The president of the university, Dr. Michael R. Lovell, then suspended McAdams without pay and said that his reinstatement would be contingent upon his signing a letter that — among other things — acknowledged his blog post “was reckless and incompatible with the mission and values of Marquette University.” McAdams refused to sign the letter and thus remained suspended. He filed suit, seeking reinstatement and back pay.
Collectively, they are sending universities a clear message: The lawsuits will continue until the incentives change. Embrace a robust academic freedom, or the costs of censorship will grow too high to bear.
On the surface — regardless of what you think of either Abbate’s or McAdams’s actions — this seemed like an easy case. Marquette should win. Private religious universities like Marquette should and do enjoy broad latitude to implement disciplinary rules consistent with their unique mission and purpose. Conservatives should not want any arm of the government (including courts) substituting its judgment for the leaders of private universities.
There’s an important exception, however, to this general rule. When a private university makes binding promises to its employees, courts can and must hold the university to its word. In my more than 20 years of battling censorship on college campuses, I’ve seen the same pattern time and again. Elite private universities — often using flowery, aspirational language — promise a marketplace of ideas and then deliver less academic freedom than the community college across town. They use their academic freedom to make a poetic promise, and then claim that same freedom allows them to go back on their word.
The Wisconsin Supreme Court rejected this reasoning, noting that the university could not “excuse its breach of the Contract as an exercise of its academic freedom.” Instead, the analysis was simple: If McAdams’s blog post fit within the scope of protected academic expression, then the university was barred — by the terms of its own faculty handbook — from punishing McAdams for it. The handbook was crystal clear: “In no case, however, shall discretionary cause [for discipline] be interpreted so as to impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.”
And indeed, McAdams’s post plainly constituted an “extramural comment protected by the doctrine of academic freedom.” Professors have the freedom to make personal comments about political or academic matters without fear of reprisal unless those comments are so egregious that they show the professor is “unfit to serve.” Any other ruling would have dramatically shrunk the bounds of academic freedom and exposed hosts of professors to discipline for their statements on Twitter, in the media, and on personal blogs.
The Wisconsin court’s ruling is obviously binding only in Wisconsin, but the decision was being closely watched by attorneys and universities across the country. It’s a persuasive precedent that will heighten the risk for any university that attempts to replicate Marquette’s mistake.
How many times must universities lose in court before they learn to embrace true academic freedom? Time and again, they’ve lost challenges to their speech codes, speech zones, and restrictive rules that defund conservative and religious organizations. McAdams’s case represents the latest loss to a conservative professor who cried foul. At present, however, the calculation seems to be that universities would rather endure litigation than face the internal consequences of defying the most radical members of their academic communities — the professors, students, and administrators who demand censorship and repression.
Conservative students and professors have precious little internal leverage, so they are forced to appeal to courts to vindicate their rights. McAdams was represented by the Wisconsin Institute for Law and Liberty in his case. (Full disclosure: Last year I delivered a paid fundraising speech for WILL). Other plaintiffs in other cases have sought help from groups such as my former colleagues at the Alliance Defending Freedom and the Foundation for Individual Rights in Education.
At long last there exists a thriving network of pro bono lawyers who defend individual liberty on campus. Collectively, they are sending universities a clear message: The lawsuits will continue until the incentives change. Embrace a robust academic freedom, or the costs of censorship will grow too high to bear.
[The University's Conclusion]