There is an interesting controversy out of Marquette University, which has moved to suspend and possibly fire Professor John McAdams after his criticism of a junior faculty member Cheryl Abbate in a free speech dispute. Abbate was recorded by a student in saying that his views against same-sex marriage were not appropriate to be voiced in her class. The response of the university has some problematic elements for a free speech perspective.

The controversy began in October 2014 in a philosophy class when a student attempted to discuss his opposing view of same-sex marriage. He said that the class was run on the assumption that support for same-sex marriage and other homosexual rights were beyond dispute. The student approached Graduate Assistant Cheryl Abbate after the class to say that he felt that the class should have been able to discuss the issue. He recorded the conversation where he said “Regardless of why I’m against gay marriage, it’s still wrong for the teacher of a class to completely discredit one person’s opinion when they may have different opinions.” Abbate allegedly responded by saying: “There are some opinions that are not appropriate, that are harmful — such as racist opinions, sexist opinions and quite honestly, do you know if anyone in the class is homosexual?”

The student gave the tape to McAdams, who posted it with criticism of Abbate on his conservative blog. After being informed of the posting, the university ordered McAdams to stay off campus and the cancellation of this second semester classes. In a January 30th letter, Arts & Sciences Dean Richard Holz informed McAdams “in accord with Section 307.03, we are commencing as of this date the procedures for revoking your tenure and dismissing you from the faculty.” He specifically noted that the use of the instructor’s name exposed her to hate mail, though the quoted messages are from third parties and McAdams can object that he has no control or responsibility over such individuals. Holy noted that [i]nstead of being a mentor to a graduate student instructor learning her craft, including how to deal with challenging students, you took the opportunity to publicly disparage her.”

I can see the basis for that objection. This was an after-class conversation and there are real collegiality concerns. This is particularly problematic when a recording is made secretly of a colleague. While I am unsure of the status of such one-party consent recordings in this state, such recordings would be unlawful in those states requiring both parties to consent. Since the focus does not appear to be any illegality, I assume that it is the propriety of the posting not the legality of recording that is the main issue in dispute. Moreover, Abbate objected that McAdams distorted the facts and that she simply wanted to keep a focus on an in-class conversation about the philosopher John Rawls’ equal liberty principle. Finally, the blog unleashed a torrent of hate mail for this graduate student in her handling of the issue.

Abbate appears to have tried to avoid the inclusion of same-sex marriage in the discussion of John Rawls’s equal liberty principle under which every person has a right to as many basic liberties as possible, as long as they don’t conflict with those of others. She had asked for examples of violations of this principle and raised classic examples of seat belts and laws that prevent people from selling their own organs. That is when one student raised the ban on gay marriage violated the principle. That would seem to be an interesting example for debate. Indeed, in my legal philosophy class, I often raise that and other controversies as good vehicles for passionate and contemporary debates. Abbate clearly did not want to trigger a broader debate and cut off the example. That caused the student to object later to being “very disappointed” and “personally offended.” The conversation after class included the suggestion of the student that he had seen data suggesting that children of gay parents “do a lot worse in life.” Those studies have been heavily criticized but, in my view, such debates only deepen the interest and understanding of such theories. Abbate also objected that McAdams erroneously attributed a quote to her: that “everyone agrees with gay rights and there is no need to discuss this.” (During the class, Abbate said she did say “it seemed right to me” that a ban on gay marriage would not be in accordance with Rawls’s equal liberty principle). All of these objections raise legitimate questions over the fairness and accuracy of McAdams’ postings.

However, there are also the merits of the original dispute over the propriety of students from raising opposing views of such things as same-sex marriage in a philosophy class. While it is true that he heavily criticized the graduate student in the controversy, he was also supporting a student who felt censored in the class. Moreover, while McAdams brought attention to the dispute, the student appears to have already moved to publicly raise the conflict with his teacher. Once this becomes a public dispute, McAdams has a free speech right to discuss its implications as well as an interest as an academic. After all if it is considered a violation for a student to raise such views (even in a philosophy class), it could also be claimed that faculty members are barred from such discussions.

McAdams did not hold back on his blog. He denounced the teaching assistant for “using a tactic typical among liberals now. Opinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.” McAdams was raising a growing expansion of speech codes on campuses where academics are being disciplined for “micro aggressions” and insensitive statements in raising such controversies. Indeed, as we recently discussed, even when an academic is “cleared” she can face remedial actions and training. While the posting was problematic in various respects, I believe McAdams had a perfect right to discuss a campus controversy and weigh into the merits. This could have done by presenting the general controversy (without the use of a secret taping of a colleague) and ask if the expression of such views do run afoul of the university rules.

In a letter to the Marquette community, Marquette University President Dr. Michael Lovell said the stated:

“Following the faculty statutes, a Faculty Hearing Committee made up of seven of Professor McAdams’ peers conducted a hearing over a period of four days last September. The committee consisted of a diverse set of tenured faculty members from different academic disciplines. After months of deliberations, the committee issued a thorough 123-page report to my office in January regarding Professor McAdams’ actions. It is noteworthy to mention that the report provided a unanimous recommendation on a path forward regarding the issue under consideration.

“Today, I want you to know that after significant personal deliberation, I have decided to formally implement the Faculty Hearing Committee’s unanimous recommendation. While I cannot provide specific details of the recommendation because it relates to a personnel matter, I can assure you that my decision has been guided by Marquette University’s values and is solely based on Professor McAdams’ actions, and not political or ideological views expressed in his blog.

“In closing, I want to sincerely thank the seven faculty members who served on the Faculty Hearing Committee. They provided substantial service to the university through their extremely thorough, objective and diligent approach throughout this process.”

McAdams was informed that he would be suspended without pay from April 1 through the fall of 2016 and that he lose his job unless he admits “guilt” and apologized “within the next two weeks.” Specifically, the demand is “Your acknowledgement that your November 9, 2014, blog post was reckless and incompatible with the mission and values of Marquette University and you express deep regret for the harm suffered by our former graduate student and instructor, Ms. Abbate.”

McAdams views this punishment as a demand for a public confession and denounced what he saw as an “Inquisition.” He also noted that the faculty committee had not demanded such a public apology. In his response, McAdams refused to yield on principle even if it may cost him his position:

The addition of a demand that we abase ourself and issue an apology and sign a loyalty oath to vaguely defined “guiding values” and to the University’s “mission” is obviously a ploy by Marquette to give the administration an excuse to fire us. They have calculated, correctly, that we will do no such thing.

I have deep concerns over the suspension for the expression of free speech by McAdams outside of his class. This was speech that occurred in the public realm and touched on an issue of growing concern for academics. There is a new debate over impact of social media on academics and whether there is content-based approach to such controversies. For example, we previously debated the status of Boston University sociology professor Saida Grundy after a series of racist postings on social media. Boston University retained Grundy. Likewise, a Memphis professor, Zandria Robinson, has triggered the same debate after denouncing whites and insisting that “whiteness is most certainly and inevitably terror.” However, in Robinson’s case, she was rehired by Rhodes College, which seemed to view her controversial comments as a positive element supporting her appointment. I have tended to oppose efforts to terminate or discipline academics for such postings on free speech grounds and, in some cases, academic freedom grounds.

The Holz letter has some particularly troublesome elements like blaming McAdams for the reaction of unhinged third parties for calling the instructor a “traitor” and other bizarre comments. It also took him to task for criticizing the department chair who Holz insisted had incomplete information. Yet, I know of no rule at most universities barring public criticism of a department chair. Moreover, the letter criticizes him for failing to fully confer with the instructor or to get permission to use her name. Once again, the class was publicly registered and the name known to the student. I know of no rule against naming colleagues or requiring consent for the use of a name on a private blog or in a public communication. I understand the criticism of the alleged inaccuracies. I also agree that collegiality and civility concerns are valid. It may be true that most academics would have refrained from the use of the instructor’s name if it was not widely known (particularly with the added concern over secret recordings), but that is not a binding or legal requirement for McAdams.

This case is a closer question because of the accuracy of the account and the use of a secretly used recording of a colleague. The fact that this is a graduate student should have also tempered McAdams’ response. However, the free speech concerns seemed to have been dismissed and the punishment is quite severe. Could McAdams have handled (and written on) this controversy in a more restrained and collegial fashion? Yes, I think he could have. Yet, the underlying uncertainty over the discussion of such views is troubling and worthy of public debate.

What do you think?