The Trump era, if nothing else, has shown that ideological alignments can be fluid and inconsistent. So fiscal conservatives can find themselves backing massive deficits, while evangelicals hand out mulligans for presidential payoffs to porn stars. But even by those fluctuating standards, the decision by some business groups to align themselves with academia’s speech police is jarring.
Some background:
Back in 2014, Marquette University suspended a tenured professor, John McAdams, for writing a blog post. Since then, they have effectively fired him. He has sued and his appeal, arguably one of the most important academic freedom cases in the country, is now pending before the Wisconsin Supreme Court. Arguments are scheduled for April 19.
In a move that had perplexed free speech advocates on and off campus, the National Association of Manufacturer (NAM) and the Metropolitan Milwaukee Association of Commerce (MMAC) have both filed amicus briefs siding with Marquette, arguing that private employers “should remain free to discipline an employee for conduct or speech that disrupts or adversely affects the particular purpose of the enterprise.”
The business groups’ decision to intervene against McAdams was both unexpected and worrisome, especially since Wisconsin’s high court has a track record of deference to the opinions of the business community.
Ironically, the blog post that got McAdams fired addressed the question of academic freedom on campus; more specifically what students were allowed to talk about in their classrooms. After a philosophy class at the Jesuit university, McAdams had reported, a graduate student instructor named Cheryl Abbate told one of the students in her class that he would not be permitted to make any comments opposing gay marriage because they would be “homophobic” and would “offend” any gay students in the class.
He took his story (and a tape recording of the conversation with the instructor) to McAdams. (I wrote an earlier article about this case here):
Even by the standards of modern academia, the move was extraordinary. As far as anyone knows, no other major university has tried to fire a tenured professor for something that he wrote on a blog. Rick Esenberg, the president of the Wisconsin Institute for Law and Liberty, is now representing McAdams before the Wisconsin high court. Back in 2015, he told me: “I have spoken to experts across the country. No one does this.”
The attempt to fire McAdams also drew the attention of the Foundation for Individual Rights and Education (FIRE). “If Marquette can fire a tenured professor for criticizing a fellow teacher on a blog, then tenure at Marquette is worthless, as are freedom of speech and academic freedom,” declared Executive Director Robert Shibley. “While this is more than likely just an excuse to get rid of McAdams, the fact that McAdams’s supposed offense was criticizing a teacher for squelching dissenting opinions in class only makes Marquette’s utter contempt for dissenters more obvious.”
Marquette’s president Mike Lovell continues to deny that firing McAdams has anything to do with academic freedom. In effect, he accuses the veteran professor of “cyberbullying” the Philosophy instructor. In a letter to the Wall Street Journal earlier this year, Lovell wrote:
McAdams responded:
Although McAdams’ lawsuit to get his job back was rejected by a lower court, free speech advocates were optimistic about his chances in the Wisconsin Supreme Court. Even though Marquette is a private institution, the university had contractually promised its tenured faculty that they cannot be fired for constitutionally protected speech.
According to Marquette’s Faculty Statute, a tenured professor can be subject to “discretionary” dismissal only for “serious instances of illegal, immoral, dishonorable, irresponsible, or incompetent conduct.” The university’s rules make it clear that a tenured professor cannot be fired for anything that is protected by academic freedom:
The statute reiterates the school’s commitment to protecting academic freedom: “Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.” (Emphasis added.)
These self-proscribed provisions require Marquette to handle employee speech issues in a different manner than private employers do. And so McAdams’ attorneys are frankly befuddled by the behavior of the business groups.
“A brief that compares Marquette University to other private institutions in Milwaukee would be comparing apples to oranges,” Esenberg argues in response. “Marquette as a private academic institution has promised academic freedom to their faculty. Other private employers make no such commitments and are engaged in quite different business.
“Now it is possible that a bank or a law firm or metal fabricator might make similar commitments of academic freedom,” he added. “But it is not likely. While it’s not unusual for universities to make these commitments, other private employers do not.
“It has long been recognized that universities are different. The free exchange of ideas requires a protection for speech that would not be protected in other contracts including the right to say things that the administration and other faculty members do not like and even criticize the university.”
A decision is expected by July.
