Attorney Tom Olp of the Thomas More Society spoke to Spero News about the free speech and Constitutional issues raised in a case going before the Wisconsin Supreme Court. In an amicus curiae (friend of the court) brief submitted regarding the case, John McAdams v. Marquette University, the Thomas More Society -- a national nonprofit public interest law firm -- argues that Prof. John McAdams was deprived of his free speech rights by his employer. McAdams was suspended without pay by Marquette University, a Catholic institution located in Milwaukee.
The university ruled that McAdams, who has served there for more than 30 years, had transgressed its rules by writing a personal blog post in defense of an undergraduate student who had pointed out that a graduate student instructor had not allowed the airing of differing opinions on the subject of same-sex marriage during class time. The graduate instructor told the student that his views were homophobic and thus out of bounds, according to the law firm.
In a case that is gaining national attention, McAdams’s blog post expressed the view that the graduate instructor’s perspective was a departure from the time-honored teachings of the Catholic faith. Arguing that the instructor was attacking academic freedom, McAdams wrote, “Like the rest of academia, Marquette is less and less a real university. And when gay marriage cannot be discussed, certainly not a Catholic university.”
However, Marquette ruled that McAdams’ blog post amounted to “harassment” of the graduate student, rather than as defense of the undergraduate student and as advocacy for free discussion at the university. A university spokesman said that the school would “not tolerate harassment and will not stand for faculty members subjecting students to any form of abuse, putting them in harm’s way.”
In its final report on McAdams’s contested dismissal, the Academic Senate of the University wrote of its concern over graduate instructor Cheryl Abbate, following the publication of McAdams’s blog post. The report said, “Ms. Abbate was subsequently the target of a torrent of abusive communications that led her to fear for her safety and ultimately to leave Marquette in the middle of the academic year.” In agreeing to McAdams’s suspension, the faculty members wrote:
- “The Committee also concludes that the University has established sufficient discretionary cause under the Faculty Statutes to suspend Dr. McAdams without pay, but not sufficient cause to dismiss him. That conclusion has several parts to it. First, the Committee concludes that Dr. McAdams’s conduct with respect to his November 9, 2014 blog post violated his obligation to fellow members of the Marquette community by recklessly causing harm to Ms. Abbate, even though that harm was caused indirectly.
- “The Committee concludes that the harm to Ms. Abbate was substantial, foreseeable, easily avoidable, and not justifiable. The Committee therefore concludes that the University has established by clear and convincing evidence that Dr. McAdams’s conduct meets the first half of a showing of discretionary cause under Faculty Statutes § 306.03: his conduct clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties.
- “Second, the Committee concludes that the University has demonstrated that Dr. McAdams’s conduct was seriously irresponsible, and that his demonstrated failure to recognize his essential obligations to fellow members of the Marquette community, and to conform his behavior accordingly, will substantially impair his fitness to fulfill his responsibilities as a professor.”
In addition, the Academic Senate concluded that the “‘full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action,’” as delineated in the Faculty Statutes of Marquette University, “must be balanced against the essential obligations a university professor has,” which the faculty members had been violated by McAdams. The Academic Senate likewise concluded that Faculty Statutes § 307.07 ¶ 2, which bars dismissal from being “‘used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution,’ does not prevent imposition of a sanction in this case. The Committee concludes that the University is not using the charges raised in this proceeding as a pretext to punish Dr. McAdams for his protected activities, and thus § 307.07 ¶ 2 is not applicable.”
Marquette not only suspended McAdams without pay, the university ordered him to apologize and stripped him of tenure. According to lawyers at the Thomas More Society, this was in violation of his contract, in which the University promised to respect his “rights guaranteed by the United States Constitution.”
Olp told Spero News, "Basically, what they are saying is that they can set a higher standard than free speech, that it is the care of the person, they are saying. While that's a good aspiration, they also in their contract agreed to honor his rights to free speech under the U.S. Constitution. So what does that mean? Does that mean that he doesn't have those free speech rights anymore because of care of the person? We're saying: 'Wait a minute. You've agreed to respect his free speech rights, so that has to mean something.'"
"What we've said in our brief, and we've put a number of web links in it, was to say that what we're dealing with here is the whole problem of political correctness. Is that a leftist problem? I think it generally is, but it is a problem that implicates free speech, which is very important for a democracy," Olp went on to say. "We think we have to stand up for free speech because it has to mean something. If free speech can be stifled by a listener who says 'I don't want to her that!' then we don't have free speech anymore."
Olp said, “The speaker has to be protected to say something. If you immediately eliminate the right of a speaker to say something because somebody gets offended by it, you have eliminated free speech,” Olp continued.
In a press release, Thomas More Society Executive Vice President and General Counsel Andrew Bath summarized the main points of the amicus brief, saying,
- “Dr. McAdams is entitled to express his opinions on matters of public concern in an extracurricular public forum, even if they involve what happens at the university. The right to disagree on matters of public concern is protected by the First Amendment and by academic freedom, which the university agreed to respect in its contract with Dr. McAdams. For the university to punish faculty members like McAdams for their speech on public issues amounts to an exercise in censorship, which contradicts the university’s commitment to academic freedom and violates the clear terms of Dr. McAdams’ contract of employment with Marquette.”
The Foundation for Individual Rights in Education (FIRE) also filed an amicus brief with the Wisconsin Supreme Court in McAdams’s defense. Regarding McAdams’s appeal of a lower court ruling that sustained Marquette University’s position, FIRE wrote “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.”
McAdams is receiving counsel from the Wisconsin Institute for Law & Liberty, which appealed the ruling in September 2017. In November 2017, the Institute took the rare step of requesting a hearing by the Wisconsin Supreme Court on bypass, which means that the Wisconsin Supreme Court would hear the case directly before waiting for the appeals court to rule on the case first. The case is scheduled for a hearing in April.
The National Association of Scholars has also filed an amicus brief in McAdams’ lawsuit against Marquette. The Association of Scholars argues that McAdams in his “civil, factually accurate blog post” had a right to criticize graduate student instructor Cheryl Abbate even if she, too, was a student. “ … (I)t has long been accepted that when a student has openly engaged in speech that might plausibly be viewed as bigoted, there is no ‘safe space’ for that student shielding the student from criticism,” the brief states. “All members of a university community (including professors) have routinely commented on student speech of this nature.”
The American Association of University Professors has also filed a brief in support of McAdams.
Marquette University did not consider that Abbate’s comments and prohibitions on certain forms of speech against her student as “plausibly” bigoted. While it was the student in her class who raised objections over same-sex marriage in class, it was McAdams who was suspending for defending that student. Marquette said that Abbate was “named” by McAdams in a blog post that was “drafted in a way to hold her up for public contempt.” In doing so, the administration insists, McAdams “clearly violate(d) the professional norms of academia.”
Abbate herself published numerous asides about McAdams. A pretrial discovery revealed that a few days after McAdams published his blog post, Abbate called McAdams a “bigoted moron,” an “uncritical, creepy homophobic person with bad argumentation skills,” “a flaming bigot, sexist and homophobic idiot,” and said he had an “ugly face.” Furthermore, the chair of Marquette’s Philosophy Department referred to McAdams in writing as a “right wing lunatic.” The chair also referred to the student who had complained about Abbate as an “insulin [sic] little twerp,” a “little twit,” and a “jackass.”
An additional amicus brief in favor of McAdams was filed on Friday by Wisconsin state attorney general Brad Schimel before the Wisconsin Supreme Court. In a press release, his office noted the case “offers the court an opportunity to guarantee academic freedom in Wisconsin and to adopt a comprehensive doctrinal framework for First Amendment academic-speech claims.”
“The state’s university system, with over 175,000 students and 39,000 faculty, has a longstanding tradition of support for academic freedom,” said Attorney General Schimel. “The State of Wisconsin has a direct interest in the outcome of this case and any academic-speech framework the State Supreme Court may adopt as the result.”
The amicus brief filed by Schimel notes that the First Amendment of the U.S. Constitution “protects academic expression that touches on matters of public concern, including speech about the basic purposes of postsecondary teaching. Marquette University is a private institution that has chosen to afford First Amendment protections to its faculty. The university’s interests as an employer do not outweigh Professor McAdams’ First Amendment right.”