The Wisconsin Supreme Court held on Friday that Marquette University violated Professor John McAdams’ contractual right to academic freedom when it suspended the tenured faculty member for penning a blog post critical of another instructor.
McAdams’ post detailed an exchange between an undergraduate and the student’s philosophy instructor, Cheryl Abbate. After class, the student challenged a comment Abbate made during her lecture that “everybody agrees” on “gay rights” and therefore there was no need to discuss the issue. The student suggested that topic should not be off-limits. Abbate responded that a homosexual student would take offense if a student opposed gay marriage and that “[i]n this class, homophobic comments, racist comments, will not be tolerated.”
After McAdams’ blog garnered national attention, Abbate received emails and letters ranging from supportive to critical to vile and threatening. McAdams had no connection to the third parties who harassed or threatened Abbate and, in the words of the Wisconsin Supreme Court, had not “invite[d] readers to be uncivil to her, either explicitly or implicitly.” Nonetheless, Marquette fired the conservative professor because, in the Jesuit university’s view, McAdams’ blog subjected Abbate to public contempt and indirectly harmed her.
The Wisconsin high court rejected Marquette’s attempt to use “third-party responses to the blog post as a proxy for its allegedly contempt-inducing nature,” writing “[j]ust because vile commentary followed the blog post does not mean the blog post instigated or invited the vileness.” And McAdams’ blog post, while critical of Abbate’s conduct, had not included ad hominem attacks or otherwise invoked vitriol. Accordingly, the Supreme Court concluded that Marquette could not discipline McAdams for his blog and ordered the university to reinstate the political science professor.
While McAdams’ win proves a victory for academic freedom at the private Catholic university, the impact of the court’s decision is limited by the nature of the case: McAdams’ lawsuit presented a claim solely for breach of contract and McAdams prevailed only due to the breadth of Marquette’s promise of academic freedom.
Unfortunately, though, Marquette’s response to the third-party threats of violence— silencing conservative speech under the guise of public safety— mirrors the approach taken at some public universities. For instance, when violent protests erupted at the University of California, Berkeley, rather than ensure the safety of student-sponsored speakers and the campus community, administrators told security to stand down and then adopted a policy restricting the time and location for future events that featured “high-profile speakers.” Berkeley administrators also charged sponsoring student groups exorbitant security fees to host those speakers. Predictably, the liberal university judged guests of conservative groups, such as Young America’s Foundation and the Berkeley College Republicans, to be high-risk, high-profile speakers who merited additional restrictions.
The First Amendment, however, does not tolerate such viewpoint-based discrimination. Nor does the constitutional guarantee of free speech bend to the will of the rioter— the heckler holds no right to veto constitutionally protected speech. And just as Marquette learned this lesson in the context of its contractual promise of academic freedom, Berkeley should soon find itself schooled in the fundamental principles of freedom of speech when the lawsuit brought by the affected conservative student groups is resolved.
And then it is time to turn to the student body, and impart with clarity that disruptive protests and violent riots will not be tolerated because, as the Supreme Court recognized nearly 50 years ago, “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
