Rick Esenberg, president of the Wisconsin Institute for Law & Liberty (WILL), and Marquette University Professor John McAdams spoke with RightWisconsin on Friday regarding the outcome of McAdams v Marquette, the nationally-watched academic freedom case. The Wisconsin Supreme Court ruled 4-2 in McAdams’ favor, meaning Marquette University will be forced to reinstate the professor after indefinitely suspending him in 2014 over a blog post he wrote critical of another instructor on campus.
Esenberg said the case was much bigger than just McAdams getting reinstated at Marquette University.
“As much as we’re all happy that John is back in the classroom,” Esenberg said. “As much as we’re all happy that John got the benefit of the bargain that he made, I think that the reason that people across the country are interested in this case is that it takes this term, ‘academic freedom,’ and it reinforces the fact that this is a robust protection for free speech and open inquiry on campus.”
Esenberg said the court decision can have an impact nationally.
“This case is not binding on courts in other states,” Esenberg said. “It’s not binding on federal courts interpreting the United States Constitution. But it will be persuasive. There are not many cases to address that because most universities don’t try to do what Marquette did, but this was an opportunity to make clear that’s what these concepts mean.”
McAdams agreed, pointing out that the academic freedom clause in his contract is similar to what’s found in the contracts of other instructors.
“The protection I have is pretty much identical to what a lot of private universities that voluntarily contractually promise constitutional rights, first amendment rights to faculty,” McAdams said. “And the protections that state schools get automatically. If Marquette could weasel out of its commitment to me, other schools could weasel out.”
The goal of the case for McAdams has never been about settling. Esenberg said that when McAdams first consulted with WILL about the case, the professor made it clear that getting back in the classroom was the goal.
“When we started this case, and we talked about representing him, he said, ‘You’re not going to try to cut a deal or something, are you?'” Esenberg said. “I said, ‘Not if you don’t want that.'”
“I think that’s part of the miscalculation that Marquette made here,” Esenberg said. “They thought that they could throw money at it.”
McAdams agreed, saying that Marquette has made at least one controversial professor just disappear, possibly with a payout.
“I wasn’t just going to disappear,” McAdams said.
Esenberg said what’s disappointed him about Marquette University’s behavior is that this wasn’t a hard case.
“The fact that every statement that Marquette puts out is full of misleading obfuscations and obscurities…,” Esenberg said.
“…And outright falsehoods,” McAdams added.
“…is an example of that,” Esenberg said. “This was an accurate, a strong but civil, blog post about a matter of great public importance. A graduate instructor, not someone acting in her capacity as a student, but someone Marquette had given the authority over her class, told a student that his opinions would be homophobic and offensive and not tolerated. And that is an example of something that happens too often on our college campuses.”
“John didn’t attack her, he criticized her,” Esenberg said. “He said that’s wrong, and criticized the way the department responded to it and said that’s wrong. That’s all he did. He didn’t ‘dox’ her. He linked to a blog post on which she placed her contact information. He had nothing to do with her getting nasty emails.”
“If you dug around the blog, you could find it,” McAdams said of her contact information. “Of course, you could just Google her.”
While the university announced that it would abide by the decision of the Supreme Court, they also said they would do everything they could to prevent a similar incident. The university also continued to claim falsely that McAdams had posted the instructor’s personal information and Marquette’s attorney, Ralph Weber, even accused McAdams of being, “a cyberbully” in an interview on WTMJ-AM.
Esenberg said he was disappointed in Marquette University’s reaction after the court decision was announced.
“They’re doubling down,” Esenberg said. “And I find that disappointing. They still can’t see what they did wrong and it’s not that hard to see.”
“There’s two things going on with Marquette,” McAdams added. “One is political correctness, just intolerant leftism at the highest levels. The other is bureaucratic pettiness. That is to say, I’m a whistleblower. I’ve put up lots of posts that have embarrassed Marquette by simply reporting what Marquette was doing and what they were thinking that no one outside of Marquette would notice. And, of course, bureaucrats don’t like people that make trouble for organizations.”
Asked about the support Marquette University received from the Metropolitan Milwaukee Association of Commerce (MMAC) in the case, Esenberg noted that the “powers that be” were aligned against his client.
“There were amicus briefs filed against us by Foley & Lardner, Godfrey & Kahn, Michael Best & Friedrich, and the point that MMAC made was quite frankly silly,” Esenberg said. “Of course, private employers have a right to discipline their employees for speech. They have that right until they promise that they won’t. Once they do, once they make a contractual commitment to their employees, they’re obliged to keep it.”
Esenberg said that the university could always decide not to offer academic freedom to its employees.
“So, if Marquette wants the discretion to do whatever it wants to its academic faculty members, all it has to do is withdraw its promise of academic freedom,” Esenberg said. “It would be mistake for it to do that because it would be antithetical to its purpose as a university. No one would take Marquette seriously as a research university anymore and they wouldn’t be able to hire the type of faculty they want. But they could do it if they want to.”