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In two previous Torch entries on Professor John McAdams’s fight to keep his tenure at Marquette University, I’ve focused on Marquette’s abuses of McAdams’s due process rights and the subversions of basic free speech principles it has used first to justify his suspension, and then to justify its aim of revoking his tenure.

In this third and final entry McAdams’s case, my focus is on perhaps the most outrageous and dangerous argument Marquette has made to defend its position. , Marquette president Michael R. Lovell argued that the university’s designs against McAdams’s tenure “have everything to do with … guiding values and expectations of conduct toward each other” and “nothing to do” with academic freedom or freedom of speech.

It’s hard to overstate how disingenuous this argument is. How does one claim, after all, that Marquette’s actions have nothing to do with free speech when it is trying to fire McAdams due to the content of his private blog? In Marquette’s case, this rhetorical sleight of hand is achieved through systematically ignoring its own policies, guidance from the (AAUP), and higher education’s most basic ideas about what academic freedom protects.

It’s worth taking a moment to remember what academic freedom protects. One pillar of academic freedom concerns faculty members’ teaching, research, and publication—their core academic duties as professors. Another pillar recognizes the protections of intramural faculty expression, such as statements on academic and administrative matters and participation in shared governance of the university, in the context of one’s faculty role. Finally, there is extramural expression, which is generally removed from faculty members’ academic roles and exercised in their private capacities. Such expression would also include expression in one’s capacity as a public intellectual—as with Noam Chomsky or Niall Ferguson, for example, whose input is frequently sought on a wide range of issues that frequently diverge from their academic fields. Extramural expression takes numerous forms, such as columns or letters to the editor in newspapers and magazines, statements on social media sites like Facebook and Twitter, or, in John McAdams’s case, on his blog, which carries a disclaimer that it is unrelated to his faculty role and does not carry the university’s imprimatur.

Marquette is sticking to the argument that McAdams’s post and the negative reaction that graduate instructor Cheryl Abbate received, including threats and harassment after its publication (which Marquette held McAdams directly responsible for), are so beyond the pale that they render McAdams entirely unfit for teaching without even needing to consider the fundamentals of free speech and academic freedom. This is simply false. While McAdams’s blog entry might be notable for the amount of attention it generated, nothing about it takes it out of the realm of extramural faculty expression, the right to which Marquette repeatedly recognizes in its own policies.

For instance, Marquette’s (adapted from the AAUP’s ) states, “When [a faculty member] speaks or writes as a citizen, he/she should be free from institutional censorship or discipline.” of the university’s Faculty Handbook, concerning suspension or termination for cause, further states:

In no case, however, shall discretionary cause be interpreted so as to impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.

Finally, Faculty Handbook unambiguously states:

Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.

By Marquette’s own standards, there should be no question that McAdams’s Marquette Warrior writings, even as controversial as they proved, are protected by his rights as a faculty member.

It would be bad enough for Marquette to simply deny that academic freedom should play any part in this discussion. Marquette goes further than this, however, by distorting AAUP guidance to justify its incursions on McAdams’s rights. Dean Richard C. Holz, in his letter informing McAdams of his pending termination, quotes two passages from the AAUP’s statement to achieve this end. The first excerpt states that faculty actions “may set examples for understanding, making clear to their students that civility and tolerance are hallmarks of educated men and women,” while the second notes that university administrations and governing boards have a “special duty not only to set an outstanding example of tolerance, but also to challenge boldly and condemn immediately serious breaches of civility.”

Judging by these two decontextualized statements, you might think the AAUP is fine with the chilling effect of speech codes and that it embraces the notion that unfettered expression should take a back seat to vague notions of civility. Yet nothing could be further from the truth. While the AAUP’s guidance cautions faculty to be mindful of how their actions may be interpreted in their leadership roles, the AAUP finds speech codes, and the idea of punishing students or faculty based on the content of their expression, :

But, while we can acknowledge both the weight of these concerns and the thoughtfulness of those persuaded of the need for regulation, rules that ban or punish speech based upon its content cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas -- and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.

Some may seek to defend a distinction between the regulation of the content of speech and the regulation of the manner (or style) of speech. We find this distinction untenable in practice because offensive style or opprobrious phrases may in fact have been chosen precisely for their expressive power.

The AAUP’s statement also cautions:

Proponents of speech codes sometimes reply that the value of emotive language of this type is of such a low order that, on balance, suppression is justified by the harm suffered by those who are directly affected, and by the general damage done to the learning environment. Yet a college or university sets a perilous course if it seeks to differentiate between high-value and low-value speech, or to choose which groups are to be protected by curbing the speech of others. A speech code unavoidably implies an institutional competence to distinguish permissible expression of hateful thought from what is proscribed as thoughtless hate.

Examining the statement in context, it becomes clear that the AAUP’s aspirational value statements are rightly tempered by the statement’s position that achieving such desired outcomes by force is wholly impermissible. What’s more, the statement that universities have a “special duty not only to set an outstanding example of tolerance, but also to challenge boldly and condemn immediately serious breaches of civility” is fully compatible with a university’s requirement to respect the freedoms it promises its students and faculty. Universities are free to take strong stances in defense of their values and to criticize speech or actions that fail to live up to them. But Marquette’s inference that this language confers on it the right, if not the obligation, to terminate a tenured faculty member for protected speech is entirely unmerited. Marquette has simply cherry-picked language from a decidedly anti-speech code statement to justify revoking a professor’s tenure due to the content of his expression.

All this should help us understand why Marquette is so determined to keep the conversation away from free speech and academic freedom. Professor McAdams’s rights are so well-established, and the AAUP’s best practices and Marquette’s own policies so clear and persuasive, that Marquette is in losing territory as soon as the conversation shifts in that direction. Marquette’s rhetoric only establishes further what was clear at the outset: that the fight for McAdams’s tenure is entirely one of free speech and academic freedom, and both are deeply imperiled by its campaign to revoke his tenure.