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Earlier this month, Marquette University professor John McAdams was suspended from his teaching duties, apparently for a November 9 criticizing a class instructor. The Wisconsin Institute for Law & Liberty (WILL), representing McAdams, (PDF) on December 22 arguing that the suspension violates Marquette’s explicit promises to its professors and must be rescinded.

As FIREreported in November, McAdams’s blog post alleged that a graduate student teaching an ethics class told her students that the issue of gay rights was settled and that it would not be discussed in class. The instructor was, in fact, recorded telling a student after class that voicing an opinion against same-sex marriage is “not appropriate” because “it would be offensive” to gay students. Yet a university that claims that “the spirit of inquiry” and “conflicts of ideas” are “essential,” as Marquette does in official policy, should not be precluding social and political discussion on the theory that one half of the debate is simply too offensive. Not everyone shared McAdams’s concern about open discourse, however, and by some as an attack on the ethics instructor.

Unfortunately, Marquette appears to be just as comfortable disregarding principles of due process as it is abandoning its stated commitment to free expression. In a letter that McAdams posted on his blog, Marquette Dean that he was relieved of his faculty duties and was not to interact with members of the Marquette community or visit campus. The letter stated that “[t]he university is continuing to review [his] conduct,” but didn’t specify what conduct merited the suspension or what policy violation McAdams allegedly committed. McAdams says that he emailed Holz asking what he was being charged with and received no answer. Among the materials enclosed with the letter, however, was a copy of the university’s harassment policy. McAdams’s only guess is that Marquette plans on arguing that his blog post violates this policy, despite the fact that his writing is well within the vast range of speech that would be constitutionally protected in society at large (and thus entitled to protection at a private university committed to free speech).

identifies several serious problems with Marquette’s actions against McAdams. First, Marquette’s Faculty Statutes require the university to suspend tenured professors like McAdams , and as to the faculty member’s alleged violation. Holz has declined to give McAdams specific information about the charge or charges against him, even after a direct inquiry on that point.

Marquette’s defense is untenable. , Marquette spokesman Brian Dorrington claimed that McAdams wasn’t suspended, because the university’s “definition of suspension is without pay.” Aside from the fact that the restrictions on McAdams fit any common sense or dictionary definition of “suspension,” WILL notes in its letter that the faculty handbook explicitly provides for and benefits. WILL further writes:

More fundamentally, if Dr. McAdams has not been “suspended,” what has happened to him? The University now says he is “under review”—a status that does not appear anywhere in the Faculty Statutes. While the University certainly ought to be able to investigate allegations against a faculty member, it would no doubt come as a surprise to tenured faculty that they may have their classes summarily cancelled and be banned from campus and from contact with their colleagues without any of the due process that the University has promised them.

Indeed.

Second, the only potential basis for punishment that McAdams can surmise—his controversial blog post—cannot justify punishment consistent with a protecting professors’ “full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.” Punishing a professor for his criticism of another instructor hardly qualifies as allowing “full and free enjoyment” of his free expression.

Dorrington seemed to concede as much, :

Under faculty conduct rules, a professor cannot be relieved of teaching duties for voicing an opinion about whether a potentially controversial offensive subject should be allowed by a TA to be discussed in class. A professor also cannot be relieved of teaching duties for having a viewpoint contrary to the university's position on a moral issue.

There’s no exemption here for administrative action that may not technically be a “suspension.” Holz’s letter said that McAdams was “relieved of all teaching duties”—precisely the outcome that cannot be based on voicing an opinion or holding a particular viewpoint, according to Dorrington.

Despite this, Dorrington suggested that Marquette was within its rights to take actions against McAdams. :

"We want to emphasize that all of our graduate student teaching assistants are students first. As students, they are learning their craft and it is our expectation that they are mentored and supported by our faculty," Dorrington said. "The university has clearly outlined rules of conduct, specifically as they relate to the faculty-student relationship."

Under the General Conduct section of the Employee Handbook, Dorrington said, "the rules state that behaving in an overtly discourteous, abusive or disrespectful manner toward a student is considered a violation of accepted policy and practice. … "

In other words, per Dorrington, even when a student has willingly taken on the duties of a university employee and teacher and thus committed herself to upholding Marquette’s promises to its students, she can shield herself from criticism simply by claiming that it was “disrespectful.” While it is fine for Marquette to encourage professors to support and mentor students, the university cannot place such vague and broad restrictions on faculty speech simply because it is about a student instructor without compromising its commitment to freedom of speech.

WILL and McAdams seem to anticipate further bad faith on Marquette’s part; several paragraphs at the end of the letter are devoted to preempting a number of ways the university could conceivably try to weasel out of granting McAdams the process described in university policies. FIREcan’t blame them.

Check back to The Torch for updates on the case.