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Legal Watch: Discipline for Online Statements Finally Hits the Courts

By Aaron Nisenson

Proving once again that legal decisions are often lagging indicators, the courts are only now beginning to address a topic that has been at the forefront of AAUP and faculty concerns for well over a year: the retaliation against faculty members for controversial social-media statements and other extramural speech. Recently, such statements have been publicized (and sometimes misreported) on websites such as the Professor Watchlist and have often subsequently received wider media coverage. Faculty members have been subjected to threats and online harassment, often extreme in scope and tenor. And faculty members have been disciplined or even forced to leave their institutions as a result.

Over the last eighteen months, the AAUP has provided guidance and support to faculty members facing such harassment: in January 2017, we issued FAQs for faculty about discussing the 2016 election in the classroom and responding to intimidation and threats, and that same month we published a statement, Targeted Online Harassment of Faculty, addressing concerns about efforts to intimidate faculty. Since then, the AAUP has issued numerous letters and guides addressing such harassment and has devoted substantial attention to the issue in Academe. (Resources related to the AAUP’s work on fighting the targeted harassment of faculty members are collected online at https://onefacultyoneresistance .org/harassment.)

However, online harassment alone has not given rise to substantial legal claims until recently. One of the first cases to reach the higher courts involves the suspension and ultimate de facto termination of John McAdams, a professor of political science, by Marquette University. As in most such cases, McAdams’s case involves controversial statements—in a blog posting that garnered significant attention, he inveighed against a graduate student instructor for statements she made supporting gay rights. But the controversy is layered: McAdams named the graduate student, who was then subjected to significant online harassment herself; the university convened a faculty hearing committee, which recommended a one- to two-semester suspension, based primarily on the naming and subsequent online harassment of the graduate student; and the president of the university not only imposed the two-semester suspension but also demanded an apology and an admission of wrongdoing as a condition of reinstatement. McAdams’s refusal to apologize and admit wrongdoing led to his de facto termination.

McAdams sued the university, and the trial court dismissed his complaint. He then appealed, and the Wisconsin Supreme Court took the case, bypassing the court of appeals.

The AAUP submitted an amicus brief to the Wisconsin Supreme Court, asserting that the required apology and de facto termination imposed by the president violated McAdams’s right to academic freedom and due process. (The AAUP did not contest the faculty hearing committee’s decision or its recommendation of a suspension.) As the amicus brief explains, “The nature of offering opinions, particularly controversial ones, is that they may prompt vigorous responses, including assertions that the rights of others have been infringed. Views and opinions should be subject to debate, not to limitations based on claims that the expressions of views infringes upon the rights of others.” The brief urges the Wisconsin Supreme Court to adopt AAUP standards of academic freedom that protect faculty from discipline for extramural speech unless the university administration proves that such speech “clearly demonstrates the faculty member’s unfitness to serve, taking into account his entire record as a teacher and scholar.” The brief also argues, “In requiring Dr. McAdams to renounce his blog post as a condition of reinstatement, the administration used the threat of dismissal to force Dr. McAdams to choose between adhering to his protected political views and regaining his tenured position” and thereby violated his academic freedom.

The brief acknowledges that due process was initially accorded to McAdams, with a lengthy hearing before a faculty committee that considered AAUP standards in reaching its recommendation for a suspension. However, the AAUP’s amicus brief argues that Marquette violated McAdams’s due-process rights when the president unilaterally imposed a new penalty by requiring that McAdams write a statement of apology with an admission of wrongdoing as a condition of his reinstatement. This new penalty, imposed in contravention of the faculty hearing committee’s recommended lesser penalty, amounted to a de facto termination.

Aaron Nisenson is senior counsel at the AAUP.

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