Blogging Away Academic Freedom: What is the Standard for Protected Faculty Speech?

Blogging Away Academic Freedom: What is the Standard for Protected Faculty Speech?
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2018
Alexander R. Bilus and Marisa R. Defeo
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2018

Any day now, the Wisconsin Supreme Court will decide whether a private university had the right to sanction a professor for blog-related speech.  Depending on the ruling, the Court’s decision ultimately may give rise to a United States Supreme Court review.  This article delves deeper into the facts and discusses how this case may impact the legal status of expressive activity by faculty.

The Blog Post

Dr. John McAdams, a tenured professor at Marquette University, maintained a personal blog called Marquette Warrior.  The post that sparked this lawsuit related to an October 28, 2014 class taught by a Marquette University graduate student.  The class topic: homosexual marriage.  Dr. McAdams' blog post not only criticized the grad student’s views, but included the student’s name and a clickable link to her contact information and personal website.  Following the blog post, the grad student received derogatory and violently-worded emails.

The University responded by temporarily relieving Dr. McAdams "of all teaching duties and all other faculty activities," albeit with continued salary and benefits.  The University then banned Dr. McAdams from campus during the pendency of disciplinary proceedings, which under the University's policies, entitled Dr. McAdams to a hearing before the University’s Faculty Hearing Committee.

Following a hearing, the Committee split the issues, concluding that although Dr. McAdams' opinions were protected by academic freedom, his act of identifying the graduate student crossed a line. The Committee recommended a one- to two-semester unpaid suspension. The University’s President accepted the suspension recommendation, but increased the sanction to include one more item:  before being reinstated, Dr. McAdams had to write a private statement of apology and admission of wrongdoing.  Dr. McAdams refused, leading to his de facto termination and the resultant lawsuit.

Dr. McAdams' Lawsuit

In 2016, Dr. McAdams filed suit in the Wisconsin Circuit Court, challenging his suspension and effective termination on several grounds including academic freedom, free speech, and free expression.  The trial court found in the University’s favor on cross-motions for summary judgment.  In doing so, it relied on the three items:  the University’s Faculty Handbook, the Faculty Hearing Committee’s report, and the University’s foundational, Jesuit values.  

Academic Freedom

The University’s Faculty Handbook defined three types of academic freedom: (1) full freedom in research and in publication of the results; (2) freedom in the classroom in discussing their subject; and (3) freedom to make extramural statements as a citizen.  In its report, the Faculty Hearing Committee had found the last category – extramural statements – to be a limited right with correlative responsibilities and obligations.  Specifically, the trial court found that the Committee considered "the balance between the rights and responsibilities inherent in academic freedom." As a result, the trial court determined that academic freedom gives a professor the right to express his views in speeches, writings and on the internet, so long as he does not infringe on the rights of others.

Free Speech & Free Expression

As with academic freedom, the trial court emphasized that freedom of speech and expression are not absolute, and cannot infringe on the rights of others.  In that way, the trial court agreed with the Committee and held that although the blog post itself was not unlawful, including the graduate student-instructor’s name and contact information, which resulted in substantial harm to her, was where Dr. McAdams crossed the line.  In reaching this outcome, the trial court also found that Dr. McAdams’ actions were in direct conflict with the University’s foundational value as a Jesuit university of cura personalis – care for the whole person.  Accordingly, the trial court granted summary judgment to the University on this cause of action as well.

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Dr. McAdams appealed.  The Wisconsin Supreme Court agreed to bypass the Court of Appeals and to hear the case immediately.  Oral argument was held on April 19, 2018 and an opinion is expected shortly.

The Importance of McAdams v. Marquette University

If the Wisconsin Supreme Court affirms the trial court’s decision, it could significantly impact the landscape for protected speech by faculty members.  And because the United States Supreme Court has reserved judgment on how freedom of speech applies to academia – see Garcetti v. Ceballos discussion below - this case could ultimately result in Supreme Court review.  

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employees have no First Amendment protection for statements they make in the course of their professional duties.  In that case, a deputy district attorney brought concerns to his supervisors about misstatements made in a search warrant affidavit.  When his supervisors decided to proceed with the case, he spoke to the defense attorneys, and defense counsel subpoenaed him to testify.  In response, his supervisors in the district attorney’s office retaliated against him, denying him a promotion and transferring him.  He sued, losing in the district court but prevailing on appeal to the Ninth Circuit Court of Appeals.  The case then went to the Supreme Court, which reversed the decision of the Ninth Circuit, concluding that public employees are not protected when they speak "pursuant to their official duties." Importantly however, the majority opinion expressly stated that because "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence, ... [we] do not[] decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."  Courts – and schools – have been left to grapple with this gap in the Supreme Court's jurisprudence.

So far at least two circuit courts have stepped back from applying Garcetti in the context of academia.  Specifically, the United States Courts of Appeal for the Fourth and Ninth Circuit have held that the Garcetti analysis – that speech made pursuant to a government employee’s official duties does not qualify for First Amendment protection – was improper when considering the academic work of a public university faculty member.  Although Marquette is a private university, the outcome in McAdams’ case could be an important step in the further development of the jurisprudence of academic freedom.  

This case has the potential to create an actual framework for addressing faculty speech -- and specifically, faculty speech on a private social media account, an ever-growing and never easy issue.  Just one recent example involved the California professor whose private tweets expressed pleasure at the death of former first lady Barbara Bush.  Although California State University at Fresno determined that the tweets were protected speech and no punishment ensued, there was considerable outrage in the university community, including nearly 100,000 signatures to an online petition to fire the professor and actual threats made in advance of an appearance event.  

The Marquette framework could aid and support schools (and courts) responding to such issues.  Because of this, all university and college counsel should pay attention to the Wisconsin Supreme Court’s decision once it is issued.