20160118 MUFHC Final Report Contested Dismissal Dr John C McAdams

8/17/2019 20160118 MUFHC Final Report Contested Dismissal Dr John C McAdams

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Marquette University

University Academic Senate

Faculty Hearing Committee

January 18, 2016

In the Matter of the Contested Dismissal of

Dr. John C. McAdams

Final Report


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Contents

EXECUTIVE SUMMARY .......................................................................................................... 1

I.

Introduction ........................................................................................................................... 4

II. Proceedings ............................................................................................................................ 7

A. Procedural History ............................................................................................................ 7

B.

Contentions of the Parties .............................................................................................. 10

1. The University ...........................................................................................................10

2. Dr. McAdams.............................................................................................................13

C.

Objections Concerning Pre-Hearing Discovery.......................................................... 17

D. The University’s Interim Suspension of Dr. McAdams ............................................ 19

III. Charge of the Committee ................................................................................................... 30

IV. Findings of Fact ................................................................................................................... 32

A.

Background ...................................................................................................................... 33

B. Prior Incidents ................................................................................................................. 35

C. The Oct. 28, 2014 Theory of Ethics Class and Its Immediate Aftermath ................. 42

D. The Student’s Complaint ............................................................................................... 47

E. Drafting of Dr. McAdams’s Nov. 9 Blog Post ............................................................. 51

F. Harm to Ms. Abbate ....................................................................................................... 59

G. Suspension and Initiation of Termination Proceedings ............................................ 62

V.

Conclusions ......................................................................................................................... 65

A. Discretionary Cause ........................................................................................................ 66

1. The Balance Between Freedoms and Responsibilities Inherent in

Academic Freedom ...................................................................................................68

2. The Standards of Conduct Applicable in This Case ............................................71

a. Conduct Not Leading to Discipline ................................................................. 72

b. Conduct Potentially Leading to Discipline .................................................... 74


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In re Contested Dismissal of Dr. John C. McAdams

Final Report ii

3. Dr. McAdams’s Violation of the Applicable Standards of Conduct .................81

a. Dr. McAdams’s Reckless and Irresponsible Conduct .................................. 82

b.

Substantial Harm ............................................................................................... 87

c. Foreseeability ...................................................................................................... 89

d. Avoidability ........................................................................................................ 92

e. Justification ......................................................................................................... 93

4. Mitigating Factors .....................................................................................................95

5. Impairment of Value...............................................................................................101

6.

Conclusion Concerning Discretionary Cause .....................................................105

B.

Limitations ..................................................................................................................... 108

1. Academic Freedom .................................................................................................108

2. First Amendment ....................................................................................................117

C.

Conclusion ..................................................................................................................... 120

VI. Recommendation .............................................................................................................. 123

Appendix A List of Abbreviations ........................................................................................ 124

Appendix B Docket .................................................................................................................. 126

Appendix C List of Documents in the Record ..................................................................... 128

Appendix D FHC Pre-Hearing Letters ................................................................................. 138

Appendix E Bibliography ....................................................................................................... 156


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EXECUTIVE SUMMARY

In this proceeding before the Faculty Hearing Committee, the University seeks to es-

tablish that it has discretionary cause to dismiss Dr. John C. McAdams, a tenured Asso-

ciate Professor in the Department of Political Science. The University initiated these

proceedings after Dr. McAdams published a blog post on his personal blog, Marquette

Warrior , on November 9, 2014, that discussed events surrounding an October 28, 2014,

session of a Theory of Ethics class taught by a graduate student instructor in the De-

partment of Philosophy, Ms. Cheryl Abbate. Ms. Abbate was subsequently the target of

a torrent of abusive communications that led her to fear for her safety and ultimately to

leave Marquette in the middle of the academic year. Dr. McAdams was suspended with

pay and banished from campus on December 16, 2014, and was subsequently notified

of the University’s intent to terminate his employment by letter dated January 30, 2015.

A substantial record has been compiled during these proceedings, which the Com-

mittee has reviewed. We have also, by necessity, resolved several questions concerning

the proper interpretation of Chapters 306 and 307 of the Faculty Statutes, which are

being applied in this proceeding to a contested dismissal for the first time. That exercise

has at times been made more difficult by language in the statutes that is convoluted,

heavily qualified, or unclear. Based on our review of the record, our interpretation of

the statutes, and the findings of fact we make herein, and after due deliberation, the

Committee reaches the following conclusions.

The Committee concludes 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 todue process under the Faculty Statutes.

The Committee also concludes that the University has established sufficient discre-

tionary 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 Com-


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Final Report 2

mittee 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 Uni-

versity 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 profes-

sional excellence that generally characterizes University faculties.

Second, the Committee concludes that the University has demonstrated that Dr. Mc-

Adams’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 discre-

tionary 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 commu-

nications, 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.


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Final Report 3

The Committee concludes that our determination that discretionary cause exists will not

“impair the full and free enjoyment of legitimate personal or academic freedoms of

thought, doctrine, discourse, association, advocacy, or action,” as is prohibited under

Faculty Statutes, because those freedoms must be balanced against the essential obliga-tions a university professor has, and as the Committee has already determined, those

essential obligations have been violated in this case. Likewise, the Committee concludes

that Faculty Statutes § 307.07 ¶ 2, which bars dismissal from being “used to restrain

faculty members in their exercise of academic freedom or other rights guaranteed them

by the United States Constitution,” does not prevent imposition of a sanction in this

case. The Committee concludes that the University is not using the charges raised in

this proceeding as a pretext to punish Dr. McAdams for his protected activities, and

thus § 307.07 ¶ 2 is not applicable.

Finally, the Committee expresses its hope and recommendation that means be found

to release this report, with appropriate redactions, to the Marquette community. Not

only is the case itself of intense interest and concern to Marquette, but also the Commit-

tee has expended considerable time and effort in mapping the boundaries of the obliga-

tions and liberties all Marquette faculty members have under the Faculty Statutes and

under norms of academic freedom. Furthermore, the Committee has also had to resolve

difficult questions of how to interpret and apply the statutes governing procedures in

cases such as this one, determinations that a future Faculty Hearing Committee wouldlikely find invaluable.


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I. INTRODUCTION

This is a complex case. It involves a conflict among three freedoms: the freedom of

students to express their views in class, the freedom of teachers to interact with their

students and manage class discussions without undue interference, and the freedom ofprofessors to criticize their institutions and offer their opinions to the public. It raises

difficult questions of the obligations faculty members owe to their colleagues in a social

and media environment where ordinary conversations can be disseminated far from

their social and interpersonal context, attracting spiraling abuse from enraged strangers.

It involves a factual record that spans two decades of interpersonal conflicts, a charge

that focuses primarily on one spiraling episode, and a challenging debate over the re-

sponsibility faculty members may have for significant harm that they only indirectly

cause. It arises in the midst of a heated debate on college campuses and among the

broader public over the competing responsibilities faculty, administrators, and students

have to protect one another from being excluded from the university community, and

also to preserve the university as a forum for free and open debate. And the stakes are

high: an undergraduate believes his views were suppressed, a graduate student has

been driven from campus, and a tenured faculty member has been barred from campus

and is faced with the loss of his job.

The issues at the heart of this matter are a mix of longstanding disputes and novel

contexts. The story of academic freedom over the last century is the story of mappingthe boundary between the freedom necessary to encourage scholarly inquiry and the

responsibilities faculty members owe to their communities, institutions, colleagues, and

students. For much of that history, the core disputes concerned efforts by administra-

tions and outside observers to police what was said in the classroom, and efforts to

sanction professors for their extramural activities, including public criticism of their

own institutions. Those conflicts have ebbed as the boundary between faculty freedoms

and faculty responsibilities has increasingly moved toward the freedom end of the

spectrum since 1915, to the point where today disputes are rare.1

But need for balancestill exists; faculty members still have responsibilities, and the line between rights and

1 Disciplinary actions against professors are regularly reported in the news, but today there are over a

million faculty members employed at four-year colleges and universities in United States. Bureau of

Labor Statistics, Occupational Employment and Wages, May 2014: 25-0000 Education, Training, and Library

Occupations (Major Group) , March 25, 2015, http://www.bls.gov/oes/current/oes250000.htm (subtracting

graduate assistants). In 1915 there were perhaps ten thousand faculty members.


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Final Report 5

responsibilities is no easier to draw for having been moved. Universities have sought to

become more inclusive at the same time that First Amendment law has become more

permissive. Technological advances have enabled audio or video monitoring of the

classroom to an extent never before possible; and ordinary individuals now have thepower to instantaneously distribute communications worldwide, with little preparation

or expense. The political environment on college campuses and in the nation at large

has experienced a fundamental transformation within the last generation that heightens

anger at perceived offenses.2 Amid all this, faculty members have, at base, some ines-

capable responsibility to other members of the university community, not to be “civil,”

or “nice,” or uncritical, but to avoid recklessly causing them harm, even indirectly.3

The Committee finds that Dr. McAdams violated that obligation in this case, on the

facts contained in the record before us. But as we mentioned at the outset, this is a diffi-

cult case, and readers are cautioned that the conclusions we set forth below are carefully

worded to avoid both excessive severity and excessive leniency. The Committee is

aware that a number of observers, perhaps even most, believe this to be a simple case.

Many observers appear to believe that it is painfully obvious that Dr. McAdams should

be absolved of all wrongdoing, as he is accused only of writing a single, critical blog

post that is clearly protected by academic freedom, and that any failure to admit this is

due either to malice or myopia.4 Other observers appear to believe that it is equally

obvious that Dr. McAdams should be terminated, arguing that he attacked a female

2 Ezra Klein and Alvin Chang, “‘Political Identity Is Fair Game for Hatred’: How Republicans and

Democrats Discriminate,” Vox , December 7, 2015, http://www.vox.com/ 2015/12/7/9790764/partisan-

discrimination.3 Some faculty members and administrators may believe that, in fact, there is an enforceable responsi-

bility to be civil, or uncritical, under the University’s harassment policy, the current version of which can

be found at http://www.marquette.edu/osd/policies/harassment.shtml. Despite some initial indicationsotherwise, violation of the harassment policy is not part of the University’s charge against Dr. McAdams

and the Committee does not reach any conclusions as to whether Dr. McAdams’s conduct is consistent or

inconsistent with it. The Committee does have concerns that some members of the University community

may be giving the harassment policy an overly broad interpretation that may be inconsistent with norms

of academic freedom, discussed further below, p. 92. 4 See, e.g., Ex. 105; Ex. 106; Conor Friedersdorf, “ Stripping a Professor of Tenure Over a Blog Post,” At-

lantic , February 9, 2015. All abbreviations are identified in Appendix A to this report; a list of all exhibits

entered into the record is set forth below at Appendix C.


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Final Report 6

grad student on his blog as part of a campaign against gay rights, and that failure to

take action can be due only to either timidity or insincere concerns about free speech.5

The Committee unanimously and strongly disagrees with both of these points of

view. This case appears simple only if one ignores one side or the other of the funda-

mental tension between rights and responsibilities that is inherent in the notion of aca-

demic freedom. Absolution may seem obvious only if one ignores the obligations pro-

fessors have to their students or colleagues arising from their positions as faculty

members and members of the academic community. It is a mistake to regard faculty

speech as unbounded except by the faculty member’s own conscience; membership in a

university community comes with those responsibilities that are essential to maintain-

ing that community as a space where all are free to speak, inquire, and teach as they see

fit. Discipline may seem obvious only if one concludes that academic freedom does not

apply when someone’s views are distasteful or out of the mainstream. But freedom to

express one’s views, even critical views, is a foundational principle of modern universi-

ties, and it is most needed when a faculty member’s views are out of the mainstream—

either too retrograde or too avant-garde. Freedom of thought, as Justice Oliver Wendell

Holmes Jr. once wrote, is “not free thought for those who agree with us but freedom for

the thought that we hate.”6

Our report proceeds as follows. We first, in Part II, set out the proceedings in this

matter before the Faculty Hearing Committee, from the time that action was first taken

against Dr. McAdams until the issuance of this report. During those proceedings, the

Committee made some procedural rulings on matters raised by the parties; and during

that time, Dr. McAdams has been suspended from his duties as a faculty member, on

which the Committee has some comment. Next, in Part III, we describe the charge of the

Committee contained in the UAS Statutes and Faculty Statutes as we understand it.

5 See, e.g., Ex. 15 at MU-188. See also the comments appended to John Protevi, “Open Letter in Support

of Cheryl Abbate,” John Protevi’s Blog , November 18, 2014, http://proteviblog.typepad.com

/

protevi

/

2014

/

11/open-letter-in-support-of-cheryl-abbate.html; and Justin Weinberg, “Marquette Seeks to Fire McAd-

ams ,” Daily Nous (blog), February 5, 2015, http://dailynous.com/2015/02/05/marquette-seeks-to-fire-

mcadams/. While neither blog post is part of the record, both parties have repeatedly invited the Commit-

tee to consider outside opinions voiced in the Daily Nous , John Protevi’s Blog , the Atlantic magazine (cited

above), and other sources. See Hr’g Tr. vol. 1, 13:21–14:17 (University opening statement); McAdams Br.

(Doc. 11) at 2.6 United States v. Schwimmer , 279 U.S. 644, 655 (1929) (Holmes, J., dissenting). The same principle, of

course, applies to students, at least when their speech is germane and timely.


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Then in Part IV we issue our findings of fact, followed in Part V by our conclusions. Our

conclusions have several parts to them. We first address in Section V.A whether the

University has established a prima facie case of discretionary cause under Faculty Stat-

utes (FS) § 306.03. That includes a discussion of the applicable standards of conduct,Subsections V.A.1–2, followed by a determination of whether Dr. McAdams’s conduct

met those standards, Subsections V.A.3–4, and whether any failures substantially im-

paired his value, Subsection V.A.5. Then we proceed in Section V.B to consider whether

the prima facie case is abrogated by exceptions for academic freedom, considered in

Subsection V.B.1, or constitutional or other rights, considered in Subsection V.B.2. Final-

ly, we offer our ultimate recommendation in Part VI.

The Statutes of the University Academic Senate (UAS), Article 4, Section 1.01.1, re-

quire that all “[d]eliberations, records or minutes of the Faculty Hearing Committee

regarding grievances presented to it in due course as contemplated by the Faculty

Handbook, as well as any information presented to the Committee[ ] in conjunction

with those issues, will remain confidential with respect to third parties . . . .” The Com-

mittee does not take a position on whether this report itself is a “record[ ] . . . of the

Faculty Hearing Committee,” although it certainly contains “information presented to

the Committee[ ].” Nevertheless, given the importance of the issues discussed herein,

the attention this matter has already received on campus and around the country, and

the fact that this proceeding is possibly the first of its kind under these procedures, theCommittee believes that its findings and conclusions should be disseminated to the

Marquette community in at least redacted form, and the Committee recommends what-

ever changes to the UAS Statutes may be necessary to accomplish that. It would be

particularly important that the recommendation and the reasons for it that we express

herein receive a wider airing if the University ultimately decides to take a course differ-

ent from our recommendation.

II. PROCEEDINGS

We begin with a summary of the proceedings that have brought us to the present

report.

A. Procedural History

On January 30, 2015, this matter formally commenced when Dean Richard C. Holz

of the Klingler College of Arts & Sciences sent Dr. John C. McAdams a letter informing


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Final Report 8

Dr. McAdams that the University had concluded that his “conduct clearly and substan-

tially fails to meet the standards of personal and professional excellence that generally

characterizes University faculties” and that “as a result, your value to this academic

institution is substantially impaired.”7

The letter advised Dr. McAdams that the Univer-sity was therefore “commencing the process to revoke your tenure and to dismiss you

from the faculty.” This letter constituted the notice of termination required under FS

§ 307.03. (There were earlier communications between Dean Holz and Dr. McAdams;

those are discussed below. However, it is uncontested that the Jan. 30 letter was the

notice of termination.) Dr. McAdams, acting through counsel, objected by letter dated

February 6, 2015.8 The parties may then have engaged in the negotiation provided un-

der FS § 307.05, or the mediation provided under FS § 307.06; the FHC has no

knowledge or record of what occurred between the parties during that time.

On June 30, 2015, Dean Richard C. Holz sent to Dr. David Clark, the chair of the

FHC for the 2014-15 academic year, a “Notice of Pending Dispute” as required under FS

§ 307.07 ¶ 4. That notice triggered the FHC’s involvement in this matter. FS § 307.07 ¶ 5

provides that the committee will schedule a hearing within 90 days of the Notice, and

must provide its written decision within 90 days of the end of the hearing.

This timetable immediately raised administrative difficulties for the FHC, for three

reasons. First, at any given time several members were unavailable due to summer

travel plans. (The members of the FHC had only a few days’ advance warning of when

the Notice might be coming.) Second, as of June 30 only forty-five days remained until

three members’ terms expired, including that of the Chair, Dr. Clark. Third, three mem-

bers of the committee recused themselves under FS § 307.07 ¶ 8, leaving the committee

without a quorum until alternates could be named.9

In light of these difficulties, on July 7 the remaining four members of the committee

unanimously recommended to Dr. Cheryl Maranto, Chair of the Faculty Senate, that the

7 Ex. 2.8 Ex. 28; see FS § 307.04.9 UAS Stat. art. 4 § 1.01.1 requires the chair of the FHC to “consult with the UAS chair and vice chair to

appoint replacements” only in cases where “five members cannot serve regarding a given grievance due

to recusal, sabbatical, or other reasons”(presumably meaning that fewer than five members are available

to serve), which implies that when the committee has five or more members available, there is no such

need to appoint replacements.


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Final Report 9

matter be transferred immediately to the 2015-16 FHC for its consideration, including

by the three members-elect selected in the April UAS elections. Chair Maranto acceded

in that request and proceeded to convene the 2015-16 FHC to hear the case. One of the

newly elected members of the 2015-16 FHC decided to recuse herself, and two of thecontinuing members of the committee had previously recused themselves, leaving the

FHC again with four elected non-recused members. Alternates were therefore appoint-

ed to the Committee by Chair Maranto from members of prior Faculty Hearing Com-

mittees and from the University Promotion & Tenure Committee, in order of seniority.10

The 2015-16 FHC as constituted proceeded to hold meetings to consider this matter

on August 4 and August 13. At its August 4 meeting, the FHC elected a chair and vice-

chair, as required by FS § 307.07 ¶ 7. Prof. Bruce Boyden was elected interim chair and

Dr. Stephen Merrill was elected interim vice-chair.11 By letter dated August 14, the FHC

formally notified the parties of the dates of the hearings set in this matter, and disclosed

the prior involvement of two members in events that had been placed in the record:

Dr. John Pauly’s activities as Provost in an incident involving Dr. McAdams in 2011,

and Dr. Lynn Turner’s signature on an open letter written by eight department chairs

and published in the Marquette Tribune that was critical of Dr. McAdams and support-

ive of Ms. Cheryl Abbate.12 By letter dated August 24, 2015, counsel for Dr. McAdams

requested the recusal of both Dr. Pauly and Dr. Turner. Dr. Pauly recused himself from

all further proceedings in this case on September 3; the FHC unanimously rejected themotion to recuse Dr. Turner for reasons explained at length in a letter dated September

16, 2015, to the parties.13

The recusal of Dr. Pauly left the FHC again short of its full complement of members,

and in an abundance of caution (as well as to avoid the possibility of a tie), another

alternate, Dr. Andrew Dentino, was selected from the University Promotion & Tenure

10 FS § 307.07 ¶ 8; Minutes of the Faculty Council (Mar. 23, 2015).11 The positions have been designated “interim” due to the fact that a quorum of elected members of

the 2015-16 FHC has not yet met to confirm the selection of Prof. Boyden and Dr. Merrill.12 The letter is in the record at Ex. 15 at MU-197–204.13 Bruce E. Boyden to Ralph Weber, Cindy Bauer, and Richard Esenberg, Sept. 16, 2015, Doc. 20: 3-5

(included in App. D below). Items entered into the Committee’s docket—which includes correspondence,

minutes, and other documents circulated to the Committee for its consideration—are set forth in Appen-

dix B.


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Committee to fill Dr. Pauly’s place. The FHC met twice more before the hearing, once

with Dr. Dentino present.

The hearing was held on four consecutive days, from Monday, September 21 to

Thursday, September 24. Eight witnesses appeared before the Committee, five called by

the University, two called by Dr. McAdams, and one by the FHC itself. The Committee

also received sixty exhibits containing 734 pages of material and two recordings, includ-

ing a number of exhibits placed into the record during the hearing itself.

Subsequent to the hearing, the Committee met to deliberate seven times. At its first

post-hearing meeting, every member confirmed pursuant to FS § 307.07 ¶ 8 that he or

she had reviewed all testimony and exhibits received during any period in which that

member was absent. The committee met to deliberate as a whole three times, then withone member absent twice (in each case a different member), then as a whole one more

time, and then a final meeting in January with one member absent. Although the Facul-

ty Statutes provide that “the FHC’s findings of fact and conclusions shall issue . . . not

more than ninety . . . days following termination of the proceedings,” the length of the

Committee’s deliberations, the complexity of the report, and the dispersal of Committee

members for the holiday break made it impossible to meet that deadline, which fell on

December 23. This report ultimately issued 116 days after termination of the hearing.

B.

Contentions of the Parties

1. The University

The University14 asserts that Dr. McAdams violated several of his obligations as a

professor, giving rise to discretionary cause justifying termination of his employment.15

For the content of those obligations, the University looks to Marquette’s definition of

academic freedom, which in its preamble provides that:

As proper to the scholar-teacher, academic freedom is grounded on competence and in-

tegrity. When scholar-teachers carry on their academic lives in educational institutions,

14 Given norms of shared governance, in a very real sense “the University” consists of the entire Mar-

quette community: the administration, the faculty, staff, and students. But just as in a court proceeding

“the United States” is deemed to be represented by government attorneys, for purposes of this report

“the University” refers to positions taken by Marquette University administrators and their counsel. 15 The grounds are set forth in the letter of Dean Holz to Dr. McAdams, January 30, 2015 (Ex. 2), and in

the letter from Mr. Ralph A. Weber to Prof. Bruce E. Boyden, August 24, 2015 (Doc. 6).


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Final Report 11

integrity requires both respect for the objectives of the institution in which they choose to

carry on their academic lives and attention to the task of re-evaluating these objectives as

a necessary condition of living growth in human institutions.16

The definition then proceeds to lay out three varieties of academic freedom: freedom ofresearch, freedom in the classroom, and freedom to make extramural statements “as a

citizen.”17 The last of these freedoms is subject to certain conditions:

When he/she speaks or writes as a citizen, he/she should be free from institutional cen-

sorship or discipline, but his/her special position in the civil community imposes special

obligations. As a man/woman of learning and an educational officer, he/she should re-

member that the public may judge his/her profession and institution by his/her utteranc-

es. Hence, he/she should at all times be accurate, should exercise appropriate restraint,

should show respect for the opinions of others and should make every effort to indicate

that he/she is not an institutional spokesperson.18

The University maintains that these limitations on the protection for extramural state-

ments are, in fact, affirmative obligations that professors must respect.19 Assuming that

to be the case, the University argues that Dr. McAdams has violated his “obligations of

‘accuracy,’ ‘appropriate restraint,’ ‘respect for the opinions of others’ and ‘integrity.’”20

The University has also asserted that Dr. McAdams has violated three of Marquette’s

Guiding Values:

Pledg[ing] personal and holistic development of students as our primary institution-al vocation;

Pursu[ing] academic excellence and educat[ing] students who are men and women

for and with others throughout the world; . . . [and]

Nurtur[ing] an inclusive, diverse community that fosters new opportunities, partner-

ships, collaboration and vigorous yet respectful debate.

16

Marquette University Handbook for Full-Time Faculty , Part III.C, August 27, 2013, 45, http://www.

mar-quette.edu/provost/_includes/documents/FacultyhandbookupdatedOctober102315numbered.pdf (hereaf-

ter Faculty Handbook).17 Ibid.18 Ibid. This provision is essentially identical to the equivalent provision in the AAUP’s “1940 Statement

of Principles on Academic Freedom and Tenure, With 1970 Interpretive Comments,” reprinted in Policy

Documents and Reports , 11th ed. (Baltimore: Johns Hopkins, 2015), 14.19 Whether the definition of academic freedom can be read in this manner is addressed below at p. 60. 20 Doc. 6 at 2.


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The University concludes that Dr. McAdams’s failure to meet these obligations “consti-

tutes ‘serious instances of “dishonorable,” “irresponsible” and “incompetent” conduct’”

that amount to “unprofessional and irresponsible conduct” and “clearly, convincingly

and substantially has impaired [his] value,” justifying termination.21

The University cites five ways in which Dr. McAdams’s conduct has failed to meet

the foregoing obligations. First, the University argues that Dr. McAdams’s Nov. 9, 2014

blog post was “materially false and misleading” in four aspects: it “wrongly described

[Ms. Abbate] as shutting down a class debate about ‘gay rights,’” when there was no

such debate; it “omitted the fact that the very objection to gay marriage . . . that the

student said he had wanted to make was raised and dealt with in the very next class;” it

falsely stated that the Philosophy Department “pretty much blew off” the student’s

complaint; and it falsely implied that “the student dropped the class due to (1) pressure

from Ms. Abbate and (2) a failure to get ‘vindication’ from ‘University officials who

hold the same intolerant views as Abbate,’” when in fact he dropped due to his grade

standing.22

Second, the University argues that Dr. McAdams failed to “exercise[ ] due care and

standards of professional responsibility” when he posted his student advisee’s com-

plaint about Ms. Abbate without any further investigation.23 Specifically, the University

contends that:

Dr. McAdams failed to meet his obligations when he posted a story on the Internet

(1) without speaking with Ms. Abbate or getting her permission to use her name;

(2) without contacting Drs. Snow or Luft (who had met with the student; in Dr. Snow’s

instance, twice); (3) without contacting anyone in the College of Arts & Sciences to get

their perspective or express his concerns; [and] (4) without contacting anyone in the

Provost’s Office to raise any concerns he believed had been ignored at the Department

and College level . . . .24

Third, the University claims that Dr. McAdams wrongfully and unnecessarily used

Ms. Abbate’s name in his Nov. 9 blog post. “He could have,” the University argued,

“made all the very same points he wanted to make (accurate or not) without intention-

21 Doc. 6 at 2; Ex. 2 at MU-015, MU-014.22 Doc. 6 at 2-3; see also Ex. 2 at MU-003–00423 Ex. 2 at MU-003.24 Doc. 6 at 6; see also Ex. 2 at MU-003.


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ally exposing Ms. Abbate to the abuse and infamy that followed.”25 Fourth, and related-

ly, the University argues that Dr. McAdams “recklessly us[ed] his power and perceived

invulnerability to shame, humiliate and bring public scorn down upon a graduate stu-

dent instructor via an intentionally misleading [I]nternet story. Dr. McAdams promotedhis own agenda while ignoring the impact on Ms. Abbate’s life and career, directly

contrary to Marquette University’s principles.”26

Finally, the University claims that Dr. McAdams’s conduct “has contributed to a cul-

ture of intolerance” that intimidates colleagues and threatens the practice of academic

freedom, “often target[ing] women and those ‘in a lower position of power in academic

standing at Marquette’ than yourself.”27 Specifically, the University alleged that

Dr. McAdams’s “conduct creates fear in [his] colleagues and students that their actions

and words will, at [his] unilateral ‘discretion,’ be put on the Internet in a distorted fash-

ion,” thus undermining “the very freedoms of teaching and expression that [he] vehe-

mently purport[s] to promote.”28

For these failings, the University asserts, termination is the only appropriate penalty.

“Any sanction other than removal from the Marquette Faculty would be contrary to the

Faculty Statutes and the important values those Statutes seek to preserve.”29

2. Dr. McAdams

Dr. McAdams argues that the University “is attempting to terminate [him] for blog-

ging,” despite the fact that “[t]he post in question was not false—it was literally true in

all material respects—and it did not use intemperate or hateful language,” and despite

the fact that “the position taken by the post—that opposition to same sex marriage

ought not to be dismissed as homophobic or offensive—is hardly out of bounds in civil

society, much less at a Catholic university.”30 Dr. McAdams argues that this is so unu-

sual that it suggests that “the Administration’s real motives” are to fire someone who

25 Doc. 6 at 4. “Based upon [his] years of Internet postings, [Dr. McAdams] knew or should have known

that [his] Internet story would result in vulgar, vile, and threatening communications to Ms. Abbate.”

Ex. 2 at MU-014.26 Doc. 6 at 5; see also Ex. 2 at MU-014.27 Ex. 2 at MU-014.28 Ex. 2 at MU-015.29 Doc. 6 at 7.30 McAdams Br. (Doc. 11) at 1.


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“has regularly taken positions contrary to majority sentiment on campus and has been

highly critical of certain faculty colleagues and many in positions of authority in the

University, including the President, Provost, Deans, and department chairs (including

some of the very people who have his future at the university in their hands).”31

Specifi-cally, Dr. McAdams suggests that this proceeding is retaliation for his having “ been a

critic of a set of views referred to by some as ‘political correctness’” and having “point-

ed out the tension between certain positions taken by the University and its Catholic

identity.”32 If the University presses forward, Dr. McAdams promises, Marquette will

“ become ground zero in the battle over freedom of expression in academia” and will be

“the poster child for political correctness on America’s campuses.”33

Dr. McAdams notes that the definition of discretionary cause has an absolute excep-

tion to it: “even behavior that clearly and substantially falls below the amorphous

‘standard of excellence’ and that substantially impairs the faculty member’s value can-

not be the basis for termination if doing so would infringe on McAdams ’s academic freedom.”34

Academic freedom, Dr. McAdams asserts, is “especially important for faculty who

express unpopular ideas.”35 Dr. McAdams argues that his criticism of Ms. Abbate was

“a reasoned critique of another instructor, tying this specific instance into a larger socie-

tal commentary on what he views as a dangerous tendency to shut down the speech of

dissenters rather than engage them.”36 That sort of criticism, Dr. McAdams argues, is

protected under academic freedom.37

Dr. McAdams also cites FS § 307.07 ¶ 2 in his defense, which provides that “[d]is-

missal will not be used to restrain faculty members in their exercise of academic free-

dom or other rights guaranteed them by the United States Constitution.”38 Dr. McAd-

ams interprets this provision as meaning that the “Marquette Administration may not

terminate Professor McAdams in a way that would violate his First Amendment rights

31 Doc. 11 at 1.32 Doc. 11 at 1-2.33 Doc. 11 at 1, 3.34 Doc. 11 at 4.35 Doc. 11 at 5.36 Doc. 11 at 10.37 Doc. 11 at 10.38 Doc. 11 at 4.


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of free speech and academic freedom, were he a professor at a public university.”39

Under that standard, Dr. McAdams argues, his speech is protected if he was not speak-

ing as part of his job duties, the subject of the speech was a matter of public concern,

and the speech in question “is true in all material respects or made without knowledgeof or in reckless disregard of its truth or falsity.”40 According to Dr. McAdams, he meets

all three prongs of this test. “His role as citizen reporter” on his blog was “not required,

directed, or even suggested by his employer. In fact, the Administration has made it

quite clear they would prefer that he not blog.” And, he argues, his Nov. 9th blog post

was on a matter of public concern, “[a]s demonstrated by the national interest in his

story.”41

Furthermore, Dr. McAdams argues, his post was factually accurate. Dr. McAdams

offers several rebuttals to the University’s allegations: “Abbate herself concedes that she

said she would not entertain a discussion of gay rights in connection with her class on

John Rawls’s equal liberty principle;” “Abbate suggested the [s]tudent drop the class;”

“the Student complained to [the] Administration, [which] did not resolve the issue to

the student’s satisfaction;” and Ms. Abbate’s discussion of the topic in the following

class focused only on the alleged flaws in studies of children, not on whether it was

permissible to oppose same-sex marriage in class.42 And with respect to his statement in

the blog post that Abbate “then invited the student to drop the class. Which the student

is doing,” Dr. McAdams argues that both statements are true, and argued in his pre-hearing brief that “[t]he Student told McAdams that the catalyst for dropping the class

was Abbate’s bullying.”43 Dr. McAdams maintains that he was unaware of the student’s

grade.44

Dr. McAdams argues that he did not violate any obligation that he had by naming a

graduate student on his blog, for three reasons. First, Dr. McAdams asserts, his criticism

of Ms. Abbate was in her role as instructor, and not as a student.45 Second, while Dr.

39 Doc. 11 at 5. The soundness of this interpretation is addressed below, Section V.B.2. 40 Doc. 11 at 22, 7.41 Doc. 11 at 7.42 Doc. 11 at 11-12.43 Doc. 11 at 12. Dr. McAdams himself, however, did not make this claim at the hearing. See below,

Findings of Fact (FOF) ¶ 90.2. 44 Doc. 11 at 12.45 Doc. 11 at 20.


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McAdams admits he was once advised to “ be careful” about naming students on his

blog, he asserts that “[h]e was never put on notice that naming a student on his blog

was a fireable offense.”46 And third, it would not have mattered if he had been, because

Marquette has no authority to demand that he not name students on his blog; Mar-quette’s “own contractual promises of academic freedom and First Amendment protec-

tions preclude such a limitation.”47

Dr. McAdams denies that he has any obligation “to edit blog posts to ‘avoid’ the

possibility of third party misbehavior, whether legally, ethically, or contractually.”48

First, Dr. McAdams argues, “[n]o law imposes liability on a reporter for actions taken

by people who hear the reporter,” and reporters are not even considered morally re-

sponsible for the reactions to their stories.49 Second, Dr. McAdams asserts he had no

contractual obligation to limit his blog post in this manner. And third, he asserts there is

no professional obligation to do so. If anything, Dr. McAdams argues, “the ethics run

the opposite direction”—it would have been unethical not to post the story about

Ms. Abbate “for fear of what the public might do with the information.”50

To recognize such an obligation, Dr. McAdams claims, “would be a death knell to

not only journalism, but academic freedom.”51 It would force professors to avoid

“[e]ven the mildest criticisms” because of some possibility of abusive reactions, given

that such reactions could not be completely avoided except by “not reporting at all.”52

Dr. McAdams has repeatedly cited the journalist Conor Friedersdorf on this point:

[Holz’s] decision to hold McAdams responsible for [Ms. Abbate’s] harassment sets an

alarming precedent: that faculty members will be held accountable not only for their

words, but for any efforts to intimidate or harass those they publicly criticize. By this log-

ic, a professor who criticized a college football player accused of rape, or a fraternity

member who chanted “No means yes, yes means anal,” or a college Republican running

an “affirmative-action bake sale” could be stripped of tenure based partly on whether

46 Doc. 11 at 20-21.47 Doc. 11 at 21.48 Doc. 11 at 23 (quoting Doc. 5 at 3).49 Doc. 11 at 23.50 Doc. 11 at 23.51 Doc. 11 at 24.52 Doc. 11 at 24.


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Final Report 17

that student got nasty emails. Only myopia can account for failure to see the threat to ac-

ademic freedom.53

Dr. McAdams also denies that he has created “a culture of intolerance.” He states

that his negative comments about other faculty members amount merely to “criticism,” since he has “no authority over those faculty members . . . . He had no ability to control

them or punish them.”54 Dr. McAdams asserts that, indeed, he has not even been intoler-

ant. “He freely permits dissenting voices to comment on his blog, and often engages

with them respectfully.”55 Nor, Dr. McAdams claims, has he particularly targeted wom-

en or “those in lower positions of power;” he has targeted everyone, at all levels of

power.56

Dr. McAdams maintains that not only has he done nothing wrong, but others have

engaged in the same behavior he has, or worse, and yet only “he is singled out for pun-

ishment.”57 At most, he concedes, he is guilty of “far-scattered incidents of perhaps

overheated rhetoric.” But since he was never warned that the Administration consid-

ered such incidents to constitute a pattern leading to discipline, neither termination nor

any lesser sanction would be appropriate here.58

C.

Objections Concerning Pre-Hearing Discovery

Dr. McAdams raised two other points in his pre-hearing brief that should be ad-

dressed here. First, Dr. McAdams objects that he was not provided sufficient access toeither the University’s witnesses or its documents prior to the hearing. FS § 307.07 ¶ 11

provides that “[t]he subject faculty member will be afforded an opportunity to obtain

necessary witnesses and documentation or other evidence and is entitled to examine the

evidence submitted to the FHC by the University Administration.” On February 6, 2015,

counsel for Dr. McAdams requested that the University provide an opportunity “to

interview in person” each of the witnesses listed in Dean Holz’s January 30, 2015 letter,

53

Doc. 11 at 24n24 (quoting Conor Friedersdorf, “Stripping a Professor of Tenure Over a Blog Post,” Atlantic , February 9, 2015, http://www.theatlantic.com/education/archive/2015/02/stripping-a-professor-

of-tenure-over-a-blog-post/385280/); Hr’g Tr. vol. 1, 29:15–30:6 (Esenberg opening statement).54 Doc. 11 at 16.55 Doc. 11 at 17.56 Doc. 11 at 18.57 Doc. 11 at 24.58 “Progressive discipline is the norm, and the Administration did not consider any of these past ‘inci-

dents’ disciplinable offenses.” Doc. 11 at 25, 26.


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including Ms. Abbate, Dr. Luft, Dr. Snow, Dr. Foster, Dr. Donaldson, Dr. South,

Dr. Holz, and Dr. Barrington.59 Second, counsel for Dr. McAdams made document re-

quests for:

1. copies of all transcripts, notes, memos or other documents that refer or relate to the in-

terviews already done by Marquette; [and]

2. any written evidence that Marquette has that either supports or refutes the charges

against Dr. McAdams, including copies of any e-mails sent to or by Ms. Abatte from her

Marquette e-mail account referring in any way to Dr. McAdams or the events written

about by Dr. McAdams in the blog post that is the subject to this proceeding.

The University acceded to none of these requests.60 Dr. McAdams therefore requested

that the Committee either “assume that all of [the] documents [the] Administration is

refusing to turn over demonstrate McAdams’s innocence,” or “order [the] proceedingsadjourned until the parties have complied with their obligations under the Faculty

Statutes.”61

The Committee declined to take either of these actions. The Committee’s full reason-

ing is set forth in its September 16, 2015 letter to the parties.62 In brief, however, the

Committee does not interpret FS § 307.07 ¶ 11 to afford the parties a right of pre-hearing

discovery akin to that provided in civil litigation, that is, a right to discover any matter

in the possession of the other party relevant or potentially relevant to any party’s claim

or defense. Rather, FS § 307.07 ¶ 11 provides the faculty member only with a right toobtain “witnesses and documentation or other evidence” that he or she determines to be

necessary for his or her defense, and to “examine the evidence submitted to the FHC by

the University Administration” once it has been submitted, but not before. While more

discovery might in some ideal world be preferable, the Committee has neither the rules

nor the resources to manage extensive pre-hearing discovery between adverse parties.

In a similar vein, a considerable amount of testimony was taken during the hearing

concerning the manner in which the University investigated this incident prior to its

issuance of its notice of termination. That testimony appeared to be laying the ground-

work for an objection to the manner in which that investigation was conducted. How-

59 Ex. 28 at MU-522.60 Doc. 11 at 29.61 Doc. 11 at 29.62 Doc. 20 at 6-7 (see App. D at 148–149).


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ever, Dr. McAdams did not raise any particular objection for the Committee’s consider-

ation regarding that investigation. The Committee therefore makes no findings and

reaches no conclusions regarding any alleged procedural irregularities in the Universi-

ty’s pre-notice investigation of Dr. McAdams. The Committee does note for the recordthat it finds the selection of Dr. South as the person to perform the investigation to be

unfortunate, given the numerous prior instances of conflict between Dr. South and

Dr. McAdams, including one occasion when Dr. South had requested that the Provost

investigate Dr. McAdams.63 However, the Committee has in no way relied on that in-

vestigation in reaching its conclusions in this report. Rather, this report is based on the

record compiled in this proceeding, in which Dr. McAdams has been a full participant

and has had a fair opportunity to present his defense.

D.

The University’s Interim Suspension of Dr. McAdams

Dr. McAdams raised a second procedural objection in his pre-hearing brief, one of

considerable importance that the Committee has not yet addressed. Dr. McAdams as-

serts that he has been “suspended . . . from his duties and from campus without [the

University] following required procedures set forth in the Faculty Statutes.” Dr. McAd-

ams also complains that “Dean Holz banned McAdams from campus and prohibited

him from even contacting other members of the Marquette community (including facul-

ty), which he had no authority to do under the Faculty Statutes.”64 In essence, Dr. Mc-

Adams argues that these actions by the University have imposed a penalty on him

without this Committee’s prior review. In this Section, we consider the University’s

authority to do so.

The events that give rise to Dr. McAdams’s objection began on December 16, 2014.

On that date, Dean Holz sent Dr. McAdams a letter that informed him that “until fur-

ther notice . . . you are relieved of all teaching duties and all other faculty activities,

including, but not limited to, advising, committee work, faculty meetings and any activ-

ity that would involve your interaction with Marquette students, faculty and staff.”65

The letter provided that Dr. McAdams’s “salary and benefits will continue at their cur-

rent level during this time.” However, Dean Holz also instructed Dr. McAdams in that

63 See Part IV below, Findings of Fact (FOF) ¶¶ 24.2, 24.12, 25.2. Although Dr. South performed the in-

vestigation, he was supervised by Dean Holz. FOF ¶ 141. 64 Doc. 11 at 26.65 Ex. 24 at MU-508.


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letter that “[y]ou are to remain off campus during this time, and should you need to

come to campus, you are to contact me in writing beforehand to explain the purpose of

your visit, to obtain my consent and to make appropriate arrangements for that visit.”66

On January 2, 2015, Dean Holz reiterated the campus ban, although it was apparentlyrelaxed to some degree later to allow Dr. McAdams to finish his book.67 Within two

weeks, in response to press inquiries, University spokesperson Brian Dorrington re-

leased a statement implying that the ban from campus was due to safety concerns: “The

safety of our students and campus community is our top priority . . . . We take any

situation where a student’s safety is compromised extremely seriously.”68

There are three questions that are raised by these actions by the University. First,

there is the issue of whether Dr. McAdams has actually been suspended at all. Second,

there is the issue of whether the University has the authority under the Faculty Statutes

to impose unilateral interim suspensions. Finally, there is the issue of whether any such

authority was reasonably exercised in this case, and the related question of whether the

Faculty Statutes need to be amended to prevent abuse.

By any reasonable interpretation of the word, the instructions to Dr. McAdams in

Dean Holz’s Dec. 16 and Jan. 2 letters suspended him from his duties as a professor. It is

true that the University, through its spokesperson and through Dean Holz, maintains

otherwise. For example, asked for comment on the suspension, spokesperson Brian

Dorrington stated that Dr. McAdams was not suspended because “[o]ur definition of

suspension is without pay.”69 Similarly, Dean Holz testified at the hearing that he did

not believe he had suspended Dr. McAdams because “[h]e wasn’t relieved of his salary

or his benefits.”70 But the University’s insistence that the term “suspension” refers only

to a situation in which pay is withheld cannot be reasonably maintained. First, it is

66 Ibid.67 FOF ¶¶ 150–152. 68 Ex. 107 at JM-015.69 Ex. 108 at JM-017.70 Hr’g Tr. vol. 3, 32:15-19 (Holz). Dean Holz was similarly reluctant to admit that he had “ordered”

Dr. McAdams to stay away from campus, objecting that “I can’t order anything. I’ m not in the military.”

Ibid., 33:20-21.


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belied by the Faculty Statutes themselves, which clearly refer to suspensions with pay.71

Second, it does not comport with the ordinary understanding of the term. To “suspend”

means “to debar temporarily, especially from a privilege, office, or function.”72 “Sus-

pension” can refer to any removal from duties, but in the academic context it has histor-ically been associated with removal from teaching.73 Dr. McAdams was clearly sus-

pended by the University when he was removed from all of his duties on December 16,

2014.

The AAUP has expressed concern about the growing use of suspension by universi-

ties as a means of disciplining faculty, often, as in this case, without even admitting that

they are doing so.74 Suspension from duty, even with pay, inflicts a severe sanction that

the AAUP has long regarded as “second only to dismissal.”75 As one influential investi-

gative report on St. John’s University put it:

The profession’s entire case for academic freedom and its attendant standards is predi-

cated upon the basic right to employ one’s professional skills in practice, a right, in the

case of the teaching profession, which is exercised not in private practice but through in-

stitutions. To deny a faculty member this opportunity without adequate cause, regardless

of monetary compensation, is to deny him his basic professional rights. Moreover, to a

good teacher, to be involuntarily idle is a serious harm in itself. . . .76

71 “In all cases of . . . termination for . . . discretionary cause . . . , a faculty member’s entitlement to sala-

ry and fringe benefits shall continue, irrespective of any suspension from duties . . . until the University

has made a final decision following the report of the hearing . . . .” FS § 307.02.72 “Suspend,” Merriam-Webster , accessed December 20, 2015, http://www.merriam-webster.com/ dic-

tionary/suspend. “Suspension” is defined as “[a] temporary prohibition or exclusion, as from attending

school or enjoying a privilege, especially as a punishment.” “Suspension ,” American Heritage Dictionary of

the English Language , 5th ed., accessed December 20, 2015, http://www.thefreedictionary.com/ suspension.73 Lawrence S. Poston, “The Use and Abuse of Faculty Suspensions,” Academe 94, no. 6 (2008): 45. Even

at research universities, “suspending [faculty members] from teaching is suspending them.” Ibid., 48. 74 Ibid., 49.75

Ibid., 45. “Barring a teacher from his classroom inflicts ignominy upon the teacher and is destructiveto the morale of the academic community.” Paul R. David, Richard P. Adams, and Edwin O. Stene,

“Academic Freedom and Tenure: College of the Ozarks,” AAUP Bulletin 49, no. 4 (1963): 358.76 John A. Christie, Willard H. Pedrick and John T. Noonan, Jr., “Academic Freedom and Tenure: St.

John’s University (New York),” AAUP Bulletin 52, no. 1 (1966): 18–19. This passage indicates an important

distinction between suspension with pay, which is punitive, and paid leave, which is not, namely that

suspension is imposed at a time and for a duration not of the professor’s choosing. In addition, as de-

scribed below, suspension places the faculty member under a cloud of suspicion that the mere continua-

tion of salary and benefits does not alleviate.


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That harm is exacerbated when suspension is accompanied by a banishment order, as is

increasingly the case.77 Banishment not only can deny the faculty member “access to the

material needed to prove that the charges are groundless and wrongful,” but also can

interfere with academic work by denying access to crucial resources such as a library,computer center, email, or the faculty member’s own office or laboratory.78

The harms inflicted by suspension are not merely material. Suspension and, worse,

banishment, tarnish the reputation of the faculty member by branding him or her with

“an extremely negative judgment, for which the basis remains untested in the absence

of a hearing, even though an administration may claim that it is saving the faculty

member embarrassment.”79 Suspension and banishment can be a particularly “devastat-

ing indictment of a faculty member” when “the reason alleged for suspension is the best

interest of the students.”80 Such actions risk creating “a prejudicial atmosphere totally

out of proportion to the alleged offense and undeserved in the light of the professor’s

previous record.”81 Indeed, that may even be the point. While there are situations in

which suspension or banishment are entirely appropriate,82 those two penalties are

often imposed in politically controversial cases where administrations face demands for

quick action. As an AAUP subcommittee has observed, in such cases, “[t]he administra-

tion may believe that haste is necessary to reassure the board, public, or legislature that

the matter is in hand.”83 It is therefore crucial that, particularly in political controversial

cases, procedural protections for the subject faculty members be scrupulously ob-served.84

Before proceeding further it is important to distinguish between two types of sus-

pensions: suspensions that are ordered as the final outcome of an adjudicated process

such as that provided under FS § 307.07, which we will call “final suspensions;” and

suspensions that are imposed during such a process, pending its outcome, which we

77 Poston, “Faculty Suspensions,” 55. 78

Ibid., 46.79 Ibid., 46.80 Ibid., 48 (quoting “Academic Freedom and Tenure: University of Southern California,” Academe 81

(November–December 1995): 47–48).81 Poston, “Faculty Suspensions,” 46. 82 Ibid., 54.83 Ernst Benjamin, et al., “Ensuring Academic Freedom in Politically Controversial Personnel Deci-

sions,” Bulletin of the AAUP 97 (2011): 107.84 Ibid., 107-08.


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refer to here as “interim suspensions.”85 The AAUP has recommended important pro-

cedural protections for both types of suspensions. Final suspensions are second only to

termination in severity, and the faculty member is given the same procedural protec-

tions under both AAUP’s Recommended Institutional Regulations and under the Mar-quette Faculty Statutes.86 Given the harms arising from suspension, however, the AAUP

has long recommended that faculty members be secure against arbitrary imposition of

interim suspensions as well. Thus, the AAUP recommends that before any interim

suspension is imposed, a faculty committee be consulted “concerning the propriety, the

length, and the other conditions of the suspension.”87 And it is critical that such suspen-

sions be imposed “only if immediate harm to the faculty member or others is threatened

by continuance.”88

As an AAUP report notes, “immediate harm” is a “problematic, if not elusive, con-

cept,” and administrators “have given it what, to say the least, are very broad interpre-

tations.”89 Indeed, in many cases documented by the AAUP administrators did not even

attempt to justify interim suspension on the basis of “immediate harm,” and in numer-

ous others, the phrase was not applied with any great rigor.90 That appears to be true in

the present case as well. Dean Holz’s letter of December 16, 2014, merely advised

Dr. McAdams that he was suspended, and ordered to stay away from campus, while

“[t]he university is continuing to review your conduct . . . .”91 Contemporaneously with

Dean Holz’s letter, University spokesperson Brian Dorrington told a reporter only thatDr. McAdams is “under review,” citing the provisions of the Handbook for Employees

85 Poston, “Faculty Suspensions,” 47. The AAUP has also documented cases that it calls “ pretermination

suspension, in which suspension, albeit not a freestanding sanction, is levied without any commitment to

holding a formal dismissal hearing.” Ibid. In this case, Dr. McAdams was suspended more than six weeks

before he was given notice that the University was initiating termination proceedings.86 AAUP, “Recommended Institutional Regulations on Academic Freedom and Tenure,” in Policy Doc-

uments and Reports , 11th ed. (Baltimore: Johns Hopkins Press, 2015), 85 (§ 7.a). “The cognizant appointing

authority of the University may initiate and execute procedures by which a faculty member’s . . . current

appointment may be suspended or terminated, for cause as defined therein.” FS § 306.01.87 AAUP, “Recommended Institutional Regulations,” 83 (§ 5.c(1)).88 Ibid.89 Poston, “Faculty Suspensions,” 49.90 Reviewing AAUP case reports, the subcommittee found that even “[w]here some mention of the con-

cept, if not the exact term, occurred, it was frequently attached to vague, trivial, or even faintly comical

charges.” Ibid.91 Ex. 24 at MU-508. As noted above, this makes Dr. McAdams’s suspension a “pretermination suspen-

sion,” in the AAUP’s terminology.


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prohibiting behaving in an “overtly discourteous, abusive or disrespectful manner”

toward students, and requiring disputes to be initiated with a supervisor.92

Dean Holz’s next letter to Dr. McAdams, on January 2, 2015, likewise did not men-

tion any immediate harm caused by Dr. McAdams continuing to teach, nor did the

notice of termination sent on January 30, 2015.93 Dean Holz testified before the Commit-

tee that he suspended Dr. McAdams, and banished him from campus, “ because of the

seriousness” of the charges that were being investigated, and “to calm things down, so

that the vile e-mails would stop going to [Ms. Abbate] and . . . myself and we could

kind of have a cooling off period so that we could finish the investigation and make a

decision on how we would proceed.”94 Indeed, to date, there has been only one sugges-

tion of possible “immediate harm” that might result from Dr. McAdams’s continued

presence on campus. On January 13, 2015, when asked about Dr. McAdams’s continu-

ing suspension, spokesperson Brian Dorrington responded from a prepared statement

that:

The safety of our students and campus community is our top priority . . . . The university

has a policy in which it clearly states that it does not tolerate harassment and will not

stand for faculty members subjecting students to any form of abuse, putting them in

harm’s way. We take any situation where a student’s safety is compromised extremely

seriously.95

The obvious implication is that Dr. McAdams’s suspension and banishment were nec-

essary to protect student safety.

This is exactly the sort of interim suspension that has concerned the AAUP, and thus

it is not surprising that the Director of Committee A, Gregory F. Scholtz, wrote to Presi-

dent Lovell on January 26, 2015, objecting to the pretermination suspension of Dr. Mc-

Adams. “Given the facts reported to us,” Mr. Scholtz informed President Lovell, “it is

difficult to see how members of the academic community would perceive Professor

McAdams’s continuing to teach as constituting a ‘threat of immediate harm’ to himself

92 Ex. 108 at JM-017; Handbook for Employees , 30, 32. The provision requiring reporting of disputes to a

supervisor is not among those incorporated into the Faculty Handbook , and thus is not binding on faculty.93 Ex. 26; Ex. 2.94 Hr’g Tr. vol. 3, 84:20-22, 85: 7-8, 84:9-15 (Holz).95 Ex. 107 at JM-015.


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or others.”96 The Committee agrees with Mr. Scholtz’s assessment. Even assuming, as

we find below, that Dr. McAdams’s blogging had indirectly caused significant harm, it

is unclear how his continued presence on campus “threatened” immediate future

harms; Dr. McAdams is, while perhaps not equally able, at least well able to blog aboutMarquette while away from campus.97 President Lovell has responded to Mr. Scholtz’s

letter by promising that Marquette would abide by the principle of academic freedom,

the requirements of due process, and the Marquette Faculty Statutes, but noticeably did

not promise compliance with AAUP recommended procedures for suspensions.98

Dr. McAdams has been clearly suspended with pay since December 16, 2014, and

has suffered the resulting harms to his interests, without any procedural protections,

that have long concerned the AAUP in such cases. He has been prevented from teach-

ing his classes, and his work on completing his book manuscript was interfered with

until his library access was restored. More seriously, he has been effectively adjudged

before the public and the Marquette community to be guilty of the charges against him,

and even worse, to be such a threat to the physical safety of students that his very pres-

ence, rather than his blog post, cannot be tolerated.99 Although welcomed by some and

deplored by others, this precipitous action has deprived Dr. McAdams of his procedur-

al rights in this matter.

And it seems apparent that the reason the University took this action was not be-

cause of any threat of immediate harm, but because, as with many universities before it,

96 Ex. 113 at JM-064. Ms. Abbate has in turn objected to Mr. Scholtz’s letter, noting wryly that

“[a]pparently, Scholtz does not believe that women who are subjected to cyber misogyny and rape

threats are faced with the ‘threat of immediate harm.’” Ex. 109 at JM-034. But Ms. Abbate is misinterpret-

ing the objection raised by Mr. Scholtz. The standard for interim suspension is not simply whether the

professor has already caused harm, directly or indirectly. That is a fact that must be determined after a

hearing under the Faculty Statutes. Rather, the relevant question for interim suspension is whether there is

such a threat of imminent future harm that the professor cannot continue with his or her duties pending

such a hearing.97 See, e.g., John McAdams, “American Indian Students Bully Marquette With Discrimination Charge /

Marquette Panders ,” Marquette Warrior (blog), December 14, 2015, http://mu-warrior.blogspot.com/

2015/

12/american-indian-students-bully.html.98 Ex. 27.99 As Dr. Daniel Maguire has observed, the effect of the banishment order is to “announce[ ] on the

public record that Professor McAdams is some sort of threat to the persons in this academic community

. . . leaving volatile suspicions in the air as to what that threat could be. Is he less a threat when he has the

dean’s permission to be on campus?” Ex. 112 at JM-061.


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“[t]he administration . . . believe[d] that haste [was] necessary to reassure the . . . public

. . . that the matter [was] in hand.”100 In the weeks leading up to Dean Holz’s December

16, 2014 letter, the University had been receiving increasing pressure to take some sort

of action against Dr. McAdams, particularly from members of the Marquette communi-ty and from academics around the country. On November 18, 2014, the controversy

appeared on the Daily Nous , an influential blog widely read among philosophers. The

blog’s author stated that he was “not aware of any positive steps that Marquette Uni-

versity has made to publicly declare their support for Abbate and defend her against

these attacks,” and called on his readers to write to Dean Holz and Interim Provost

Margaret Callahan, which calls he reiterated over the next several days.101 Also on No-

vember 18, Dr. John Protevi of Louisiana State University posted a widely-read open

letter that garnered over 400 signatures by December 7, and called on Dean Holz and

Provost Callahan to “offer your support to Ms. Abbate and take steps to ensure that

Professor McAdams learns the rudiments of professional behavior in the future.”102

Dr. James South, the Associate Dean for Faculty in the College of Arts & Sciences, noted

that the Daily Nous and Protevi posts indicated the issue was “getting real traction,” and

Dr. Lowell Barrington, chair of the Political Science Department, suggested in response

that there was pressure to act: “[P]eople are wondering not only what we will do as a

department but, even more so, why the university (including President Lovell) [has] not

taken more serious steps. Our (meaning Marquette’s) reputation, nationally and among

faculty on campus, is deteriorating by the hour.”103

The controversy over Dr. McAdams’s blog post also aroused a furor on campus. On

the morning of Friday, November 21, eight department chairs in the College of Arts &

Sciences wrote to President Lovell, Provost Callahan, and Dean Holz to “urge the uni-

versity administration to state publicly and in no uncertain terms that [Dr. McAdams’s]

100 Benjamin, et al., “Politically Controversial Personnel Decisions,” 107.101

Justin Weinberg, “Philosophy Grad Student Target of Political Smear Campaign (Several Updates),”Daily Nous , November 18, 2014, http://dailynous.com/2014/11/18/philosophy-grad-student-target-of-

political-smear-campaign/. While not formally made part of the record, this post was discussed and

linked to at Ex. 15 at MU-182, Ex. 18 at MU-225, and is cited here only as evidence of what was in fact

said.102 John Protevi, “Open Letter in Support of Cheryl Abbate,” John Protevi’s Blog , November 18, 2014,

http://proteviblog.typepad.com/protevi/2014/11/open-letter-in-support-of-cheryl-abbate/; cited and

discussed at Ex. 15 at MU-182, Ex. 18 at MU-226.103 Ex. 15 at MU-181.


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behavior on this and other occasions represents neither the values of this Jesuit, Catholic

university nor the professional standards expected of our faculty” and to “implore the

academic leaders of the university to take action to ensure that his violation of the uni-

versity handbook cease immediately.”104

Later that same day, Provost Callahan sent anemail to the entire faculty “to address recent discussions within the campus community

concerning the issues of collegiality, professionalism and academic freedom,” in which

she emphasized “the dedication we have as leaders to uphold academic freedom and to

maintain an environment in which the dignity and worth of each member of our com-

munity is respected.” That process was likely to be a slow one, however: “The universi-

ty will take the appropriate time to ensure that [the Guiding Values] inform our re-

sponse concerning all matters of collegiality, professionalism and academic freedom.”105

President Lovell sent a letter to the entire campus community the following day making

similar points, but adding:

To be clear, we will take action to address those concerns [alleging inappropriate be-

havior].

I understand that emotions may run high during discussions and debate, inside and

outside of the classroom. But let’s not lose sight of the need to maintain respect for each

other.

As St. Ignatius taught us: “Be slow to speak, and only after having first listened qui-

etly, so that you may understand the meaning, leanings, and wishes of those who do

speak.”106

Despite these appeals for patience, pressure continued to build for the administra-

tion to take action. Dr. Nancy Snow, chair of the Philosophy Department, emailed Pres-

ident Lovell, Interim Provost Callahan, and Dean Holz within two hours of Dr. Cal-

lahan’s email, objecting that “I see no reason why anyone at Marquette should be

subjected to this [harassment], which I consider to be abuse. . . . I see no reason why

administrators should be prevented from imposing appropriate sanctions. Dr. McAd-

ams’[s] behavior clearly violates the Faculty Handbook.”107 On November 25, Dr. Bar-

rington wrote to Dean Holz and others to express the consensus view of the Political

104 Ex. 15 at MU-190. This letter is different than the letter published by the same eight department

chairs in the Marquette Wire , which did not call for any particular action. Cf. Ex. 15 at MU-197–198.105 Ex. 16 at MU-205.106 Ex. 16 at MU-204.107 Ex. 15 at MU-188.


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Science Department.108 In that letter, Dr. Barrington, on behalf of the Political Science

Department, informed Dean Holz that the consensus was that Dr. McAdams had done

“significant damage” to the Marquette community, and asked the “University’s leader-

ship to take the appropriate steps to fulfill its obligations to protect Marquette faculty,staff, graduate students and undergraduates from a hostile campus environment and to

indeed ‘nurture an inclusive, diverse community that fosters new opportunities, part-

nerships, collaboration, and vigorous yet respectful debate.”109

Since there was no immediate threat posed by Dr. McAdams’s continued teaching or

presence on campus, it appears reasonable to conclude that the suspension and ban-

ishment were designed to address the growing calls for Marquette to take some action.

The next question is whether the University had the authority to take those actions, and

if so, whether it observed the required procedural protections for Dr. McAdams.

The Faculty Statutes are not precise concerning the circumstances under which the

University can order an interim suspension, but it is clear that the University has the

authority under the Statutes to order one. Section 307.03 provides:

In all cases of nonrenewal, suspension, or termination for absolute or discretionary cause

(except resignation), a faculty member’s entitlement to salary and fringe benefits shall

continue, irrespective of any suspension from duties . . . (3) where a formal hearing has been

requested as provided in Section 307.07, until the University has made a final decision

following the report of the hearing . . . . In the discretion of the cognizant appointing au-

thority, the faculty member’s duty assignment may be either continued to a time not be-

yond the time at which his/her salary and benefits terminate, or may be suspended or termi-

nated earlier.110

Under Section 307.03, it is clear that the “cognizant appointing authority”—in this case,

Dean Holz—had the discretion to suspend or terminate Dr. McAdams’s duty assign-

ment at some point earlier than the conclusion of these proceedings. Section 307.08

likewise provides:

So long as the p

20160118 MUFHC Final Report Contested Dismissal Dr John C McAdams

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