Many conservatives argue universities should have more latitude to fire tenured faculty, but this case played out differently.The case hinged on the extent to which a private university enjoyed the same property rights as a business. It's possible that Professor McAdams abused his authority in the way he called attention to a graduate assistant ruling an undergraduate student's question out of bounds, and yet, that undergraduate deserves to have the controversy engaged. "Esenberg and McAdams argued the court case was as much about a student not being allowed to express an unpopular view in a classroom — in this case, a conservative opinion on gay marriage."
The McAdams case favors job protections because conservatives believe their viewpoints are being stifled on college campuses.
McAdams, who continues through his suspension to blog as Marquette Warrior, has not shied away from criticizing his employer over campus matters with political overtones.
But not all conservatives have been on McAdams' side.
Local and national lobbying associations for businesses and manufacturing filed "friend of the court" briefs in support of the private Jesuit university and its right to discipline employees under provisions of an employment contract.
Marquette argued the case isn't about academic freedom or free expression, but contractual rights of a private employer to discipline an employee who acts unprofessionally through a mutually agreed-upon disciplinary process.
McAdams contended his contract with Marquette included broad promises: That he could not be fired or suspended if it would infringe on his academic freedom and personal expression rights; that dismissal could not be used to restrain free speech rights protected by the U.S. Constitution.
"We are not arguing that the First Amendment applies to private entities without those private entities making promises of that type," his attorney, Rick Esenberg said.
Thus, Marquette relied heavily on corporate employment at will arguments, and Professor McAdams on academic freedom arguments.
The National Association of Scholars and the Foundation for Individual Rights in Education also submitted amicus briefs supporting McAdams.Disclosure: I let my membership in the National Association lapse, but the Foundation get a Christmas present each year. Money well spent.
The Metropolitan Milwaukee Association of Commerce and the Association of Jesuit Colleges and Universities have submitted briefs on behalf of Marquette.
“As FIRE has argued since the beginning, Marquette was wrong to fire John McAdams simply for criticizing a graduate student instructor who unilaterally decided that a matter of political interest was no longer up for debate by students,” said FIRE Executive Director Robert Shibley. “This ruling rightly demonstrates that when a university promises academic freedom, it is required to deliver.”That's germane, particularly when drive-by reporters fret about "conservative" attempts to fire controversial tenured professors.
“Administrators cannot simply decide that they do not like the results of certain faculty speech, and then work backwards to find a justification for firing them,” said Ari Cohn, director of FIRE’s Individual Rights Defense Program. “The court’s decision recognized that allowing a university to do so is incompatible with any meaningful understanding of academic freedom. Colleges and universities across the country that are facing calls to discipline faculty members for their online speech should pay attention to today’s decision.”Today they come for John McAdams, tomorrow they'll come for Alan Dershowitz, perhaps the day will come that they'll have to purge Robert Reich. Marquette's statement, which is in the class of "grumble but comply" even explains how that might happen. It starts with their version of the "exceeded his authority" argument.
This case has never been about academic freedom or a professor’s political views. Had the professor published the same blog without the student-teacher’s name or contact information, he would not have been disciplined. Marquette has been, and always will be, committed to academic freedom. Marquette welcomes a wide variety of views and perspectives and is a place where vigorous, yet respectful, debate happens every day.Yes, it's the kind of student-seeks-advice-of-sympathetic-mentor story that might better have been handled through back channels (specifically, sympathetic mentor calls department head employing graduate assistant, arranges meeting between student and department head or deputy; perhaps a later face to face between graduate assistant and student calms things). Believe me, I saw enough of those things, but nothing I ever considered worth putting on a weblog. On the other hand, Marquette's over-the-top response ensured that things would get bad.
Then, Marquette's administrators chose the wrong hill to die on.
This case has been watched closely by the local and national business community because of its emphasis on private employers’ rights to maintain behavioral standards for employees. This is why the Metropolitan Milwaukee Association of Commerce and National Association of Manufacturers filed briefs in support of our case. As a private employer, Marquette must have the right to set high standards for conduct and ensure that this never happens to another one of its students. As a university, we will do whatever we can to ensure that this decision does not erode that right.Yes, I heard Marquette's lawyer on a Milwaukee radio station this morning arguing that as a private employer, Marquette had a property right in protecting its brand name capital. A for-profit business might not want a whistle-blowing employee running a "Consolidated Widget Sucks" web site, or running for political office on an out-of-the-mainstream ticket.
But be careful what you wish for, Marquette.
This case also is significant to every institution of higher education in the country. The balance of rights and responsibilities of tenured faculty members is a tradition that goes back more than a century. By discarding a contractually established disciplinary process when a professor crosses the line, this decision may significantly harm institutions’ ability to establish and enforce standards of conduct. This is why the Association of Jesuit Colleges and Universities and the Wisconsin Association of Independent Colleges and Universities filed briefs in support of our case.In a political environment where universities appear to go out of their way to antagonize conservatives, those balances might quickly go out of balance. "[T]he distinctive progressive ideology of elite universities is relentlessly critical of, to the point of being intolerant of, traditions and moral values widely seen as legitimate in the outside world. As a result, elite universities have narrowed the range of acceptable views within their walls."
A university is not the same thing as a business, but it's still subject to market tests.
We do not believe that every university in the country, or even every department in most universities, reflects the progressive views that we have described. Nor are we expressing a view on the merits of the current tax and spending proposals, which have complex consequences for universities and the public welfare, about which reasonable minds can differ. And Harvard and other private universities of course have every right to adopt a progressive ideology and to enforce it, more or less, by decisions on faculty hiring, student admissions and the allocation of resources.Yes, private and public universities have a right to get woke, go broke.
But educational institutions should not be surprised when these attitudes and behaviors prove unappealing to a Congress and executive branch that are largely in the control of conservatives. Conservative politicians and their constituents hear, on the one hand, that government owes universities a continuance of largesse and, on the other, that conservatives are ignorant, unworthy or corrupt. This sounds suspiciously like special pleading by an intellectual elite that wants to indulge in social criticism at the expense of the criticized, in both figurative and literal senses.
Universities have become distinctively sectarian, limiting their appeal to federal elected officials who do not share those sectarian views and who are less and less willing to pay the universities to trumpet them.
What happens, for instance, if the powers that be at Antioch decide that they've chosen the wrong model for being disruptive? "Antioch is trying to disrupt higher education in a disruptive time. While it may be challenging work, people on Antioch's board, in its faculty and in its community are excited about its direction." Change direction, rewrite the behavioral standards, watch the enrollments increase? Thanks, Marquette.
Likewise, the powers that be at Middlebury might benefit from a course change.
Middlebury College is on trial now. Its administration will either forthrightly defend liberal democratic norms, or it will capitulate. There is no middle ground. And by the way, the way Nic Valenti was brainwashed at Middlebury hardly recommends it as a place to send one’s children to study.Note, dear reader, Rod Dreher did not use his forum in The American Conservative to urge the firing of tenured professors, or to call for tougher standards of conduct. Thanks, Marquette.
It’s a cliche to say, “This is why Trump won.” But you know, it kind of is. These little Maoists studying at elite colleges and universities like Middlebury are on the fast track to move into the American ruling class. You see what they will do to dissenters. They must be resisted, and resisted strongly. If Middlebury and institutions like it do not believe in their mission enough to defend it against barbarians like that student mob — and defend it enough to expel the worst of them, without apology or appeal — then it deserves contempt and shunning by all people — left, right, and center — who believe in education, who believe in the free exchange of ideas on campus, and indeed, who believe in civilization.