BY HANK REICHMAN

I’m often asked whether the AAUP is as willing to defend the academic freedom and due process rights of right-wing faculty members as we are of liberals and leftists, with whom most of our members tend to be more sympathetic.  The answer is that we are and have done so repeatedly throughout the Association’s history.  The latest example is the case of Marquette University professor John McAdams, in which the AAUP on February 27 filed an amicus curiae brief with the Wisconsin Supreme Court.

The McAdams case has been a controversial one.  Something of a right-wing firebrand, McAdams, a tenured Associate Professor in Marquette’s Department of Political Science, publishes a blog, Marquette Warrior, in which he regularly rails against gay marriage and other social causes generally viewed more favorably by most of his colleagues.  On November 9, 2014, McAdams published a post that discussed an October 28, 2014, session of a Theory of Ethics class taught by a graduate student instructor in the Department of Philosophy, Cheryl Abbate.  Abbate was subsequently the target of abusive and threatening communications that led her to fear for her safety and ultimately to leave Marquette in the middle of the academic year.  McAdams was suspended with pay and barred from campus and was subsequently notified of the University’s intent to terminate his employment.

On this blog, John Wilson has argued that McAdams’ post was entirely protected by academic freedom.  Others — for example, Peter Kirstein — contend that he lost that protection by abusively attacking a graduate student by name and in effect “doxxing” her online.  “When a professor engages in extramural utterances that harm a student, cause great emotional distress, precipitate egregious mob action, e-mail insults, and death threats . . . it would be wholly inappropriate for administration officials to ignore such consequences,” wrote Kirstein.

Marquette’s policies and procedures are largely consistent with AAUP standards.  Under those policies a faculty hearing committee was convened to adjudicate the case.  In a carefully crafted and thorough 164-page report, that committee concluded that

the interim suspension of Dr. McAdams pending the outcome of this proceeding, imposed by the University with no faculty review and in the absence of any viable threat posed by the continuation of his job duties, was an abuse of the University’s discretion granted under the Faculty Statutes. The purpose of the suspension appears not to have been to prevent immediate harm to Dr. McAdams or members of the University community, but rather to impose a summary sanction on Dr. McAdams to satisfy the demands of external and internal audiences. This is an improper use of the interim suspension power that violated Dr. McAdams’s right to due process under the Faculty Statutes.

But the committee also concluded 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. The Committee therefore concludes that the University has established by clear and convincing evidence the second half of a showing of discretionary cause under Faculty Statutes § 306.03: that by his conduct, Dr. McAdams’s value will probably be substantially impaired.

However, the Committee also concludes that there are two mitigating circumstances in this case that preclude a finding that sufficient cause has been established to support a penalty of dismissal from the faculty. First, portions of Dr. McAdams’s November 9 blog post did address a legitimate subject of intramural concern, namely the handling of his advisee’s complaint that his advisee had been treated unfairly in terms of what views he could assert in Ms. Abbate’s class. Second, despite multiple prior conflicts with professors, administrators, and students over his extramural and campus communications, Dr. McAdams has never been formally reprimanded, or even warned that his behavior was approaching a boundary that could lead to dismissal. The Committee therefore concludes that the University has established neither a sufficiently egregious failure to meet professional standards nor a sufficiently grave lack of fitness to justify the sanction of dismissal. Instead, the Committee concludes that only a lesser penalty than dismissal is warranted.

The Committee therefore recommends that Dr. McAdams be suspended, without pay but with benefits, for a period of no less than one but no more than two semesters.

In the wake of the report, Marquette University President Michael Lovell suspended McAdams for two semesters but also imposed an additional penalty as a condition of his reinstatement, requiring McAdams to write a statement of apology and admission of wrongdoing. Predictably, McAdams refused (one suspects that such refusal was the goal of the condition) and when the two semesters were up he was not reinstated, transforming the suspension recommended by the hearing committee into a summary dismissal.  McAdams filed suit.  After a lower court dismissed his claim, he appealed to the Wisconsin Supreme Court, where the case now sits.

Although McAdams has challenged some aspects of the university hearing process, an AAUP observer, a professor from another university, concluded that the hearing process complied with AAUP due process standards.  In its amicus brief the AAUP argues that the faculty hearing committee (FHC) correctly applied AAUP policies on extramural expression and urges the court to “adopt this standard in interpreting university academic freedom policies such as those provided in Marquette’s Faculty Handbook and Faculty Statutes.”  The brief “also argues that Marquette violated Dr. McAdams’s due process rights by unilaterally imposing a new penalty that required Dr. McAdams to write a statement of apology/admission as a condition of reinstatement. This severe sanction would compel Dr. McAdams to renounce his opinions, a fundamental violation of his academic freedom.  It also amounted to a de facto termination that was imposed in contravention of the FHC’s recommended lesser penalty.”

Upholding the faculty hearing committee, the AAUP brief argues:

The strong protection of academic freedom in extramural speech does not immunize faculty members from disciplinary charges.  It does mean, however, that the administration carries a heavy burden of proving that extramural speech clearly demonstrates the faculty member’s unfitness to serve, such as “fundamental violations of professional ethics or statements that suggest disciplinary incompetence.”

The FHC report explicitly applies the AAUP’s broad interpretation of academic freedom in extramural speech to Marquette’s definition of academic freedom, modeled on the 1940 Statement of Principles.  Further, the FHC accurately explains the relationship between the Committee A Statement on  Extramural Utterances’ “fitness to serve” standard and the “special obligations” described in the AAUP 1966 Statement on Professional Ethics: “Failure to abide by those special obligations… does not [alone] mean that the professor could be dismissed. The conduct in question must “clearly demonstrate[ ] the faculty member’s unfitness for his or her position. … A mere failure, for example, to be clear that one is not speaking for the university will not suffice unless it rises to that level.”

Although the Circuit Court reiterated the FHC’s use of the “fitness to serve” standard, unlike the FHC, the court did not identify the importance of examining “special obligations” only in the context of whether the administration has carried its burden of proving a faculty member’s unfitness to serve.  Instead, the court provides an imprecise summary of the scope of academic freedom that understates its protection: “In short, academic freedom gives a professor. . .the right to express his views in speeches, writings, and on the internet, so long as he does not infringe on the rights of others.”

Such a formulation of limiting academic freedom to “views” that do “not infringe on the rights of others” vastly undermines academic freedom.  The nature of offering opinions, particularly controversial ones, is that they may prompt vigorous responses, including assertions that the rights of others have been infringed.  Views and opinions should be subject to debate, not to limitations based on claims that the expression of views infringes upon the rights of others.  Adding such a component will only serve to limit the openness and breadth of the views expressed in academia, compromising essential rights of academic freedom.

The brief also addresses the issue of due process:

The AAUP Recommended Institutional Regulations on Academic Freedom and Tenure (RIR) set forth standards for academic due process where a faculty member faces possible dismissal or other severe sanctions.  Due process includes notice of charges, a full and fair hearing before an elected faculty committee, and the administration’s burden to prove, by clear and convincing evidence, adequate cause for dismissal or other severe sanction.  In a case where the faculty committee reports that it does not find adequate cause for dismissal, if the president rejects the report, the president must provide written reasons to the committee and give the committee an opportunity to respond before the case goes to the governing board.  If the hearing committee finds adequate cause for dismissal, the committee may still recommend a less severe penalty.  These same procedures apply in cases where the administration seeks to impose a severe sanction less than dismissal.

In the McAdams case, the brief concludes, both due process protections and McAdams’ academic freedom were violated.  First, there is the matter of the additional penalty imposed by the university:

President Lovell adopted the FHC’s recommendation of a two-semester unpaid suspension, but increased the penalty by requiring that Dr. McAdams write a statement of apology/admission of wrongdoing as a condition of reinstatement.  The Circuit Court incorrectly found that President Lovell’ s condition of reinstatement “was consistent with the recommendation of the FHC.”  Rather, this new penalty went well beyond the FHC’s recommendation.  As discussed below, President Lovell’ s letter infringed on Dr. McAdams’s academic freedom.  Additionally, the required written statement may put Dr. McAdams in legal jeopardy in a potential lawsuit by graduate student/instructor Cheryl Abbate.  It was reasonable, and indeed predictable, that Dr. McAdams would refuse to write a statement with these required elements.  Thus, making this written statement a condition of reinstatement was tantamount to removing tenure and dismissing Dr. McAdams.  It also imposed the very penalty the FHC had explicitly rejected.

By unilaterally imposing this condition of reinstatement, President Lovell deprived Dr. McAdams of due process regarding the most important aspect of the penalty, his continued employment at Marquette.  The administration should have returned the case to the FHC to consider President LovelTs new penalty, including providing the parties with the opportunity to present evidence and/or make arguments about the required statement and impact of making it a condition of reinstatement.

Marquette may argue that while its Faculty Statutes are modeled on AAUP policies, they do not provide for the president to return the case to the FHC.  Even without such explicit provisions, however, Marquette violated its administrative discretion by ignoring basic principles of due process.  Given the severity of the new penalty, it is fundamentally unfair for the administration to exercise unfettered power to assert that it accepts the FHC’s recommendation, while simultaneously acting against that recommendation.  Interpreting FS §307.7 to require the president to return the case to the FHC to consider the new penalty would fulfill the principles of fairness underlying the due process provisions of the Faculty Statutes.

“The required written statement raises academic freedom concerns,” the brief continues.

The required acknowledgement that “the blog post was reckless and incompatible with the mission and values of Marquette University” is not limited to the specific conduct that the FHC found to warrant discipline.  The acknowledgment could reasonably be understood to extend to all the speech contained in the blog post.  Yet, the vast majority of the speech in the blog post is on political and educational matters of public concern, including “[t]he way classes are taught and the subjects that may be discussed…”  The FHC found that this speech is clearly protected by the Faculty Handbook provisions for academic freedom in extramural speech, which are modeled on AAUP standards.  In requiring Dr. McAdams to renounce his blog post as a condition of reinstatement, the administration used the threat of dismissal to force Dr. McAdams to choose between adhering to his protected political views and regaining his tenured position.

The statement also raises academic freedom concerns by requiring Dr. McAdams’s “affirmation and commitment that [his] future actions and behavior will adhere to the standards of higher education as defined in the Marquette University Faculty Handbook. Mission Statement and Guiding Values.”  This requirement exceeds the specific charge that was brought against Dr. McAdams and arguably waives his right to dissent from any provisions in these university policies.

The amicus brief, so ably prepared by AAUP General Counsel Risa Lieberwitz and staff counsel Aaron Nisenson and Nancy Long, makes a compelling argument in support of McAdams’ rights and in defense of the faculty hearing committee’s work.  As an historian of Communism, however, I feel compelled to add that Lovell’s requirement that McAdams publicly recant his views smacks of totalitarianism.  In a democratic academia faculty members may be disciplined for their actions, but not for their thoughts and views.  To compel someone to renounce views — no matter how repellent to most of us they may be — is not only a violation of academic freedom but a small yet significant step on the road to a Brave New World of mind control.