression? Was he entitled to exhibit child pornography to students. To bad-mouth colleagues in classes? To reveal the content of faculty meetings, involving student or colleague performance?

He was censured for mistreating a colleague in an unprofessional manner. The right-wingers stuck together, however, and excused him because he was waving the wingnut flag (instead of doing his job).

Carry on, clingers. So far as your betters permit, anyway.

[TwelveInchPianist]

" So far as your betters permit, anyway."

Lol. My better? Are we having a contest to see whose dick takes up the least space or something?

[RPGuy16]

I generally agree that the Prof should win the suit but I don't follow how the court can order that he be reinstated. In a contract suit with a private university I would think that money damages would be a sufficient remedy no matter what the university's internal policies say. Private employers shouldn't be forced to continue to employ people any more than employees should be forced to continue to work for a particular employer.

[swood1000]

I generally agree that the Prof should win the suit but I don't follow how the court can order that he be reinstated.

The court said that it was ordering the University "to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by ? 307.09 of the University's Statutes on Faculty Appointment, Promotion and Tenure (the "Faculty Statutes")."

?the University shall ... hold itself ready to reinstate the faculty member, with unimpaired rank, tenure, compensation, and benefits, to the extent that the faculty member's entitlement thereto may be judicially adjudged or decreed, or conceded by the University in such interval. Faculty Statute ? 307.09

[Don Nico]

The reinstatement is because the McAdams had been granted tenure, which means that he could only be deprived of a position for due cause.

Therefore, in asking for the remedy of restoring the pro ante situation, he would be restored to his tenured position.

He could have offered university to buy-out his contract and supply future earnings up to a customary retirement age. I assume that his lawyers did not suggest that remedy

[ReaderY]

Looking at events somewhat deferentially to the University, as I think Sweezy requires, this case doesn't seem quite as black and white as Professor McAdams and Amici presented. What Professor McAdams wrote, from this point of view, was a mixture of academic matters, which he was free to write about, and student/personnel matters, which he might not have been. Posting about the alleged misbehavior of a student TA is different from posting about public affairs.

I am inclined to agree that the post was not nearly as egregious, and in particular did not invite or start public attacks, that the university charged him with responsibility for.

[bratschewurst]

He knowingly put a student in harm's way. That should have been the end of the discussion, and the case.

[5Arete22]

Does bratschewurst believe that if Student A blogs that Student B bought a beach towel imprinted with the Confederate battle flag, and Student B therefore is threatened on social media, Student A should be punished?

[bratschewurst]

It's an interesting hypothetical. But it's not the issue in this case. McAdams was an employee of the University, and there's no question at all that the University has a duty of care towards its students. McAdams at one point essentially admitted this; he claimed (although I can't find the reference) that his obligation towards the grad student in question was attenuated by the fact that she wasn't a grad student in his department.

Imagine if someone had acted on the death threats that resulted from McAdams' actions. The family of the grad student would immediately have filed a humongous lawsuit against Marquette. I can't imagine that the University's actions against McAdams weren't at least partly an attempt to immunize the University against such a lawsuit.

[Michael Cook]

Mention of weaponizing arcane corners of the law for use in the current culture war reminded me of a discussion I got into last night. I was helping a Sikh friend study for his U.S. citizenship test and we came to a line about renouncing all allegiance to any other government. We started wondering about folks who have dual citizenship and vote in both countries (a lot of Californians were apparently happy recently to go down to Mexico recently and vote in a president even to the left of Governor Moonbeam!

Yesterday I also stumbled across Ensign Leonard B. "Tuck" Smith of the USN who would win a Distinguished Flying Cross because on May 26th of 1941 Tuck piloted a PBY Catalina flying boat that had taken off from fresh water Loch Erne in Ireland for a long patrol over the Atlantic looking for a dangerous battleship that was on the loose.

Tuck found it and his PBY survived the AA fire while calling in the sighting. The PBY belonged to the Royal Air Force. The American Ensign's medal came in a box without any explanation of why it was awarded. The battleship, of course, was the Bismarck. President Roosevelt was weaponizing the definition of neutrality.

[ReaderY]

(Cont)

And perhaps the university's lawyers were unwise to have painted Professor McAdams in as black a light as possible, as doing so may have backfired and obscured any legitimate point the university had.

But I think the University's best point was that Professor McAdams went public, and heavy handedly, on a personnel/student matter that the University could have expected a professor to handle more delicately and confidentially.

This makes the matter a much less serious one than either the University or Professor McAdams claimed. And that might be for the best.

I am inclined to agree that the university's policies prevent it from disciplining or dismissing a tenured professor because of the ideas expressed on public or academic issues. Professor McAdams is entitled to think that "gay rights" is a question potentially subject to discussion in a philosophy class. I wouldn't disagree with him on that. But the University is I think, entitled to ask him to keep teaching discipline matters confidential.

From this point of view, I agree the apology letter they asked him to write was over broad, covering his entire conduct and all its consequences, and imputing motives to him unreasonably. But viewed deferentially, the university might have been entitled to ask for a narrower apology letter, focused exclusively on the student personnel issues and not on either the views he expressed or the conduct of outside parties.

[MatthewSlyfield]

"But viewed deferentially, the university might have been entitled to ask for a narrower apology letter, focused exclusively on the student personnel issues and not on either the views he expressed or the conduct of outside parties."

But the University didn't do that, so I fail to see how the fact that they might have been entitled to do so is relevant..

[ReaderY]

It is relevant. The Wisconsin Supreme Court held the professor was entirely in the right. If the university had a point, even a narrower and more limited one, then the Wisconsin Supreme Court should have ruled differently.

[susancol]

Eh? I believe that universities (and other parties) are judged based on what they actually did, not other alternatives that would either have been a lesser (or bigger) problem. Why would a court rule differently if the university could have done something that it did not do?

[ReaderY]

Help me understand your position.

Let's suppose you occupy a house that I claim ownership to. I sue you for title. The judge decides that we are actually each entitled to half of it. But he can't rule that way. He has to judge you based on what you actually did, not based on what you were entitled to but didn't do. And since you chose to occupy the whole house rather than give me half of it, that was your action, the judge simply has to declare your action unlawful. So he has to give me all of it.

Right?

[Don Nico]

In your hypothetical the judge finds documentation that both persons are named as joint owners on the deed of trust.

Why does he have to give the plaintiff the entire property? The plaintiff would only seem to be due just compensation for the portion of the house that defendant occupied improperly

[MatthewSlyfield]

Courts only decide on the issues put before them by the parties.

"If the university had a point, even a narrower and more limited one"

If the university didn't raise that narrower more limited point in court, they didn't have it for purposes of the court case. That they could have had that point is not relevant.

[ReaderY]

Not at all. Judges have to determine what the law is and what the parties' rights are under the law. The law is often different from the self-serving all-or-nothing positions of the parties. Courts frequently find parties entitled to something but less than they claimed.

[ReaderY]

(Cont)

I would have considered remanding to the university, asking them to have an unbiased panel focus on only the narrow issues, and impose a correspondingly much narrower and lower-key sanction. I might also have considered changing any suspension to one with pay while proceedings continued. Perhaps they might want to consider mediation.

Sometimes the most important function a judge can have is to remind the parties their grievances aren't really as great as they think they are, and aren't the end of the world. The other party to the dispute isn't necessarily the epitome of evil, either.

[Kazinski]

Remand to the defendant in a lawsuit for a do-over? Wouldn't that like remanding an Exxon-Valdez lawsuit to Exxon and telling them to try not to spill the oil this time?

[Lee Moore]

Exactly. The dissent also seems to imagine that the University is owed some kind of Chevronny deference. It's a private defendant in a contract action.

[ReaderY]

In other words, you think a university has no academic freedom at all. The concept of freedom to choose associates in intellectual activities has no constitutional protection at all. Academic teaching and research is just a trade like any other, subject only to commercial considerations. It's not a dignified activity like, say, sex.

If the state wanted to, it could regulate academic contracts the same way it regulates any other commercial contract. It could prohibit universities from existing entirely if it wanted.

[tkamenick]

"In other words, you think a university has no academic freedom at all." That's what the dissent accused the majority of, but it's highly inaccurate. Marquette still has its academic freedom. They can decide to become a strictly-religious school and require every professor to promise to abide by the Catholic faith. Or they could decide to become a school that exists solely to push PETA's agenda and require veganism and adherence to PETA's goals.

But if they want to do that, they need to actually do that in writing - in their contracts. They need to spell out to their professors what obligations the university puts on them. Here, Marquette exercised its academic freedom to choose to be a major research institute (and not a religious indoctrinarian) that guarantees its faculty members the full spectrum of academic freedom, which includes being publicly critical of members of the university's community.

The dissent simply ignores this and concludes that, regardless of not appearing anywhere in the parties' contracts, vague ideas of institutional academic freedom mean that contractual promises the university makes are meaningless.

[QuantumBoxCat]

This whole story reads like a comedy of errors on how not to behave. A graduate student/instructor incapable of teaching a philosophy course; a tenured professor more interested in blogging then in being an actual guide in the teaching process; a faculty member who sits on the committee responsible for adjudicating the dispute writing an op-ed disparaging an individual in the dispute; and a university president who deciding, on his own accord, to go beyond the recommendations of the committee. Everyone here deserves a timeout!

With that said, the Court's opinion pretty much maps out how to avoid this in the future; draft new contracts for new tenure positions specifically explaining that internal arbitration will be the means by which disputes such as this are resolved. Additionally, remove the faculty statutes recogning a faculties right to seek redress in the courts. In short, learn from decisions that protect internal arbitration in contracts, and mimick those methods. In this way, at least private university, can strengthen it's claim that deference ought to be given to internal review procedures.

[ReaderY]

I do have to say, the op-end in question did tend to undermine the University's claim that it regards going public with a personnel issue as a really serious offense.

[Eddy]

Here's how to get Marquette University to respect your academic freedom:

Write some pamphlets saying that the Catholic Church isn't really against abortion or same-sex "marriage" - then Marquette will sustain your academic freedom. That's what happened with theology professor Daniel Maguire.

In that case, the US Conference of Catholic Bishops warned against Maguire's errors. Marquette said it agreed that Maguire was wrong, but: "As a citizen, Dr. Maguire has a right to express his views on the issues of the day. As a tenured professor, he also has rights related to his academic discipline."

[Eddy]

From the stuff FIRE cites (above), it seems student organizations don't have the same freedoms - not that they should, it's a private university.

[Dan Schiavetta]

"Abbate was deluged with threats, many violent, one calling her the "c" word with promises that an hour with him and she'd have a personal "understanding" of the "abhorrent behavior" these "freaks" engage in. Abbate dyed her hair and retreated from campus life. She moved her lectures to a new building, and security guards were posted outside her classroom. She noticeably lost weight. After the fall semester concluded, and despite losing three semesters of work and having to revise her dissertation, she left Marquette, the school she loved, to start over at a new institution in another state far away."

What if she had actually been killed?

What if the professor had lied, and accused her of more outrageous conduct?

[ReaderY]

I'm inclined to agree that if one criticizes someone else, and ones own conduct is civil, one isn't responsible if thugs then rush in. Under NAACP v. Claiburne Hardware, organizers of a legitimate protest can't be held responsible for damage outside parties who crash it do. I think something similar applies here. I think the university has a point, but a much smaller one than it claimed.

[Dan Schiavetta]

It was not just "criticism".

He took a student teacher's names and put it in his blog along with a link to her contact information, and put it in front of a hostile audience. The abuse I laid out for you was an inevitable result.

Brave ReaderY, who does not give his actual name:

What if this happened to you?

[bernard11]

I'm inclined to agree that if one criticizes someone else, and ones own conduct is civil, one isn't responsible if thugs then rush in.

As a legal matter, I think you are correct.

As a matter of moral behavior, I don't think so. The impact on Abbate of McAdams' behavior was, if not wholly predictable, at least unsurprising. To claim that he had no responsibility is unrealistic.

I wonder if he has even troubled himself to apologize to her for the role he played in upending her life.

I guess champions of free speech don't need to apologize when things go south.

[ReaderY]

I completely agree it was wholly predictable in hindsight. I'm not so sure it was as predictable before the fact.

[ReaderY]

If the professor had lied and defamed the TA we'd have a totally different case from the one that occurred.

[bernard11]

From the Katherine Parker at the Washington Post:

One might also guess that a Harvard-educated, tenured professor could use his talents more persuasively than blogging about a woman young enough to be his granddaughter. Alas, no. McAdams blogged. He went on talk radio. And while he was stalking the airwaves, Abbate was reaping the whirlwind.

Suffice it to say that many of the postings and emails she received aren't acceptable for this space, ranging from vicious to vile. But, hey, at least they weren't politically correct. Most were also anonymous ? one of the plagues of the Internet.

But hey. McAdams and his followers are heroes to EV.

[Sarcastr0]

His faith and his politics grappled, and politics came out on top. Now he has a new faith.

Existence ain't no fun if you don't have your allegiances tested at least some.

[Sarcastr0]

Not uncommon.

I used to be an apolitical physics-head.

[Sarcastr0]

I mean, first Publius would have to tell us which issues caused him to rage-quit.
But 'chapter and verse' is more a Protestant thing than a Catholic one, anyhow.

Good Samaritan is a pretty good example of charity as an end in itself beyond utility. Conservatives have a bit of a different take on that value these days, at least with respect to government policy.

Being a good steward of the Earth is via the Old Testament, no?

Death Penalty is always a popular one.

[Sarcastr0]

Doxing is a pretty low move. But scumbags get rights as well.

the social media mob that went after the graduate student, who then couldn't take the heat and left the kitchen?
Don't be a dick and insinuate cowardace like that. No one deserves becoming a partisan target, and no one should be judged for wanting to escape from the low forms of Internet life that turns up at such events.

[Perseus`]

Her role was the instructor, not a TA, though still a neophyte. Her ability to do the job is put in question if she is too thin-skinned to handle criticism, nasty comments, and backbiting from students and faculty, so this was an early and harsh lesson.

[damikesc]

His point was the criticism was over her TEACHING, not of her scholarship. SHE was abusing her position in regards to a student in her class.

[The original jack burton]

When Jesus was confronted directly with a "death penalty case" he spoke against the hypocritical judgment of the elders who condemned the woman... not against the penalty itself.

[Sarcastr0]

What made Christianity able to be spread so rapidly, is that it can be layered on top of the existing social order, and Jesus himself called explicitly for a separation of church and state when he said "give to Caesar what is Caesar's and God what is God's."

This doesn't wash in a Republic. Conservatives argue for voting your 'Christian values' all the time, just not for a growing list of stuff.

[Careless]

That's not doxing. Me figuring out who you are and publishing that would be doxing. Me writing something about someone I know mentioning them by name would not.

[TwelveInchPianist]

"Doxing is a pretty low move. But scumbags get rights as well."

I'm not even sure what "doxing" means anymore. I used to think that it meant to reveal the identity of a pseudonymous actor, which can be kind of a low move. But now, apparently if Jane Smith does X, it's doxing to publish, "Jane Smith did X". That used to be just how you published stuff.

[Bob from Ohio]

"It wasn't doxxing per se."

It wasn't doxxing at all.

Doxxing is publishing location information for a non-public person.

[TwelveInchPianist]

"Good Samaritan is a pretty good example of charity as an end in itself beyond utility. Conservatives have a bit of a different take on that value these days, at least with respect to government policy."

Government policy has nothing to do with charity.

[Krayt]

He also said to help your neighbor. He didn't say to pick up a club and force your neighbor to help your other neighbor.

This is where religion and politics, as giant memeplexes, grab the golden ring of power so they can force themselves on unwilling instantiation bots AKA humans. What was a former exhortation becomes, when achieving critical mass, a requirement because the memeplex can.

All it needs to do is assuage any guilt in the bots by programming the brain to feel good about forcing good behavior, and blammo! The memeplex is permanently entrenched.

Anyhoo, DNA isn't the only data guiding your existence as an organism.

[swood1000]

That's not doxing. Me figuring out who you are and publishing that would be doxing. Me writing something about someone I know mentioning them by name would not.

Where do you get that distinction? Can you provide a reference? Doxing refers to disclosing a person's identity on the Internet in order to bring contempt or ridicule onto that person by third parties, as a kind of punishment.

[Stephen Lathrop]

That used to be just how you published stuff.

Sure. After an editor with a different take, and a stake in the game, decided it was worth the money to publish it. Which would never have happened in this case.

Legal customs with regard to publishing were developed under a pre-internet regime. In that, private wisdom, private custom, and private-interest all mediated against idiotic publishing, and prevented most of it. That, in turn, freed legal thinkers about publishing from having to much confront weaponized speech, used to inflict harm on private parties, during trivial conflicts of no public importance at all. It did happen, but not very much. When it did, interested private party instigators suffered in consequence.

So the law never much took that part of publishing into account?contenting itself mostly with the defense of high principle, in reasonable confidence that little else was required. That reality is gone, replaced by unedited, world-wide, no-cost, anonymous publishing, by authors full of petty malice, and unschooled about defamation.

That means either the internet will have to change, the law will have to change, or 1A champions accustomed to acclaim from intelligent idealists will have to get used to their scorn instead. Pretending publishing now is just as it was is not realistic.

[swood1000]

That used to be just how you published stuff.

But in those days only those owning printing presses or radio stations could publish stuff. The average person did not have the ability to cause masses of strangers to immediately begin a vitriolic personal attack on the subject of the article, which is the intent of doxing.

[swood1000]

That means either the internet will have to change, the law will have to change, or 1A champions accustomed to acclaim from intelligent idealists will have to get used to their scorn instead.

How would you phrase a "doxing" exception to the First Amendment? We can distinguish libel because it is false. Would you make it some sort of violation to say something true about somebody if it brings that person into contempt or scorn?

[Perseus`]

Perhaps we should have another drinking game to replace the J. Aldridge mentioning John Bingham game in which people drink when Lathrop repeats his claim that the 1A free press clause affords only the publishing guild full protection and not ordinary speakers.

[TwelveInchPianist]

Meh. CNN recently threatened to dox a reddit user unless the user apologized for making a video critical of CNN. I'm not sure the Msm has any claim to moral high ground here.

[NashTiger]

Pick up a club and force your neighbor to pay for you and your other neighbor to Unionize and talk about helping the poor neighbor but never really getting around to it

[TwelveInchPianist]

It used to be that everybody who got arrested for patronizing a hooker got their name and address published in the local paper. I'm not sure if that's still true.

[Drewski]

Yet conservatives insist the US government is a Christian one; they fight for religious qualifications for office, and for prayer in schools and legislative meetings. They declare the King James Bible to be the official state book whenever they can. They litigate against First Amendment protection for atheists, and against entry to the US for Muslims. Somehow, however, when it comes time to do the books, they find themselves at arm's length from their Church. It's kind of suspicious.

[TwelveInchPianist]

There is plenty of bullshit on both sides. We've seen plenty of religious qualifying wrt Amy Barrett's potential nomination.

[damikesc]

Yet conservatives insist the US government is a Christian one; they fight for religious qualifications for office

Citation needed.

and for prayer in schools and legislative meetings.

The 1980's ended over 30 years ago now.

They declare the King James Bible to be the official state book whenever they can.

Citation needed.

They litigate against First Amendment protection for atheists

Citation needed.

and against entry to the US for Muslims.

Citation needed.

[DjDiverDan]

"I used to be an apolitical physics-head."

So, you lost both the apolitical and your head?

[TwelveInchPianist]

And don't forget the newspaper that published the names and addresses of local gun owners. The gun owners responded by publishing the names and addresses of the newspaper's employees.

[Life of Brian]

Where do you get that distinction? Can you provide a reference? Doxing refers to disclosing a person's identity on the Internet in order to bring contempt or ridicule onto that person by third parties, as a kind of punishment.

That's somewhat different than the traditional understanding of the term. As The Economist put it, "The term "dox" (also spelt "doxx", and short for "[dropping] documents") first came into vogue as a verb around a decade ago, referring to malicious hackers' habit of collecting personal and private information, including home addresses and national identity numbers. The data are often released publicly against a person's wishes."

There's nothing at all personal or private about a university teacher's name or views they expressed in public. And that's all McAdams disclosed in his post.

[Stephen Lathrop]

Nah. My preferred response would be to change the internet, not to create new violations. Go back to the customs and laws which kept this stuff from happening in legacy publishing. Get rid of Section 230. Define internet publishers to include sites like this one, or Facebook, or most social media.

Then, just hold publishers responsible for defamation, defined like it always has been. That would get the job done. To keep from being liable for defamation, publishers would have to read everything they published, just as legacy publishers had to do. Once you get that level of involvement, the publishers?not government?decide on their own what goes in. And it will be a rare publisher who thinks it makes sense to publish private invective directed against ordinary people.

That would be a different internet, and a better one. Anonymity would become less prevalent, with self-restraint increasing accordingly. Publishers would compete to feature responsible commenters, and would probably grant those with proven track records more latitude, and use less oversight. Anonymous jerks would either vanish, or, quite likely, mend their ways.

[Stephen Lathrop]

To continue, the business piece would also improve. It would be harder to use a "hoover up everything," approach to build a monopolistic presence. So much more diversity than now. And the principle advantage the internet affords?almost cost-free publishing?would still apply full strength. Which would to a fair degree address the biggest single problem of legacy publishing?the expense of doing it limited the availability of outlets for ordinary opinion. Publishing would become more expensive than it is now, but remain far less expensive than during the legacy era. Most people who were serious about getting published could readily afford to make it happen.

[Sarcastr0]

😀

[swood1000]

Get rid of Section 230. Define internet publishers to include sites like this one, or Facebook, or most social media.

You seem to be proposing that we unleash the attorneys in order to enable a general state of fear of expensive lawsuits. This will muzzle the little guys and prevent them from being able to speak freely on the Internet. In particular it will tend to prevent all except the wealthy from saying anything on the Internet that brings another person into contempt or scorn, even if it's true. Why do you say that there would still be cost-free publishing for the little guy?

Would you like to see society take steps to prevent speech about a person that is true but that the person would prefer not be widely known? It almost sounds like you are willing to stifle an entire category of speech in order to prevent an act (doxing), but that you would not be willing to make that act itself an infraction of the law. What exactly would be the goal you would like to reach?

[Stephen Lathrop]

One problem with imagining awful consequences from what I propose is that there is nothing hypothetical to imagine. I am talking about going back to a system that was already the rule for many decades at least, and didn't deliver those consequences. Experience shows your fears are misplaced.

To the extent there is a difference, it is all in favor of your "little guy," because costs would be far less than previously. Typically, in legacy publishing of newspapers, for instance, costs of paper and ink were more than half of all costs. Electronic publishing brings those costs near to zero. That's a big advance for the little guy.

As for a general fear of expensive lawsuits, I'm all for it. No one should attempt to publish who is not mindful of that every minute. It is, however, a problem so easily addressed that it is never a reasonable impediment?again, as shown by experience. If you are in doubt about liability, don't publish. Simple. Do your homework and relieve the doubt. If you can't, move on to something else. That isn't a repressive nightmare. It's common sense.

[swood1000]

As for a general fear of expensive lawsuits, I'm all for it. No one should attempt to publish who is not mindful of that every minute. It is, however, a problem so easily addressed that it is never a reasonable impediment?again, as shown by experience. If you are in doubt about liability, don't publish. Simple. Do your homework and relieve the doubt.

Why not limit the liability to the person actually speaking? Do you think that Twitter should be required to read all tweets before they become public and to delete those that disparage somebody (even a public figure) or that present somebody in an unfavorable light, unless Twitter is assured of the truth of the statement? The fact that the person tweeting has done his homework and is not in doubt has no impact on Twitter. They don't know if his research is valid and so they can't take any chances. The cumulative expense of defending all those lawsuits would require Twitter to refuse access to tweets containing any disparaging content, true or not. Where is the platform for the little guy?

What is the goal you're trying to reach that justifies this restriction on free speech? Under the current system any reasonable person understands that much of what he reads on social media can't be believed because it is false. Under your system he won't be able to believe what he reads because so much has been censored by the stringent libel laws.

Why not limit the liability to the person actually speaking?

[swood1000]

Under your system he won't be able to believe what he reads because so much has been censored by the stringent libel laws.

But your system is trying to eliminate speech that is not libel, right? Like doxing? What is the justification for chilling freedom of speech for people generally in order to prevent a type of speech that you're not willing to outlaw specifically?

[Stephen Lathrop]

Under the current system any reasonable person understands that much of what he reads on social media can't be believed because it is false. Under your system he won't be able to believe what he reads because so much has been censored by the stringent libel laws.

Your first sentence is true, and bad for speech freedom. While "the current system" continues as degenerate as you describe, people will not long stand for the discord, inconvenience, and anguish speech freedom can deliver?and which must be withstood to get benefits from speech freedom. Why pay even a slight price for stuff you can't even believe?

Your second sentence gets the truth exactly backward?while also misunderstanding the notion of censorship. Private editing is not censorship. Private editing with an eye to making mandatory the truth of what is published is the only method yet found to let a reasonable person reliably believe what he reads.

[Stephen Lathrop]

The justification is defense of speech freedom. Internet publishing, practiced with all the abandon you prefer, is bringing all speech freedom into contempt. Predictable political backlash is rising, mostly couched as advocacy for government censorship. My advocacy is for keeping the government out of it.

Instead, the methods which governed legacy publishing, by mobilizing private judgment, need to be re-applied. Given new technical advantages, they will prove less restrictive than previously. Even previously, founding a legacy-style newspaper was less onerous and expensive than you suppose. Anyone with about $1000 and the right business plan could do it in the right market (finding the market was the hard part). Now, the cash outlay, for someone who already owns a computer, is notably less. What's new is a monopoly problem, largely empowered by Section 230.

As for, "Do you think that Twitter, etc.?," Yes, I do think that. You describe exactly the process the NYT used to screen submissions to its letters section. That did not prevent ordinary people from publishing opinions there. It did prevent ordinary people from being defamed.

[swood1000]

Why pay even a slight price for stuff you can't even believe?

Don't you think it makes for a healthier society to have a population that reads with skepticism, with people taking it upon themselves to evaluate for truth, than a society in which truth cannot be published except by those wealthy and determined enough to withstand the economic threats from those whose interests are threatened? I ask yet again: why not limit the liability to those uttering the offensive speech, rather than those who own the platform on which they stand? Are you in favor of laws establishing individual legal liability for doxing?

[swood1000]

Private editing is not censorship.

Under your system, much information that should be made public would be repressed (by private editing) in order to avoid the attacks of people threatening governmental power in order to protect their interests. You say that the government sanctioning you in its own name is censorship but the government authorizing private parties to use governmental power to do the same is not censorship?

My advocacy is for keeping the government out of it.

How does it keep the government out of it to use governmental power to empty the bank accounts of people in order to punish them for simply making their speech platform available to the general public?

In Shelley v. Kraemer the Supreme Court held that racially restrictive covenants in deeds were unconstitutional because enforcing them involved going through the court system and that this was a use of governmental power. Did the court get it wrong?