MUFHC Final Report Contested Dismissal DR John C McAdams

Marquette University
University Academic Senate

Faculty Hearing Committee
In the Matter of the Contested Dismissal of

Dr. John C. McAdams
Final Report
January 18, 2016
Contents
EXECUTIVE SUMMARY .......................................................................................................... 1
I.
Introduction ........................................................................................................................... 4
II. Proceedings............................................................................................................................ 7
A. Procedural History............................................................................................................ 7
B. Contentions of the Parties .............................................................................................. 10
1. The University ...........................................................................................................10
2. Dr. McAdams.............................................................................................................13
C. Objections Concerning Pre-Hearing Discovery.......................................................... 17
D. The Universitys Interim Suspension of Dr. McAdams ............................................ 19
III. Charge of the Committee................................................................................................... 30
IV. Findings of Fact ................................................................................................................... 32
A. Background ...................................................................................................................... 33
B. Prior Incidents ................................................................................................................. 35
C. The Oct. 28, 2014 Theory of Ethics Class and Its Immediate Aftermath ................. 42
D. The Students Complaint ............................................................................................... 47
E. Drafting of Dr. McAdamss Nov. 9 Blog Post ............................................................. 51
F. Harm to Ms. Abbate ....................................................................................................... 59
G. Suspension and Initiation of Termination Proceedings ............................................ 62
V. Conclusions ......................................................................................................................... 65
A. Discretionary Cause ........................................................................................................ 66
1. The Balance Between Freedoms and Responsibilities Inherent in
Academic Freedom ...................................................................................................68
2. The Standards of Conduct Applicable in This Case ............................................71
a. Conduct Not Leading to Discipline................................................................. 72
b. Conduct Potentially Leading to Discipline .................................................... 74
In re Contested Dismissal of Dr. John C. McAdams

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ii
3. Dr. McAdamss Violation of the Applicable Standards of Conduct .................81

a. Dr. McAdamss Reckless and Irresponsible Conduct .................................. 82
b. Substantial Harm ............................................................................................... 87
c. Foreseeability ...................................................................................................... 89
d. Avoidability ........................................................................................................ 92
e. Justification ......................................................................................................... 93
4. Mitigating Factors .....................................................................................................95
5. Impairment of Value...............................................................................................101
6. Conclusion Concerning Discretionary Cause .....................................................105
B. Limitations ..................................................................................................................... 108
1. Academic Freedom .................................................................................................108
2. First Amendment ....................................................................................................117
C. Conclusion ..................................................................................................................... 120
VI. Recommendation .............................................................................................................. 123
Appendix A List of Abbreviations ........................................................................................ 124
Appendix B Docket .................................................................................................................. 126
Appendix C List of Documents in the Record ..................................................................... 128
Appendix D FHC Pre-Hearing Letters ................................................................................. 138
Appendix E Bibliography ....................................................................................................... 156
EXECUTIVE SUMMARY
In this proceeding before the Faculty Hearing Committee, the University seeks to establish that it has discretionary cause to dismiss Dr. John C. McAdams, a tenured Associate Professor in the Department of Political Science. The University initiated these
proceedings after Dr. McAdams published a blog post on his personal blog, Marquette
Warrior, on November 9, 2014, that discussed events surrounding an October 28, 2014,
session of a Theory of Ethics class taught by a graduate student instructor in the Department of Philosophy, Ms. Cheryl Abbate. Ms. Abbate was subsequently the target of
a torrent of abusive communications that led her to fear for her safety and ultimately to
leave Marquette in the middle of the academic year. Dr. McAdams was suspended with
pay and banished from campus on December 16, 2014, and was subsequently notified
of the Universitys intent to terminate his employment by letter dated January 30, 2015.
A substantial record has been compiled during these proceedings, which the Committee has reviewed. We have also, by necessity, resolved several questions concerning
the proper interpretation of Chapters 306 and 307 of the Faculty Statutes, which are
being applied in this proceeding to a contested dismissal for the first time. That exercise
has at times been made more difficult by language in the statutes that is convoluted,
heavily qualified, or unclear. Based on our review of the record, our interpretation of
the statutes, and the findings of fact we make herein, and after due deliberation, the
Committee reaches the following conclusions.
The Committee concludes that the interim suspension of Dr. McAdams pending the
outcome of this proceeding, imposed by the University with no faculty review and in
the absence of any viable threat posed by the continuation of his job duties, was an
abuse of the Universitys discretion granted under the Faculty Statutes. The purpose of
the suspension appears not to have been to prevent immediate harm to Dr. McAdams
or members of the University community, but rather to impose a summary sanction on
Dr. McAdams to satisfy the demands of external and internal audiences. This is an
improper use of the interim suspension power that violated Dr. McAdamss right to
due process under the Faculty Statutes.
The Committee also concludes that the University has established sufficient discretionary cause under the Faculty Statutes to suspend Dr. McAdams without pay, but not
sufficient cause to dismiss him. That conclusion has several parts to it. First, the Com-

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mittee concludes that Dr. McAdamss conduct with respect to his November 9, 2014
blog post violated his obligation to fellow members of the Marquette community by
recklessly causing harm to Ms. Abbate, even though that harm was caused indirectly.
The Committee concludes that the harm to Ms. Abbate was substantial, foreseeable,
easily avoidable, and not justifiable. The Committee therefore concludes that the University has established by clear and convincing evidence that Dr. McAdamss conduct
meets the first half of a showing of discretionary cause under Faculty Statutes 306.03:
his conduct clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties.
Second, the Committee concludes that the University has demonstrated that Dr. McAdamss conduct was seriously irresponsible, and that his demonstrated failure to
recognize his essential obligations to fellow members of the Marquette community, and
to conform his behavior accordingly, will substantially impair his fitness to fulfill his
responsibilities as a professor. The Committee therefore concludes that the University
has established by clear and convincing evidence the second half of a showing of discretionary cause under Faculty Statutes 306.03: that by his conduct, Dr. McAdamss value
will probably be substantially impaired.
However, the Committee also concludes that there are two mitigating circumstances
in this case that preclude a finding that sufficient cause has been established to support
a penalty of dismissal from the faculty. First, portions of Dr. McAdamss November 9
blog post did address a legitimate subject of intramural concern, namely the handling of
his advisees complaint that his advisee had been treated unfairly in terms of what
views he could assert in Ms. Abbates class. Second, despite multiple prior conflicts
with professors, administrators, and students over his extramural and campus communications, Dr. McAdams has never been formally reprimanded, or even warned that his
behavior was approaching a boundary that could lead to dismissal. The Committee
therefore concludes that the University has established neither a sufficiently egregious
failure to meet professional standards nor a sufficiently grave lack of fitness to justify
the sanction of dismissal. Instead, the Committee concludes that only a lesser penalty
than dismissal is warranted.
The Committee therefore recommends that Dr. McAdams be suspended, without
pay but with benefits, for a period of no less than one but no more than two semesters.

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The Committee concludes that our determination that discretionary cause exists will not
impair the full and free enjoyment of legitimate personal or academic freedoms of
thought, doctrine, discourse, association, advocacy, or action, as is prohibited under
Faculty Statutes, because those freedoms must be balanced against the essential obligations a university professor has, and as the Committee has already determined, those
essential obligations have been violated in this case. Likewise, the Committee concludes
that Faculty Statutes 307.07 2, which bars dismissal from being used to restrain
faculty members in their exercise of academic freedom or other rights guaranteed them
by the United States Constitution, does not prevent imposition of a sanction in this
case. The Committee concludes that the University is not using the charges raised in
this proceeding as a pretext to punish Dr. McAdams for his protected activities, and
thus 307.07 2 is not applicable.
Finally, the Committee expresses its hope and recommendation that means be found
to release this report, with appropriate redactions, to the Marquette community. Not
only is the case itself of intense interest and concern to Marquette, but also the Committee has expended considerable time and effort in mapping the boundaries of the obligations and liberties all Marquette faculty members have under the Faculty Statutes and
under norms of academic freedom. Furthermore, the Committee has also had to resolve
difficult questions of how to interpret and apply the statutes governing procedures in
cases such as this one, determinations that a future Faculty Hearing Committee would
likely find invaluable.
I.
INTRODUCTION
This is a complex case. It involves a conflict among three freedoms: the freedom of
students to express their views in class, the freedom of teachers to interact with their
students and manage class discussions without undue interference, and the freedom of
professors to criticize their institutions and offer their opinions to the public. It raises
difficult questions of the obligations faculty members owe to their colleagues in a social
and media environment where ordinary conversations can be disseminated far from
their social and interpersonal context, attracting spiraling abuse from enraged strangers.
It involves a factual record that spans two decades of interpersonal conflicts, a charge
that focuses primarily on one spiraling episode, and a challenging debate over the responsibility faculty members may have for significant harm that they only indirectly
cause. It arises in the midst of a heated debate on college campuses and among the
broader public over the competing responsibilities faculty, administrators, and students
have to protect one another from being excluded from the university community, and
also to preserve the university as a forum for free and open debate. And the stakes are
high: an undergraduate believes his views were suppressed, a graduate student has
been driven from campus, and a tenured faculty member has been barred from campus
and is faced with the loss of his job.
The issues at the heart of this matter are a mix of longstanding disputes and novel
contexts. The story of academic freedom over the last century is the story of mapping
the boundary between the freedom necessary to encourage scholarly inquiry and the
responsibilities faculty members owe to their communities, institutions, colleagues, and
students. For much of that history, the core disputes concerned efforts by administrations and outside observers to police what was said in the classroom, and efforts to
sanction professors for their extramural activities, including public criticism of their
own institutions. Those conflicts have ebbed as the boundary between faculty freedoms
and faculty responsibilities has increasingly moved toward the freedom end of the
spectrum since 1915, to the point where today disputes are rare.1 But need for balance
still exists; faculty members still have responsibilities, and the line between rights and
Disciplinary actions against professors are regularly reported in the news, but today there are over a
million faculty members employed at four-year colleges and universities in United States. Bureau of
Labor Statistics, Occupational Employment and Wages, May 2014: 25-0000 Education, Training, and Library
Occupations (Major Group), March 25, 2015, http://www.bls.gov/oes/current/oes250000.htm (subtracting
graduate assistants). In 1915 there were perhaps ten thousand faculty members.
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responsibilities is no easier to draw for having been moved. Universities have sought to
become more inclusive at the same time that First Amendment law has become more
permissive. Technological advances have enabled audio or video monitoring of the
classroom to an extent never before possible; and ordinary individuals now have the
power to instantaneously distribute communications worldwide, with little preparation
or expense. The political environment on college campuses and in the nation at large
has experienced a fundamental transformation within the last generation that heightens
anger at perceived offenses.2 Amid all this, faculty members have, at base, some inescapable responsibility to other members of the university community, not to be civil,
or nice, or uncritical, but to avoid recklessly causing them harm, even indirectly.3
The Committee finds that Dr. McAdams violated that obligation in this case, on the
facts contained in the record before us. But as we mentioned at the outset, this is a difficult case, and readers are cautioned that the conclusions we set forth below are carefully
worded to avoid both excessive severity and excessive leniency. The Committee is
aware that a number of observers, perhaps even most, believe this to be a simple case.
Many observers appear to believe that it is painfully obvious that Dr. McAdams should
be absolved of all wrongdoing, as he is accused only of writing a single, critical blog
post that is clearly protected by academic freedom, and that any failure to admit this is
due either to malice or myopia.4 Other observers appear to believe that it is equally
obvious that Dr. McAdams should be terminated, arguing that he attacked a female
Ezra Klein and Alvin Chang, Political Identity Is Fair Game for Hatred: How Republicans and
Democrats Discriminate, Vox, December 7, 2015, http://www.vox.com/2015/12/7/9790764/partisandiscrimination.
3 Some faculty members and administrators may believe that, in fact, there is an enforceable responsibility to be civil, or uncritical, under the Universitys harassment policy, the current version of which can
be found at http://www.marquette.edu/osd/policies/harassment.shtml. Despite some initial indications
otherwise, violation of the harassment policy is not part of the Universitys charge against Dr. McAdams
and the Committee does not reach any conclusions as to whether Dr. McAdamss conduct is consistent or
inconsistent with it. The Committee does have concerns that some members of the University community
may be giving the harassment policy an overly broad interpretation that may be inconsistent with norms
of academic freedom, discussed further below, p. 92.
4 See, e.g., Ex. 105; Ex. 106; Conor Friedersdorf, Stripping a Professor of Tenure Over a Blog Post, Atlantic, February 9, 2015. All abbreviations are identified in Appendix A to this report; a list of all exhibits
entered into the record is set forth below at Appendix C.
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grad student on his blog as part of a campaign against gay rights, and that failure to
take action can be due only to either timidity or insincere concerns about free speech.5
The Committee unanimously and strongly disagrees with both of these points of
view. This case appears simple only if one ignores one side or the other of the fundamental tension between rights and responsibilities that is inherent in the notion of academic freedom. Absolution may seem obvious only if one ignores the obligations professors have to their students or colleagues arising from their positions as faculty
members and members of the academic community. It is a mistake to regard faculty
speech as unbounded except by the faculty members own conscience; membership in a
university community comes with those responsibilities that are essential to maintaining that community as a space where all are free to speak, inquire, and teach as they see
fit. Discipline may seem obvious only if one concludes that academic freedom does not
apply when someones views are distasteful or out of the mainstream. But freedom to
express ones views, even critical views, is a foundational principle of modern universities, and it is most needed when a faculty members views are out of the mainstream
either too retrograde or too avant-garde. Freedom of thought, as Justice Oliver Wendell
Holmes Jr. once wrote, is not free thought for those who agree with us but freedom for
the thought that we hate.6
Our report proceeds as follows. We first, in Part II, set out the proceedings in this
matter before the Faculty Hearing Committee, from the time that action was first taken
against Dr. McAdams until the issuance of this report. During those proceedings, the
Committee made some procedural rulings on matters raised by the parties; and during
that time, Dr. McAdams has been suspended from his duties as a faculty member, on
which the Committee has some comment. Next, in Part III, we describe the charge of the
Committee contained in the UAS Statutes and Faculty Statutes as we understand it.
See, e.g., Ex. 15 at MU-188. See also the comments appended to John Protevi, Open Letter in Support
of Cheryl Abbate, John Protevis Blog, November 18, 2014, http://proteviblog.typepad.com/protevi/2014/
11/open-letter-in-support-of-cheryl-abbate.html; and Justin Weinberg, Marquette Seeks to Fire McAdams, Daily Nous (blog), February 5, 2015, http://dailynous.com/2015/02/05/marquette-seeks-to-firemcadams/. While neither blog post is part of the record, both parties have repeatedly invited the Committee to consider outside opinions voiced in the Daily Nous, John Protevis Blog, the Atlantic magazine (cited
above), and other sources. See Hrg Tr. vol. 1, 13:2114:17 (University opening statement); McAdams Br.
(Doc. 11) at 2.
6 United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting). The same principle, of
course, applies to students, at least when their speech is germane and timely.
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Then in Part IV we issue our findings of fact, followed in Part V by our conclusions. Our
conclusions have several parts to them. We first address in Section V.A whether the
University has established a prima facie case of discretionary cause under Faculty Statutes (FS) 306.03. That includes a discussion of the applicable standards of conduct,
Subsections V.A.12, followed by a determination of whether Dr. McAdamss conduct
met those standards, Subsections V.A.34, and whether any failures substantially impaired his value, Subsection V.A.5. Then we proceed in Section V.B to consider whether
the prima facie case is abrogated by exceptions for academic freedom, considered in
Subsection V.B.1, or constitutional or other rights, considered in Subsection V.B.2. Finally, we offer our ultimate recommendation in Part VI.
The Statutes of the University Academic Senate (UAS), Article 4, Section 1.01.1, require that all [d]eliberations, records or minutes of the Faculty Hearing Committee
regarding grievances presented to it in due course as contemplated by the Faculty
Handbook, as well as any information presented to the Committee[ ] in conjunction
with those issues, will remain confidential with respect to third parties . . . . The Committee does not take a position on whether this report itself is a record[ ] . . . of the
Faculty Hearing Committee, although it certainly contains information presented to
the Committee[ ]. Nevertheless, given the importance of the issues discussed herein,
the attention this matter has already received on campus and around the country, and
the fact that this proceeding is possibly the first of its kind under these procedures, the
Committee believes that its findings and conclusions should be disseminated to the
Marquette community in at least redacted form, and the Committee recommends whatever changes to the UAS Statutes may be necessary to accomplish that. It would be
particularly important that the recommendation and the reasons for it that we express
herein receive a wider airing if the University ultimately decides to take a course different from our recommendation.
II. PROCEEDINGS
We begin with a summary of the proceedings that have brought us to the present
report.
A. Procedural History
On January 30, 2015, this matter formally commenced when Dean Richard C. Holz
of the Klingler College of Arts & Sciences sent Dr. John C. McAdams a letter informing

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Dr. McAdams that the University had concluded that his conduct clearly and substantially fails to meet the standards of personal and professional excellence that generally
characterizes University faculties and that as a result, your value to this academic
institution is substantially impaired.7 The letter advised Dr. McAdams that the University was therefore commencing the process to revoke your tenure and to dismiss you
from the faculty. This letter constituted the notice of termination required under FS
307.03. (There were earlier communications between Dean Holz and Dr. McAdams;
those are discussed below. However, it is uncontested that the Jan. 30 letter was the
notice of termination.) Dr. McAdams, acting through counsel, objected by letter dated
February 6, 2015.8 The parties may then have engaged in the negotiation provided under FS 307.05, or the mediation provided under FS 307.06; the FHC has no
knowledge or record of what occurred between the parties during that time.
On June 30, 2015, Dean Richard C. Holz sent to Dr. David Clark, the chair of the
FHC for the 2014-15 academic year, a Notice of Pending Dispute as required under FS
307.07 4. That notice triggered the FHCs involvement in this matter. FS 307.07 5
provides that the committee will schedule a hearing within 90 days of the Notice, and
must provide its written decision within 90 days of the end of the hearing.
This timetable immediately raised administrative difficulties for the FHC, for three
reasons. First, at any given time several members were unavailable due to summer
travel plans. (The members of the FHC had only a few days advance warning of when
the Notice might be coming.) Second, as of June 30 only forty-five days remained until
three members terms expired, including that of the Chair, Dr. Clark. Third, three members of the committee recused themselves under FS 307.07 8, leaving the committee
without a quorum until alternates could be named.9
In light of these difficulties, on July 7 the remaining four members of the committee
unanimously recommended to Dr. Cheryl Maranto, Chair of the Faculty Senate, that the
Ex. 2.
Ex. 28; see FS 307.04.
9 UAS Stat. art. 4 1.01.1 requires the chair of the FHC to consult with the UAS chair and vice chair to
appoint replacements only in cases where five members cannot serve regarding a given grievance due
to recusal, sabbatical, or other reasons(presumably meaning that fewer than five members are available
to serve), which implies that when the committee has five or more members available, there is no such
need to appoint replacements.
7
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matter be transferred immediately to the 2015-16 FHC for its consideration, including
by the three members-elect selected in the April UAS elections. Chair Maranto acceded
in that request and proceeded to convene the 2015-16 FHC to hear the case. One of the
newly elected members of the 2015-16 FHC decided to recuse herself, and two of the
continuing members of the committee had previously recused themselves, leaving the
FHC again with four elected non-recused members. Alternates were therefore appointed to the Committee by Chair Maranto from members of prior Faculty Hearing Committees and from the University Promotion & Tenure Committee, in order of seniority.10
The 2015-16 FHC as constituted proceeded to hold meetings to consider this matter
on August 4 and August 13. At its August 4 meeting, the FHC elected a chair and vicechair, as required by FS 307.07 7. Prof. Bruce Boyden was elected interim chair and
Dr. Stephen Merrill was elected interim vice-chair.11 By letter dated August 14, the FHC
formally notified the parties of the dates of the hearings set in this matter, and disclosed
the prior involvement of two members in events that had been placed in the record:
Dr. John Paulys activities as Provost in an incident involving Dr. McAdams in 2011,
and Dr. Lynn Turners signature on an open letter written by eight department chairs
and published in the Marquette Tribune that was critical of Dr. McAdams and supportive of Ms. Cheryl Abbate.12 By letter dated August 24, 2015, counsel for Dr. McAdams
requested the recusal of both Dr. Pauly and Dr. Turner. Dr. Pauly recused himself from
all further proceedings in this case on September 3; the FHC unanimously rejected the
motion to recuse Dr. Turner for reasons explained at length in a letter dated September
16, 2015, to the parties.13
The recusal of Dr. Pauly left the FHC again short of its full complement of members,
and in an abundance of caution (as well as to avoid the possibility of a tie), another
alternate, Dr. Andrew Dentino, was selected from the University Promotion & Tenure
FS 307.07 8; Minutes of the Faculty Council (Mar. 23, 2015).

The positions have been designated interim due to the fact that a quorum of elected members of
the 2015-16 FHC has not yet met to confirm the selection of Prof. Boyden and Dr. Merrill.
12 The letter is in the record at Ex. 15 at MU-197204.
13 Bruce E. Boyden to Ralph Weber, Cindy Bauer, and Richard Esenberg, Sept. 16, 2015, Doc. 20: 3-5
(included in App. D below). Items entered into the Committees docketwhich includes correspondence,
minutes, and other documents circulated to the Committee for its considerationare set forth in Appendix B.
10
11
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Committee to fill Dr. Paulys place. The FHC met twice more before the hearing, once
with Dr. Dentino present.
The hearing was held on four consecutive days, from Monday, September 21 to
Thursday, September 24. Eight witnesses appeared before the Committee, five called by
the University, two called by Dr. McAdams, and one by the FHC itself. The Committee
also received sixty exhibits containing 734 pages of material and two recordings, including a number of exhibits placed into the record during the hearing itself.
Subsequent to the hearing, the Committee met to deliberate seven times. At its first
post-hearing meeting, every member confirmed pursuant to FS 307.07 8 that he or
she had reviewed all testimony and exhibits received during any period in which that
member was absent. The committee met to deliberate as a whole three times, then with
one member absent twice (in each case a different member), then as a whole one more
time, and then a final meeting in January with one member absent. Although the Faculty Statutes provide that the FHCs findings of fact and conclusions shall issue . . . not
more than ninety . . . days following termination of the proceedings, the length of the
Committees deliberations, the complexity of the report, and the dispersal of Committee
members for the holiday break made it impossible to meet that deadline, which fell on
December 23. This report ultimately issued 116 days after termination of the hearing.
B. Contentions of the Parties
1.
The University
The University14 asserts that Dr. McAdams violated several of his obligations as a
professor, giving rise to discretionary cause justifying termination of his employment.15
For the content of those obligations, the University looks to Marquettes definition of
academic freedom, which in its preamble provides that:
As proper to the scholar-teacher, academic freedom is grounded on competence and integrity. When scholar-teachers carry on their academic lives in educational institutions,
Given norms of shared governance, in a very real sense the University consists of the entire Marquette community: the administration, the faculty, staff, and students. But just as in a court proceeding
the United States is deemed to be represented by government attorneys, for purposes of this report
the University refers to positions taken by Marquette University administrators and their counsel.
15 The grounds are set forth in the letter of Dean Holz to Dr. McAdams, January 30, 2015 (Ex. 2), and in
the letter from Mr. Ralph A. Weber to Prof. Bruce E. Boyden, August 24, 2015 (Doc. 6).
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integrity requires both respect for the objectives of the institution in which they choose to
carry on their academic lives and attention to the task of re-evaluating these objectives as
a necessary condition of living growth in human institutions. 16
The definition then proceeds to lay out three varieties of academic freedom: freedom of
research, freedom in the classroom, and freedom to make extramural statements as a
citizen.17 The last of these freedoms is subject to certain conditions:
When he/she speaks or writes as a citizen, he/she should be free from institutional censorship or discipline, but his/her special position in the civil community imposes special
obligations. As a man/woman of learning and an educational officer, he/she should remember that the public may judge his/her profession and institution by his/her utterances. Hence, he/she should at all times be accurate, should exercise appropriate restraint,
should show respect for the opinions of others and should make every effort to indicate
that he/she is not an institutional spokesperson.18
The University maintains that these limitations on the protection for extramural statements are, in fact, affirmative obligations that professors must respect.19 Assuming that
to be the case, the University argues that Dr. McAdams has violated his obligations of
accuracy, appropriate restraint, respect for the opinions of others and integrity.20
The University has also asserted that Dr. McAdams has violated three of Marquettes
Guiding Values:
Pledg[ing] personal and holistic development of students as our primary institutional vocation;
Pursu[ing] academic excellence and educat[ing] students who are men and women
for and with others throughout the world; . . . [and]
Nurtur[ing] an inclusive, diverse community that fosters new opportunities, partnerships, collaboration and vigorous yet respectful debate.
Marquette University Handbook for Full-Time Faculty, Part III.C, August 27, 2013, 45, http://www.marquette.edu/provost/_includes/documents/FacultyhandbookupdatedOctober102315numbered.pdf (hereafter Faculty Handbook).
17 Ibid.
18 Ibid. This provision is essentially identical to the equivalent provision in the AAUPs 1940 Statement
of Principles on Academic Freedom and Tenure, With 1970 Interpretive Comments, reprinted in Policy
Documents and Reports, 11th ed. (Baltimore: Johns Hopkins, 2015), 14.
19 Whether the definition of academic freedom can be read in this manner is addressed below at p. 60.
20 Doc. 6 at 2.
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The University concludes that Dr. McAdamss failure to meet these obligations constitutes serious instances of dishonorable, irresponsible and incompetent conduct
that amount to unprofessional and irresponsible conduct and clearly, convincingly
and substantially has impaired [his] value, justifying termination.21
The University cites five ways in which Dr. McAdamss conduct has failed to meet
the foregoing obligations. First, the University argues that Dr. McAdamss Nov. 9, 2014
blog post was materially false and misleading in four aspects: it wrongly described
[Ms. Abbate] as shutting down a class debate about gay rights, when there was no
such debate; it omitted the fact that the very objection to gay marriage . . . that the
student said he had wanted to make was raised and dealt with in the very next class; it
falsely stated that the Philosophy Department pretty much blew off the students
complaint; and it falsely implied that the student dropped the class due to (1) pressure
from Ms. Abbate and (2) a failure to get vindication from University officials who
hold the same intolerant views as Abbate, when in fact he dropped due to his grade
standing.22
Second, the University argues that Dr. McAdams failed to exercise[ ] due care and
standards of professional responsibility when he posted his student advisees complaint about Ms. Abbate without any further investigation.23 Specifically, the University
contends that:
Dr. McAdams failed to meet his obligations when he posted a story on the Internet
(1) without speaking with Ms. Abbate or getting her permission to use her name;
(2) without contacting Drs. Snow or Luft (who had met with the student; in Dr. Snows
instance, twice); (3) without contacting anyone in the College of Arts & Sciences to get
their perspective or express his concerns; [and] (4) without contacting anyone in the
Provosts Office to raise any concerns he believed had been ignored at the Department
and College level . . . .24
Third, the University claims that Dr. McAdams wrongfully and unnecessarily used
Ms. Abbates name in his Nov. 9 blog post. He could have, the University argued,
made all the very same points he wanted to make (accurate or not) without intentionDoc. 6 at 2; Ex. 2 at MU-015, MU-014.
Doc. 6 at 2-3; see also Ex. 2 at MU-003004
23 Ex. 2 at MU-003.
24 Doc. 6 at 6; see also Ex. 2 at MU-003.
21
22
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ally exposing Ms. Abbate to the abuse and infamy that followed.25 Fourth, and relatedly, the University argues that Dr. McAdams recklessly us[ed] his power and perceived
invulnerability to shame, humiliate and bring public scorn down upon a graduate student instructor via an intentionally misleading [I]nternet story. Dr. McAdams promoted
his own agenda while ignoring the impact on Ms. Abbates life and career, directly
contrary to Marquette Universitys principles.26
Finally, the University claims that Dr. McAdamss conduct has contributed to a culture of intolerance that intimidates colleagues and threatens the practice of academic
freedom, often target[ing] women and those in a lower position of power in academic
standing at Marquette than yourself.27 Specifically, the University alleged that
Dr. McAdamss conduct creates fear in [his] colleagues and students that their actions
and words will, at [his] unilateral discretion, be put on the Internet in a distorted fashion, thus undermining the very freedoms of teaching and expression that [he] vehemently purport[s] to promote.28
For these failings, the University asserts, termination is the only appropriate penalty.
Any sanction other than removal from the Marquette Faculty would be contrary to the
Faculty Statutes and the important values those Statutes seek to preserve.29
2.
Dr. McAdams
Dr. McAdams argues that the University is attempting to terminate [him] for blogging, despite the fact that [t]he post in question was not falseit was literally true in
all material respectsand it did not use intemperate or hateful language, and despite
the fact that the position taken by the postthat opposition to same sex marriage
ought not to be dismissed as homophobic or offensiveis hardly out of bounds in civil
society, much less at a Catholic university.30 Dr. McAdams argues that this is so unusual that it suggests that the Administrations real motives are to fire someone who
Doc. 6 at 4. Based upon [his] years of Internet postings, [Dr. McAdams] knew or should have known
that [his] Internet story would result in vulgar, vile, and threatening communications to Ms. Abbate.
Ex. 2 at MU-014.
26 Doc. 6 at 5; see also Ex. 2 at MU-014.
27 Ex. 2 at MU-014.
28 Ex. 2 at MU-015.
29 Doc. 6 at 7.
30 McAdams Br. (Doc. 11) at 1.
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has regularly taken positions contrary to majority sentiment on campus and has been
highly critical of certain faculty colleagues and many in positions of authority in the
University, including the President, Provost, Deans, and department chairs (including
some of the very people who have his future at the university in their hands).31 Specifically, Dr. McAdams suggests that this proceeding is retaliation for his having been a
critic of a set of views referred to by some as political correctness and having pointed out the tension between certain positions taken by the University and its Catholic
identity.32 If the University presses forward, Dr. McAdams promises, Marquette will
become ground zero in the battle over freedom of expression in academia and will be
the poster child for political correctness on Americas campuses.33
Dr. McAdams notes that the definition of discretionary cause has an absolute exception to it: even behavior that clearly and substantially falls below the amorphous
standard of excellence and that substantially impairs the faculty members value cannot be the basis for termination if doing so would infringe on McAdamss academic freedom.34
Academic freedom, Dr. McAdams asserts, is especially important for faculty who
express unpopular ideas.35 Dr. McAdams argues that his criticism of Ms. Abbate was
a reasoned critique of another instructor, tying this specific instance into a larger societal commentary on what he views as a dangerous tendency to shut down the speech of
dissenters rather than engage them.36 That sort of criticism, Dr. McAdams argues, is
protected under academic freedom.37
Dr. McAdams also cites FS 307.07 2 in his defense, which provides that [d]ismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.38 Dr. McAdams interprets this provision as meaning that the Marquette Administration may not
terminate Professor McAdams in a way that would violate his First Amendment rights
Doc. 11 at 1.
Doc. 11 at 1-2.
33 Doc. 11 at 1, 3.
34 Doc. 11 at 4.
35 Doc. 11 at 5.
36 Doc. 11 at 10.
37 Doc. 11 at 10.
38 Doc. 11 at 4.
31
32

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of free speech and academic freedom, were he a professor at a public university.39

Under that standard, Dr. McAdams argues, his speech is protected if he was not speaking as part of his job duties, the subject of the speech was a matter of public concern,
and the speech in question is true in all material respects or made without knowledge
of or in reckless disregard of its truth or falsity.40 According to Dr. McAdams, he meets
all three prongs of this test. His role as citizen reporter on his blog was not required,
directed, or even suggested by his employer. In fact, the Administration has made it
quite clear they would prefer that he not blog. And, he argues, his Nov. 9th blog post
was on a matter of public concern, [a]s demonstrated by the national interest in his
story.41
Furthermore, Dr. McAdams argues, his post was factually accurate. Dr. McAdams
offers several rebuttals to the Universitys allegations: Abbate herself concedes that she
said she would not entertain a discussion of gay rights in connection with her class on
John Rawlss equal liberty principle; Abbate suggested the [s]tudent drop the class;
the Student complained to [the] Administration, [which] did not resolve the issue to
the students satisfaction; and Ms. Abbates discussion of the topic in the following
class focused only on the alleged flaws in studies of children, not on whether it was
permissible to oppose same-sex marriage in class.42 And with respect to his statement in
the blog post that Abbate then invited the student to drop the class. Which the student
is doing, Dr. McAdams argues that both statements are true, and argued in his prehearing brief that [t]he Student told McAdams that the catalyst for dropping the class
was Abbates bullying.43 Dr. McAdams maintains that he was unaware of the students
grade.44
Dr. McAdams argues that he did not violate any obligation that he had by naming a
graduate student on his blog, for three reasons. First, Dr. McAdams asserts, his criticism
of Ms. Abbate was in her role as instructor, and not as a student.45 Second, while Dr.
Doc. 11 at 5. The soundness of this interpretation is addressed below, Section V.B.2.
Doc. 11 at 22, 7.
41 Doc. 11 at 7.
42 Doc. 11 at 11-12.
43 Doc. 11 at 12. Dr. McAdams himself, however, did not make this claim at the hearing. See below,
Findings of Fact (FOF) 90.2.
44 Doc. 11 at 12.
45 Doc. 11 at 20.
39
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McAdams admits he was once advised to be careful about naming students on his
blog, he asserts that [h]e was never put on notice that naming a student on his blog
was a fireable offense.46 And third, it would not have mattered if he had been, because
Marquette has no authority to demand that he not name students on his blog; Marquettes own contractual promises of academic freedom and First Amendment protections preclude such a limitation.47
Dr. McAdams denies that he has any obligation to edit blog posts to avoid the
possibility of third party misbehavior, whether legally, ethically, or contractually.48
First, Dr. McAdams argues, [n]o law imposes liability on a reporter for actions taken
by people who hear the reporter, and reporters are not even considered morally responsible for the reactions to their stories.49 Second, Dr. McAdams asserts he had no
contractual obligation to limit his blog post in this manner. And third, he asserts there is
no professional obligation to do so. If anything, Dr. McAdams argues, the ethics run
the opposite directionit would have been unethical not to post the story about
Ms. Abbate for fear of what the public might do with the information.50
To recognize such an obligation, Dr. McAdams claims, would be a death knell to
not only journalism, but academic freedom.51 It would force professors to avoid
[e]ven the mildest criticisms because of some possibility of abusive reactions, given
that such reactions could not be completely avoided except by not reporting at all.52
Dr. McAdams has repeatedly cited the journalist Conor Friedersdorf on this point:
[Holzs] decision to hold McAdams responsible for [Ms. Abbates] harassment sets an
alarming precedent: that faculty members will be held accountable not only for their
words, but for any efforts to intimidate or harass those they publicly criticize. By this logic, a professor who criticized a college football player accused of rape, or a fraternity
member who chanted No means yes, yes means anal, or a college Republican running
an affirmative-action bake sale could be stripped of tenure based partly on whether
Doc. 11 at 20-21.
Doc. 11 at 21.
48 Doc. 11 at 23 (quoting Doc. 5 at 3).
49 Doc. 11 at 23.
50 Doc. 11 at 23.
51 Doc. 11 at 24.
52 Doc. 11 at 24.
46
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that student got nasty emails. Only myopia can account for failure to see the threat to academic freedom.53
Dr. McAdams also denies that he has created a culture of intolerance. He states
that his negative comments about other faculty members amount merely to criticism,
since he has no authority over those faculty members . . . . He had no ability to control
them or punish them.54 Dr. McAdams asserts that, indeed, he has not even been intolerant. He freely permits dissenting voices to comment on his blog, and often engages
with them respectfully.55 Nor, Dr. McAdams claims, has he particularly targeted women or those in lower positions of power; he has targeted everyone, at all levels of
power.56
Dr. McAdams maintains that not only has he done nothing wrong, but others have
engaged in the same behavior he has, or worse, and yet only he is singled out for punishment.57 At most, he concedes, he is guilty of far-scattered incidents of perhaps
overheated rhetoric. But since he was never warned that the Administration considered such incidents to constitute a pattern leading to discipline, neither termination nor
any lesser sanction would be appropriate here.58
C. Objections Concerning Pre-Hearing Discovery
Dr. McAdams raised two other points in his pre-hearing brief that should be addressed here. First, Dr. McAdams objects that he was not provided sufficient access to
either the Universitys witnesses or its documents prior to the hearing. FS 307.07 11
provides that [t]he subject faculty member will be afforded an opportunity to obtain
necessary witnesses and documentation or other evidence and is entitled to examine the
evidence submitted to the FHC by the University Administration. On February 6, 2015,
counsel for Dr. McAdams requested that the University provide an opportunity to
interview in person each of the witnesses listed in Dean Holzs January 30, 2015 letter,
Doc. 11 at 24n24 (quoting Conor Friedersdorf, Stripping a Professor of Tenure Over a Blog Post,
Atlantic, February 9, 2015, http://www.theatlantic.com/education/archive/2015/02/stripping-a-professorof-tenure-over-a-blog-post/385280/); Hrg Tr. vol. 1, 29:1530:6 (Esenberg opening statement).
54 Doc. 11 at 16.
55 Doc. 11 at 17.
56 Doc. 11 at 18.
57 Doc. 11 at 24.
58 Progressive discipline is the norm, and the Administration did not consider any of these past incidents disciplinable offenses. Doc. 11 at 25, 26.
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including Ms. Abbate, Dr. Luft, Dr. Snow, Dr. Foster, Dr. Donaldson, Dr. South,
Dr. Holz, and Dr. Barrington.59 Second, counsel for Dr. McAdams made document requests for:
1. copies of all transcripts, notes, memos or other documents that refer or relate to the interviews already done by Marquette; [and]
2. any written evidence that Marquette has that either supports or refutes the charges
against Dr. McAdams, including copies of any e-mails sent to or by Ms. Abatte from her
Marquette e-mail account referring in any way to Dr. McAdams or the events written
about by Dr. McAdams in the blog post that is the subject to this proceeding.
The University acceded to none of these requests.60 Dr. McAdams therefore requested
that the Committee either assume that all of [the] documents [the] Administration is
refusing to turn over demonstrate McAdamss innocence, or order [the] proceedings
adjourned until the parties have complied with their obligations under the Faculty
Statutes.61
The Committee declined to take either of these actions. The Committees full reasoning is set forth in its September 16, 2015 letter to the parties.62 In brief, however, the
Committee does not interpret FS 307.07 11 to afford the parties a right of pre-hearing
discovery akin to that provided in civil litigation, that is, a right to discover any matter
in the possession of the other party relevant or potentially relevant to any partys claim
or defense. Rather, FS 307.07 11 provides the faculty member only with a right to
obtain witnesses and documentation or other evidence that he or she determines to be
necessary for his or her defense, and to examine the evidence submitted to the FHC by
the University Administration once it has been submitted, but not before. While more
discovery might in some ideal world be preferable, the Committee has neither the rules
nor the resources to manage extensive pre-hearing discovery between adverse parties.
In a similar vein, a considerable amount of testimony was taken during the hearing
concerning the manner in which the University investigated this incident prior to its
issuance of its notice of termination. That testimony appeared to be laying the groundwork for an objection to the manner in which that investigation was conducted. HowEx. 28 at MU-522.
Doc. 11 at 29.
61 Doc. 11 at 29.
62 Doc. 20 at 6-7 (see App. D at 148149).
59
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ever, Dr. McAdams did not raise any particular objection for the Committees consideration regarding that investigation. The Committee therefore makes no findings and
reaches no conclusions regarding any alleged procedural irregularities in the Universitys pre-notice investigation of Dr. McAdams. The Committee does note for the record
that it finds the selection of Dr. South as the person to perform the investigation to be
unfortunate, given the numerous prior instances of conflict between Dr. South and
Dr. McAdams, including one occasion when Dr. South had requested that the Provost
investigate Dr. McAdams.63 However, the Committee has in no way relied on that investigation in reaching its conclusions in this report. Rather, this report is based on the
record compiled in this proceeding, in which Dr. McAdams has been a full participant
and has had a fair opportunity to present his defense.
D. The Universitys Interim Suspension of Dr. McAdams
Dr. McAdams raised a second procedural objection in his pre-hearing brief, one of
considerable importance that the Committee has not yet addressed. Dr. McAdams asserts that he has been suspended . . . from his duties and from campus without [the
University] following required procedures set forth in the Faculty Statutes. Dr. McAdams also complains that Dean Holz banned McAdams from campus and prohibited
him from even contacting other members of the Marquette community (including faculty), which he had no authority to do under the Faculty Statutes.64 In essence, Dr. McAdams argues that these actions by the University have imposed a penalty on him
without this Committees prior review. In this Section, we consider the Universitys
authority to do so.
The events that give rise to Dr. McAdamss objection began on December 16, 2014.
On that date, Dean Holz sent Dr. McAdams a letter that informed him that until further notice . . . you are relieved of all teaching duties and all other faculty activities,
including, but not limited to, advising, committee work, faculty meetings and any activity that would involve your interaction with Marquette students, faculty and staff.65
The letter provided that Dr. McAdamss salary and benefits will continue at their current level during this time. However, Dean Holz also instructed Dr. McAdams in that
See Part IV below, Findings of Fact (FOF) 24.2, 24.12, 25.2. Although Dr. South performed the investigation, he was supervised by Dean Holz. FOF 141.
64 Doc. 11 at 26.
65 Ex. 24 at MU-508.
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letter that [y]ou are to remain off campus during this time, and should you need to
come to campus, you are to contact me in writing beforehand to explain the purpose of
your visit, to obtain my consent and to make appropriate arrangements for that visit.66
On January 2, 2015, Dean Holz reiterated the campus ban, although it was apparently
relaxed to some degree later to allow Dr. McAdams to finish his book.67 Within two
weeks, in response to press inquiries, University spokesperson Brian Dorrington released a statement implying that the ban from campus was due to safety concerns: The
safety of our students and campus community is our top priority . . . . We take any
situation where a students safety is compromised extremely seriously.68
There are three questions that are raised by these actions by the University. First,
there is the issue of whether Dr. McAdams has actually been suspended at all. Second,
there is the issue of whether the University has the authority under the Faculty Statutes
to impose unilateral interim suspensions. Finally, there is the issue of whether any such
authority was reasonably exercised in this case, and the related question of whether the
Faculty Statutes need to be amended to prevent abuse.
By any reasonable interpretation of the word, the instructions to Dr. McAdams in
Dean Holzs Dec. 16 and Jan. 2 letters suspended him from his duties as a professor. It is
true that the University, through its spokesperson and through Dean Holz, maintains
otherwise. For example, asked for comment on the suspension, spokesperson Brian
Dorrington stated that Dr. McAdams was not suspended because [o]ur definition of
suspension is without pay.69 Similarly, Dean Holz testified at the hearing that he did
not believe he had suspended Dr. McAdams because [h]e wasnt relieved of his salary
or his benefits.70 But the Universitys insistence that the term suspension refers only
to a situation in which pay is withheld cannot be reasonably maintained. First, it is
Ibid.
FOF 150152.
68 Ex. 107 at JM-015.
69 Ex. 108 at JM-017.
70 Hrg Tr. vol. 3, 32:15-19 (Holz). Dean Holz was similarly reluctant to admit that he had ordered
Dr. McAdams to stay away from campus, objecting that I cant order anything. Im not in the military.
Ibid., 33:20-21.
66
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belied by the Faculty Statutes themselves, which clearly refer to suspensions with pay.71
Second, it does not comport with the ordinary understanding of the term. To suspend
means to debar temporarily, especially from a privilege, office, or function.72 Suspension can refer to any removal from duties, but in the academic context it has historically been associated with removal from teaching.73 Dr. McAdams was clearly suspended by the University when he was removed from all of his duties on December 16,
2014.
The AAUP has expressed concern about the growing use of suspension by universities as a means of disciplining faculty, often, as in this case, without even admitting that
they are doing so.74 Suspension from duty, even with pay, inflicts a severe sanction that
the AAUP has long regarded as second only to dismissal.75 As one influential investigative report on St. Johns University put it:
The professions entire case for academic freedom and its attendant standards is predicated upon the basic right to employ ones professional skills in practice, a right, in the
case of the teaching profession, which is exercised not in private practice but through institutions. To deny a faculty member this opportunity without adequate cause, regardless
of monetary compensation, is to deny him his basic professional rights. Moreover, to a
good teacher, to be involuntarily idle is a serious harm in itself. . . .76
In all cases of . . . termination for . . . discretionary cause . . . , a faculty members entitlement to salary and fringe benefits shall continue, irrespective of any suspension from duties . . . until the University
has made a final decision following the report of the hearing . . . . FS 307.02.
72 Suspend, Merriam-Webster, accessed December 20, 2015, http://www.merriam-webster.com/dictionary/suspend. Suspension is defined as [a] temporary prohibition or exclusion, as from attending
school or enjoying a privilege, especially as a punishment. Suspension, American Heritage Dictionary of
the English Language, 5th ed., accessed December 20, 2015, http://www.thefreedictionary.com/suspension.
73 Lawrence S. Poston, The Use and Abuse of Faculty Suspensions, Academe 94, no. 6 (2008): 45. Even
at research universities, suspending [faculty members] from teaching is suspending them. Ibid., 48.
74 Ibid., 49.
75 Ibid., 45. Barring a teacher from his classroom inflicts ignominy upon the teacher and is destructive
to the morale of the academic community. Paul R. David, Richard P. Adams, and Edwin O. Stene,
Academic Freedom and Tenure: College of the Ozarks, AAUP Bulletin 49, no. 4 (1963): 358.
76 John A. Christie, Willard H. Pedrick and John T. Noonan, Jr., Academic Freedom and Tenure: St.
Johns University (New York), AAUP Bulletin 52, no. 1 (1966): 1819. This passage indicates an important
distinction between suspension with pay, which is punitive, and paid leave, which is not, namely that
suspension is imposed at a time and for a duration not of the professors choosing. In addition, as described below, suspension places the faculty member under a cloud of suspicion that the mere continuation of salary and benefits does not alleviate.
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That harm is exacerbated when suspension is accompanied by a banishment order, as is

increasingly the case.77 Banishment not only can deny the faculty member access to the
material needed to prove that the charges are groundless and wrongful, but also can
interfere with academic work by denying access to crucial resources such as a library,
computer center, email, or the faculty members own office or laboratory.78
The harms inflicted by suspension are not merely material. Suspension and, worse,
banishment, tarnish the reputation of the faculty member by branding him or her with
an extremely negative judgment, for which the basis remains untested in the absence
of a hearing, even though an administration may claim that it is saving the faculty
member embarrassment.79 Suspension and banishment can be a particularly devastating indictment of a faculty member when the reason alleged for suspension is the best
interest of the students.80 Such actions risk creating a prejudicial atmosphere totally
out of proportion to the alleged offense and undeserved in the light of the professors
previous record.81 Indeed, that may even be the point. While there are situations in
which suspension or banishment are entirely appropriate,82 those two penalties are
often imposed in politically controversial cases where administrations face demands for
quick action. As an AAUP subcommittee has observed, in such cases, [t]he administration may believe that haste is necessary to reassure the board, public, or legislature that
the matter is in hand.83 It is therefore crucial that, particularly in political controversial
cases, procedural protections for the subject faculty members be scrupulously observed.84
Before proceeding further it is important to distinguish between two types of suspensions: suspensions that are ordered as the final outcome of an adjudicated process
such as that provided under FS 307.07, which we will call final suspensions; and
suspensions that are imposed during such a process, pending its outcome, which we
Poston, Faculty Suspensions, 55.
Ibid., 46.
79 Ibid., 46.
80 Ibid., 48 (quoting Academic Freedom and Tenure: University of Southern California, Academe 81
(NovemberDecember 1995): 4748).
81 Poston, Faculty Suspensions, 46.
82 Ibid., 54.
83 Ernst Benjamin, et al., Ensuring Academic Freedom in Politically Controversial Personnel Decisions, Bulletin of the AAUP 97 (2011): 107.
84 Ibid., 107-08.
77
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refer to here as interim suspensions.85 The AAUP has recommended important procedural protections for both types of suspensions. Final suspensions are second only to
termination in severity, and the faculty member is given the same procedural protections under both AAUPs Recommended Institutional Regulations and under the Marquette Faculty Statutes.86 Given the harms arising from suspension, however, the AAUP
has long recommended that faculty members be secure against arbitrary imposition of
interim suspensions as well. Thus, the AAUP recommends that before any interim
suspension is imposed, a faculty committee be consulted concerning the propriety, the
length, and the other conditions of the suspension.87 And it is critical that such suspensions be imposed only if immediate harm to the faculty member or others is threatened
by continuance.88
As an AAUP report notes, immediate harm is a problematic, if not elusive, concept, and administrators have given it what, to say the least, are very broad interpretations.89 Indeed, in many cases documented by the AAUP administrators did not even
attempt to justify interim suspension on the basis of immediate harm, and in numerous others, the phrase was not applied with any great rigor.90 That appears to be true in
the present case as well. Dean Holzs letter of December 16, 2014, merely advised
Dr. McAdams that he was suspended, and ordered to stay away from campus, while
[t]he university is continuing to review your conduct . . . .91 Contemporaneously with
Dean Holzs letter, University spokesperson Brian Dorrington told a reporter only that
Dr. McAdams is under review, citing the provisions of the Handbook for Employees
Poston, Faculty Suspensions, 47. The AAUP has also documented cases that it calls pretermination
suspension, in which suspension, albeit not a freestanding sanction, is levied without any commitment to
holding a formal dismissal hearing. Ibid. In this case, Dr. McAdams was suspended more than six weeks
before he was given notice that the University was initiating termination proceedings.
86 AAUP, Recommended Institutional Regulations on Academic Freedom and Tenure, in Policy Documents and Reports, 11th ed. (Baltimore: Johns Hopkins Press, 2015), 85 ( 7.a). The cognizant appointing
authority of the University may initiate and execute procedures by which a faculty members . . . current
appointment may be suspended or terminated, for cause as defined therein. FS 306.01.
87 AAUP, Recommended Institutional Regulations, 83 ( 5.c(1)).
88 Ibid.
89 Poston, Faculty Suspensions, 49.
90 Reviewing AAUP case reports, the subcommittee found that even [w]here some mention of the concept, if not the exact term, occurred, it was frequently attached to vague, trivial, or even faintly comical
charges. Ibid.
91 Ex. 24 at MU-508. As noted above, this makes Dr. McAdamss suspension a pretermination suspension, in the AAUPs terminology.
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prohibiting behaving in an overtly discourteous, abusive or disrespectful manner

toward students, and requiring disputes to be initiated with a supervisor.92
Dean Holzs next letter to Dr. McAdams, on January 2, 2015, likewise did not mention any immediate harm caused by Dr. McAdams continuing to teach, nor did the
notice of termination sent on January 30, 2015.93 Dean Holz testified before the Committee that he suspended Dr. McAdams, and banished him from campus, because of the
seriousness of the charges that were being investigated, and to calm things down, so
that the vile e-mails would stop going to [Ms. Abbate] and . . . myself and we could
kind of have a cooling off period so that we could finish the investigation and make a
decision on how we would proceed.94 Indeed, to date, there has been only one suggestion of possible immediate harm that might result from Dr. McAdamss continued
presence on campus. On January 13, 2015, when asked about Dr. McAdamss continuing suspension, spokesperson Brian Dorrington responded from a prepared statement
that:
The safety of our students and campus community is our top priority . . . . The university
has a policy in which it clearly states that it does not tolerate harassment and will not
stand for faculty members subjecting students to any form of abuse, putting them in
harms way. We take any situation where a students safety is compromised extremely
seriously.95
The obvious implication is that Dr. McAdamss suspension and banishment were necessary to protect student safety.
This is exactly the sort of interim suspension that has concerned the AAUP, and thus
it is not surprising that the Director of Committee A, Gregory F. Scholtz, wrote to President Lovell on January 26, 2015, objecting to the pretermination suspension of Dr. McAdams. Given the facts reported to us, Mr. Scholtz informed President Lovell, it is
difficult to see how members of the academic community would perceive Professor
McAdamss continuing to teach as constituting a threat of immediate harm to himself
Ex. 108 at JM-017; Handbook for Employees, 30, 32. The provision requiring reporting of disputes to a
supervisor is not among those incorporated into the Faculty Handbook, and thus is not binding on faculty.
93 Ex. 26; Ex. 2.
94 Hrg Tr. vol. 3, 84:20-22, 85: 7-8, 84:9-15 (Holz).
95 Ex. 107 at JM-015.
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or others.96 The Committee agrees with Mr. Scholtzs assessment. Even assuming, as
we find below, that Dr. McAdamss blogging had indirectly caused significant harm, it
is unclear how his continued presence on campus threatened immediate future
harms; Dr. McAdams is, while perhaps not equally able, at least well able to blog about
Marquette while away from campus.97 President Lovell has responded to Mr. Scholtzs
letter by promising that Marquette would abide by the principle of academic freedom,
the requirements of due process, and the Marquette Faculty Statutes, but noticeably did
not promise compliance with AAUP recommended procedures for suspensions.98
Dr. McAdams has been clearly suspended with pay since December 16, 2014, and
has suffered the resulting harms to his interests, without any procedural protections,
that have long concerned the AAUP in such cases. He has been prevented from teaching his classes, and his work on completing his book manuscript was interfered with
until his library access was restored. More seriously, he has been effectively adjudged
before the public and the Marquette community to be guilty of the charges against him,
and even worse, to be such a threat to the physical safety of students that his very presence, rather than his blog post, cannot be tolerated.99 Although welcomed by some and
deplored by others, this precipitous action has deprived Dr. McAdams of his procedural rights in this matter.
And it seems apparent that the reason the University took this action was not because of any threat of immediate harm, but because, as with many universities before it,
Ex. 113 at JM-064. Ms. Abbate has in turn objected to Mr. Scholtzs letter, noting wryly that
[a]pparently, Scholtz does not believe that women who are subjected to cyber misogyny and rape
threats are faced with the threat of immediate harm. Ex. 109 at JM-034. But Ms. Abbate is misinterpreting the objection raised by Mr. Scholtz. The standard for interim suspension is not simply whether the
professor has already caused harm, directly or indirectly. That is a fact that must be determined after a
hearing under the Faculty Statutes. Rather, the relevant question for interim suspension is whether there is
such a threat of imminent future harm that the professor cannot continue with his or her duties pending
such a hearing.
97 See, e.g., John McAdams, American Indian Students Bully Marquette With Discrimination Charge /
Marquette Panders, Marquette Warrior (blog), December 14, 2015, http://mu-warrior.blogspot.com/2015/
12/american-indian-students-bully.html.
98 Ex. 27.
99 As Dr. Daniel Maguire has observed, the effect of the banishment order is to announce[ ] on the
public record that Professor McAdams is some sort of threat to the persons in this academic community
. . . leaving volatile suspicions in the air as to what that threat could be. Is he less a threat when he has the
deans permission to be on campus? Ex. 112 at JM-061.
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[t]he administration . . . believe[d] that haste [was] necessary to reassure the . . . public
. . . that the matter [was] in hand.100 In the weeks leading up to Dean Holzs December
16, 2014 letter, the University had been receiving increasing pressure to take some sort
of action against Dr. McAdams, particularly from members of the Marquette community and from academics around the country. On November 18, 2014, the controversy
appeared on the Daily Nous, an influential blog widely read among philosophers. The
blogs author stated that he was not aware of any positive steps that Marquette University has made to publicly declare their support for Abbate and defend her against
these attacks, and called on his readers to write to Dean Holz and Interim Provost
Margaret Callahan, which calls he reiterated over the next several days.101 Also on November 18, Dr. John Protevi of Louisiana State University posted a widely-read open
letter that garnered over 400 signatures by December 7, and called on Dean Holz and
Provost Callahan to offer your support to Ms. Abbate and take steps to ensure that
Professor McAdams learns the rudiments of professional behavior in the future.102
Dr. James South, the Associate Dean for Faculty in the College of Arts & Sciences, noted
that the Daily Nous and Protevi posts indicated the issue was getting real traction, and
Dr. Lowell Barrington, chair of the Political Science Department, suggested in response
that there was pressure to act: [P]eople are wondering not only what we will do as a
department but, even more so, why the university (including President Lovell) [has] not
taken more serious steps. Our (meaning Marquettes) reputation, nationally and among
faculty on campus, is deteriorating by the hour.103
The controversy over Dr. McAdamss blog post also aroused a furor on campus. On
the morning of Friday, November 21, eight department chairs in the College of Arts &
Sciences wrote to President Lovell, Provost Callahan, and Dean Holz to urge the university administration to state publicly and in no uncertain terms that [Dr. McAdamss]
Benjamin, et al., Politically Controversial Personnel Decisions, 107.

Justin Weinberg, Philosophy Grad Student Target of Political Smear Campaign (Several Updates),
Daily Nous, November 18, 2014, http://dailynous.com/2014/11/18/philosophy-grad-student-target-ofpolitical-smear-campaign/. While not formally made part of the record, this post was discussed and
linked to at Ex. 15 at MU-182, Ex. 18 at MU-225, and is cited here only as evidence of what was in fact
said.
102 John Protevi, Open Letter in Support of Cheryl Abbate, John Protevis Blog, November 18, 2014,
http://proteviblog.typepad.com/protevi/2014/11/open-letter-in-support-of-cheryl-abbate/; cited and
discussed at Ex. 15 at MU-182, Ex. 18 at MU-226.
103 Ex. 15 at MU-181.
100
101

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behavior on this and other occasions represents neither the values of this Jesuit, Catholic
university nor the professional standards expected of our faculty and to implore the
academic leaders of the university to take action to ensure that his violation of the university handbook cease immediately.104 Later that same day, Provost Callahan sent an
email to the entire faculty to address recent discussions within the campus community
concerning the issues of collegiality, professionalism and academic freedom, in which
she emphasized the dedication we have as leaders to uphold academic freedom and to
maintain an environment in which the dignity and worth of each member of our community is respected. That process was likely to be a slow one, however: The university will take the appropriate time to ensure that [the Guiding Values] inform our response concerning all matters of collegiality, professionalism and academic freedom.105
President Lovell sent a letter to the entire campus community the following day making
similar points, but adding:
To be clear, we will take action to address those concerns [alleging inappropriate behavior].
I understand that emotions may run high during discussions and debate, inside and
outside of the classroom. But lets not lose sight of the need to maintain respect for each
other.
As St. Ignatius taught us: Be slow to speak, and only after having first listened quietly, so that you may understand the meaning, leanings, and wishes of those who do
speak.106
Despite these appeals for patience, pressure continued to build for the administration to take action. Dr. Nancy Snow, chair of the Philosophy Department, emailed President Lovell, Interim Provost Callahan, and Dean Holz within two hours of Dr. Callahans email, objecting that I see no reason why anyone at Marquette should be
subjected to this [harassment], which I consider to be abuse. . . . I see no reason why
administrators should be prevented from imposing appropriate sanctions. Dr. McAdams[s] behavior clearly violates the Faculty Handbook.107 On November 25, Dr. Barrington wrote to Dean Holz and others to express the consensus view of the Political
Ex. 15 at MU-190. This letter is different than the letter published by the same eight department
chairs in the Marquette Wire, which did not call for any particular action. Cf. Ex. 15 at MU-197198.
105 Ex. 16 at MU-205.
106 Ex. 16 at MU-204.
107 Ex. 15 at MU-188.
104

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Science Department.108 In that letter, Dr. Barrington, on behalf of the Political Science
Department, informed Dean Holz that the consensus was that Dr. McAdams had done
significant damage to the Marquette community, and asked the Universitys leadership to take the appropriate steps to fulfill its obligations to protect Marquette faculty,
staff, graduate students and undergraduates from a hostile campus environment and to
indeed nurture an inclusive, diverse community that fosters new opportunities, partnerships, collaboration, and vigorous yet respectful debate.109
Since there was no immediate threat posed by Dr. McAdamss continued teaching or
presence on campus, it appears reasonable to conclude that the suspension and banishment were designed to address the growing calls for Marquette to take some action.
The next question is whether the University had the authority to take those actions, and
if so, whether it observed the required procedural protections for Dr. McAdams.
The Faculty Statutes are not precise concerning the circumstances under which the
University can order an interim suspension, but it is clear that the University has the
authority under the Statutes to order one. Section 307.03 provides:
In all cases of nonrenewal, suspension, or termination for absolute or discretionary cause
(except resignation), a faculty members entitlement to salary and fringe benefits shall
continue, irrespective of any suspension from duties . . . (3) where a formal hearing has been
requested as provided in Section 307.07, until the University has made a final decision
following the report of the hearing . . . . In the discretion of the cognizant appointing authority, the faculty members duty assignment may be either continued to a time not beyond the time at which his/her salary and benefits terminate, or may be suspended or terminated earlier.110
Under Section 307.03, it is clear that the cognizant appointing authorityin this case,
Dean Holzhad the discretion to suspend or terminate Dr. McAdamss duty assignment at some point earlier than the conclusion of these proceedings. Section 307.08
likewise provides:
So long as the periodic compensation and benefits provided by the faculty members appointment are both continued, . . . both parties shall diligently continue in good faith to
Dr. Barrington informed the Committee that the letter represented the consensus view, but not the
unanimous view. Hrg Tr. vol. 2, 129:8-19 (Barrington).
109 Ex. 15 at MU-195.
110 FS 307.03 (emphasis added).
108

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attempt a mutually-acceptable resolution of the issues between them . . . , and neither

shall, during such period, resort to or encourage litigation . . . against the other; provided
that this paragraph shall not be construed so as to require the University to continue the faculty
members duty assignment during such period.111
Both of these provisions make clear that the University can change a faculty members
duty assignment pending the outcome of a Section 307.07 hearing, presumably all the
way to requiring no duties at all.
If these provisions are read to impose no restrictions at all on the Universitys ability
to order an interim suspension, however, then they are far out of line with both AAUP
recommended procedures and with the procedural protections imposed by other universities. There appears to be no provision in the Faculty Statutes that requires either
consultation with the FHC or a determination that immediate harm to the faculty
member or others is threatened by continuance.112 Most other universities limit the
authority to impose interim suspensions in some manner, such as by requiring a determination of serious and immediate harm to the university community.113 And many,
such as the University of Wisconsin, require prior consultation with appropriate faculty committees.114 Although the text of the Faculty Statutes does not contain either of
these provisions, it is not tenable that the University has unfettered power to suspend
any faculty member with pay whenever it wants, for any reason, and to banish him or
her from campus.
The Committee therefore concludes that the suspension of Dr. McAdams pending
the outcome of this proceeding, imposed by the University with no faculty review and
in the absence of any viable threat posed by the continuation of his job duties, was an
abuse of the Universitys discretion granted under the Faculty Statutes. The purpose of
the suspension appears not to have been to prevent immediate harm to Dr. McAdams
or members of the University community, but rather to impose a summary sanction on
FS 307.08 (emphasis added).

AAUP, Recommended Institutional Regulations, 83 ( 5.c(1)).
113 Boston College University Statutes 10.C (rev. June 5, 2009); see also Fordham University Statutes
4-07.13(c), accessed Aug. 3, 2015.
114 Pending the final decision as to his/her dismissal, the faculty member shall not normally be relieved of duties; but if, after consultation with appropriate faculty committees the chancellor finds that
substantial harm to the institution may result if the faculty member is continued in his/her position, the
faculty member may be relieved immediately of his/her duties . . . . Wis. Admin. Code UWS 4.09.
111
112

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Dr. McAdams to satisfy the demands of external and internal audiences. This is an
improper use of the interim suspension power that violated Dr. McAdamss right to
due process under the Faculty Statutes.
III. CHARGE OF THE COMMITTEE
Under both the Faculty Statutes and the Statutes for the University Academic Senate, the FHC acts as an advisory body in contested cases of appointment non-renewal,
or for suspension or termination of tenured faculty for absolute or discretionary
cause.115 Its advice is presented to the President.116 The specific charge of the Committee
in such cases is to convene a hearing to determine the existence of cause as defined in
Sections 306.02 and .03 of the Faculty Statutes, and to make findings of fact and conclusions.117 Those conclusions may, if the Committee finds it is warranted by the evidence, contain a recommendation that an academic penalty less than dismissal be
imposed.118
Under the Faculty Statutes, it is the Universitys burden to demonstrate that sufficient cause exists to decline to renew an appointment, or to suspend or terminate a
tenured faculty member. That burden must be satisfied by clear and convincing evidence in the record considered as a whole.119 There are two forms of cause specified in
the statutes: absolute cause and discretionary cause. Absolute cause as defined in
Faculty Statutes 306.02 is not at issue here. Discretionary cause is defined in 306.03
as:
includ[ing] those circumstances, exclusive of absolute cause, which arise from a faculty
members conduct and which clearly and substantially fail to meet the standard of personal and professional excellence which generally characterizes University faculties, but
only if through this conduct a faculty members value will probably be substantially impaired. Examples of conduct that substantially impair the value or utility of a faculty
member are: serious instances of illegal, immoral, dishonorable, irresponsible, or incompetent conduct.
UAS Stat. art. IV 1.01.1(1); FS 307.07 1, 20.

Ibid.
117 FS 307.07 5.
118 Ibid. 19.
119 FS 307.07 14.
115
116

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The question before the Committee therefore involves a determination of whether the
University has established discretionary cause. That question can be divided into two
main elements: whether the faculty members conduct (1) clearly and substantially fails
to meet the standard of personal and professional excellence that generally characterizes University faculties, and (2) will likely substantially impair the faculty members
value. The definition of discretionary cause then provides an exception, which might
be characterized as a safe harbor:
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.
This language is less than precise. It affords the decision-makerin the first instance
the University, and presently the Committeeconsiderable room to argue that its components either have been or have not been established through the copious use of qualifiers: substantially, generally, probably, serious, legitimate. The standard of
personal and professional excellence referred to is difficult to ascertain precisely, and
there is no immediately obvious way to measure either value or impair[ment]. The
safe harbor for personal or academic freedoms is likewise conditioned on those freedoms being legitimate. The Committee has therefore taken it as part of its charge to
attempt to give some content, on behalf of the faculty, to the definition of discretionary
cause, at least as it applies to circumstances like the case before us. That effort is detailed further below.120
Finally, the Faculty Statutes elsewhere place a limit on the Universitys use of dismissal proceedings. Section 307.07 2 provides that [d]ismissal will not be used to
restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution. Although this restriction seems related to
the safe harbor, it is not formally part of the definition of discretionary cause, and
thus is not part of the Universitys burden of proof under FS 307.07 14 to show that
discretionary cause exists. Rather, under FS 307.07 2, it appears to be within the
committees purview to determine that, even where discretionary cause has been established, dismissal is nevertheless inappropriate because it is being used to restrain fac-
120
See below, Subsections V.A.12.

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ulty members in their exercise of academic freedom or other rights guaranteed them by
the United States Constitution.121
With the foregoing charge in mind, we proceed to make our findings of fact, based
on the record, and then draw conclusions therefrom.
IV. FINDINGS OF FACT
As required by Faculty Statutes 307.07 19, the Committee hereby makes the following findings of fact concerning the evidence presented in the record before us. A
finding of fact, as used in this report, is not an expression of certainty that a given
factual statement is true. Rather, our findings of fact represent determinations that, in
the Committees best judgment based on the evidence in the record before us, a given
factual statement is more likely true than not true. The findings of fact made here will
then be used to support the conclusions we make below.122
However, under the Faculty Statutes the University retains the burden of establishing discretionary cause by clear and convincing evidence in the record considered as a
whole.123 Clear and convincing evidence has been defined as [e]vidence indicating
that the thing to be proved is highly probable or reasonably certain.124 It represents an
intermediate burden of proof between the preponderance of the evidence, the standard applied in most civil trials, and evidence beyond a reasonable doubt, the norm for
criminal trials.125 A standard of proof, such as clear and convincing evidence, is
applied to each element of the claim.126 Thus, in order to find discretionary cause, the
Committee must determine that the University has established that each element of
FS 307.07 2.
In ordinary judicial parlance, our conclusions would be conclusions of law, except that instead of
law our conclusions are based on the Faculty Statutes and other authorities defining the obligations and
rights of university professors.
123 FS 307.07 14.
124 Evidence, Blacks Law Dictionary, 10th ed. (St. Paul: Thomson Reuters, 2014).
125 Ibid.
126 When a party has the burden of proving any claim or defense by clear and convincing evidence, it
means you must be persuaded by the evidence that the claim or defense is highly probable. U.S. Court of
Appeals for the Ninth Circuit, Manual of Model Civil Jury Instructions 1.4, http://www3.ce9.uscourts.gov/
jury-instructions/node/48 (emphasis added). Clear and convincing evidence is that which will produce
in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Handbook of Federal Evidence, 7th ed., vol. 2, 301:5 (2015)
(quoting Ala. Code 6-11-20(4)) (emphasis added).
121
122

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discretionary cause, as set forth in Part III above, is highly probable or reasonably
certain, considering the record as a whole, including the factual determinations we
make in this Part.127
The Findings of Fact below are organized in numbered paragraphs; numbered subparagraphs indicate facts that support the main paragraph.
A. Background
1. Dr. John McAdams is a tenured Associate Professor in the Department of Political Science. He received tenure in 1989. (Ex. 3 at MU-025; Ex. 22 at MU-320)
2. Dr. McAdams has maintained his blog for ten years, publishing approximately
3,000 posts, all while a faculty member at Marquette. (Hrg Tr. vol. 3, 92:17-19, 97:1-6
(McAdams))
3. Dr. McAdamss blog frequently brings public attention to issues of what
Dr. McAdams calls political correctness, particularly at Marquette. (Hrg Tr. vol. 3,
95:1-12 (McAdams))
4. Ms. Cheryl Abbate was a graduate student instructor in the Department of Philosophy in Fall 2014.
5. Ms. Abbate was considered a star student.
5.1. Ms. Abbate had six publications in reputable journals. (Hrg Tr. vol. 1,
176:4-10 (Foster))
5.2. Ms. Abbates proposed dissertation topic had attracted two outside experts to serve on her committee, which Ms. Abbates adviser, Dr. Foster, said had
never happened in the Philosophy Department before. (Hrg Tr. vol. 1, 178:14
179:11 (Foster))
5.3. Ms. Abbate was a likely nominee for the Rev. John P. Raynor, S.J. Fellowship if she had stayed at Marquette. (Hrg Tr. vol. 1, 179:20180:4 (Foster))
6. In Fall 2014, Ms. Abbate taught two sections of Theory of Ethics, PHIL 2310-114,
which met on Tuesdays and Thursdays from 8:00 am to 9:15 am in Haggerty Hall, and
127
Evidence, Blacks Law Dictionary; FS 307.07 14.

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PHIL 2310-116, which met Tuesdays and Thursdays from 11:00 am to 12:15 pm. (Hrg
Tr. vol. 1, 51:10-13 (Abbate))
7. JD (a pseudonym)128 was an undergraduate student in Ms. Abbates Fall 2014
Theory of Ethics class, PHIL 2310-114.
8. Dr. William Donaldson is a Professor in the Department of Chemistry. He was
JDs first academic adviser.
9. Early in the Fall 2014 semester, JD selected Dr. McAdams to be his academic adviser. (Ex. 8 at MU-049)
10. Dr. Lowell Barrington has been the Chair of the Political Science Department
from July 2012 to the present. (Hrg Tr. vol. 2, 96:2-3 (Barrington))
11. Dr. Nancy Snow was a Professor in the Department of Philosophy in Fall 2014,
and served as Chair of the Philosophy Department at that time.
12. Dr. Susanne Foster is an Associate Professor in the Department of Philosophy,
and has been the Associate Dean for Academic Affairs since 2013.
13. Dr. James South is an Associate Professor in the Department of Philosophy, and
has been the Associate Dean for Faculty since 2013. From 2005 until 2015, Dr. South was
Chair of the Philosophy Department.
14. Dr. Richard Holz has been the Dean of the Helen Way Klingler College of Arts &
Sciences since 2013.
15. Dr. Margaret Callahan was Interim Provost in Fall 2014.
16. AD (a pseudonym) was an undergraduate student at Marquette in Spring
2011. She was listed as the contact person on a Facebook page for a production of The
Vagina Monologues on Marquettes campus. The listing included her email address.
17. Dr. Barrett McCormick was the Chair of the Political Science Department from
2009 until July 2012.
18. Rev. Philip J. Rossi, S.J., is a Professor in the Department of Theology, and was
the Interim Dean of the Helen Way Klingler College of Arts & Sciences in Spring 2011.
128
Abbreviations, including pseudonyms, are explained in App. A.

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19. Dr. L. Christopher Miller was the Vice President for Student Affairs in Spring
2011.
20. Dr. John Pauly was Provost from 2008 to 2013.
21. Dr. Theresa Tobin is an Associate Professor in the Department of Philosophy. In
2007, she was a junior untenured Assistant Professor in the Philosophy Department.
22. Dr. Madeline Wake was Provost from 2003 to 2008.
23. Marquette Universitys Mission Statement and Vision Statement have been in
place for at least fifteen years.
B. Prior Incidents
24. Since 1995, Dr. McAdams has been involved in several conflicts with administrators, other faculty members, and students at Marquette.
24.1. In Fall 1995, Dr. McAdams was discovered to have made several scurrilous comments on Usenet newsgroups about commentators on the Kennedy assassination. Dr. McAdamss comments attracted public attention and concern
from Marquette administrators. (Ex. 29 at MU-558, 561-62)
24.2. In Fall 2006, Dr. McAdams published a blog post critical of Dr. South for
having removed an unidentified quotation from humorist Dave Barry from the
door to a graduate student office suite, and critical of Fr. Wild, the University
President at the time, for not defending the grad student who posted it. (Ex. 114
at JM-066071)
24.3. In Spring 2007, Dr. McAdams published a blog post critical of a class
taught by Dr. Theresa Tobin, then an untenured assistant professor in the Philosophy Department. Dr. McAdamss criticism was based on what a student of
Dr. Tobins reported learning in the class. (Ex. 30 at MU-529)
24.4. In the course of his criticism of Dr. Tobins class, Dr. McAdams linked to
the syllabus for the class, but did not otherwise comment on it. (Ex. 30 at MU529)
24.5. In March 2008, Dr. McAdams published a blog post asking why the
Marquette Tribune had rejected an advertisement discouraging use of the

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morning-after pill. The post originally identified the student advertising director by name. (Ex. 19)
24.6. Dr. McAdams later deleted the students name, according to
Dr. McAdams after discovering that the student had played no role in rejecting
the ad. (Hrg Tr. vol. 3, 71:13-16 (Holz); Ex. 38 at MU-600)
24.7. In October 2010, Dr. McAdams posted an email chain from members of
the Faculty Council who agreed to attend a presentation by a LGBT issues consultant who had been invited to campus. (Ex. 31 at MU-533549)
24.8. In February 2011, Dr. McAdams emailed the student listed as the contact
on the Facebook page for a production of the The Vagina Monologues at Marquette, AD, and then called her at her permanent residence, disturbing her
parents. He then wrote a blog post mentioning AD by name, and continued to
blog about her by name when she complained about his behavior. (Ex. 20)
24.9. On November 7, 2011, a student posted a complaint to the Ethics Point
system alleging that Dr. McAdams, in casting doubt on commonly cited rape statistics, had made comments belittling rape victims. (Ex. 120 at JM-102)
24.10. Dr. McAdams then blogged about the complaint, referring to the complainant as a prissy little feminist. (Ex. 33 at MU-588)
24.11. In Spring 2014, Dr. McAdams had an encounter at the Alumni Memorial Union with a student group called Students for Justice in Palestine. Members of the group reported to Dean Holz that they had felt intimidated and made
to feel unwelcome by Dr. McAdams. (Hrg Tr. vol. 3, 208:8209:5; Ex. 32)
24.12. In the summer of 2014, Dr. McAdams published a blog post critical of
Dr. Foster and Dr. South for allegedly pursuing a sexual harassment complaint
against a colleague based on his use of the phrase girls night out in a conversation. (Ex. 114 at JM-071075; Hrg Tr. vol. 2, 52:11-18 (South))
25. Dr. McAdams has never been formally reprimanded or received a written warning for any prior incidents that have generated complaints about his behavior.
25.1. In Fall 1995, after Dr. McAdamss Usenet comments came to light,
Dr. McAdams agreed with Dean of the College of Arts & Sciences Thomas E.

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Hachey that he would cease posting to the particular newsgroup from Marquette
University computers or using his Marquette account. Dean Hachey in turn
signed a letter in April 1996 memorializing his agreement that Marquette University would make no public statement asserting or implying that you had been
disciplined as a result of this episode. (Ex. 29 at MU-567)
25.2. In May 2007, Dr. South, Chair of the Philosophy Department, wrote a
letter to Provost Madeline Wake complaining about Dr. McAdamss criticism of
Dr. Tobin, and stating that he believed it to be both unprofessional conduct and
sexual harassment. (Ex. 30 at MU-525526)
25.3. Provost Wake took no action against Dr. McAdams. She later informed
Dr. South that [n]othing is going to come of this. Im sorry. (Hrg Tr. vol. 2,
87:17-18 (South))
25.4. There is no evidence of any formal complaint or reprimand over
Dr. McAdamss March 2008 mention of the Marquette Tribune advertising directors name on his blog. (Ex. 19)
25.5. In October 2010, Drs. Roberta Coles and Barrett McCormick, chairs of
the departments of Social & Cultural Science and Political Science, respectively,
wrote a letter to Provost John Pauly complaining about Dr. McAdamss publication of the emails organizing a meeting with the LGBT issues consultant. Drs.
Coles and McCormick requested that Provost Pauly issue a statement . . .
find[ing] what he says and the way he says it incongruent with our university
and its mission. (Ex. 31 at MU-531532)
25.6. Provost Pauly declined to make any such statement, believing it to be
more a matter for the University Academic Senate. (Hrg Tr. vol. 4, 121:18-123:15
(Pauly))
25.7. Furthermore, Provost Pauly believed that it was permissible to disagree
with scheduling meetings with an activist. (Hrg Tr. vol. 4, 122:24123:15 (Pauly))
25.8. In March 2011, in response to Dr. McAdamss call to ADs parents
number, and his blogging about her by name, Provost Pauly requested that
Dr. McAdams meet with himself, Rev. Phil Rossi, acting Dean of the College of
Arts & Sciences, and Dr. Barrett McCormick, chair of the Political Science de-

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partment, for a conversation about the blurring of Dr. McAdamss roles and
his possible misuse of Checkmarq. (Ex. 20 at MU-255257; Hrg Tr. vol. 4, 107:321 (Pauly))
25.9. Although the conversation got heated at times, Provost Pauly specifically did not reprimand Dr. McAdams over the incident. (Hrg Tr., vol. 4, 111:6-25
(Pauly))
25.10. Dr. McCormick nevertheless believed that a clear message had been
sent. (Ex. 20 at MU-263)
25.11. Dr. McAdams continued to blog about student activities. On February
4, 2015, after having received the Notice of Termination in this matter,
Dr. McAdams stated that when he was not challenged any further after March
2011, he interpreted [that] as meaning that [Provost Pauly] knew he had no authority to censor [Dr. McAdamss] blog. (Ex. 38 at MU-600)
25.12. In January 2012, in investigating the Ethics Point complaint,
Dr. McCormick recommended no reprimand or sanction, in part because it
would do harm to standards of academic freedom, and in part because it
would likely have no effect. (Ex. 120 at JM-102)
25.13. In September 2014, Dean Holz met with Dr. McAdams to discuss an interaction with members of Students for Justice in Palestine, at which meeting
Dean Holz informed Dr. McAdams that the students felt intimidated by [his]
tone and questions. A letter sent the following week documenting the meeting
contained no reprimand or warning, and instead closed by thanking [Dr. McAdams] for all the work you do at Marquette and extend[ing] congratulations
again on the book contract you recently received. (Ex. 32 at MU-550.)
26. At the meeting with Pauly, Rossi, and McCormick in April 2011, Dr. McAdams
was made aware that his mention of an undergraduate students name on his blog was
cause for concern among other members of the University. (Ex. 20)
26.1. Dr. McAdams promised to be more careful in mentioning student
names. (Ex. 20 at MU-292)

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26.2. Dr. McAdams recognized that mentioning students by name on his blog
could lead to unwanted blowback for students that arent out front with highly
visible political activity. (Hrg Tr. vol. 3, 163:7-25 (McAdams))
26.3. However, Dr. McAdams also promised to continue to blog about student activities when they have substantial news interest. (Ex. 20 at MU-292)
27. Dr. McAdams was aware that in response to his long post about AD, two of his
readers considered contacting her. (Ex. 20 at MU-277289)
27.1. Dr. McAdams warned one to contact Provost Pauly instead. (Ex. 20 at
MU-281282)
27.2. The other sent a message to AD to simply demonstrate that actions
have consequences. (Ex. 20 at MU-286287)
27.3. Dr. McAdams responded that I guess you are free to do that, since she
has created a news story that involves her, but noted that he had redacted her
contact information from his post. (Ex. 20 at MU-287)
27.4. Dr. McAdams believed it was important to remove all contact information for AD from his post because he didnt, particularly, want her to get a
lot of e-mail. (Hrg Tr. vol. 3, 151:3-20 (McAdams))
27.5. The day after she was contacted by one of Dr. McAdamss readers, AD
filed a harassment complaint against Dr. McAdams with the Marquette Public
Safety Department and requested an MU Stay Away order. (Ex. 20 at MU-258
261)
28. The record indicates that at least one other person, a faculty member mentioned
on Dr. McAdams blog in 2009, may have received negative communications in response
to one of Dr. McAdamss posts, but there is no indication whether Dr. McAdams was
aware of that fact. (Ex. 31 at MU-531)
29. Dr. McAdamss junior colleagues in the Political Science department report being
fearful of him, and in particular his blog. (Hrg Tr. vol. 2, 112:23114:5 (Barrington); Ex.
15 at MU-186187)
29.1. Dr. Barrington testified that he believes that fear existed before Nov. 9,
2014. (Hrg Tr. vol. 2, 196:8-13 (Barrington))

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29.2. There is no evidence that Dr. McAdams has ever been biased or unfair in
assessing a candidate for tenure. (Hrg Tr. vol. 2, 190:25191:15 (Barrington))
29.3. Dr. McAdams has stated such fear is appropriate if his colleagues do
something dumb or prejudiced or inappropriate. (Ex. 18 at MU-238)
30. Dr. McAdams has on at least three occasions used the prospect of a mention on
his blog as a threat.
30.1. On March 9, 2011, during the controversy over Dr. McAdamss attempts
to gather information on The Vagina Monologues, Dr. McAdams was contacted by Dr. Chris Miller, then the Vice President for Student Affairs, after AD had
complained to Dr. Miller, to advise Dr. McAdams that AD had requested that he
not contact her any more. (Ex. 20 at MU-269)
30.2. Dr. McAdams responded angrily to Dr. Miller that she needs to understand (perhaps you should explain it to her) that if she is an officer in a student
organization, any journalist has the right to try to contact her, and that [h]er
reporting this to you is quite close to her harassing me. (Or at least, attempting to
harass me.) McAdams then concluded: Chris, I appreciate your being honest
and sharing the information about [AD] but if I hear any more about this from
anybody, Im going to judge that she is indeed harassing me, and raise hell about
it. (Ex. 20 at MU-268269; Hrg Tr. vol. 4, 37:6-7 (McAdams))
30.3. Dr. McAdams informed the Committee at the hearing, in response to a
question about what he wanted Chris Miller to do in response to his email, that
what I really wanted Chris to do was to understand that if, in response to a legitimate journalistic inquiry, somebody starts filing harassment complaints
against me, or going and hollering to administrators, I would consider that a
form of harassment directed toward me (Hrg Tr. vol. 4, 39:8-14), and raise hell
about it on his blog (Hrg Tr. vol. 4, 37:4-7).
30.4. It is difficult to interpret this as anything but Dr. McAdams asking
Dr. Miller to convey to AD that if she pursued a harassment complaint against
Dr. McAdams, he would blog about her in retaliation.
30.5. In addition, after warning Provost Pauly not to request a meeting with
him over the incident with AD and being rebuffed, Dr. McAdams drafted a long

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blog post detailing his interactions with AD, mentioning her by name, and reproducing her email to him (with her cell phone number redacted). (Ex. 20 at
MU-286)
30.6. In 2011, during the same controversy, Dr. McAdams emailed Provost
John Pauly to warn that if Provost Pauly continued to insist on meeting with
Dr. McAdams, it will look for all the world like you are seizing on some trivial
issue as a form of payback for the tough time Ive given you. That, at least, is
the appearance, and appearances matter. (Ex. 20 at MU-255)
30.7. When Provost Pauly continued to insist on meeting with Dr. McAdams,
Dr. McAdams published a blog post asserting that the meeting was retaliation
for Dr. McAdams having opposed an earlier effort to move more classes to 8am.
(Ex. 20 at MU-277)
30.8. On September 14, 2014, Dr. McAdams was called to a meeting with
Dean Holz concerning a confrontation in the AMU between himself and a student group called Students for Justice in Palestine. In the course of that discussion, Dr. McAdams warned Dean Holz to be careful what he put in the letter that
would follow, because you dont want to be on my blog. (Hrg Tr. vol. 2, 205:120 (Holz); ibid. vol. 3, 82:13-23 (Holz); ibid. vol. 4, 33:1134:9 (McAdams).)
30.9. Dr. McAdams admitted to the Committee that his statement was intended to affect Dean Holzs actions during their meeting. (Hrg Tr. vol. 4, 34:5-9)
31. Dr. McAdamss teaching evaluations are on the whole favorable, and in some
cases excellent. (Ex. 22)
31.1. There are few indications in the course evaluations that Dr. McAdams
attempts to intimidate students with opposing viewpoints in his classes. (Ex. 22)
31.2. Some of his students commented that they are silent in class if they disagree with his political stance in fear of repercussions. (Ex. 22)
32. Dr. McAdamss views about liberals and political correctness as expressed on his
blog appear to have had little overall impact on his teaching.
33. Dr. McAdamss scholarship is appropriately distinguished for a tenured associate professor.

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C. The Oct. 28, 2014 Theory of Ethics Class and Its Immediate Aftermath
34. The subject of Ms. Abbates Tuesday, October 28, 2014 Theory of Ethics class was
the application of Rawlss Equal Liberty Principle to various proposed restrictions on
liberty. (Hrg Tr. vol. 1, 51:19-25 (Abbate))
34.1. On Thursday, October 23, Ms. Abbate had ended her classes by asking
students to think of examples of policies that either would or would not be consistent with Rawlss Equal Liberty Principle. (Hrg Tr. vol. 1, 52:9-16)
34.2. At the beginning of class on Tuesday, October 28, Ms. Abbate began listing examples of policies that students had proposed on the board, and discussing
whether they were consistent or inconsistent with Rawlss Equal Liberty Principle. (Hrg Tr. vol. 1, 52:1754:1 (Abbate))
35. One student proposed a ban on same-sex marriage as such a policy, and
Ms. Abbate wrote same-sex marriage on the board. (Hrg Tr. vol. 1, 54:15-20 (Abbate);
Ex. 7 at MU-041)
36. Ms. Abbate then said, approximately, that everyone agrees on this, and that if
anyone did not agree they should see her after class. (Hrg Tr. vol. 1, 54:2155:17 (Abbate); Ex. 7 at MU-041)
37. In her statement, the word this likely referred to the application of Rawlss
Equal Liberty Principle to a restriction on same-sex marriage. (Hrg Tr. vol. 1, 54:21
55:17 (Abbate); Ex. 7 at MU-041)
37.1. The student who proposed adding same-sex marriage to the board recalled the discussion in that way. (Ex. 7 at MU-041)
37.2. Ms. Abbate also recalled the discussion transpiring in that way. (Hrg Tr.
vol. 1, 54:21-25 (Abbate))
37.3. At least one other student recalled that Ms. Abbate consistently redirected discussions away from personal beliefs on the subjects under consideration in the class. (Ex. 7 at MU-044)
38. JD may not have understood that the purpose of the class was not to provide evidence or arguments for or against various positions on current social controversies,
given his academic standing in the class.

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38.1. During a conversation with Dr. South three weeks later, JD could not
remember which philosophers theories were under discussion, guessing that it
was perhaps Kant or Nietzsche. (Ex. 10 at MU-052) Dr. Souths notes are confirmed on this point by the audio recording. (Ex. 40)
39. After the class ended, JD approached Ms. Abbate and began a conversation with
her. Before he approached her, he activated a recording device. (Ex. 37)
40. Ms. Abbate was busy collecting her materials to clear the room for the next class.
(Hrg Tr. vol. 1, 56:7-15 (Abbate))
41. The recording of the conversation on October 28, 2014 was a premeditated act by
JD, as he had started the recording well before approaching Ms. Abbate. (Ex. 37)
41.1. At the beginning of the recording the sounds of other students discussing the subject of the class can be heard. Those students then leave. JD then starts
his conversation with Ms. Abbate. (Ex. 37)
42. JDs precise intent in making the recording is unclear.129
42.1. Dr. McAdams did not recall JD telling him about any prior conflicts with
Ms. Abbate. (Hrg Tr. vol. 4, 45:2546:3, 54:9-14 (McAdams))
43. It is unknown how many previous recordings JD may have made.
43.1. Ms. Abbate recalled that JD participated a lot in class and would sometimes approach after class, usually with administrative questions. (Hrg Tr. vol. 1,
144:5-6, 145:22146:2 (Abbate))
43.2. There had been one previous after-class confrontation, over animal
rights, approximately two weeks prior. (Hrg Tr. vol. 1, 58:11-59:8 (Abbate))
After the hearing in this case, the Committee became aware, through its review of the record, of extra-record information revealing JDs name and indicating that he had a leadership role in the student
chapter of a national organization that encourages, among many other things, confronting professors in
the classroom to expose liberal bias. The FHC declined to take the extraordinary step of re-opening the
record to admit this material, since even if JD were aware of the national organizations statements on this
issue, there is no indication Dr. McAdams was aware of it, and JDs precise motivation in making the
recording adds little given that the finding of discretionary cause must rest on an evaluation of only
Dr. McAdamss conduct.
129

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43.3. Ms. Abbate recalled that, other than the tail-docking discussion and the
October 28 discussion, she had no other confrontations with JD. (Hrg Tr. vol. 1,
145:22146:2 (Abbate))
44. It is unlikely that Dr. McAdams had prior knowledge of or involvement in making the recording.
44.1. The student met with Dr. Donaldson, his former adviser, possibly twice,
for advice and counsel with his complaint against Ms. Abbate on October 28 and
29, and not Dr. McAdams. (Ex. 10 at MU-056057, MU-060062; Ex. 8 at MU-049)
44.2. At the second meeting, Dr. Donaldson raised the possibility (as a warning) that if the student told Dr. McAdams, his current adviser, about the incident,
that Dr. McAdams might blog about it. (Ex. 8 at MU-049)
44.3. There is no evidence to suggest that the student was considering bringing the issue to Dr. McAdams prior to the Oct. 29 conversation with
Dr. Donaldson.
45. In their after-class discussion, Ms. Abbate was likely taken aback by JDs aggressive challenge of her authority. (Hrg Tr. vol. 1, 59:2560:7 (Abbate))
46. JDs aggressive challenge to Ms. Abbate is clear to any observer listening to the
recording.
46.1. JD began his conversation with Ms. Abbate by saying, I have to say, Im
very disappointed in you. (Ex. 5 at MU-031)
46.2. JD then stated that he was very personally offended by Ms. Abbates
dismissal of the topic of same-sex marriage, and that I would stress for you in
your professional career going forward, youre going to be teaching for many
more years, that you watch how you approach those issues because when you
set a precedent like that because you are the authority figure in the classroom,
people truly do listen to you. (Ex. 5 at MU-031)
46.3. Dr. McAdams agreed that this was excessively aggressive. (Hrg Tr.
vol. 4, 20:13-18, 26:14-18 (McAdams))

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45
47. The discussion on the recording is clearly animated, with speakers talking over
one another and JD insistent on an answer to the question of whether his opposition to
same-sex marriage is homophobic.
47.1. JD and Ms. Abbate first debated whether studies showed that the children of gay couples fare worse than others. (Ex. 5 at MU-031)130
47.2. JD then asserted that its still wrong for the teacher of a class to completely discredit one persons opinion when they may have different opinions,
and Ms. Abbate responded that there are some opinions that are not appropriate that are harmful, such as racist opinions, sexist opinions, and suggested it
would be offensive to gay or lesbian members of the class if you were to raise
your hand and challenge this. (Ex. 5 at MU-032)
47.3. JD in turn asserted that he had a right as an American citizen to challenge this, to which Ms. Abbate responded that he did not have a right in this
class . . . to make homophobic comments, racist comments, sexist comments.
(Ex. 5 at MU-032)
47.4. JD at that point objected that his objection to same-sex marriage was not
a homophobic comment. Ms. Abbate responded that supporting a restriction on
the rights and liberties of individuals would be offensive to someone who is
homosexual. (Ex. 5 at MU-032033)
47.5. JD asked if the fact that there may be homosexual classmates means that
I cant have my opinions? To which Ms. Abbate responded that [y]ou can
have whatever opinions you want but I can tell you right now, in this class homophobic comments, racist comments, and sexist comments will not be tolerated. If you dont like that you are more than free to drop this class. (Ex. 5 at MU033)
47.6. JD then began asking for a direct answer to whether not agreeing with
gay marriage is homophobic. Ms. Abbate first responded that To argue . . . that
Ms. Abbate understood JD to be referring to a study performed by Mark Regnerus, How Different
Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings From the New Family
Structures Study, Social Science Research 41, no. 4 (2012). The Regnerus study has been widely criticized,
but has never been retracted.
130

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46
individuals should not have rights is going to be offensive to someone in this

class. (Ex. 5 at MU-033; Hrg Tr. vol. 1, 100:9-24)
47.7. Pressed again, Ms. Abbate told JD that Im saying that it would come
off as a homophobic comment in this class. (Ex. 5 at MU-033)
47.8. JD objected that [t]hats not what you said two minutes ago. Two seconds ago, you just said that is a homophobic comment to disagree with gay marriage. Ms. Abbate began to reply, No, the example that I gave was in this class,
if you were going to make a comment about the restriction of the rights of women, such as saying that women cant serve . . . . At that point Ms. Abbate noticed
she was being recorded and ended the debate. (Ex. 5 at MU-033; (Hrg Tr. vol. 1,
100:9-21 (Abbate))
48. The contents of the recording show that Ms. Abbate wished to restrict certain
comments on gay marriage in the class. She did not mention the topic of the classJohn
Rawlss Equal Liberty Principlein that restriction. (Ex. 5)
49. Ms. Abbate told the student he could not raise an objection to same-sex marriage
in her class because it would be offensive to classmates.
49.1. Ms. Abbate later e-mailed Dr. Snow that she hoped that JD learned that
oppressive discourse is not acceptable, especially in an ethics class. (Ex. 36 at
MU-593)
49.2. By oppressive discourse, Ms. Abbate later testified she was referring
to JDs effort to make comments that were irrelevant to class [and] empirically
flawed. (Hrg Tr. vol. 1, 121:10-14 (Abbate))
50. Ms. Abbate has stated that she believed she was upholding our universitys
harassment policy in her conversation with JD. (Ex. 109 at JM-020; Ex. 6 at MU-040)
50.1. Ms. Abbate had a few months before taken the Universitys required
harassment policy training module. (Hrg Tr. vol. 1, 161:9-15 (Abbate))
51. The recording clearly indicates that it was made without Ms. Abbates
knowledge.

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51.1. At the end of the recording, Ms. Abbate asks if he is recording the conversation, and the student says no. Ms. Abbate then asks to see his phone, at
which point JD admits he is making a recording. (Ex. 5 at MU-033)
52. The conversation ends with JDs threat to show[ the recording] to your superiors. (Ex. 5 at MU-033)
D. The Students Complaint
53. JD immediately pursued a complaint against Ms. Abbate.
53.1. The student recalled that he first spoke with his freshman adviser,
Dr. Donaldson, about how to initiate a complaint, and Dr. Donaldson directed
him to the college. (Ex. 10 at MU-056057, 060)
54. JD lodged his complaint about Ms. Abbate and her apparent speech restriction
initially with the College of Arts and Sciences on the morning of October 28, soon after
his discussion with Ms. Abbate. He spoke with Dr. Susanne Foster, Associate Dean of
Academic Affairs. (Ex. 10 at MU-057)
55. Foster referred JD to the Philosophy Department as the next step. At this time,
Foster did not realize who the complaint concerned. JD was instructed to return to the
College office if the complaint was not handled to his expectations. (Hrg Tr. vol. 1,
170:16171:6, 171:10-15 (Foster))
56. Dr. Foster met with Ms. Abbate later in the afternoon on October 28. (Hrg Tr.
vol. 1, 172:10-11 (Foster))
57. Dr. Foster was Ms. Abbates dissertation director and an Associate Professor in
the Philosophy Department. (Hrg Tr. vol. 1, 123:2-3 (Abbate); Hrg Tr. vol. 1, 190:16-24
(Foster))
58. After speaking with Ms. Abbate, Dr. Foster was able to infer who the students
complaint was about. (Hrg Tr. vol. 1, 192:19193:3 (Foster))
59. The student then met with Dr. Nancy Snow, the Chair of the Philosophy Department, to make his complaint against Ms. Abbate. (Ex. 10 at MU-057)
60. JD met initially with Dr. Snow in her office. Dr. Luft, Asst. Chair of the Philosophy Dept., was present. (Ex. 8 at MU-046, 047; Ex. 10 at MU-057058; Ex. 40)

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61. Dr. Luft had already encountered Ms. Abbate after her class. Ms. Abbate was upset about the recording, and informed Dr. Luft about it. (Hrg Tr. vol. 1, 62:2563:10
(Abbate); Ex. 8 at MU-047)
62. In the meeting between Drs. Snow and Luft and the student, Dr. Luft asked if the
student had made a recording, and the student said that he had not. (Ex. 8 at MU-047)
63. The student later told Dr. South that he was being very literal; he told Dr. South
he was asked if had made a recording of the class, whereas he had only recorded the
after-class discussion. (Ex. 10 at MU-059; Ex. 40)
64. The student also later recalled that Dr. Snow had insisted he disclose who advised him to go to the college to raise his complaint. (Ex. 10 at MU-058; Ex. 40)
65. The meeting was very short; Dr. Snow informed the student that he should have
initiated his complaint with the department, not the college, and ended the meeting by
stating that she needed to consult with University counsel. (Ex. 8 at MU-047, 048)
66. The reason Dr. Snow wished to contact University counsel was to receive advice
about the propriety of the students recording of his conversation with Ms. Abbate. (Ex.
8 at MU-048)
67. After conferring with University counsel, Dr. Snow emailed the student to set up
a second meeting. Dr. Snow and the student met later on Oct. 28 to discuss the students
complaint. (Ex. 8 at MU-048; Ex. 10 at MU-058; Ex. 36 at MU-594)
68. Dr. Snow told the student that it was very inappropriate to tape record a conversation, although not illegal. She stated it fell afoul of Marquettes code of conduct
requiring respect for the faculty who were teaching him. (Ex. 8 at MU-048)
69. The student asked to transfer to another section, which was denied. Dr. Snow
told him either to work harder or to drop the class. (Ex. 8 at MU-048; Ex. 10 at MU-059
060)
70. Dr. Snow warned JD that he needs to change his attitude so he comes across as
less insolent and disrespectful. She also informed him that she would be monitoring
his relationship with his instructor very closely to see if he said anything objectionable
or disrespectful. (Ex. 10 at MU-059060; Ex. 40; Ex. 36 at MU-593; Hrg Tr. vol. 1, 120:513 (Abbate))

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71. Dr. Snow did not investigate whether Ms. Abbate had committed any error or
misconduct in response to the students complaint.
71.1. Before the second meeting with JD, Dr. Snow informed Ms. Abbate
Dr. Foster, Dr. Luft, the Office of the General Counsel and I are all behind you.
(Ex. 36 at MU-594)
71.2. After receiving Dr. Snows account of the second meeting, Ms. Abbate
emailed Snow to thank her for having a corrective meeting with the student,
and expressing the hope that this experience has informed him that oppressive
discourse is not acceptable, especially in an ethics class. (Ex. 36 at MU-593)
71.3. Dr. Snows response was that I am not sure that I got through to [JD].
Keep me posted if anything further arises, and dont get upset. Its part of the
job. (Ex. 36 at MU-592)
72. There is no evidence anyone in the Philosophy Dept. disagreed with
Ms. Abbates response to the student until Ms. Abbates meeting with Foster shortly
before the hearing commenced. (Hrg Tr. vol. 1, 204:12-14 (Foster); Hrg Tr. vol. 1,
117:16118:2 (Abbate))
73. Later on October 28, JD emailed Dr. Donaldson to set up a meeting. (Ex. 8 at MU049)
74. On the morning of Wednesday, October 29, JD met with Dr. Donaldson to discuss the incident. (Ex. 8 at MU-049)
75. Dr. Donaldson intimated that Dr. Snow and others in the Philosophy Department would be unlikely to sympathize with his views on same-sex marriage, and recommended that he read online about the people he was meeting with and their views.
(Ex. 8 at MU-049)
76. According to JD, he looked up information about Dr. Snow in Dr. Donaldsons
office using Dr. Donaldsons laptop. (Ex. 10 at MU-061; Ex. 40)
77. Dr. Donaldson informed JD of Dr. McAdamss blog, which JD already knew
about, and suggested that JD not mention the incident to Dr. McAdams. (Ex. 8 at MU049050)

Final Report
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78. Donaldson believed that JD had concluded by the end of the meeting that he
would stay in Theory of Ethics and that further publicity would be a bad idea. (Ex. 8 at
MU-050)
79. On Thursday, October 30, Ms. Abbate began both sections of her Theory of Ethics
class by mentioning that an unnamed student had expressed a concern that she did not
allow for a discussion of same-sex marriage. (Ex. 36 at MU-592)
80. Ms. Abbates comments focused on whether the Regnerus study could be used to
determine if a ban on same-sex marriage would violate Rawlss Equal Liberty Principle.
(Ex. 36 at MU-592)
80.1. One student later recalled that Ms. Abbates comments were more
about research than the actual topic. (Ex. 7 at MU-043)
81. From his facial expressions, Ms. Abbate concluded that JD was not pleased
with her comments, but he did not raise an objection even when I invited questions
/concerns. (Ex. 36 at MU-592)
82. Ms. Abbate apparently did not clarify whether opposition to same-sex marriage
would be permissible in any other context in the class. (Ex. 6 at MU-036; Ex. 36 at MU592)
83. A few hours after class on Thursday, October 30, JD emailed Dr. Snow to indicate
that he would stay in the course, thanked her, and did not press his complaint further at
that time. (Ex. 9)
84. JDs abandonment of his complaint was not because he was satisfied with its resolution.
84.1. On Friday, November 14, 2014, JD emailed Dean Holz from a pseudonymous email account, without identifying himself, to set up a meeting to discuss
his complaint. Dean Holz forwarded that request to Dr. South. (Ex. 10 at MU-052;
Hrg Tr. vol. 2, 8:4-18 (South))
84.2. Dr. South met with JD on the morning of Monday, November 17. (Ex. 10
at MU-052)
84.3. Dr. South recorded the meeting without JDs knowledge. (Hrg Tr. vol. 2,
63:11-13, 82:21-23 (South))

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84.4. Dr. South stated that the primary reason he recorded the meeting was
because of the pseudonym JD used on his Gmail account, which referred to King
Ferdinand of the Two Sicilies, a monarch whose first official act was to expel 24
Jesuits from his kingdom. (Hrg Tr. vol. 2, 9:2410:13, 9:6-13 (South))
84.5. In his meeting with Dr. South, JD stated that the reason he had come in
was to make sure this doesnt happen to any other student. (Ex. 10 at MU-062;
Ex. 40; Hrg Tr. vol. 2, 83:5-13 (South))
E. Drafting of Dr. McAdamss Nov. 9 Blog Post
85. On November 7, 2014, Ms. Abbate sent her class a reminder of the drop deadline.
(Ex. 35) Later that day, JD met with his adviser in Political Science, Dr. McAdams, and
raised his experience in PHIL 2310. (Hrg Tr. vol. 4, 15:13-23 (McAdams))
86. The purpose of the meeting was likely not to select courses for the Spring 2015
semester, because the student met with Dr. Donaldson for that purpose on November
12, even though Dr. Donaldson was no longer his academic adviser. (Ex. 8 at MU-049)
87. JD purposefully raised the issue of what happened on October 28 with
Dr. McAdams so that Dr. McAdams would blog about it.
87.1. Three days after Dr. McAdams published his blog post, Dr. Donaldson
expressed surprise that JD had spoke[n] with Prof. McAdams about PHIL 2310,
since I was under the impression that he wanted the incident to die down (my
words). Dr. Donaldson later recalled that JDs response was that he purposefully spoke with Prof. McAdams as he didnt want other students to be subjected
to this same situation. (Ex. 8 at MU-050)
88. JD presented Dr. McAdams with a drop form for PHIL 2310, which
Dr. McAdams signed.
88.1. The form as submitted was dated 11/10/14, likely in the students
handwriting. (Ex. 34; Hrg Tr. vol. 4, 18:12-14 (McAdams))
88.2. The drop form was evidently received by the registrars office on Nov.
11, 2014. (Ex. 34)
89. JD was dropping Theory of Ethics due to his grade.

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89.1. JD told Dr. South that his grade was the only reason he was dropping
the class, and that he did not feel the grade was unfair. (Ex. 10 at MU-065; Ex. 40)
89.2. The drop form states as JDs reason for dropping: Current grade standing. (Ex. 34)
90. There is no evidence JD ever told Dr. McAdams that he was dropping the class
for any reason other than due to his grade.
90.1. JD may have told Dr. South that he informed Dr. McAdams that his
grade was the reason he was dropping the class, but the audio of his conversation with South is unclear at that point. (Ex. 40)131
90.2. Dr. McAdams informed the Committee that he inferred that JD was
dropping the class due to his conversation with Ms. Abbate, but he did not say
that JD told him this. (Hrg Tr. vol. 3, 102:2-16, 113:18114:9 (McAdams))
91. Dr. McAdams informed JD that he had a blog, and JD turned over his recording
to Dr. McAdams. (Ex. 10 at MU-062063; Ex. 40)
92. The Nov. 9 blog post did not mention JDs name, in order to protect him and as a
condition of his release of the recording with Ms. Abbate and the details of the meetings
with the Arts and Sciences Office and the Philosophy Department to Dr. McAdams. (Ex.
10 at MU-052; Ex. 40)
93. There is no indication that Dr. McAdams, in his role as JDs adviser, proposed
the blog post as being in the best interest of JD.
93.1. JD continued to seek other means of generating action on his complaint
after Nov. 9.
93.2. On Nov. 14, JD emailed Dean Holz to set up a meeting to press his complaint further. On Monday, Nov. 17, he met with Dr. South, as the Deans designated representative, for that purpose. (FOF 84.184.2)
The Committee is aware of material outside of the record that, on a much later occasion, JD may
have provided a reporter with a different reason for dropping the class. Not only is the Committee required to base its decision on the record, but this latter-day explanation is belied by the contemporaneous
evidence.
131

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93.3. During that meeting JD expressed as his primary aim ensuring that
views like his are not shut down in the future. He did not request discipline or a
reprimand against Ms. Abbate. (Ex. 10 at MU-052, 062)
93.4. In between Nov. 9 and Nov. 16 JD spoke with a reporter from the College
Fix to present his side of the story of what happened with his appeal. (Ex. 38 at
MU-596; Ex. 13 at MU-099)
94. Dr. McAdams listened to the recording all the way through once, then several
times in particular spots. (Hrg Tr. vol. 4, 19:820:4 (McAdams))
95. Dr. McAdams did not have any concerns about whether Ms. Abbate had been
goaded into losing composure or whether the conversation represented her fully
formed views. (Hrg Tr. vol. 4, 20:1922:7, 24:125:9, 45:1-24, 56:2558:5 (McAdams))
96. Dr. McAdams likely worked on the post on Saturday, Nov. 8. (Hrg Tr. vol. 3,
103:4-6 (McAdams))
97. Dr. McAdams emailed Ms. Abbate on Sunday, Nov. 9, at 8:58am, asking for her
comment on the incident. The subject line was Confrontation with [JD] (Ex. 11)
98. Dr. McAdams stated that he was working on a story about [the] after-class confrontation with JD, but did not further specify the nature of the story. He stated that
Ill assume anything is on the record unless you tell me differently. (Ex. 11)
99. Dr. McAdams did not mention in the e-mail that he was JDs adviser. (Ex. 11)
100. Dr. McAdams intentionally exploits the ambiguity of his email address and
signature line to use the respect generated by his title of Marquette professor to gather
responses to his emails from faculty and students.
100.1. Dr. McAdams signs his emails John McAdams / Political Science /
Marquette Warrior Blog, which he sends from his Marquette email account. (Ex.
11)
100.2. When challenged about whether he was writing to a student as a professor or as a blogger, Dr. McAdams pointed to the Marquette Warrior Blog
portion of the signature. (Ex. 20 at MU-256)

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101. Ms. Abbate saw the email later that day and forwarded it to Dr. Snow and
Dr. South. Dr. South advised her not to respond. (Hrg Tr. vol. 1, 71:15-20, 122:20123:3
(Abbate); vol. 2, 87:2588:8 (South)
102. Dr. McAdams posted his blog post on Nov. 9 at 6:06pm. (Ex. 12)
103. Dr. McAdamss post is drafted in a way calculated to direct a negative response at Ms. Abbate, more than at the University or others, based on Ms. Abbates
views, what she allegedly said in the October 28 class, what she said in the after-class
conversation, and an alleged pattern of such incidents by others.
103.1. Dr. McAdams identified Ms. Abbate by name. (Ex. 12 at MU-073)
103.2. Dr. McAdams linked to Ms. Abbates website with her contact information on it in order to make it easier for readers to find that information. (Ex. 12
at MU-073)
103.3. Dr. McAdams later stated that Ms. Abbates actions were not newsworthy until Marquette officials failed to address the problem. (Ex. 18 at MU236)
103.4. Dr. McAdams made no other efforts to solve his advisees problem.
(Hrg Tr. vol. 4, 52:1753:19)
103.5. Dr. McAdams stated that Ms. Abbate had airily assumed universal
agreement on the issue of gay rights, and that there was no need to discuss it.
(Ex. 12 at MU-073)
103.6. Although Dr. McAdams quoted Ms. Abbate as saying everybody
agrees on this, and there is no need to discuss it (Ex. 12 at MU-073), he had no
basis for quoting that language, as he had only the second-hand report of his advisee ten days after the fact.
103.7. Dr. McAdams quoted extensively from the recorded after-class conversation. (Ex. 12 at MU-074)
103.8. Dr. McAdams implied that Ms. Abbate pressured JD to drop the class.
(Ex. 12 at MU-074, 076)

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103.9. Dr. McAdams then associated Ms. Abbates statements with a tactic
typical among liberals now, which is to deem opposing views offensive and
tell the speaker to shut up. (Ex. 12 at MU-074)
103.10.Dr. McAdams quoted columnist Charles Krauthammer as stating that
[t]he proper word for that attitude is totalitarian. (Ex. 12 at MU-074)
103.11.Dr. McAdams asserted that the targets of this effort are Christians,
Muslims, and straight white males. (Ex. 12 at MU-075)
104. The bulk of the post concerns Ms. Abbates statements in class and in her recorded after-class exchange with JD.
104.1. The first 6% of the post discusses the events of the 10/28 class, the next
31% of the post discusses the after-class exchange, and the following 28% of the
post attempts to tie Ms. Abbate to a larger claimed phenomenon of liberals silencing disfavored viewpoints. (Ex. 12)
105. The post also criticizes the actions of the college and department in handling
the complaint.
105.1. Seven percent of the post discusses the handling of JDs complaint.
Seventeen percent of the post criticizes Snow and Foster for previous incidents.
(Ex. 12)
105.2. Ten percent of the post is the conclusion, asserting a discouraging impact on JD and the university. (Ex. 12)
106. Dr. McAdams had reason to know that identifying Ms. Abbate on his blog
with a link to her contact information could lead to negative communications directed
at Ms. Abbate. (FOF 27, 26.2)
106.1. Dr. McAdams purposefully omitted the name of a supporter of his
blog from a comment he posted because the person was afraid of blowback or
harassment. (Hrg Tr. vol. 3, 178:16-23 (McAdams))
107. Dr. McAdams intentionally used Ms. Abbates name and linked to her contact
information in order to expose her to negative comments from readers of his blog. (FOF
103, 106)

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108. Dr. McAdams had reason to know that other news and commentary sites
might repeat his allegations, amplifying the negative effect of his original post.
108.1. Dr. McAdams was aware of the modern media phenomenon that
[w]hen one does something that gets national publicity, some jerks are going to
say nasty things by email. (Ex. 18 at MU-236.)
109. No prior blog post of Dr. McAdamss received the media coverage or resulted
in abusive emails to the extent that this one did. (Hrg Tr. vol. 3, 120:3-11, 118:2-19,
119:1-8 (McAdams))
110. After posting the Nov. 9 blog post, Dr. McAdams actively promoted the story
by, for example, distributing copies of the audio recording to interested journalists and
bloggers, posting follow-up stories linking back to the Nov. 9 post, creating a category
of posts linked to Ms. Abbate by name, and arranging to appear on radio and television
interviews about the story and subsequent controversy.
110.1. Dr. McAdams provided copies of the recording to at least three journalists: Todd Starnes from Fox News, Colleen Flaherty from Inside Higher Ed,
and Krystle Kacner from the local Fox affiliate television station. (Ex. 18 at MU223, 215; Hrg Tr. vol. 4, 58:6-21 (McAdams))
110.2. Dr. McAdams also sent out links to his November 9 blog post to other
bloggers and commentators once it began to attract attention. (Hrg Tr. vol. 3,
169:21170:4 (McAdams))
110.3. Dr. McAdams labelled the Nov. 9 post and subsequent posts on his
blog to link them to Ms. Abbate by name. (Hrg Tr. vol. 3, 169:116 (McAdams))
110.4. Dr. McAdams forwarded requests for interviews to JD. (Hrg Tr. vol. 4,
60:2561:5 (McAdams))
111. Dr. McAdams has made only minor attempts to mitigate the harm from his
post, such as a brief and grudging acknowledgement that Ms. Abbate may have been
referring to Rawls and not gay rights when she said everyone should agree with this
(Ex. 18 at MU-223).
112. Dr. McAdams has never publicly expressed regret for the harm experienced by
Ms. Abbate due to his use of her name.

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112.1. Dr. McAdams stated to the committee that, if he had to do it all over
again, he probably would not use Ms. Abbates name, knowing what he knows
now. (Hrg Tr. vol. 3, at 135:24-136:1; vol. 4, at 29:3 (McAdams).
112.2. Dr. McAdams maintained that it was nevertheless his academic freedom right to post her name. (Hrg Tr. vol. 3, at 135:24136:1 (McAdams))
113. Dr. McAdams does not accept a connection between linking to contact information in a critical blog post and the identified person receiving abusive emails. (Ex. 18
at MU-236)
113.1. Dr. McAdams told Dean Holz that, according to Dean Holz, as a
journalist, [Dr. McAdams] had to publish the names. He indicated that the blog
is on a non-university server and not associated with Marquette. He indicated
that it is his free-speech rights to publish what he wishes. (Ex. 17 at MU-207
208)
113.2. Dr. McAdams has stated that the harm to Ms. Abbate occurred due only to truthful reporting of facts. (Ex. 18 at MU-231), and it was Abbates actions, not his, that caused the problem. (Ex. 18 at MU-236.)
113.3. Dr. McAdams has also stated that he does not have an obligation to
protect the reputations of members of the Marquette community. (Ex. 18 at MU236; Ex. 38 at MU-597598)
113.4. In addition, Dr. McAdams has justified the harm to Ms. Abbate as in
part offset by the harm to JD. (Ex. 18 at MU-231)
113.5. Dr. McAdams has also justified the abusive messages received by
Ms. Abbate as counterbalanced by those he himself received. (Ex. 18 at MU-236)
113.6. Dr. McAdams refused to condemn the senders of abusive communications to Ms. Abbate, since it goes without saying that people who write abusive
e-mails are jerks and idiots. (Ex. 18 at MU-246)
114. Dr. McAdams does not accept that Ms. Abbate was harmed by this incident.
114.1. Dr. McAdams has noted that the philosophy department Ms. Abbate
transferred to has a good reputation. (Hrg Tr. vol. 3, 125:10-13 (McAdams); Ex.
18 at MU-237)

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114.2. Under questioning from his own attorney whether he was saying that
Ms. Abbate benefited by getting nasty e-mails, Dr. McAdams responded, she
may have. In becoming kind of a martyr. Hrg Tr. vol. 3, 125:7-19 (McAdams)
115. Dr. McAdams sees himself as bound only by a set of obligations he has assembled from his understanding of journalistic norms and obligations he recognizes to
members of his own department and students under his direct supervision.
115.1. Dr. McAdams views his blogging as limited only by journalistic norms
and the law. (Hrg Tr. vol. 4, 41:1542:8 (McAdams))
115.2. Dr. McAdamss journalistic norms are assembled from his observation
of other news outlets. (Hrg Tr. vol. 3, 174:19175:3 (McAdams))
115.3. Dr. McAdams believes he is obligated on his blog to name subjects and
to shield sources. (Ex. 38 at MU-598; Hrg Tr. vol. 3, 114:22-115:4, 115:22116:4;
116:22117:3 (McAdams))
115.4. Dr. McAdams provided anonymity on his blog to a correspondent
who had not asked for it, simply because he knew that he wouldnt mind being quoted anonymously. (Hrg Tr. vol. 3, 179:14-22 (McAdams))
115.5. He states that he would never seek to expose the failings of students in
his classes or colleagues within his own department, but he does not extend the
same courtesy to colleagues or students elsewhere within the university. (Hrg
Tr. vol. 4, 47:19-24, 55:15-21, 48:4-10 (McAdams))
115.6. His junior colleagues within the Political Science department seem unaware of this distinction, and are some of those most intimidated by
Dr. McAdams. Ex. 15 at MU-186187.
116. Dr. McAdams appears to believe that who appears in his blog is driven more
by the subjects actions than his choice to blog about them.
116.1. Dr. McAdams justified his post about AD as follows: When students
do high-profile public things, there is a legitimate news interest in what they do.
(Ex. 20 at MU-291)
116.2. Dr. McAdams justified his post about Ms. Abbate as beyond his control: If an issue is of public interest, it is reported. (Ex. 38 at MU-597)

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116.3. Dr. McAdams stated that the controversy over his post was due to
Ms. Abbates actions: It was Abbates actions toward the student which caused
the problem . . . . (Ex. 18 at MU-236)
116.4. Dr. McAdams does not acknowledge any role in causing the abusive
emails that followed his post: When one does something that gets national publicity, some jerks are going to say nasty things. Neither we nor anybody at Marquette can help that. (Ex. 18 at MU-236)
F. Harm to Ms. Abbate
117. Ms. Abbate started receiving strongly negative emails on the evening of November 9. (Ex. 13 at MU-098; Hrg Tr. vol. 1, 71:2172:9 (Abbate))
118. The emails, blog comments, and letters grew in number and vehemence over
the next several days, and particularly after the first mention of the incident on Fox
News on November 21. (Ex. 13; Hrg Tr. vol. 1, 151:25152:19 (Abbate))
119. The Fox News article was written by Todd Starnes, to whom Dr. McAdams
had given a copy of the recording. (Ex. 13 at MU-147, 151; FOF 110.1)
120. On Nov. 21, Ms. Abbate shut down her email account for the weekend, and requested that the Philosophy Dept. remove her email address from the Grad Student
web page. (Ex. 13 at MU-101 (shutting down email); Ex. 15 at MU-188 (removal of address))
121. Ms. Abbates ranking on RateMyProfessors was also sabotaged. (Ex. 13 at MU094097; Hrg Tr. vol. 1, 89:1790:8 (Abbate))
122. One person emailed four or five times over the following three weeks, even after the story had faded from the news, causing Ms. Abbate to fear that he might be a
stalker. (Ex. 14 at MU-179180; Hrg Tr. vol. 1, 86:1-12 (Abbate))
123. There are 89 emails, comments, and letters in the record, sent between Nov. 9
and Dec. 21, 2014. (Ex. 13; Ex. 109) The record may not contain all of the messages Ms.
Abbate received. (Hrg Tr. vol. 1, 153:15154:2 (Abbate))
124. Several of the communications expressed violent thoughts about Ms. Abbate.
(Ex. 109 at JM-028033; Hrg Tr. vol. 1, 84:13-21 (Abbate); Ex. 13 at MU-089, 127)

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125. Other communications contained angry profanity. (Ex. 13 at MU-107, 109, 112,
113, 116, 119, 122)
126. Several senders threatened Ms. Abbates job or expressed the hope she would
be fired. (Ex. 13 at MU-098, 114, 115, 130, 146, 166, 148, 149; Ex. 109 at JM-030)
127. Ms. Abbate continued reading the emails, and searched for comments on blog
sites, in order to monitor whether her residential contact information was being circulated. (Hrg Tr. vol. 1, 84:9-13 (Abbate))
127.1. Ms. Abbate was aware of recent high-profile cases in which women
were targeted by online commenters and received threats directed at their home
addresses. (Hrg Tr. vol. 1, 156:2-24 (Abbate); Ex. 109 at JM-021)
128. The volume of hostile and threatening communications made Ms. Abbate fear
for her physical safety. (Hrg Tr. vol. 1, 83:1084:8 (Abbate); Hrg Tr. vol. 1, 174:22
175:13 (Foster); Ex. 14 at MU-176)
129. Ms. Abbate suffered negative effects on her mental and physical health during
this time.
129.1. Dr. Snow reported at the time that Ms. Abbate was in tears, and
currently struggling to teach her classes and revise a dissertation proposal. (Ex.
14 at MU-188.)
129.2. Dr. Foster recalled at the hearing that Ms. Abbate noticeably lost
weight during this time, and appeared distressed. (Hrg Tr. vol. 1, 176:15-25 (Foster))
129.3. Dean Holz noted at the time that he had asked Ms. Abbate to forward
all messages she received, but asked DPS Officer Paul Mascari to follow up because she is feeling rather intimidated. (Ex. 14 at MU-176)
129.4. While Ms. Abbate initially attempted to present a brave front in forwarding the emails to Drs. South and Snow, making sarcastic comments, by Nov.
26 she told them, Im not sure how much more of this I can take. (Ex. 13 at MU094.)
129.5. On December 2 she simply wrote, Would they go away already!!!
(Ex. 13 at MU-138.)

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129.6. Ms. Abbate testified that a Google search for her name produced some
of the abusive blog comments about her. (Hrg Tr. vol. 1, 84:1385:4 (Abbate))
130. Due to the effects of the controversy and the hostile communications,
Ms. Abbate withdrew from her dissertation proposal defense.
130.1. Ms. Abbate, who was by all indications a star graduate student, was
unable to focus on preparing her dissertation topic defense by the end of November. (Hrg Tr. vol. 1, 176:1-25, 179:20180:4 (Foster); Hrg Tr. vol. 1, 157:3-15
(Abbate); Ex. 15 at MU-188)
131. Ms. Abbate does not appear, based on the evidence, to have an unusually fragile psyche.
131.1. Ms. Abbate attended college on an Army ROTC scholarship. (Ex. 4 at
MU-030)
131.2. Dr. Foster described Ms. Abbate as a soldier. (Hrg Tr. vol. 1, 176:22
(Foster))
132. Based on concerns for Ms. Abbates physical safety and that of her students, a
Public Safety officer was posted outside of Ms. Abbates classes during the last two
weeks of classes. (Ex. 14 at MU-175, 177; Hrg Tr. vol. 1, 85:22-25 (Abbate))
133. Due to her concern for her physical safety, Ms. Abbate transferred to another
university to complete her Ph.D., substantially impacting her academic progress. (Hrg
Tr. vol. 1, 86:1387:14 (Abbate))
134. The transfer will require Ms. Abbate to repeat three semesters of course work.
(Hrg Tr. vol. 1, 87:2088:10 (Abbate))
135. Ms. Abbate stated that she is abandoning her promising dissertation topic due
to its association with her negative experiences at Marquette. (Hrg Tr. vol. 1, 88:11-19,
157:16-22 (Abbate); Hrg Tr. vol. 1, 178:14179:11 (Foster))
136. The speech of other faculty at Marquette may be chilled as well as a result of
this incident.
136.1. Junior faculty in the Political Science Department appear to have great
anxiety that they may be Dr. McAdamss next targets (Hrg Tr. vol. 3, 112:23

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114:5 (Barrington); Ex. 15 at MU-186 to 187), even though Dr. McAdams has not
criticized Political Science professors on his blog.
136.2. Dr. Barrington witnessed a younger professor at a workshop state that
his biggest challenge in bringing social justice in the classroom is being afraid
Ill show up on Professor McAdamss blog. (Hrg Tr. vol. 2, 195:14196:5 (Barrington))
137. Dr. Barrington testified that Dr. McAdams is fair and supportive of junior faculty in the Political Science Department in his tenure reviews. (Hrg Tr. vol. 2, 190:25
191:15 (Barrington))
G. Suspension and Initiation of Termination Proceedings
138. Ms. Abbate lodged a complaint against Dr. McAdams sometime after meeting
with Dr. South and Dr. Barrington on Nov. 11. (Ex. 6 at MU-034; Hrg Tr. vol. 1, 114:6-9;
Hrg Tr. vol. 2, 7:21-23)
139. By Nov. 14, Dean Holz had delegated the investigation of Ms. Abbates complaint, and also the students complaint, to Dr. South. (Hrg Tr. vol. 2, 43:4-8, 61:17-23
(South))
140. Dr. South has had several conflicts with Dr. McAdams in the past. (FOF
24.2, 24.12, 25.2)
141. Dr. South was supervised in his investigation by Dean Holz. (Hrg Tr. vol. 3,
80:4-15 (Holz))
142. After discovering comments about her on the website iOTW Report (Ex. 13 at
MU-101; Ex. 109 at JM-028033), Ms. Abbate forwarded information concerning her
situation to Dr. Justin Weinberg of the Daily Nous blog (Ex. 6 at MU-038040; Hrg Tr.
vol. 1, 115:6-9).
143. Dr. Weinberg published a post about Ms. Abbate and Dr. McAdams on Nov.
18. The post noted Marquettes lack of stated support for Ms. Abbate and encouraged
readers to email Dean Holz and Provost Callahan. (Cited in Ex. 15 at MU-182)
144. Dr. John Protevi posted an open letter to Dean Holz and Provost Callahan on
his blog expressing hope that you will offer your support to Ms. Abbate and take steps
to ensure that Professor McAdams learns the rudiments of professional behavior in the

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future. It received more than four hundred additional signatures. (Cited in Ex. 15 at
MU-182; Ex. 18 at MU-226)
145. Dr. Barrington and Dr. South exchanged emails, copying Dean Holz, indicating
awareness of the calls for action on the Daily Nous and other philosophy blogs. (Ex. 15 at
MU-181182)
146. Pressure built within Marquette for action as well.
146.1. On Nov. 19, Dr. Barrington informed Dr. South and Dean Holz that
there was a great amount of anger at Dr. McAdams within the Political Science
Department, and there was also frustration that the University has not taken
more serious steps. (Ex. 15 at MU-181; Hrg Tr. vol. 2, 109:10-24 (Barrington))
146.2. On Nov. 21, eight Arts & Sciences department chairs emailed President
Lovell, Interim Provost Callahan, and Dean Holz to condemn Dr. McAdams and
to implore the academic leaders of the university to take action to ensure that
his violation of the university handbook cease[s] immediately. (Ex. 15 at MU190)
146.3. A similar letter was published in the Marquette Wire on Nov. 25, although it made no call for action. (Ex. 15 at MU-197198)
146.4. On Nov. 21, Interim Provost Callahan sent an email to the Marquette
faculty emphasizing the dedication we have as leaders to uphold academic
freedom and to maintain an environment in which the dignity and worth of each
member of our community is respected, but noting that an investigation concerning . . . matters of collegiality, professionalism and academic freedom
would likely take time. (Ex. 16 at MU-205)
146.5. Two hours after Dr. Callahans email, Dr. Nancy Snow, Chair of the
Philosophy Department, emailed President Lovell, Interim Provost Callahan, and
Dean Holz, expressing frustration at the gag rule she believed had been imposed on the Administration by its legal counsel in responding to Dr. McAdams,
and stating: I see no reason why administrators should be prevented from imposing appropriate sanctions. Dr. McAdams[s] behavior clearly violates the
Faculty Handbook. (Ex. 15 at MU-188)

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146.6. On Nov. 22, President Lovell sent an open letter to the Marquette
community supporting academic freedom and deplor[ing] hatred and abuse directed at a member of our community in any format. (Ex. 16 at MU-204)
146.7. On Nov. 25, Dr. Barrington sent Dean Holz a letter reporting the general consensus of the Political Science department that Marquette Universitys
leadership . . . take the appropriate steps to fulfill its obligations to protect Marquette faculty, staff, graduate students and undergraduates from a hostile campus environment. (Ex. 15 at MU-195; Hrg Tr. vol. 2, 129:8-19 (Barrington))
147. In a Dec. 16, 2014 letter, Dean Holz informed Dr. McAdams that until further
notice, Dr. McAdams was relieved of all teaching duties and all other faculty activities
. . . . He was also instructed to remain off-campus unless prior permission was obtained from Dean Holz in writing. (Ex. 24 at MU-508)
148. Dean Holz informed Dr. McAdams that his salary and benefits will continue
at their current level during this time. (Ex. 24 at MU-508)
149. Dean Holzs letter also cited the universitys Guiding Values and harassment
policy, but did not allege that Dr. McAdams had violated either. (Ex. 24 at MU-508)
150. On January 2, 2015, Dean Holz affirmed that Dr. McAdams was barred from
campus. (Ex. 26 at MU-521)
151. In February 2015, Dr. McAdams was offered a temporary office near campus
that he could use to finish his book, as well as library access. Dr. McAdams declined to
take advantage of this offer since it would have involved too much effort to move offices. (Hrg Tr. vol. 3, 87:3-20 (Holz); Hrg Tr. vol. 3, 136:7137:8 (McAdams))
152. Dean Holz informed the Committee that the purpose of the campus ban was to
provide a cooling off period while the University completed its investigation. (Hrg
Tr. vol. 3, 84:2185:15 (Holz))
153. On January 13, 2015, University spokesperson Brian Dorrington released a
statement to the press implying that Dr. McAdams was banned from campus due to
safety concerns: The safety of our students and campus community is our top priority .
. . . We take any situation where a students safety is compromised extremely seriously. (Ex. 107 at JM-015)

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154. Mr. Dorrington also said in that statement that t]he university has a policy in
which it clearly states that it does not tolerate harassment . . . . (Ex. 107 at JM-015)
155. There is no evidence that Dr. McAdamss continued presence on campus
posed a danger of immediate harm to himself or others.
156. The University denies Dr. McAdams has been suspended.
156.1. Asked for comment on Dr. McAdamss status, spokesperson Brian
Dorrington stated that Dr. McAdams was not suspended because [o]ur definition of suspension is without pay. (Ex. 108 at JM-017)
156.2. Dean Holz testified that he did not believe he had suspended
Dr. McAdams because Dr. McAdams wasnt relieved of his salary or his benefits. (Hrg Tr. vol. 3, 32:15-19 (Holz))
157. The University notified Dr. McAdams of its intent to terminate Dr. McAdamss
employment by letter dated January 30, 2015 from Dean Holz to Dr. McAdams. (Ex. 2)
158. The specific grounds for termination cited in the letter centered around the
naming of Ms. Abbate in the blog post of November 9, 2014 which resulted in harm to
Ms. Abbate. (Ex. 2)
V. CONCLUSIONS
The Committee, having considered the material entered into the record in this case,
having made the foregoing findings of fact, and having duly deliberated, concludes that
discretionary cause does not exist to terminate Dr. McAdamss employment. However,
the Committee does conclude that discretionary cause exists to suspend Dr. McAdamss
employment at Marquette, without pay but with benefits, for a period of one to two
semesters. These conclusions are based on the reasoning set forth below. The Committee will first, in Section V.A, provide the basis for its conclusion that the University has
established, by clear and convincing evidence, a prima facie case of discretionary cause
to suspend, but not terminate, Dr. McAdams. That basis itself has several parts to it.
Initially, the Committee will identify, in Subsections V.A.1 and 2, the obligations imposed by the professional standards applicable to this case. The Committee will then
proceed in Subsection V.A.3 to apply those standards to Dr. McAdamss conduct, as
determined in the Findings of Fact above, and also to consider, in V.A.4, factors that

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weigh against a conclusion that a clear and substantial violation occurred. In Subsection
V.A.5, the Committee will then move to the second prong of the test for a prima facie
case of discretionary cause, evaluating whether Dr. McAdamss conduct has substantially impaired his value. We offer our conclusion as to the prima facie case for discretionary cause in Subsection V.A.6. In Section V.B, the Committee will address whether
Dr. McAdamss conduct falls within the protection afforded by academic freedom in
Subsection V.B.1, and in Subsection V.B.2, whether dismissal is being sought to restrain
Dr. McAdams in their exercise of his academic freedom or other rights guaranteed him
by the United States Constitution. Finally, in Section V.C we offer our ultimate conclusion as to discretionary cause and offer some cautionary remarks concerning how our
decision should be interpreted in light of current controversies.
A. Discretionary Cause
As detailed in Part III above, the inquiry required under Marquettes Faculty Statutes to terminate or suspend a tenured faculty member has several parts to it. The University must first show that the faculty member has through his or her conduct clearly
and substantially failed to meet the standard of personal and professional excellence
that generally characterizes University faculties, and second that the conduct in question likely substantially impairs the faculty members value. The Committee must then
determine whether any discipline would impair the full and free enjoyment of legitimate personal or academic freedoms; if so, then discretionary cause cannot be found to
exist.132 Finally, the Faculty Statutes prohibit the University from using dismissal to
restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.133 In this Section, we consider the first two
questions, which constitute a prima facie showing of discretionary cause.
The Committee unanimously concludes that Dr. McAdamss actions surrounding
the Nov. 9, 2014 blog post were imprudent, unprofessional, and unwise. In particular,
Dr. McAdams clearly and substantially violated the norms of the scholarly profession
by recklessly and unjustifiably, albeit indirectly, causing harm to his junior colleague,
Ms. Abbate. Furthermore, he did so in ways that were justified by neither his freedom
to search for truth nor his obligation to his student advisee. As explained below, the
132
133
FS 306.03.
FS 307.07 2.

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Committee finds that Dr. McAdamss conduct was a serious instance of irresponsible
conduct.
The Committee is also agreed, however, that there are countervailing facts in this
case. McAdamss Nov. 9 blog post addressed, at least in part, a topic of significant public and intramural concern as it relates to the state of free inquiry on campus, including
in classrooms. Furthermore, the Committee finds that Dr. McAdamss teaching, scholarship, and service to the University have all been at least satisfactory. And it is clear that
Dr. McAdams received no prior formal warning that the university would someday
take the position that something he posted on his blog might constitute discretionary
cause for termination.
The Committee is therefore faced with a difficult balance in this case between academic freedom and a faculty members responsibilities to others. This case represents a
complex and delicate interplay between the critical free speech rights of the individual,
and the sometimes necessary tension that such freedom can cause in a university community, particularly at a private Catholic institution that has a mission dedicated to
upholding and defending the dignity of each person. It is clear that Dr. McAdams
transgressed both professional and Marquette University standards and that his transgression was seriously irresponsible conduct. It is also clear that Dr. McAdamss blog
post, like many of his blog posts, commented on an intramural issue of substantial
importance to the university and to the broader public.
The Committee in this case, on these facts, concludes that neither partys recommended sanctioneither, as Dr. McAdams requests, no penalty at all, or, as the University requests, a penalty of dismissalis warranted by the record. As explained further
below, the Committee concludes that the University has not demonstrated sufficient
cause to terminate Dr. McAdams, because, considering the entire record, his violation of
professional standards was not severe enough, and his value or utility was not sufficiently impaired, to justify a penalty of termination. However, the Committee concludes
that the University has demonstrated, by clear and convincing evidence, that cause
exists to suspend Dr. McAdams without pay, as his violation of professional norms has
impaired his value to the university to a degree that supports that penalty, and only that
penalty.
68
Final Report
1.
The Balance Between Freedoms and Responsibilities Inherent in Academic Freedom
Given the delicate nature of the balance to be struck in this case, and the heightened
sensitivity on college campuses today toward one side or the other of the balance, we
begin with a brief description of our understanding of the competing interests at stake,
and why resolving them is a difficult task only to be undertaken after a prior review by
a committee composed of members of the faculty.
The modern university is premised on free and open debate on any topic of concern
to scholars, students, or society. What was said recently about the University of Chicago
should apply equally well to any university: [T]he Universitys fundamental commitment is to the principle that debate or deliberation may not be suppressed because the
ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.134 While valuable in its
own right, the purpose of free and open debate at a university is to help achieve the
universitys primary goal: serving the public good by providing a space that facilitates
the search for truth.135 The path to the truth is uncertain, however; it is prone to missteps, and even well-trodden paths sometimes turn out to be dead ends. That is why
universities long ago determined that the search for truth cannot be governed by the
weight of public opinion, or by scholarly consensus, or by the opinions of wealthy benefactors. All avenues must remain open to be explored.
As a result, universities and faculties have developed norms of academic freedom, to
give faculty members license to pursue disagreements over the truth, how to search for
it, how to explain it, or how to teach it, without fearing for their livelihoods. But academic freedom, as important as it is, is not an unalloyed good. Although academic
freedom is often regarded as an individual right to speak however one wishes, akin to
the First Amendment, there is no particular reason to believe that unrestrained speech,
Geoffrey R. Stone, et al., Report of the Committee on Freedom of Expression (Chicago: University of Chicago, 2015), 2.
135 Institutions of higher education are conducted for the common good and not to further the interest
of either the individual teacher or the institution as a whole. The common good depends upon the free
search for truth and its free exposition. AAUP, 1940 Statement of Principles on Academic Freedom and
Tenure, With 1970 Interpretive Comments, in Policy Documents and Reports, 11th ed. (Baltimore: Johns
Hopkins, 2015), 14.
134

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by itself, will produce the ultimate goal of advancing knowledge.136 Rather, as two
scholars of the subject have recently noted, academic freedom is more properly viewed
as part of a compact between society and the academic profession. The freedom of research, of teaching, and of comment that compose academic freedom are freedoms to
speak and write as a member of a profession, subject to professional norms.137 As the
AAUP has long recognized, [a]cademic freedom . . . carries with it duties correlative
with rights.138
This need for balancing some norms against others is what makes disputes over academic freedom often difficult, and this case is no exception. While the right to speak
and research freely is relatively simple to comprehend, the obligations of the academic
profession and the university community are varied, often underspecified, and shifting
in nature, as is typical of ethical obligations that arise from a sense of common purpose.
Nevertheless, several of those obligations are critical to the profession and to the proper
functioning of the university. No matter where the line between prohibited conduct and
protected conduct is drawn, there will be an inevitable border region into which the
most difficult fact patterns will fall. As Committee A of the AAUP noted shortly after its
founding:
It is difficult to formulate the general rules of academic freedom in such a way that a
clear and unmistakable line shall be drawn between the field of utterance which it protects and the field for which it sets up no defenses. . . . Between those cases where dismissal would be a clear and unmistakable infringement of academic freedom and those cases
where it is equally clear that the principle of academic freedom cannot be invoked as a
defense, there is a narrow and uncertainly mapped area where judgment must hinge upon a knowledge of the background and all the attending conditions of the individual
case.139
This is particularly true when, as here, the asserted misconduct involves not teaching or
scholarship, but extramural statements, where professional norms are somewhat less
Matthew W. Finkin and Robert C. Post, For the Common Good: Principles of Academic Freedom (New
Haven: Yale University Press, 2009): 42.
137 Ibid., 43.
138 AAUP, 1940 Statement of Principles, 14; see also AAUP, Statement on Professional Ethics, in
Policy Documents and Reports, 11th ed., 145.
139 Finkin and Post, For the Common Good, 46 (quoting AAUP Committee A, Report of Committee A on
Academic Freedom and Academic Tenure, Bulletin of the American Association of University Professors 4,
no. 2/3 (1918): 20.)
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well-defined. As the AAUP investigating committee wrote in its influential report in the
Angela Davis case at the University of California in 1971:
At some stage in a contested argument over academic responsibility and fitness to teach,
appeal must be made to someones judgment in applying what are necessarily somewhat
imprecise standards for the limits of propriety of extramural controversy. The judgment
to be made is how far the condemned polemics fall below a professionally tolerable
norm, and about the gravity, the frequency, and other circumstances of the incidents
along with other evidence bearing on the speakers overall academic responsibility. It is
entirely possible, even likely, that the balance might be struck differently on the same evidence by leaders of the academic community and by members of a governing board, especially where political and other public controversy is involved.140
That is why it is essential, in exercising that judgment, that a committee of faculty peers
evaluate the charges against a faculty member targeted for discipline, in order to render
the assessment of members of the academic profession as to which side of the balance
the faculty members conduct falls. The FHCs procedures and report fulfill that obligation for Marquette.
Marquette, along with most universities, preserves the freedom to search for truth in
two important ways. First, all faculty members are guaranteed academic freedom, defined in the Faculty Handbook using language taken directly from the groundbreaking
1940 Statement of Principles on Academic Freedom and Tenure adopted by the American
Association of University Professors and the Association of American Colleges. Second,
Marquette offers an additional protection to certain senior faculty membersthe protection of tenure, which provides procedural guarantees that faculty members cannot be
dismissed for light and transient reasons, and that in contested cases a faculty committee will review and pronounce upon any such charges. The purpose of tenure is to provide an additional bulwark for academic freedom, by requiring an extraordinary showing of cause before a faculty member may be dismissed.141 Thus neither guarantee is
absolute; both can be overridden in extraordinary circumstances when the faculty
Richard Brandt and Hans A. Linde, Academic Freedom and Tenure: The University of California at
Los Angeles, AAUP Bulletin 57, no. 3 (1971): 398.
141 Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men
and women of ability. AAUP, 1940 Statement of Principles, 13.
140
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member violates professional standards in a way that substantially impacts the faculty
members fitness to carry out his or her duties as a professor.
Marquette has incorporated this balance between the rights and responsibilities accompanying academic freedom into the procedures for dismissal for discretionary
cause. This collection of inquiries includes some focused on violations of professional
and personal standards that affect a professors fitness to serve, and others that focus on
the faculty members freedoms of speech and inquiry. It is to these inquiries that we
now turn, starting with standards of personal and professional excellence.
2.
The Standards of Conduct Applicable in This Case
The University, several witnesses, and many observers have expressed a clear sense
that Dr. McAdams has violated some of his obligations, but they have been less clear in
identifying precisely what those obligations are. Not every norm or obligation is enforceable on pain of dismissal; only substantial violations of standards of conduct applicable to university professors can qualify as discretionary cause. The Faculty Statutes
give as examples of such violations serious instances of illegal, immoral, dishonorable,
irresponsible, or incompetent conduct.142 Because the nature of the obligation and the
significance of its violation must be considered in conjunction with Dr. McAdamss
freedom of extramural speech and, in turn, assessed for its impact on his fitness as a
professor, identifying the precise standard violated is critical.
A number of aspects of Dr. McAdamss conduct have been identified by the University as giving rise to discretionary cause in this case. As summarized in Section II.B.1
above, the University has in its written submissions alleged the following regarding
Dr. McAdamss November 9, 2014 blog post: 1) that he made false statements or material omissions,143 2) that he failed to make a prior complaint about Ms. Abbates class
with various administrators,144 3) that he did not perform a diligent investigation of the
facts alleged in the blog post,145 4) that he wrongfully and unnecessarily used Ms. Abbates name in the blog post in a way that he knew or should have known . . . would
FS 306.02.
See Doc. 1 Ex. 2 at 2-3, MU-003004; Doc. 6 at 2-3.
144 See Doc. 1 Ex. 2 at 2, MU-003.
145 See Doc. 1 Ex. 2 at 13, MU-014.
142
143
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result in vulgar, vile, and threatening communications to Ms. Abbate,146 5) that he

wrongfully targeted a graduate student for public criticism of her teaching,147 and
6) that his Nov. 9 blog post, along with his other conduct, contribut[es] to a culture of
intolerance that intimidates colleagues and threatens the practice of academic freedom.148 The difficulty with these charges is that several of them do not, considered in
isolation, rise to the level of discretionary cause, and the others would not in all circumstances do so, requiring a careful consideration of the conduct alleged to have occurred
here, and the duty that conduct is alleged to have breached. Because of the delicate
nature of the balance between professional obligations and freedom of debate, and
because of the potential chilling effect arising from even the mere consideration of discipline of a tenured faculty member, it is incumbent upon the Committee and the University to identify precisely the standard of personal or professional excellence that
has been violated by Dr. McAdams.
a.
Conduct Not Leading to Discipline
It may be useful to begin by distinguishing conduct that does not, by itself, qualify as
a serious breach of standards of personal or professional excellence requiring discipline,
and then asking if there is something more in this case. It is particularly important for
both this Committee and the University to identify conduct that, while part of the overall record in the unique circumstances at issue in this case, will not and should not subject faculty to discipline in future cases.
For example, the University has asserted as bases for discretionary cause that
Dr. McAdamss November 9 blog post contained factual errors or omissions, and that
he did not attempt to verify an account of events given to him by his student advisee in
any way before posting. But neither of these actions, considered in isolation, can subject
a faculty member to discipline. There is no general obligation on the part of blogging
faculty members to ensure that every statement they make in their posts is accurate.149
Doc. 1 Ex. 2 at 13, MU-014; Doc. 6 at 4.
See Doc. 1 Ex. 2 at 13, MU-014; Doc. 6 at 4-5.
148 Doc. 1 Ex. 2 at 13-14, MU-014015.
149 A defamatory statement might rise to the level of discretionary cause, that is, a false statement of fact
injuring a persons reputation. While Dr. McAdams falsely implied that Ms. Abbate had forced her student to drop her class as a result of their conversation, the University has not argued that that misstatement injured Ms. Abbates reputation to such a degree as to give rise to an actionable claim of defamation.
146
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Nor do faculty members writing on an external blog have a general obligation, such as
that held by professional journalists, to attempt to confirm factual statements made by a
source, even if those statements portray another individual in a negative light.150 If
Dr. McAdamss misstatements and lack of confirmation rise to the level of discretionary
cause, it must be because of their role in furthering some other violation of his obligations as a Marquette professor.
Likewise, much of the briefing in this case, the testimony at the hearing, and the
commentary present in the record focuses on Dr. McAdamss decision to identify
Ms. Abbate, a graduate student, by name on his blog. But merely naming a grad student, or even an undergraduate, in a blog post, without more, cannot by itself be considered conduct falling so far below professional or societal norms that it deserves sanction. In the same vein, the mere fact that a students contact information is listed on
their personal webpage should not prevent a faculty member from linking to it. That is
true even if the blog post is critical of the student; for example, it would not be out of
bounds for a professor to criticize a grad students published work in a blog post, and
link to the students personal page where a copy of the work is located in doing so. It
should also be acceptable in most circumstances to name a student who had purposefully inserted themselves into the public sphere, by for example writing scholarship
intended for publication, blogging under their own name on a publicly available website, or speaking at a public gathering.
The same is true, in general, of criticizing the way a colleague teaches a course, as
Dr. McAdams did (based on limited information) in 2007,151 or criticizing the way a
student complaint is handled. Obviously there are less public avenues one could pursue
to raise such complaints, and obviously it is a bit presumptuous to challenge the way
someone else teaches a class, but the spirit of open inquiry and debate that is supposed
to pervade universities requires tolerance of criticism, even unwelcome criticism.
It is true that publicly criticizing a colleagues teaching, or a graduate students
work, is extremely forward behavior that few faculty members would indulge in. It
violates social norms of behavior that might be characterized as civility. But, as the
AAUP and others have noted, civility is not a proper basis for discipline of a faculty
150
151
Again, conduct rising to the level of defamation or another tort presents a distinguishable case.
FOF 24.324.4.
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member. The reason is not, as AAUP and faculty committees investigating the Steven
Salaita case have recently stated, because civility is an inherently vague concept.152 All
concepts governing faculty behavior, such as the content of professional standards or
the concept of fitness for a position, are inherently vague; such vagueness is unavoidable in these circumstances. Rather, the problem is that civility is in inherent tension
with the academic enterprise. Unsolicited criticism is considered, in most social contexts, to be uncivil behavior. But it is required of academics. Social norms will always
constrain such behavior to a degree that may be less than optimal, but members of the
university community must be confident that they will not be disciplined for engaging
in the sort of free critique of ideas and pedagogical methods that the scholarly profession requires. This is particularly important when the critique in question originates
from opinion outside the mainstream; such views are particularly likely to be deemed
uncivil.153 But as the Kalven Committee Report at the University of Chicago noted
long ago, a good university, like Socrates, will be upsetting.154 University professors
should not purposefully seek to upset others, of course, when more polite discourse
would suffice; but is not grounds for discipline if they do.
b.
Conduct Potentially Leading to Discipline
Dr. McAdamss conduct, however, goes beyond simply making factual errors in a
blog post, or publicly naming a graduate student in the course of criticism, or linking to
a page with her contact information, or publicly presenting a one-sided criticism of the
teaching of a colleague. It goes beyond posting an extramural blog post that is uncivil,
assuming his Nov. 9 blog post could fairly be characterized as uncivil in some way.155
Instead, Dr. McAdams used improperly obtained information in a way that he should
have known could lead to harm, harm that could easily have been avoided. His use of a
See Henry Reichman, Joan Wallach Scott, and Hans-Joerg Tiede, Academic Freedom and Tenure:
The University of Illinois at Urbana-Champaign, Bulletin of the AAUP 101 (2015): 40; OBrien, et al.,
Report on the Investigation into the Matter of Steven Salaita (Urbana-Champaign: University of Illinois, 2015):
36.
153 Historically, collegiality has not infrequently been associated with ensuring homogeneity, and
hence with practices that exclude persons on the basis of their difference from a perceived norm. AAUP
Committee A, On Collegiality as a Criterion for Faculty Evaluation, in Policy Documents and Reports,
11th ed., 227.
154 Harry Kalven, Jr., et al., Report on the Universitys Role in Political and Social Action (Chicago: University of Chicago, 1967), http://www-news.uchicago.edu/releases/07/pdf/kalverpt.pdf.
155 Dr. McAdams was certainly critical of Ms. Abbate in his Nov. 9 blog post, but did not use vituperative language or rude epithets to describe her.
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surreptitious recording, along with Ms. Abbates name and contact information, to hold
Ms. Abbate up for public contempt on his blog, recklessly exposed her to the foreseeable harm that she suffered due to Dr. McAdamss actions. Dr. McAdamss irresponsible
behavior in using the recording in this way fell far short of his obligations to Ms. Abbate
as a professional colleague and as a fellow member of the Marquette community. We
find that such seriously irresponsible conduct clearly and substantially fails to meet the
standard of professional excellence that generally characterizes university faculties,
although not, as we explain in Subsection V.A.4 below, to the degree necessary to support a penalty of dismissal.
It has been almost universally recognized for at least a century that faculty members,
by virtue of their membership in the academic profession and in university communities, have certain obligations that accompany that status.156 For example, the freedom of
faculty members to write and research for scholarly publication is cabined by norms of
attribution and academic honesty. The freedom to teach in the manner faculty members
see fit is limited by the curricular requirements of their institutions, and by norms of
respect for students and fairness in grading. The freedom to make extramural statements is similarly limited by certain obligations to clarify that one is not speaking for
ones institution, and to avoid comments that would cause grave doubts concerning
the teachers fitness for his or her position to arise.157
Among the obligations that professors have are obligations to other members of the
academic community. Although professors are not properly bound by ordinary social
norms of civility, they are not free from all restraint with respect to their colleagues.
One of the more important obligations that professors have is to take care not to cause
harm, directly or indirectly, to members of the university community. Professors, of
course, cannot be held responsible for all harm that results from their actions; some will
be unforeseeable, some will be unavoidable, and some will be outweighed by other
considerations. For example, a low grade justifiably awarded to a student for their per-
Since there are no rights without corresponding duties, the considerations heretofore set down
with respect to the freedom of the academic teacher entail certain correlative obligations. AAUP, 1915
Declaration of Principles on Academic Freedom and Academic Tenure, in Policy Documents and Reports,
11th ed. (2015), 9.
157 AAUP, 1940 Statement of Principles, 14n3. The nature of the restrictions on the freedom to make
extramural statements is considered at further length below, Subsection V.B.1.
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formance in class may be harmful to that students career, but that harm is overridden
by other, stronger obligations of fair assessment. However, where substantial harm is
foreseeable, easily avoidable, and not justifiable, it violates a professors obligations to
fellow members of the Marquette community to proceed anyway, heedless of the consequences.
That a violation of the norm to take care to avoid unnecessary substantial harm can
subject a faculty member to discipline is broadly supported by a number of sources,
both within and outside Marquette. The AAUP, an authoritative source of commentary
on norms of academic freedom and the protections of tenure, has long recognized that
membership in the academic profession carries with it special responsibilities.158
Among those responsibilities are obligations that derive from common membership in
the community of scholars.159 Membership in that community imposes obligations to
respect the dignity of others and to to acknowledge their right to express differing
opinions.160 Obviously such aspirational norms should be invoked gingerly in a disciplinary proceeding. But at a minimum, the obligations of faculty members to one another require them to safeguard the essential conditions for a community of scholars to
exist, to ensure that their colleagues feel free to explore undeveloped ideas in the relative safety of their offices, hallways, and classrooms. While professors have no right to
be free from criticism by their peers, they do have the right to expect that their colleagues will not be engaging in a search for unguarded private moments with which to
humiliate them. Such conduct is directly incompatible with the functioning of the
University, and can be subject to discipline in a way mere criticism or incivility cannot.161
These obligations take on special resonance at Marquette, which is a Jesuit university that has incorporated the concept of cura personaliscare for the whole personinto
its foundational values.162 For example, the Marquette University Mission Statement
AAUP, Statement on Professional Ethics, 145.
Ibid.
160 AAUP, Freedom and Responsibility, in Policy Documents and Reports, 11th ed., 173.
161 Geoffrey R. Stone et al., Report of the Committee on Freedom of Expression (University of Chicago, 2015),
158
159
2.
We do not assert that Marquettes religious foundation subjects it to atypical norms of academic
freedom under the exception for religious or other aims of the institution contained in the 1940 Statement, just that general academic norms of respect for colleagues and others particularly resonate here.
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provides that the Marquette community takes seriously our responsibility . . . to offer
personal attention and care to each member of the Marquette community, defined as
including faculty, staff, students, trustees, alumni and friends alike.163 One of Marquettes Guiding Values is a commitment to [n]urture an inclusive, diverse community
that fosters . . . vigorous yet respectful debate.164 Although many universities can no
doubt point to similar principles on their websites, at Marquette these values have been
woven into the fabric of the university community, which encourages each of its members to be a person for others.165
These obligations apply with particular force with respect to surreptitious recordings. The use of secret recordings of interactions between faculty and students is something that the AAUP has been particularly concerned about for the past thirty years,
and with good reason. While published articles and public speeches require a speaker
to carefully prepare what he or she will say, the give-and-take of a classroom or postclass discussion often does not allow for carefully crafted and properly qualified statements of ones beliefs. On the contrary, excerpts from a vibrant debate, taken out of
context, might instead provide gotcha moments to be used for partisan advantage. If
such excerpting becomes prevalent, faculty members and students would have little
choice but to limit their discussions for fear of being willfully misinterpreted and held
up to public ridicule or derision.
The AAUP has been concerned with maintaining the relative privacy of classroom
exchanges almost since its founding. In its 1915 Declaration of Principles on Academic
Freedom and Academic Tenure, the AAUP expressed concern that classroom utterances
ought always to be considered privileged communications, not intended for the
public at large, noting ruefully that [i]t has, unfortunately, sometimes happened in
Marquette University, Marquette University Mission Statement (2015), http://www.marquette.edu/

leadership/values.php.
164 Marquette University, Marquette University Guiding Values (Dec. 8, 2014 ),
http://www.marquette.edu/leadership/values.php.
165 While there is no specific written prohibition on recklessly causing others to be harmed, the Marquette University Handbook for Employees prohibits violations of [a]ny and all other standards of conduct
which the university has established or reasonably has the right to expect in conducting its business,
which is precisely what is at issue in this case. See Marquette University Handbook for Employees (NonFaculty) (Nov. 2015). The General Conduct provisions of the Handbook for Employees are incorporated by
reference in the Faculty Handbook. See Faculty Handbook, Part III.C, 49.
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this country that sensational newspapers have quoted and garbled such remarks.166
That danger has only grown in recent decades with the advent first of miniature recording devices, and later of worldwide instantaneous publishing through social media.
In the mid-1980s, controversy arose over the formation of a group calling itself Accuracy in Academia, an off-shoot of the well-known advocacy group Accuracy in Media, the stated purpose of which was to combat the dissemination of misinformation .
. . by encouraging students to record bothersome things that professors were saying in
university classrooms and to send these statements to AIA headquarters for review.167
AIAs proposed activities were quickly and widely denounced by almost every major
organization associated with higher education.168 A group of thirteen organizations,
including the AAUP and the Association of American Colleges, issued a joint statement
opposing the groups activities, claiming that classroom monitors for an external organization would have a chilling [e]ffect on the academic freedom of both students and
faculty members by inhibiting discussion of unformed ideas or controversial theories.169 As the AAUPs Committee A noted, [e]xternal monitoring of in-class statements
not only presents the prospect that the words uttered will be distorted or taken out of
context; it is also likely to have a chilling effect and result in self-censorship.170 The
signers of the joint statement were also concerned that monitoring only of certain viewpoints risked forcing conformity with AIAs particular views, an effect the signers
AAUP, 1915 Declaration of Principles, 10. In 1915, it could fairly be argued that publicizing classroom speech might give rise to a tort claim for invasion of privacy or misappropriation, but under modern caselaw such a claim is unlikely to succeed. The concerns for the vibrancy of teacher-student discussion remain, however.
167 Jordan E. Kurland, Six Months of Experience with Accuracy in Academia, PS 19, no. 2 (1986): 286.
168 Ibid., 288. Even many critics of modern higher education, such as then-Secretary of Education William Bennett and Sidney Hook, spoke out against AIA.
169 Robert H. Atwell et al., Joint Statement on Accuracy in Academia, Nov. 14, 1985. The statement
was signed by representatives from the American Council on Education, the American Association of
University Professors, the Association of American Colleges, the National Association of State Universities and Land Grant Colleges, the Association of Governing Boards of Universities and Colleges, the
Association of Catholic Colleges and Universities, the Association of Urban Universities, the Council of
Graduate Schools in the United States, the Association of Jesuit Colleges and Universities, the American
Association of State Colleges and Universities, the National Association of Independent Colleges and
Universities, the Council of Independent Colleges, and the United States Student Association.
170 AAUP Committee A, Accuracy in Academia: A New Obstacle to Academic Freedom, Academe 71,
no. 6 (1985): 1a.
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saw as clearly inimical to the principle of free expression of views by all members of
the academic community.171
Accuracy in Academia was an external advocacy group whose efforts to procure
student monitors quickly faded.172 But the AAUPs Committee A was equally adamant
a few years earlier that internal covert surveillance could be just as destructive of open
discourse. It called for adherence to a uniform understanding that an academic community will not subject its members to the debilitating inhibitions and anxieties of covert surveillance. . . . Respectfully, we do not think that the example of Orwellian uncertainty is an
example of an academic community.173 As the AAUPs President observed in the wake
of the AIA scandal, the concern is not merely that of a potential chilling effect, but also
a weakening of collgial [sic] bonds among faculty, among students, and between
faculty and students. Suspicion replaces trust and the college as community suffers.174
These concerns have only been heightened in the wake of the increasing prevalence of
recording devices, including most cell phones, and the rapid shifts in the media landscape.175 Groups have arisen that attempt to purposefully capture video of faculty at
embarrassing moments, to be trumpeted on their websites or in mass media, sometimes
selectively editing the videos to produce the desired viral effect. 176
Ibid. Any move to cast a pall of orthodoxy over the classroom, whether that effort derives from the
political right or the political left, whether from the government or from self-appointed vigilantes, is
inimical to academic freedom. Committee A, Accuracy in Academia, 1a.
172 Kurland, Six Months of Experience, 290.
173 AAUP Committee A, The University at Odds With Itself: Furtive Surveillance on Campus: A Report from Committee A, Academe 69, no. 2 (1983): 14a.
174 Paul H. L. Walter, Academic Freedom: Seventy Years Later, Academe 72, no. 5 (1986): 4a.
175 Benjamin, et al., Ensuring Academic Freedom, 89.
176 See, e.g., Jamie Guirola, Barry University Student Behind ISIS Club Video Apparently Suspended,
NBC 6 South Florida, Apr. 6, 2015, http://www.nbcmiami.com/news/local/Barry-University-StudentBehind-ISIS-Video-Apparently-Suspended-298826941.html (video taken for operative James OKeefe);
Caleb Bonham, Video: College Republican Chairwoman Suppresses Voter Registration, Campus Reform,
Oct. 2, 2014, http://www.campusreform.org/?ID=5952 (student group Turning Point USA); Gregory F.
Scholtz, AAUP Addresses Academic Freedom and Due Process Concerns at MSU, Brain-Mind Magazine, Summer 2013: 7 (Campus Reform); Oliver Darcy and Josiah Ryan, Serious Intellectual & Mental
Problems: Another USC Prof Caught on Video Slamming Bush, Berating Conservatives, May 7, 2013,
http://www.campusreform.org/?ID=4745 (Campus Reform); Labor Studies Faculty Targeted, AAUP,
May 12, 2011, http://www.aaup.org/AAUP/newsroom/prarchives/2011/Ancel.htm (blogger Andrew
Breitbart).
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Such efforts are extremely destructive of the security necessary for the uninhibited
search for truth in a university. They undermine one of the essential conditions for an
academic community to function. To perform its mission in the society, a university
must sustain an extraordinary environment of freedom of inquiry and maintain an
independence from political fashions, passions, and pressures.177 But that mission
cannot be performed in an atmosphere of fear and mistrust. As a faculty committee at
the University of Illinois recently concluded, We could not do our job, which is to
instill the habits of a critical mind, if we had to be chary of giving offense.178 The danger is even more pronounced for Marquette, as the practice of cura personalis also requires an atmosphere of mutual trusta trust which is always difficult to win, always
easy to lose.179
Again, the concern goes well beyond the effects of internal sniping and criticism. A
university can obviously thrive despite vigorous critical exchanges among members of
the faculty; indeed, faculty politics has even been defined, humorously, as an intense
battle over picayune stakes.180 But a university community cannot thrive if faculty have
reason to fear that their peers are seeking to exploit unguarded moments in an effort to
subject them to what one commentator has recently called mass public shaming of the
sort used by totalitarian regimes.181 Such actions fall within the narrow exception, universally recognized, under which freedom of academic expression can be limited to the
extent necessary to the functioning of the University.182
Kalven, et al., Report on the Universitys Role, 1; see also Finkin and Post, For the Common Good, 39.
[W]ithout a vibrant commitment to free and open inquiry, a university ceases to be a university. Stone,
et al., Report of the Committee on Freedom of Expression, 3.
178 Henry Reichman, Joan Wallach Scott, and Hans-Joerg Tiede, Academic Freedom and Tenure: The
University of Illinois at Urbana-Champaign, Bulletin of the AAUP 101 (2015): 42.
179 Peter-Hans Kolvenbach, Cura Personalis, Review of Ignatian Spirituality 38, no. 114 (2007): 13.
180 Sayres Law, Wikipedia, December 15, 2015, https://en.wikipedia.org/wiki/Sayres_law.
181 Mass public shamingtraditionally used by autocratic regimes to silence their criticsis a particularly insidious form of censorship. It is designed to chill future speech by humiliating the speaker. Psychological manipulation and intimidation are used to impose forced speech as a means of social control.
Nat Hentoff, Suppression of Free Speech in Academia Is Out of Control, Cato Institute, November 18,
2015, http://www.cato.org/publications/commentary/suppression-free-speech-academia-out-control.
182 Stone, et al., Report of the Committee on Freedom of Expression, at 2. We do not hold that all surreptitious recording falls into this exception; there may be instances in which secretly recording a conversation is justifiable as an attempt to preserve a record of faculty misconduct, for example, to use as the
basis of a later administrative appeal. See Paul Strohm, Convocation on Current Threats to Academic
177
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It is not simply university administrators who have the duty to enforce this limitation; so does the faculty. While academic freedom obviously affords faculty the liberty
to speak and to research within the broad limits set by the scholarly profession, it also
imposes an obligation to respect and defend the academic freedom of others. Membership in the academic community, the AAUP has long held, imposes on students,
faculty members, administrators, and trustees an obligation to . . . foster and defend
the conditions necessary for academic freedom, such as the freedom of inquiry and
instruction.183 Even [t]hose who seek to call attention to grievances must not do so in
ways that impede the functions of the institution.184 Indeed, the AAUP has been adamant that faculty members have not only the obligation not to interfere with academic
values, but that they must take an active role in promoting adherence to norms essential to the academic enterprise, up to and including imposition of discipline on colleagues.185
3.
Dr. McAdamss Violation of the Applicable Standards of Conduct
The Committee reaches two conclusions based on the foregoing discussion. First, a
clear obligation exists, arising from the very essence of the university community and
from Marquettes values, requiring all faculty members to take care not to recklessly
cause harm, directly or indirectly, to other members of the community. That obligation
applies with special force to the public use of surreptitious recordings, which can both
chill campus discussion and undermine the trust essential to the operation of the university as an academic community. Second, the obligation not to cause harm has certain
conditions. Faculty obviously cannot be held responsible for every negative consequence that flows from their actions, or even most negative consequences if the action in
question involves speech or research. The obligation not to recklessly cause harm, directly or indirectly, applies only where the harm is (a) substantial, (b) foreseeable, (c)
Freedom, Academe 72, no. 1 (1986): 41 (quoting William Van Alstyne). But the use of a recording for a
public blog post transcends such justifications.
183 AAUP, Freedom and Responsibility, 173; see also AAUP, Statement on Professional Ethics, 146.
184 AAUP, Freedom and Responsibility, 173. The authors of the report, which was first written in
1970, probably had in mind the physical disruption caused by the student protests of that era, but the
statement applies equally well to the modern media landscape and surreptitious recordings. Indeed, as
Committee A has more recently concluded, [t]hese amplified pressures require enhanced protections to
safeguard academic freedom and the free pursuit of knowledge. Benjamin, et al., Ensuring Academic
Freedom, 90.
185 AAUP, Freedom and Responsibility, 174.
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easily avoidable, and (d) not justified by some other obligation or right faculty members
have.
In this subsection, we apply these standards to the facts in the record before us. As
detailed further below, the Committee concludes that Dr. McAdams violated his obligations to fellow members of the Marquette community by recklessly, albeit indirectly,
causing harm to Ms. Abbate through his conduct. We further conclude that that harm
was substantial, foreseeable, easily avoidable, and not justifiable. Before proceeding
further, it is worth revisiting the conduct that is at issue in this case.
a.
Dr. McAdamss Reckless and Irresponsible Conduct
Although the events in the record span a twenty-year period from 1995 to the present, the crux of this case begins with Dr. McAdamss November 9, 2014 blog post.
Dr. McAdams has maintained a blog on a non-Marquette server since February 2005,
titled Marquette Warrior, apparently named after the former nickname used by the
schools athletic teams.186 The self-described purpose of the blog is to provide an independent, rather skeptical view of events at Marquette University.187 Typical posts focus
on campus controversies involving political correctness or on alleged efforts by liberals
to limit speech. Members of the Philosophy Department have been frequent subjects of
Dr. McAdamss posts, although there have been many others, at all levels of seniority.
Dr. McAdams is a prolific blogger, having written approximately 3,000 posts in the ten
years the blog has been in operation.
Dr. McAdams first learned about Ms. Abbates October 28, 2014 Theory of Ethics
class, and the discussion between her and JD afterwards, when JD met with
Dr. McAdams in Dr. McAdamss office on November 7.188 JD had ostensibly scheduled
the meeting in order to obtain Dr. McAdamss signature on JDs drop form for the class,
but in addition JD raised his dispute with Ms. Abbate and the handling of his complaint
by the Philosophy Department in the hope that Dr. McAdams would blog about it.189
Dr. McAdams mentioned his blog and asked if he could put JDs story on his blog, to
Hrg Tr. vol. 3, 92:17-19 (McAdams).

McAdams Br. (Doc. 11) at 15.
188 FOF 44, 85.
189 FOF 87.
186
187

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which JD agreed as long as his name was not used. JD then gave Dr. McAdams a copy
of the recording he had made.190
Dr. McAdams listened to the recording and proceeded to draft his post.191 The recording was plainly premeditated, as it began while the classroom was still emptying
out, well before JD approached Ms. Abbate.192 It is also obvious from listening to the
recording that Abbate was unaware that she was being recorded until the end, when
she asks, are you videotaping or taping this conversation?193 And finally, it is obvious
from listening to the recording that JD began the conversation by aggressively challenging Ms. Abbates authority, which likely threw Ms. Abbate off her guard.194 Nevertheless, over the next two days, Dr. McAdams proceeded to draft a lengthy blog post about
this incident, posting it at 6:06 pm on Nov. 9.195
The first third of Dr. McAdamss Nov. 9 blog post focused on Ms. Abbates class and
after-class discussion with JD.196 It began by quoting Ms. Abbate as telling her class,
airily, that with respect to gay rights, everybody agrees on this, and there is no need
to discuss it.197 Not only did Dr. McAdams have no basis for the quotation or for how it
was delivered, but it is quite likely that the quotation was in error, and that Ms. Abbate
was in fact referring to an application of Rawlss Equal Liberty Principle.198
Dr. McAdams then summarized and quoted several fragments from the recording
made by JD, interspersed with his own critical commentary. He concluded with the
damaging, and false, implication that JD was dropping the class because Ms. Abbate
had invited him to, when in fact the drop form Dr. McAdams signed, as well as JD
FOF 9192.
FOF 94.
192 FOF 41.
193 FOF 51.
194 FOF 4546.
195 FOF 94, 102.
196 FOF 104.
197 Ex. 12 at MU-073.
198 FOF 37, 103.6. What Ms. Abbate said in her Theory of Ethics class on Oct. 28 should be distinguished from what she said after class, as recorded by JD, where she made no apparent reference to
Rawlss Equal Liberty Principle. FOF 48.
190
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himself, stated that JD was dropping due to his [c]urrent grade standing,199 and there
is no evidence that JD ever stated otherwise.200
Dr. McAdamss post then tied Ms. Abbates remarks on the recording to a broader
effort among liberals now to deem opinions they disagree with to be offensive and to
tell the speaker to shut up, which Dr. McAdams connected to totalitarianism.201
Dr. McAdams asserted that the targets of this effort are Christians, Muslims, and
straight white males. Only toward the end of the post, for approximately seven percent
of its length, did Dr. McAdams address the handling of JDs complaint by the college
and the Philosophy Department, the piece that Dr. McAdams later described as the only
newsworthy aspect of the post.202
The Committee finds that Dr. McAdamss blog post was reckless and seriously irresponsible in posing a significant, albeit indirect, risk of harm both to Ms. Abbate and to
the Marquette community. Given an account and a surreptitious recording by his student advisee that appeared to catch an instructor in the Philosophy Department banning discussion of same-sex marriage, Dr. McAdams rushed over a weekend to post the
sensational details publicly on his blog, apparently without considering other means of
addressing his advisees concerns. But there was no compelling urgency to upload the
post so quickly. The only truly newsworthy aspect of the post, as Dr. McAdams himself
has statedthe Philosophy Departments alleged mishandling of JDs complainthad
occurred over a week before. And in any event Dr. McAdams in his post expressed only
a glancing interest in that portion of the story, even though it seems to have been the
part that most troubled his student advisee.
Rather than centering the post on the Philosophy Departments unresponsiveness to
JDs complaint, Dr. McAdams instead dwelled on snippets of Abbates statements during a single, brief, unguarded after-class conversation that had been recorded without
Ex. 34.
FOF 8990, 103.8. JD on a later occasion confirmed that the statement on the form was accurate,
and that he did not think he was being incorrectly evaluated, in a conversation that did not seem especially guarded. See Ex. 10 at MU-065. There no evidence JD ever told Dr. McAdams anything other than that
he was dropping due to his class grade. Dr. McAdams informed the Committee that he inferred a different reason, but was careful not to claim that JD stated a different reason. FOF 90.
201 Ex. 12 at MU-074.
202 FOF 105.1, 103.3.
199
200

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her knowledge. The primary urgency in publishing the blog post thus appears to be its
revelation of embarrassing details about a member of the Philosophy Departmenta
department Dr. McAdams has tangled with frequently beforeand holding her up to
public opprobrium. Dr. McAdams further sought to maximize the impact of the post by
purporting to quote Ms. Abbate as sayingairilythat everyone agrees on same-sex
marriage, even though he had not witnessed her make that statement. He described her
as clearly maintaining that opposition to same-sex marriage would be homophobic,
even though near the end of the recording, challenged point-blank on whether she had
said exactly that, Ms. Abbate disagrees, only to cut herself off when she notices that the
conversation is being recorded.203 Dr. McAdams also clearly implied that Ms. Abbate
had quite outrageously forced JD to drop the class based on their disagreement, without
any basis for making that assertion and indeed apparently contrary to fact.204
Dr. McAdams hurried to post these assertions based on incomplete or ambiguous
evidence without making any attempt, beyond a single unanswered email to
Ms. Abbate, to confirm them. That alone may not be a sufficient breach of obligations to
rise to the level of discretionary cause. But it is when combined with four other aspects
of the post that magnified its impact. First, Dr. McAdams did not simply make erroneous or misleading assertions about what Ms. Abbate said on October 28; he made those
assertions with no hint of any doubt. Second, Dr. McAdams focused attention in the
post on Ms. Abbates exact words spoken, first in the context of a class discussion, and
later in the context of a vigorous after-class discussion that was secretly recorded.
Ms. Abbate had no reason to expect she was speaking for a wider audience, and had no
reason to expect that she needed to phrase her statements carefully to guard against
extraction from context. Third, although his concern was with a wider phenomenon,
Dr. McAdams identified the instructor who had allegedly made the statements, and
linked to her webpage, in order to associate those statements and views with a particular individual and email address. And finally, Dr. McAdams maximized his appeal to
indignation by connecting Ms. Abbates secretly recorded statements to a broader, totalitarian effort to suppress free speech.
203
204
FOF 47.8.
FOF 103.8, 89.

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Dr. McAdams did all this without considering the consequences to Ms. Abbate. His
actions, if not intentional, were certainly reckless in creating a risk of harm to
Ms. Abbate. The harm risked was of two sorts: first, that Ms. Abbate would suffer harm
to her career from having been branded as intolerant in managing student discussion;
and second, that Ms. Abbate would receive abusive communications in response to
Dr. McAdamss post. While it is too soon to say if the first danger has come to pass, the
second was realized: Dr. McAdamss post, once it was picked up and had reverberated
around the Internet and cable news channels, led to an online shaming campaign
against Ms. Abbate that eventually drove her from the university.205
This result is all the more striking in that it appears that Ms. Abbate had had no prior interaction with Dr. McAdams and had only randomly come to his attention. The
purpose of using Ms. Abbates exact words and attributing them to her by name appears to have been to strike a blow at the broader claimed phenomenon of liberal political correctness, and more particularly at the Philosophy Department, by attracting maximum publicity to sensational soundbites extracted from classroom or private
conversation. Ms. Abbate was essentially a casualty in that wider battle, one that
Dr. McAdams does not appear to feel much regret over. Indeed, to this day,
Dr. McAdams only grudgingly admits that there were consequences for Ms. Abbate,
but he takes no responsibility for them.206
Dr. McAdams exacerbated the harm caused by continuing to post about Ms. Abbate
by name, without taking any steps to tamp down the furor he had initiated, in the ensuing months.207 He has only half-heartedly admitted that he may have been incorrect
about what was said in class.208 And he has attempted to offset the effect of the abusive
Although Ms. Abbate testified that she wished she had been more clear, it is not clear that she is embarrassed by what she was recorded as saying. Nevertheless, a shaming campaign can be effective even
if it targets someone who is not ashamed of what they did. See, e.g., Jon Ronson, How One Stupid Tweet
Blew Up Justine Saccos Life, N.Y. Times, February 12, 2015, http://www.nytimes.com/2015/02/15/magazine/how-one-stupid-tweet-ruined-justine-saccos-life.html.
206 FOF 111114.
207 FOF 110111.
208 FOF 111.
205
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messages Ms. Abbate received by claiming that it was her own actions that made her a
subject of his blog post, and that he has received negative communications as well. 209
There is still more that must be true before a professor who has caused harm may be
held accountable for it under the Faculty Statutes. As indicated above, there are four
additional conditions: the harm must be substantial, it must be foreseeable, it must be
easily avoidable, and it must lack justification. The Committee finds all four of those
conditions satisfied in this case.
b.
Substantial Harm
Dr. McAdamss conduct in this case produced substantial harm to Ms. Abbate.
Within a few hours of the blog post, Ms. Abbate began receiving strongly negative
emails from readers of Dr. McAdamss blog. But those communications went from
occasional to overwhelming a week later as other sites picked up the story, linking back
to Dr. McAdamss Nov. 9 blog post. The number of emails and blog comments rose and
grew increasingly violent.210 Nevertheless, Ms. Abbate felt compelled to keep reading
the emails and monitoring blog comments about her to determine if her home address
or other personal information was obtained. She was aware of previous incidents in
which online mobs targeting women had obtained information about where they live
and used that to threaten them, forcing them to flee their homes.211
When Ms. Abbate and others attempted to complain about Dr. McAdamss behavior, he blogged four more times about the situation, renewing his criticism of
Ms. Abbate in each of them and linking all of them to Ms. Abbate by name.212 He also
emailed links to his posts to various media commentators, and provided copies of the
recording to reporters from Fox News, Inside Higher Ed, and a local television station.213 On November 21, after the fifth post on the subject from Dr. McAdams, a Fox
News commentator blogged about the incident, drawing his facts from Dr. McAdamss
Nov. 9 post, and followed up by mentioning it on his radio program the following
FOF 113.2, 113.5.

FOF 118, 124. See, e.g., the comments posted on the site iOTW Report in Ex. 109 at JM-027, 030.
211 FOF 127; Caitlin Dewey, The Only Guide to Gamergate You Will Ever Need to Read, Washington
Post, Oct. 14, 2014.
212 FOF 113.2.
213 FOF 110.1110.2.
209
210

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day.214 At that point Ms. Abbates email account was flooded with a stream of invective,
including several that expressed violent thoughts about Ms. Abbate, to the point where
Ms. Abbate was forced to shut down her email account for the weekend, interfering
with her students ability to reach her as they were preparing for an exam the following
Tuesday.215 She also requested that the Philosophy Dept. remove her email address
from the Grad Student web page.216 It was not simply emails; Ms. Abbate received letters mailed to her office as well. Other vigilantes, who were very likely not students,
sabotaged Abbates ranking on RateMyProfessors, which the site did not allow her to
correct.217 Although receiving such abuse is unfortunately not unheard of for female
commentators who post online, Ms. Abbate received it without warning, after doing
nothing more public than teaching her class and talking to a student.
The volume of hostile and threatening communications made Abbate fear for her
physical safety.218 One person was irate enough at Ms. Abbate that he emailed her four
or five times over the following three weeks, even after the story had faded from the
news, causing Abbate to fear that he might be a stalker.219 Based on concerns for Abbates physical safety and that of her students, a Public Safety officer was posted outside of Abbates classroom door at the beginning of her classes to ensure that the door
was locked.220 Abbate also began suffering negative effects on her mental and physical
health. One witness observed that Abbate noticeably lost weight during this time, and
appeared distressed.221 Another reported that Abbate was in tears, and currently
struggling to teach her classes and revise a dissertation proposal.222 While Abbate
initially attempted to present a brave front in forwarding the emails to Drs. South and
Snow, making sarcastic comments, by Nov. 26 she told them, Im not sure how much
FOF 118119.
FOF 120.
216 FOF 120.
217 FOF 121.
218 FOF 128.
219 FOF 122.
220 FOF 132.
221 FOF 129.2.
222 FOF 129.1.
214
215
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more of this I can take.223 On December 2 she simply wrote, Would they go away
already!!!224
Abbate, who was by all indications a star graduate student, was unable to focus on
preparing her dissertation topic defense by the end of November 2014.225 Ultimately,
although her topic had great promise,226 Abbate decided to abandon it entirely because
of the negative association between that topic and the events of Fall 2014.227 In fact,
concerned about her physical safety at Marquette, Abbate transferred to another university to complete her Ph.D.228 The transfer will require Abbate to repeat three semesters of course work.229 Although Dr. McAdams has suggested that Ms. Abbate was not
harmed, and may have even improved her situation by transferring, the suggestion is
exceptionable.230
As the AAUP has feared, Dr. McAdamss use of selective quotations from
Ms. Abbates classroom and after-class discussion has resulted in a chilling effect on
Ms. Abbateindeed she is no longer on the campus to speak at all. Other professors at
Marquette may also be more reticent to speak to their students on certain topics.231 Several junior professors in the Political Science Department expressed the fear that they
may be Dr. McAdamss next targets, and they may alter what they say to avoid this
possibility.232
c.
Foreseeability
The harms resulting from the November 9 blog post were foreseeable. By this we
mean not that those harms were more likely than not to occur, but rather they were
foreseeable in the sense that term is used in tort law: there was a sufficient, even if low,
Ex. 13 at MU-094.
Ex. 13 at MU-138.
225 FOF 130.1.
226 FOF 5.2.
227 FOF 135.
228 FOF 133.
229 FOF 134.
230 FOF 115. Q. Now, just to clarify youre not saying that she benefitted by getting nasty e-mails are
you? A. Not from gettingshe may have. In becoming kind of a martyr. Hrg Tr. vol. 3, 125:7-19
(McAdams).
231 FOF 136.
232 FOF 136.1.
223
224

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probability that sizeable enough harms to Ms. Abbate would occur that a reasonable
person, knowing what Dr. McAdams knew, would have taken reasonable precautions
to guard against them. The Committee reaches this conclusion for three reasons. First,
Dr. McAdams is very familiar with the Internet and modern media, and is generally
aware of the fact that [w]hen one does something that gets national publicity, some
jerks are going to say nasty things by email.233 The possibility that a heated controversy
could turn into a firestorm of abuse should not surprise him, even if he did not expect it
to happen in this case. Second, Dr. McAdams has experienced first-hand in the past that
posts on his blog can lead to hostile communications directed at the subjects of his post.
In 2011, controversy erupted when Dr. McAdams attempted to contact the student
coordinator for a campus production of The Vagina Monologues, referred to here as
AD. When Dr. McAdams blogged about AD after she complained, asking just what
was the deal with her, two readers of Dr. McAdamss post indicated that they were
considering contacting AD, and at least one did.234
Dr. McAdams was aware that his post had motivated these readers to consider contacting AD because he responded to both of their comments on his blog. To one he
recommended against contacting her, and recommended contacting the Provost instead.235 To the other, who posted the text of the email he had sent the student,
Dr. McAdams responded that I guess you are free to do that, since she has created a
news story that involves herreferring, apparently, to Dr. McAdamss own blog
postbut he noted that he was not responsible for providing any contact information
that the commenter might have used because he had withheld that information.236
Dr. McAdamss communications with his readers in 2011 demonstrate two things: first,
that Dr. McAdams was at least concerned enough about the possibility of one of his
readers sending an unwanted communication to a student that he warned the commenter not to do it; and second, that he knew how to prevent, or at least hinder, such
communications from occurring: by omitting a persons contact information from his
post.
FOF 108.1.
Ex. 20 at MU-278; FOF 30.5, 27.
235 FOF 27.1.
236 FOF 27.227.3.
233
234

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Dr. McAdams was also aware that being mentioned on his blog could be an unpleasant experience for the person mentioned, and that the unpleasantness was due to
something other than the mere expression of Dr. McAdamss negative opinion. Indeed,
on at least three different occasions, Dr. McAdams attempted to exploit that unpleasantness to get someone to refrain from taking some sort of action. In September 2014,
less than two months before the post at issue in this case, Dr. McAdams was called to a
meeting with Dean Holz concerning a confrontation in the AMU between himself and a
student group called Students for Justice in Palestine. In the course of that discussion,
Dr. McAdams warned Dean Holz to be careful what he put in the letter that would
follow, because you dont want to be on my blog.237
In 2011, during the controversy over Dr. McAdamss attempts to gather information
on The Vagina Monologues, Dr. McAdams emailed Provost John Pauly to offer
friendly advice: that if Dr. Pauly continued to insist on meeting with Dr. McAdams,
it will look for all the world like you are seizing on some trivial issue as a form of
payback for the tough time Ive given you. That, at least, is the appearance, and appearances matter. McAdams did not assert that Pauly was actually engaged in retaliation, only that it could appear that way when this breaks.238 And in fact, after
Dr. Pauly continued to insist on meeting with Dr. McAdams, the story did break on
Dr. McAdamss blog, where Dr. McAdams asserted that the meeting was retaliation for
Dr. McAdams having opposed an earlier effort to move more classes to 8am.239
Earlier during the same controversy, Dr. McAdams was contacted by Dr. Chris Miller, then the Vice President for Student Affairs, after AD had complained to Dr. Miller,
to advise Dr. McAdams that AD had requested that he not contact her any more.240
Dr. McAdams responded angrily to Dr. Miller that she needs to understand (perhaps
you should explain it to her) that if she is an officer in a student organization, any journalist has the right to try to contact her, and that [h]er reporting this to you is quite
close to her harassing me. (Or at least, attempting to harass me.) McAdams then concluded: Chris, I appreciate your being honest and sharing the information about [AD]
but if I hear any more about this from anybody, Im going to judge that she is indeed
FOF 30.830.9.
Ex. 20 at MU-255; FOF 30.6.
239 FOF 30.7.
240 FOF 30.1.
237
238
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harassing me, and raise hell about it on his blog.241 Its difficult to interpret this as
anything but Dr. McAdams asking Dr. Miller to convey to AD that if she pursued a
harassment complaint against Dr. McAdams, he would blog about her in retaliation.242
And, in fact, after Dr. Pauly insisted on meeting with Dr. McAdams over the incident,
he did blog about her, which led to at least one reader of Dr. McAdamss blog contacting
AD to demonstrate that actions have consequences.243
Dr. McAdams thus was not only aware that his blog could have negative consequences for those mentioned on it, he had relied on that fact in the past. The harm to
Ms. Abbate was foreseeable.
d. Avoidability
The harm Dr. McAdams caused was easily avoidable, in any of several different
ways. The most obvious step Dr. McAdams could have taken was to not use
Ms. Abbates name in the post. This would not have impacted the post at all, since there
is no evidence that Ms. Abbates identity was at all important to the story, as opposed to
the fact of her status as an instructor in the Philosophy Department. Indeed, in retrospect, after hearing of the harm that Ms. Abbate suffered, Dr. McAdams grudgingly
admitted that he probably would have not linked to her contact information if he had
known what would result.244
Another step Dr. McAdams could have taken would have been to not link to
Ms. Abbates web page with her contact information. This would not have stopped the
truly determined, of course, but it would likely have impeded many of Ms. Abbates
emailers. Dr. McAdams had previously demonstrated that he was aware that making
contact information harder, rather than easier, to find would deter abusive emails when
he purposefully left that information out of his post on AD.
FOF 30.2.
FOF 30.330.4.
243 FOF 27.2. The day after that readers communication, AD filed a harassment complaint against
Dr. McAdams with the Marquette Public Safety Department and requested an MU Stay Away order.
FOF 27.5.
244 FOF 112.1. Dr. McAdams maintained that it was nevertheless his academic freedom right to post
her name. FOF 112.2. Pressed on the point, Dr. McAdams said he was pretty sure he would not have
used her name if he knew what was going to happen. Hrg Tr. vol. 4, 29:3 (McAdams).
241
242
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A third step Dr. McAdams could have taken to avoid or lessen the harm would have
been to not quote from the audio recording of Ms. Abbates confrontation with JD, or
the classroom discussion, until he could confirm what her views on the matter were. He
also could have refrained from suggesting a link between Ms. Abbates conversation
with JD and JDs dropping the class, given the lack of any evidence of a connection
between the two. It should be remembered that this step is an alternative to the first two
mentionedthat if Dr. McAdams decided for whatever reason to include Ms. Abbates
name and contact information in his post, he nevertheless still could have avoided the
harm by being more circumspect about what views he ascribed to her and less inflammatory in drawing inferences about the consequences of that conversation for JD.
Finally, if Dr. McAdamss primary concern in this matter was achieving justice for
JD, he could have helped JD pursue his complaint internally, by taking it to the dean of
the college. There was no urgency in publishing JDs account and recording that would
have prevented waiting for an internal appeal to run its course.
The Committee wishes to make clear that it is not holding that Dr. McAdams was
required, in the course of criticizing what a Marquette graduate student said during and
immediately after one of her classes, to take all four of the steps mentioned above. Any
one of them would have likely avoided the harm. Thus, it was the fact that
Dr. McAdams, in the course of writing his post, failed to take any of the numerous
easily available steps to avoid foreseeable harmhe published Ms. Abbates name, he
linked to her contact information, he quoted from JDs recording and his recollection of
the class, he strayed beyond the facts in suggesting JDs reason for dropping, and he did
not assist JD in pursuing an administrative appeal of his complaint, all at the same
timethat establishes his violation of his obligations to Ms. Abbate and to Marquette.
e.
Justification
In most cases, any negative consequences that flow from a professors actions will be
overridden by competing values that, in a university setting, must take precedence. Any
harm suffered due to criticism of disseminated scholarship, or administrative decisions,
or even the way in which someone teaches a class, is easily outweighed by a universitys commitment to preserve the full measure of academic freedom for its faculty. That
is true even if the criticism is widely believed to be incorrect, or too severe, or the product of bias or personal animosity. The freedom of faculty to engage scholarly ideas, to

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criticize the operation of their institutions, or to comment on public affairs, takes precedence over any negative impact such criticism may produce, either directly or indirectly.
It is clear that some aspects of Dr. McAdamss post were in exercise of his academic
freedom to engage in intramural criticism. As a result, any negative consequences that
might have flowed from criticism of how his advisee was treated, or criticism of how
the Philosophy Department handled his advisees complaint, or criticism of Drs. Foster
and Snow for their past actions in accusing others of offensive speech, would have been
outweighed by the need to protect the ability to comment on how ones institution is
run. But there was no competing value that offsets the harm caused by attaching
Ms. Abbates name and contact information to selected quotations from her class and
secretly recorded conversation with JD. The inclusion of Ms. Abbates name and contact
information served no purpose in furthering Dr. McAdamss criticism of how his advisee was treated by either Ms. Abbate or the Philosophy Department more generally.
Nor did it advance JDs complaint in any way.
Dr. McAdams has repeatedly argued that he was obliged to identify Ms. Abbate because the norms of journalism require such identification. This would be a far stronger
argument if Dr. McAdams were employed by Marquette as a journalist. But he is not;
Dr. McAdams is a professor, and therefore his first loyalty must be to the obligations of
the academic profession. To the extent those obligations conflict with obligations that a
journalist would have, the journalism norms must yield. In any event, Dr. McAdams
seems to have only imperfectly adopted the norms of the journalistic profession, emphasizing the duty to identify subjects,245 but not the duties of verifying information,246
or of factual and contextual accuracy,247 or of identifying sources whenever possible,248
FOF 115.3.
Verify information before releasing it. Use original sources whenever possible. Society of Professional Journalists, Code of Ethics, Sept. 6, 2014, http://www.spj.org/ethicscode.asp; see also NPR Ethics
Handbook (May 2, 2012), http://ethics.npr.org/.
247 Remember that neither speed nor format excuses inaccuracy. Provide context. Take special care not
to misrepresent or oversimplify in promoting, previewing or summarizing a story. Gather, update and
correct information throughout the life of a news story. SPJ, Code of Ethics; see also NPR Ethics Handbook;
Washington Post, Standards and Ethics, http://asne.org/content.asp?pl=236&sl=19&contentid=335.
248 Identify sources clearly. The public is entitled to as much information as possible to judge the reliability and motivations of sources. SPJ, Code of Ethics. See also Washington Post, Standards and Ethics.
245
246
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or of skepticism toward sources,249 or of diligently seeking rebuttal,250 or of avoiding

subterfuge in gathering information,251 or of minimizing harm.252 Indeed, although it is
irrelevant for our purposes here, it seems doubtful that Dr. McAdamss posts have
complied with the norms of journalism either.
Another possible justification that might be offered is that Dr. McAdamss post, and
his identification of Ms. Abbate, served the interests of his student advisee, JD. But
Dr. McAdamss blog post did not advance JDs cause at all. The blog post did not assist
JD in pursuing any appeal of the dismissal of his complaint at the department level, nor
did Dr. McAdams take any other action to help with such an appeal. Dr. McAdams did
not follow up on JDs complaint with either the Philosophy Department or report it to
college officials. Indeed, it seems clear that after Dr. McAdams published his post, JD
believed his complaint had not been fully addressed, as he attempted to set up a meeting with Dean Holz to discuss the matter.253 Far from the blog post serving the interests
of his student advisee, it appears that his advisees story served Dr. McAdamss interests, by serving as fodder for his blog. Whatever may be said about Dr. McAdamss
fulfillment of his obligation to his advisee, it certainly does not justify his conduct toward Ms. Abbate.
4.
Mitigating Factors
The conclusion from the foregoing discussion is that Dr. McAdams, through his
conduct, indirectly caused harm to Ms. Abbate, and that harm was substantial, foreseeThe motives of those who press their views upon us must routinely be examined, and it must be
recognized that those motives can be noble or ignoble, obvious or ulterior. Washington Post, Standards
and Ethics.
250 SPJ, Code of Ethics; Washington Post, Standards and Ethics; N.Y. Times, Guidelines on Integrity, Sept. 25,
2008, http://www.nytco.com/wp-content/uploads/Guidelines-on-Integrity-updated-2008.pdf.
251 SPJ, Code of Ethics; N.Y. Times, Ethical Journalism: A Handbook of Values and Practices for the News and
Editorial Departments (Sept. 2004): 20, http://www.nytco.com/wp-content/uploads/NYT_Ethical_
Journalism_0904-1.pdf. In gathering news, reporters will not misrepresent their identity. They will not
identify themselves as police officers, physicians or anything other than journalists. Washington Post,
Standards and Ethics.
252 Ethical journalism treats sources, subjects, colleagues and members of the public as human beings
deserving of respect. Journalists should: Balance the publics need for information against potential harm
or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness. . . . Show compassion for those who may be affected by news coverage. . . . Consider the long-term implications of the
extended reach and permanence of publication. SPJ, Code of Ethics; see also NPR Ethics Handbook.
253 FOF 84.1.
249

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able, easily avoidable, and not justified. But there are other facts in the record that mitigate Dr. McAdamss level of fault in this case.
First, Dr. McAdamss Nov. 9 blog post did address a legitimate subject of intramural
concern, namely the handling of his advisees complaint that he had been treated unfairly in terms of what views he could assert in Ms. Abbates class. The way classes are
taught and the subjects that may be discussed are legitimate subjects for debate at a
university, or even among the broader public. They are particularly appropriate subjects of debate if professors or instructors at a university believe, and inform students,
that certain viewpoints cannot be discussed in class, no matter how germane. But the
matters appropriate for debate are not limited to current controversies; if a professor
wished to blog about how he or she thought that students should be allowed to raise
non-germane topics for discussion during class, over their professors objections, using a
recent classroom incident as an illustration, that too is an appropriate matter for debate,
even though almost no one would agree with it.
Dr. McAdamss blog post identified an incident that raised such concerns, and he
was within his freedom of extramural comment to blog about it. The particular way in
which Dr. McAdams wrote the first third of the blog postchoosing to identify
Ms. Abbate, linking to her contact information, and connecting her to selected statements made in class and during a surreptitiously recorded private conversation, in a
way that exposed her to harmviolated his obligations as a professor to another member of the Marquette community. But it should be recognized by all that Dr. McAdams
did so in the course of an activity that he was otherwise entitled to pursue, expressing
views that he is entitled to hold. This would be a simpler case if Dr. McAdamss blog
post was either entirely protected or entirely unprotected activity.
And even though it comprised only a small portion of the post, Dr. McAdamss discussion of the handling of his advisees complaint raised an important, and not trivial,
concern. Whatever Ms. Abbate may have meant to say, at one point she told JD, in response to his question whether not agreeing with gay marriage is homophobic, that
an argument that individuals should not have rights is going to be offensive to someone in this class.254 JD could reasonably have concluded that he was being informed
254
FOF 47.6.

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that he would not be allowed to oppose same-sex marriage in class, regardless of

whether it was germane to the discussion or not.255 Students, as well as faculty, are
entitled to academic freedom, and forbidding opposition but not support of one side of
a currently contested social issue would appear to violate that freedom.256 Whatever one
may conclude about the future of the debate over same-sex marriage, it is certainly not
currently beyond the pale of polite conversation to oppose it as a matter of policy. That
is particularly true at a university organized under the auspices of a church that opposes legal recognition of same-sex marriages.257
But when JD attempted to raise this concern with the Chair of the Philosophy Department, Dr. Snow, she did not appear to take any cognizance of his complaint; instead, Dr. Snow had what Ms. Abbate described as a corrective meeting with JD.258
Dr. Snow chastised JD for his attitude and for recording the conversation, informed him
he would not be able to transfer to a different section, and told him she would be monitoring his behavior.259 Indeed, it does not appear that anyone discussed with Ms. Abbate
the value of open classrooms in which everybodys opinion is welcome to be heard
until the day before the hearings in this matter.260 This failure to even look into JDs
complaint, and to address any issues or misunderstandings with his instructor, not only
poorly served JD, but also Ms. Abbate, who was left with a student in her class who was
both frustrated and struggling. This administrative failure was certainly something
Dr. McAdams was entitled to blog aboutand did, for approximately one-quarter of
the length of the post, toward the end.
The record is unclear whether, in fact, this is what Ms. Abbate meant to convey. In an email to the
Chair of her department, Dr. Snow, Ms. Abbate referred to JDs desire to engage in oppressive discourse, FOF 49.149.2, and later claimed to have been enforcing the Universitys harassment policy,
FOF 50. But she also told JD that she was not saying that opposition to same-sex marriage was homophobic, FOF 47.8, and she appeared to believe that his objection instead had something to do with
Rawls and the Regnerus study, FOF 7980. Ms. Abbate admitted at the hearing that she had difficulty
putting herself in the mindset of a student who did not grasp that the point of a theory of ethics class is
not about what you personally believe, its applying specific theories to specific moral issues. Hrg Tr.
vol. 1, 106:5-11 (Abbate).
256 Students are entitled to an atmosphere conducive to learning and to even-handed treatment in all
aspects of the teacher-student relationship. AAUP, Freedom and Responsibility, 173.
257 Ex. 111.
258 FOF 71.2.
259 FOF 6870.
260 FOF 72.
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The Committee wishes to take this opportunity to mention another aspect of this incident that may raise intramural concerns, although it is irrelevant to a determination of
whether discretionary cause exists to dismiss Dr. McAdams. That is, at several points in
the record, Marquettes harassment policy is cited by various persons as a reason why
certain critical views cannot be expressed. Ms. Abbate herself twice stated that in her
conversation with JD she was upholding our universitys harassment policy.261 That
claim is given more force by the fact that, some months before her exchange with JD,
Ms. Abbate took a required computer training module that included a segment that
appeared to state that discussing opposition to same-sex marriage in the workplace
would constitute actionable harassment.262 And when Dr. McAdams criticized Ms. Abbates class and discussion with JD on his blog, it was initially suggested that that constituted harassment as well.263 This was in keeping with Dr. Souths claim in 2007 that
Dr. McAdamss criticism of Dr. Tobins class on his blog violated Marquettes sexual
harassment policy.264 The current harassment policy and the training faculty received
are not in the record, and the Committee expresses no view as to their correct interpretation. However, the suggestion in the record that some faculty and instructors may
believe that opposing same-sex marriage on campus, or criticizing the way a class is
taught, constitute harassment in violation of university policy, raises a significant concern that there may be a conflict between the way the harassment policy is understood
and the academic freedom of faculty and students. This concern does not mitigate the
conduct at issue here, however, because at the time of Dr. McAdamss post, Ms. Abbate
had not cited the harassment policy, and it is mentioned nowhere in his post.
There is a second set of mitigating factors in this case, arising, perhaps ironically,
from Dr. McAdamss long history of conflict with other members of the Marquette
community. The Committee was presented with a series of incidents involving noncollegial behavior by Dr. McAdams extending back two decades, incidents that the UniFOF 50.
FOF 50.1. Although not in the record, the harassment training module was the subject of public
debate on Dr. McAdamss blog. John McAdams, Marquettes Bizarre Training on Harassment, Marquette Warrior (blog), September 21, 2014, http://mu-warrior.blogspot.com/2014/09/marquettes-bizarretraining-on.html.
263 Ex. 24 at MU-508509. University spokesperson Brian Dorrington later stated, in reference to
Dr. McAdamss suspension, that [t]he university has a policy in which it clearly states that it does not
tolerate harassment . . . . Ex. 107 at JM-015.
264 FOF 25.2.
261
262

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versity claimed had created a culture of intolerance that threatened the practice of
academic freedom, and often targeted women and those in a lower position of power
in academic standing at Marquette than Dr. McAdams.265 The Committee notes, however, that based on the record before us, Dr. McAdams was never informed by the University of these consequences of his actions, and was never formally reprimanded or
even warned that the University considered his behavior to fall short of the standards
required of a Marquette University professor. Not only that, but Dr. McAdams appears
never to have been informed that the University considered his behavior to be treading
near the line. There was never any mention of the possibility that failing to live up to
cura personalis or Marquettes more recent Guiding Values, or a general obligation to
avoid harm, might be grounds for dismissal.
There appear to be at least two possible explanations for this lack of any formal
warning.266 First, since even a warning can have a chilling effect on speech, university
administrators in some cases appear to have refrained from giving warnings or reprimands in order to avoid any chance of impinging on Dr. McAdamss academic freedom
to blog on whatever topic he wishes to.267 Second, administrators may have stayed their
hands at times in order to avoid further conflict, in the belief that warnings or reprimands would likely go unheeded and provoke further misbehavior.268 In either case,
Ex. 2 at MU-014 (quoting Ex. 15 at MU-192). Dr. McAdams, on his blog, has at one time or another
targeted men and women at every position of power in academic standing at Marquette. Hrg Tr. vol. 2,
50:4-14 (South); McAdams Br. (Doc. 11) at 18. The Committee did not find any particular pattern of targeting either women or those in a lower position of power more frequently than others.
266 The Committee is not aware of any informal warnings that Dr. McAdams job might be put in jeopardy, either, by administrators or others. But by their very nature informal warnings would be less likely
to be documented.
267 See, e.g., Hrg Tr. vol. 4, 122:24123:15 (Pauly) (permissible to disagree with scheduling meetings
with activist); ibid. 111:6-25 (Pauly) (McAdams was asked to not talk negatively about students, but not
reprimanded); Ex. 120 at JM-104 ([I]ssuing a reprimand or sanction would do harm to standards of
academic freedom.).
268 See, e.g., Ex. 120 at JM-104; Ex. 6 at MU-034. Martin Kich has aptly commented that such instances
are not rare:
Anyone is a leadership position in an AAUP chapter . . . has dealt with cases in which a faculty
member has just annoyed . . . everyone for years and in some instances has done things for which
he or she might have been disciplined, at least mildly. But no administrator has really wanted to
be bothered, and then suddenly an administrator wants to lower the boom not just for the most
recent instance of unprofessional behavior but for the whole history of ita history that is now
just anecdotal, rather than professionally documented.
265

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however, the lack of any documented warnings is unfortunate, and has made this case
more difficult than it needed to be. Even if none of the prior controversies involving
Dr. McAdams involved demonstrable misconduct on his part, a written warning that
his course of conduct was approaching the boundary of discretionary cause would have
put him on actual notice of the possibility of this proceeding. It is true that Dr. McAdams was summoned to an acrimonious discussion with the provost, dean of the college,
and chair of his department in 2011 concerning his contacts with, and subsequent blog
post about, a Marquette undergraduate, and that at least one participant in that meeting
believed that a clear message had been sent.269 But the absence of any documented
formal warning makes acceleration to the penalty of dismissal too jarring.
In light of these mitigating factors, the Committee concludes that the University has
not shown the level of violation of professional standards necessary to dismiss
Dr. McAdams. Dismissal is precluded as an appropriate penalty where the violation
occurred in connection with the pursuit of a protected activity, and involved the transgression of a boundary that had not been marked by previous formal warnings. However, the Committee also concludes that these mitigating factors are not fully exculpatory. Although Dr. McAdams was entitled to comment on what happened to his advisee
in and after his Theory of Ethics class, he did so in impermissible ways. Although
Dr. McAdams was not warned that his behavior was approaching a line that could lead
to discipline, no faculty member should need a specific warning not to recklessly take
actions that indirectly cause substantial harm to others. The mitigating factors considered here thus only partly offset Dr. McAdamss level of fault in violating professional
standards. The Committee concludes that the University has demonstrated by clear and
convincing evidence that Dr. McAdams clearly and substantially failed to meet the
standard of professional excellence that generally characterizes University faculties, and
that, if that violation will probably substantially impair his value, some penalty short of
dismissal would be appropriate.
Martin Kich, Postscript to My Post on the McAdams Case, Academe Blog, January 27, 2015, http://
academeblog.org/2015/01/27/postscript-to-my-post-on-the-mcadams-case/.
269 Ex. 20 at MU-263.
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5.
Impairment of Value
As was mentioned previously, there are two prongs to a determination of discretionary cause under the Faculty Statutes. The first is that the professor has, by his or her
conduct, clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties. That determination
has been made above. The second is that, through such conduct, the professors value
will probably be substantially impaired. The Faculty Statutes give five examples of
conduct that substantially impairs the value or utility of a faculty member: serious
instances of illegal, immoral, dishonorable, irresponsible, or incompetent conduct.270
This subsection considers the second prong of the test.
The Committee finds the language of the second prong to be opaque. It is unclear
what value consists of, or how to measure it. Value to whom? The University? Society? The examples are of some help, but still leave unanswered questions. It is unclear,
for instance, how the Committee is to determine if one of the listed types of misconduct
has risen to the level of substantial impairment of value. Particularly challenging is the
fact that the second prong appears to require a determination that past conduct will
probably substantially impair future value. It is also unclear if utility is the same
thing as value or some other form of impairment that the Committee must consider.
The Committee resolves these questions as follows. The Committee declines to make
a free-form decision as to a faculty members value, without any sort of standard for
assessment, as such a determination threatens to devolve into a subjective judgment as
to whether the challenged conduct is good or bad. In almost any contested dismissal
case, there is going to be something about the challenged conduct that strikes reasonable people as bad in some way, and so a free-form determination of value would
not provide any protection for unpopular faculty members. But while there is no obvious definition of value, or utility, the Committee can rely on, there is a related term
that has been used over the past seventy-five years in disputes over academic freedom
that has acquired a somewhat well-understood meaning: the concept of fitness.
A lack of fitness to serve as a professor has long been understood to be the only
valid criterion by which adequate cause for dismissal is to be determined. The AAUP
270
FS 306.03.

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has long proposed that [a]dequate cause for a dismissal . . . be related, directly and
substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.271 Since 1970, the AAUP and Association of American Colleges have
held that an extramural utterance, such as a blog post, can only constitute grounds for
dismissal when it clearly demonstrates the faculty members unfitness for his or her
position, which determination should take into account the faculty members entire
record as a teacher and scholar.272 The influential AAUP investigative committee report in the 1971 case of Angela Davis at UCLA expounded further:
What is required by the concept fitness for ones position? Most obviously, it means the
capability and the willingness to carry out the duties of the position. First among these,
for most academic personnel, are the duties of a competent and responsible teacher. . . .
Depending on his discipline, rank, or assignment, and the practices of the institution, a
faculty members position may involve other responsibilities, in research, in advising
students, in sharing departmental chores or administrative duties, and the like. To meet
the AAUPs standard of unfitness, then, the faculty members shortcoming must be
shown to bear some identified relation to his capacity or willingness to perform the responsibilities, broadly conceived, to his students, to his colleagues, to his discipline, or to
the functions of his institution, that pertain to his assignment. The concept cannot be reduced to a generalized judgment of unsuitability at large.273
Fitness is therefore to be based on an assessment of the faculty members capacity or

willingness to meet the obligations required by their position.
Based on the traditional measures of a faculty members performanceteaching,
scholarship, and serviceDr. McAdams obviously adds value to the university in various ways. His teaching evaluations are on the whole generally good, and most students
AAUP, Recommended Institutional Regulations on Academic Freedom and Tenure, in Policy Documents and Reports (Baltimore: Johns Hopkins Press, 2015), 83 ( 5.a).
272 AAUP, 1940 Statement of Principles, 15n6 (quoting AAUP, Committee A Statement on Extramural
Utterances, in Policy Documents and Reports, 11th ed., 31). [W]e find no basis upon which an institution
might properly discipline a faculty member for extramural speech unless it implicates professional fitness. Benjamin, et al., Ensuring Academic Freedom, 103.
273 Richard Brandt and Hans A. Linde, Academic Freedom and Tenure: The University of California at
Los Angeles, AAUP Bulletin 57, no. 3 (1971), 398. This paragraph is cited approvingly in Finkin and Post,
For the Common Good, 147, and Henry Reichman, Joan Wallach Scott, and Hans-Joerg Tiede, Academic
Freedom and Tenure: The University of Illinois at Urbana-Champaign, Bulletin of the AAUP 101 (2015),
38. Finkin and Post have called the Davis case one of the most contentious campus controversies of the
latter part of the twentieth century. Finkin and Post, For the Common Good, 147.
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seem to appreciate his classes. He has been a modestly productive scholar, more so
before tenure, but recently he has published two books, one exploring a core political
science issue. And even his blog has added some value to the university; it allows him
to serve the role of a gadfly. A gadfly, although sometimes annoying or even offensive,
can be a healthy addition to an academic community, by exposing flaws in arguments
or practices that would otherwise go unnoticed and unchecked. Dr. McAdams, through
his blog, challenges the pieties of liberal faculty and administrators; he exposes tensions
between Marquettes Catholic identity and the increasingly secular world of the modern
university, tensions that many might prefer not to discuss. That he has often done so
brusquely, through mockery and condescension, does not lessen his contribution.
It is unlikely that Dr. McAdamss conduct in this caseprimarily, the Nov. 9 blog
post and its aftermathwill affect his fitness as typically envisioned. That is, it is unlikely to have any impact on his teaching, his scholarship, or his service. The concept of
fitness extends beyond these elements, however, to encompass all of a faculty members responsibilities, broadly conceived, including obligations to ones students, to
ones colleagues, to ones discipline, or to the functions of ones institution.274 As set
forth above, Dr. McAdamss conduct in this case significantly violated his obligations
toward Ms. Abbate, and may have violated his obligations toward the faculty generally
by creating something of a chilling effect on their speech.
But that presents something of a conundrum. Fitness appears to be a forwardlooking concept; the question is whether the faculty members conduct will affect their
ability, or shed light on their willingness, to perform their professional obligations in
the future. The harm from Dr. McAdamss conduct lies mostly in the past. It would be a
difficult question for the FHC to resolve whether unprofessional conduct that had
caused significant but isolated harm, and was unlikely to be repeated, could nevertheless be held to impair a professors fitness to serve on the faculty. But fortunately the
Committee does not have to answer that question in this case.
The record before us clearly demonstrates that Dr. McAdams does not view himself
as bound by the fundamental norms of the university, or of the academic profession, or
indeed by any consistently applicable body of norms. He has instead assembled his
274
See Brandt and Linde, University of California at Los Angeles, 398.

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own moral code cobbled together from various sources, to be applied as he sees fit.
Dr. McAdams has emphasized repeatedly, both before the committee and on his blog,
that he views his blogging as bound by only two sources of obligations: journalistic
norms, as he understands them; and the law.275 Even his adoption of journalistic norms
is selective; he believes he is obligated to name subjects and to shield sources,276 but not
to confirm facts, seek rebuttals, include context, be stingy with anonymity, avoid misleading claims, or publish corrections.277
Dr. McAdams recognizes only those constraints arising from his role as a member of
the faculty that he chooses to. He states that he would never seek to expose the failings
of students in his classes or colleagues within his own department, but he does not
extend the same courtesy to colleagues or students elsewhere within the university.278
Dr. McAdams exploits rather than seeks to minimize the intimidation caused by his
blog.279 He continues to use a misleading signature line on his Marquette email account
when gathering information on his blog, relying on his status as an Associate Professor
of Political Science to encourage responses from students and others, but pointing to the
mention of his blog to absolve himself of any of the responsibilities a professor would
have.280 He has completely externalized his own decisions to blog about various members of the university community, repeatedly describing that decision as having been
made by others when they decided to take the actions that made them a subject of his
posts.281 He thus takes no responsibility for his blogging decisions, and it is not even
clear that he recognizes that he has decisions to make.
FOF 115.1. Dr. McAdams has no training as a journalist, and has instead based his journalistic
practice on what he observes in such publications as the National Review, the New York Times, and the
Huffington Post. FOF 115.2.
276 FOF 115.3; Hrg Tr. vol. 3, 179:14-22 (McAdams) (gave anonymity to correspondent because he
knew that he wouldnt mind being quoted anonymously).
277 See sources cited above, nn. 246-252.
278 FOF 115.5. His junior colleagues within the Political Science Department seem unaware of this distinction, and are ironically some of those most intimidated by Dr. McAdams. FOF 115.6.
279 See above, Section V.A.3.c.
280 FOF 100.
281 Ex. 20 at MU-291 (justifying post about AD: When students do high-profile public things, there is a
legitimate news interest in what they do.); Ex. 38 at MU-597 (justifying post about Abbate: If an issue is
of public interest, it is reported.); Ex. 18 at MU-236 (It was Abbates actions toward the student which
caused the problem . . . .); ibid. (When one does something that gets national publicity, some jerks are
going to say nasty things. Neither we nor anybody at Marquette can help that.).
275
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Dr. McAdamss adherence to an idiosyncratic set of norms is not itself grounds for
discipline. But where idiosyncratic norms conflict with professional norms and the
essential obligations of a university faculty member, the university may insist that the
latter be followed. Dr. McAdamss repeated refusal to recognize or conform his conduct
to such obligations as the obligation to take care to avoid harm to others indicates that,
without corrective action, such conduct is likely to continue in the future. The record of
this case therefore demonstrates that Dr. McAdams has engaged in a serious instance of
irresponsible conduct, and that his conduct is likely to continue to significantly impair
his fitness to meet his responsibilities as a university professor unless the University
takes punitive action in this proceeding.
Dr. McAdams, as well as some commentators, stress the fact that the gravamen of
the complaint against him is a single blog post.282 The implication appears to be that
this event was an isolated incident that does not reflect Dr. McAdamss future conduct
and is unlikely to recur. But the record belies the argument that the Nov. 9 blog post
was an aberration, and makes clear that Dr. McAdams has, by his refusal to recognize
his obligations to his profession, the university, his colleagues, or students, set himself
on a course that was and continues to be likely to produce such incidents. That is why,
unless action is taken here, his fitness will continue to be substantially impaired.
As with our conclusion on professional standards, the Committee concludes that
though Dr. McAdamss value, defined as fitness, has been significantly impaired by
his conduct in this case, it has not been impaired to the degree necessary to support
termination. That is, it has not been demonstrated by clear and convincing evidence that
Dr. McAdams is unlikely to conform his behavior to university and professional norms
if he is disciplined with a penalty short of dismissal. The Committee therefore concludes that Dr. McAdamss conduct has significantly impaired his value, requiring the
imposition of some penalty, but that the degree of impairment requires a penalty less
than dismissal.
6.
Conclusion Concerning Discretionary Cause
The Committee concludes that the University has demonstrated by clear and convincing evidence that Dr. McAdamss conduct with respect to his November 9, 2014
282
McAdams Br. at 29 (quoting Friedersdorf, Stripping a Professor of Tenure).

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blog post clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties. Specifically,
Dr. McAdams violated his obligation to fellow members of the Marquette community
by recklessly, albeit indirectly, causing harm to Ms. Abbate through his conduct, harm
that was substantial, foreseeable, easily avoidable, and not justifiable. Furthermore, the
Committee concludes that the University has demonstrated by clear and convincing
evidence that Dr. McAdamss conduct was seriously irresponsible, and that through his
conduct, Dr. McAdamss valuethat is, his fitness to fulfill his responsibilities as a
professorwill probably be substantially impaired in the absence of the imposition of
any penalty, given his demonstrated failure to recognize his essential obligations to
fellow members of the Marquette community.
The Committee thus concludes that the University has established, by clear and
convincing evidence, a prima facie case of discretionary cause under FS 306.03. However, the Committee concludes that the University has established neither a sufficiently
egregious failure to meet professional standards nor a sufficiently grave lack of fitness
to justify the sanction of dismissal. Instead, the Committee concludes that only a lesser
penalty than dismissal is warranted. Based on the foregoing reasons in this Section V.A,
the Committee recommends that Dr. McAdams be suspended, without pay but with
benefits, for a period of no less than one but no more than two semesters. While some
Committee members prefer the longer suspension and some prefer the shorter suspension, all believe either is appropriate.
The Committee hopes that a suspension, if one is imposed, will mark the last time
that these procedures need to be invoked for Dr. McAdams. But if not, this report and
the suspension imposed put Dr. McAdams on clear notice of the seriousness with which
the Marquette community, including his faculty peers, take the essential obligations
that university professors have toward other members of the Marquette community.
That includes the obligation not to cause harm, directly or indirectly, to students or
colleagues; and the obligation to be clear about the role in which he contacts Marquette
faculty or students to gather information for his extramural activities. Should another
incident occur in which Dr. McAdamss conduct directly or indirectly causes a student
or faculty member substantial and foreseeable harm in a manner that is easily avoidable
and not justified, then the mitigating factors that have determined our recommendation

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in this case will no longer exist, and Dr. McAdams should know that he will be facing
dismissal.
There may be some concern that the Committees conclusion and recommendation
marks the beginning of a slippery slope, setting a precedent that will allow future administrations to strike out at any faculty member who crosses them. That concern may
be heightened by the fact that much of the basis for discipline in this case, or in any case
under the Faculty Statutes, or indeed under any version of the AAUPs recommended
procedures, will be based on an application of vague concepts such as professional
standards, fitness, and irresponsible conduct.283 But lines must be drawn between
prohibited and protected conduct, and given the nature of both faculty rights and responsibilities, precision is impossible. Some measure of discretion is therefore inevitable.
There are two sorts of protection in place to help prevent our recommendation here
from being used to sanction the merely unpopular, or otherwise chill academic freedom. First, we have made clear in this report that simply writing a critical blog post,
even a harshly critical blog post, concerning a student or colleague is not sufficient to
establish discretionary cause. While faculty members have an obligation to avoid causing harm to one another or to students, that obligation is carefully limited by the four
conditions we have stressed in this report: the harm must be substantial, and not fleeting or trivial; the harm must be reasonably foreseeable; it must be easily avoidable,
meaning that professors need not take extraordinary efforts to satisfy their obligation;
and there must not be any justification for the conduct in question, such as that it represents fair scholarly or intramural criticism. It is difficult to see such a limited obligation
turning into a runaway tool of oppression.
Second, there are crucial procedural protections for faculty members, and the most
indispensable part of those protections is the existence of a faculty committee that must
determine whether the charges really do amount to discretionary cause. In such a system, no slide down a slippery slope can occur unless the faculty permits it every step of
the way. While it is true that at Marquette, as elsewhere, the administration is not
bound by the FHCs decision, an administrative decision that departs sharply from the
283
AAUP, Recommended Institutional Regulations.
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Committees recommendation should set off alarm bells for the rest of the faculty. And
it is also true that even a faculty committee is not immune to political pressures or bias.284 But the Committee is confident in the ability of faculty members to put aside their
views concerning the content of speech and focus rather on its compliance with neutral
standards. And we would warn future committees, as well as members of the Marquette community and other observers, that tomorrows controversy could easily come
from a different political direction, and thus care is required in either absolving or in
finding fault to ensure that the result reached relies only on generally applicable standards.
B. Limitations
The discussion in the preceding section pertains only to the first sentence of Section
306.03 of the Faculty Statutes, which establishes a prima facie case for discretionary
cause: that the faculty members conduct clearly and substantially fails to meet the
standard of personal and professional excellence that generally characterizes University
faculties, and that through the conduct in question the faculty members value will
probably be substantially impaired. But the Faculty Statutes also contain two important
limitations on the Universitys power to impose discipline under that Section. First,
Section 306.03 itself excludes from the definition of discretionary cause anything that
would fall within legitimate personal or academic freedoms. Second, Section 307.07
2 similarly provides that dismissal cannot be used to restrain faculty members in
their exercise of academic freedom or other rights guaranteed them by the United States
Constitution. In this section, we address whether either of these provisions bars discipline in this case.
1.
Academic Freedom
We begin with the question of whether Dr. McAdamss blog post was protected by
academic freedom. While the first sentence of Section 306.03 defines the elements of
discretionary cause, considered in Section V.A above, the second sentence establishes
what we previously termed a safe harbor. It provides that [i]n no case . . . shall dis-
For example, the faculty committee in the notorious Leo Koch case at the University of Illinois,
which led to the 1964 Committee A Statement on Extramural Utterances, agreed with the university that
Koch should be sanctioned. John Wilson, Academic Freedom and Extramural Utterances: The Leo Koch
and Steven Salaita Cases at the University of Illinois, Journal of Academic Freedom 6 (2015): 4-5.
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cretionary 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. In other words, under FS 306.03, even if the FHC decides that a faculty
members conduct substantially failed to meet professional standards and will substantially impair his or her fitness, the Committee must still conclude that such conduct
does not constitute discretionary cause if it falls within the professors legitimate personal or academic freedoms. Academic freedom provides a complete defense to discretionary cause.
The absolute protection provided in Section 306.03 for academic freedom is an indication of the importance of that freedom to the operation of the modern university. The
goal of the university is to serve the public good by engaging in the search for truth and
the dissemination of knowledge.285 But the truth is elusive. Academic freedom, and its
associated procedural component, the protection of tenure, assist in that goal by providing faculty the freedom to follow the truth wherever they think it may lead.286 Because
the path is so uncertain, all avenues must be open for exploration. Most leads will not
pan out, but a few will. And before we know which is which, some will lead to conclusions that affront the sensibilities of those inside and outside the university, who may in
turn put pressure on university administrators to put a stop to such things.
Academic freedom and tenure are therefore most necessary in protecting minority
viewpoints from being silenced.287 It is the faculty member who holds an unpopular
view who is most likely to be challenged as incompetent or unprofessional for offering
his or her opinion. Those challenges may come from society at large, but they may also
come from inside the university. Thus while academic freedom is often thought to protect the professor against outside interference, or arbitrary administrators, or overbroad
policies, it is a bulwark against ones colleagues as well. The same pursuits that irritate
members of the public, donors, alumni, or administrators may also strike ones colleagues as foolish or worse. And because the line between irritating opinions and irritating personalities is so difficult to draw, academic freedom and tenure, for better or for
AAUP, 1940 Statement of Principles, 14.

The primary purpose of tenure is to guarantee academic freedom by ensuring that faculty cannot be
dismissed for light and transient reasons. Ibid., 13; Walter, Academic Freedom: Seventy Years Later, 2a.
287 Reichman, Scott, and Tiede, University of Illinois at Urbana-Champaign, 15; McAdams Br. (Doc.
11) at 5.
285
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worse, protect both. Under the bargain struck by universities and their faculty in service
of the public good, the curmudgeon receives the same protections as the crank.288
Given the centrality of academic freedom to the university mission, it is unfortunate
that its core precepts are so often misunderstood. For example, as already noted above,
academic freedom is not an individual liberty akin to the First Amendment, even if it is
at times protected by the First Amendment.289 It is rather the freedom to speak and to
teach as a member of the academic profession.290 It has thus been long understood that
[a]cademic freedom . . . carries with it duties correlative with rights.291 The rights
faculty members have must be balanced against their responsibilities to their students,
their colleagues, their universities, and their communities.
It is also not well-understood that academic freedom comes in at least three varieties, and that those varieties do not receive equivalent amounts of protection. Three
categories of academic freedom are listed in the foundational 1940 Statement of Principles
on Academic Freedom and Tenure, which have been incorporated into Marquettes Faculty
Handbook nearly verbatim: (1) full freedom in research and in the publication of the
results; (2) freedom in the classroom in discussing their subject; and (3) freedom of
extramural comment as citizens.292 These freedoms are listed in the 1940 Statement in
order of their breadth. Freedom of research is full and nearly complete; freedom to
Often, the two qualities go together. [I]n many, though by no means all, of these cases, departments, faculty committees, and even AAUP chapters offered little support to their radical or unpopular
colleaguesa failure to appreciate academic freedom that all too often still characterizes politically
controversial academic personnel decisions. Benjamin, et al., Ensuring Academic Freedom, 96.
289 Finkin and Post, For the Common Good, 42-43.
290 Ibid., 44.
291 AAUP, 1940 Statement of Principles, 14.
292 Ibid.; cf. Faculty Handbook, Part III.C, 45. In addition to these three types of academic freedom, many
scholars have identified a fourth: the freedom of intramural speech, which has been defined as the
freedom to comment on the action, policy, or personnel of a faculty members home institution. Finkin
and Post, For the Common Good, 113; see also Judith Areen, Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, Georgetown Law Journal
97 (2009): 945-1000. Such speech is clearly protected, but its scope and level of protection have never been
defined in AAUP policies. Henry L. Mason, College and University Government: A Handbook of Principle and
Practice, vol. 14, Tulane Studies in Political Science (New Orleans: Tulane University, 1972), 55. Nevertheless, a large proportion of academic freedom disputes involve such speech. Finkin and Post, For the Common Good, 120.
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teach is limited by the need to remain germane to curricular requirements; and freedom
of extramural comment is the most limited of all.
Dr. McAdamss blog posts are clearly extramural utterances.293 Extramural utterances are those that do not necessarily require any disciplinary expertise, but rather represent communications made by professors in their role as citizens of the larger body
politic.294 While the subject of many of Dr. McAdamss posts is the operation of Marquette University, the blog itself is clearly intended for a broader audience, and even the
posts about Marquette focus on issues of concern for the general public, such as political correctness on college campuses.295 But the theoretical basis for the protection of
extramural utterances has been troublesome from the beginning for the AAUP.296 The
1940 Statement reflects this hesitancy. Whereas research and classroom speech receive
nearly complete protection, the freedom of extramural utterances is heavily qualified:
3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be
free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances.
Hence they should at all times be accurate, should exercise appropriate restraint, should
Dr. McAdams himself agrees. Hrg Tr. vol. 3, 92:20-22 (McAdams).

Finkin and Post, For the Common Good, 113-14; see also Reichman, Scott, and Tiede, University of
Illinois at Urbana-Champaign, 11.
295 Hrg Tr. vol. 3, 95:1-12 (McAdams). Finkin and Post argue that any speech, in any forum, that comments on ones home institution should qualify as intramural expression, Finkin and Post, For the Common Good, 113, and under that definition, Dr. McAdamss posts would qualify as intramural, not extramural, expression. But there are two problems with that approach. First, there is no category for
intramural speech set out in either the 1940 Statement or the Marquette Faculty Handbook, and therefore
it is unclear what protection it would receive. Second, it seems inaccurate that, as Finkin and Post claim,
the type of protection accorded under academic freedom should turn not on the location of faculty
speech but on its substance. Ibid. It is not the content of faculty speech that determines what level of
protection it receives, but its social context. Comment on ones home institution included in a published
article would be protected as scholarship; comments made during a class on pedagogical techniques
would be protected as classroom speech. Comments made to the public are extramural speech. That still
leaves a fourth, ill-defined context: comments made to audiences internal to a university. That would be
true intramural expression, but that situation is not presented by this case.
296 Ibid., 128. The most theoretically problematic aspect of academic freedom is extramural expression. Ibid., 127. Finkin and Post ultimately conclude that protection for extramural speech is necessary,
not for its own sake, but in order to create a climate in which faculty members feel fully free to express
themselves in scholarship and teaching. Ibid., 139.
293
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show respect for the opinions of others, and should make every effort to indicate that
they are not speaking for the institution.297
This language, and particularly the last sentence, should be interpreted with caution.
As the AAUP investigating committee in the Salaita case at the University of Illinois
recently observed, The status of [the] provisos has changed over time.298 When the
draft of the 1940 Statement was first circulated, there was disagreement between the
AAUP and its interlocutor, the Association of American Colleges, over whether Paragraph 3 was either too limited or too permissive. The two organizations agreed to a
compromise, an interpretive footnote that appeared to strengthen the admonitions in
Paragraph 3 into enforceable conditions, but hinged dismissal on an evaluation of the
professors fitness:
If the administration of a college or university feels that a teacher has not observed the
admonitions of paragraph 3 of the section on Academic Freedom and believes that the
extramural utterances of the teacher have been such as to raise grave doubts concerning
the teachers fitness for his or her position, it may proceed to file charges under paragraph 4 of the section on Academic Tenure. In pressing such charges, the administration
should remember that teachers are citizens and should be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American
Association of University Professors and the Association of American Colleges are free to
make an investigation.299
The AAUP, however, became increasingly dissatisfied with Paragraph 3 and the interpretive footnote in the following decade, in the wake of McCarthyism, and began
backpedaling from its agreement to both.300 In 1964, following the Leo Koch case at the
University of Illinois, Committee A of the AAUP, the body charged with applying
AAUP policy in academic freedom cases, adopted a Statement on Extramural Utterances
noting its concern that the admonitions of Paragraph 3 not be abused. The Statement
AAUP, 1940 Statement of Principles, 14. The definition of extramural freedom in the Marquette
Faculty Handbook is essentially identical.
298 Reichman, Scott, and Tiede, University of Illinois at Urbana-Champaign, 12.
299 AAUP, 1940 Statement of Principles, 14-15n6. This proviso is not included in the Marquette Faculty Handbook, nor are any of the later interpretive footnotes. The story behind the adoption of Paragraph
3 and its footnote is recounted in Walter P. Metzger, The 1940 Statement of Principles on Academic
Freedom and Tenure, Law and Contemporary Problems 53 (1990): 54-64. Essentially, there were larger
issues at stake for the AAUP, and the drafting of Paragraph 3 was given less attention.
300 Finkin and Post, For the Common Good, 145-46.
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noted the importance of review by a faculty committee, and bolstered the concept of
fitness:
The controlling principle is that a faculty members expression of opinion as a citizen
cannot constitute grounds for dismissal unless it clearly demonstrates the faculty members unfitness for his or her position. Extramural utterances rarely bear upon the faculty
members fitness for the position. Moreover, a final decision should take into account the
faculty members entire record as a teacher and scholar.301
In 1970, the Association of American Colleges joined the AAUP in modifying the effect
of the conditions in Paragraph 3 by adopting a new set of interpretive comments.302
The fourth comment embraced the 1964 Committee A Statement and its emphasis on
fitness, but also directed attention to the special obligations professors have in
making extramural statements:
As members of their community, professors have the rights and obligations of other citizens. Professors measure the urgency of these obligations in the light of their responsibilities to their subject, to their students, to their profession, and to their institution. When
they speak or act as private persons, they avoid creating the impression of speaking or
acting for their college or university. As citizens engaged in a profession that depends
upon freedom for its health and integrity, professors have a particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.303
The result of this somewhat convoluted history is that the conditions in Paragraph 3
of the 1940 Statement cannot be taken at face value. Since 1970, any failure by a professor
in the course of making an extramural statement to meet his or her special obligations
must be so pronounced that it clearly demonstrates the faculty members unfitness for
his or her position, which is a rare event.304 Furthermore, it appears that the nature of
the special obligations that limit a faculty members freedom to make extramural
AAUP Committee A, Committee A Statement on Extramural Utterances, 31.
AAUP, 1940 Statement of Principles, 14-15n6. This is a good place to note that although the AAUP
is the most active interpreter of the scope of academic freedom at universities today, it is not the sole
source of authority as to the meaning of the 1940 Statement, since that statement, and even the 1970 Interpretive Comments, represented a compromise between the AAUP and the AAC. The AAC has in recent
decades, however, departed the field of interpreting the scope of academic freedom, ceding that role to
the AAUP.
303 AAUP, 1940 Statement of Principles, 15n6 (quoting AAUP, Statement on Professional Ethics,
146).
304 Ibid.
301
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statements has changed. It is doubtful that there is any longer a binding obligation to be
accurate at all times in making such statements, or to exercise appropriate restraint,
or to show respect for the opinions of others, on pain of dismissal.305 Instead, the
special obligations of professors appear to be those identified in the Statement of Professional Ethics, quoted in the fourth Interpretive Comment: responsibilities to their
subject, to their students, to their profession, and to their institution; the obligation to
be clear that they are not speaking for their institution; and the particular obligation to
promote conditions of free inquiry and to further public understanding of academic
freedom.306
The Committee adopts the interpretation of extramural freedom set forth in the
fourth Interpretive Comment for Marquettes version of Paragraph 3 as well, for several
reasons. First, Marquettes definition of academic freedom is taken essentially verbatim
from the 1940 Statement, and there is nothing in the Faculty Handbook that indicates any
intent to depart from the 1940 Statement as employed and understood by universities
generally. Second, the 1970 Interpretive Comments were approved not just by the
AAUP, but by the Association of American Colleges, of which Marquette University is a
member. Third, whatever plausibility the conditions had as a limit on extramural freedom in 1940, by 2015, or even by 1980 when Section 307.07 of the Faculty Statutes was
adopted, such a constricted view of the freedom to engage in public debate would be
far outside the mainstream, and there is no indication that Marquettes administration
or faculty view Marquettes adoption of the norms of academic freedom as atypical.
Indeed, Fr. Robert Wild, when he was President of Marquette, is reported to have informed members of the community upset about something a faculty member had written that [f]or many, many years Marquette University has granted its faculty . . . academic freedom as generally understood in American higher education.307
It is clear, therefore, that the conditions on extramural freedom in Paragraph 3 of the
1940 Statement cannot be applied literally. Even beyond that, however, there is a further
misunderstanding of Paragraph 3 that appears to be prevalent among many commenta-
Ibid., 14n6.
Ibid., 15n6.
307 John McAdams, Marquette and the Heretical Dan Maguire, Marquette Warrior (blog), November 7,
2005, http://mu-warrior.blogspot.com/2005/11/marquette-and-heretical-dan-maguire.html (emphasis
added).
305
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tors, including faculty and administrators at Marquette. Namely, it is commonly asserted that violation of any of the conditions provided in Paragraph 3to avoid associating
ones views with the university, to be accurate, to exercise appropriate restraint, and to
show respect for the opinions of othersprovides grounds for discipline of a faculty
member. But that assertion is in error. To understand why, it is important to keep in
mind the purpose of academic freedom. Academic freedom, and its procedural corollary, tenure, is a limitation on the universitys power to enforce codes of conduct against
its employees. One of those limitations protects extramural statements from being
grounds for discipline, but only if certain conditions are metoriginally the four conditions listed in Paragraph 3, but since the 1970 Interpretive Comments, the special obligations identified in the Statement of Professional Ethics. Failure to abide by those special
obligations means that the protection of Paragraph 3 for extramural statements could be
abrogated. But that alone does not mean that the professor could be dismissed. The
conduct in question must clearly demonstrate[ ] the faculty members unfitness for his
or her position.308 At Marquette, it must still be demonstrated that the professors conduct meets the definition of discretionary cause in FS 306.03. A mere failure, for example, to be clear that one is not speaking for the university will not suffice unless it
rises to that level. Nevertheless, on multiple occasions in the record, faculty and administrators have cited a failure to abide by the conditions in Paragraph 3 as ipso facto a
violation that could lead to discipline.309 Marquette is hardly alone in this regard; Louisiana State University recently called the AAUP itself to task for failing to apply the
conditions listed in Paragraph 3 to a dispute over classroom teaching, the subject of
Paragraph 2.310
The question before the Committee is whether Dr. McAdamss conduct concerning
his Nov. 9 blog post, despite giving rise to a prima facie case for discretionary cause
justifying suspension, nevertheless falls within the safe harbor for academic freedom.
Since Dr. McAdamss blog posts were extramural utterances, he enjoyed the academic
freedom to write whatever he wished free from institutional censorship or discipline,
AAUP, 1940 Statement of Principles, 15n6.
See, e.g., Ex. 30 at MU-525 (letter from dept. chair); Ex. 15 at MU-190, 198 (letter from 8 dept. chairs);
Ex. 15 at MU-193194 (letter from dept. chair); Ex. 2 at 1 (letter from dean of college); Doc. 6 at 1-2 (letter
from University counsel).
310 Elizabeth Vowell, LSU Faculty Senate Takes on Firing of Tenured Professor, WAFB, September 3,
2015, http://www.wafb.com/story/29946514/lsu-faculty-senate-takes-on-firing-of-tenured-professor.
308
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limited only by the special obligations attendant to his position as a university professor.311 Those obligations include fundamental responsibilities to [his] subject, to [his]
students, to [his] profession, and to [his] institution; the responsibility to avoid creating the impression of speaking or acting for their college or university; and the particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom. Extramural speech in violation of any of those obligaobligations, however, can only constitute discretionary cause if it clearly demonstrates
the faculty members unfitness for his . . . position, considering his entire record as a
teacher and scholar.312
In this case, these questions have already been answered by our inquiry above into
the prima facie case for discretionary cause. The Committee has already determined
that Dr. McAdams, through his conduct, violated his fundamental responsibilities to the
university, to the scholarly profession, and to colleagues. In the course of reaching that
determination, the Committee considered the balance between rights and responsibilities inherent in academic freedom, and nevertheless concluded that Dr. McAdamss
conduct rose to the level of clearly and substantially failing to meet the standard of
professional excellence which generally characterizes University faculties. Furthermore,
the Committee concluded that Dr. McAdamss breach of his obligations clearly demonstrates his current unfitness for his position, even considering his entire record as a
teacher and scholar, although only to the extent necessary to support a penalty of suspension.
Dr. McAdams has a considerable amount of academic freedom to express whatever
opinions he wishes on his blog, no matter how offensive some find them, and he has
exercised that freedom without formal sanction from the University administration for
ten years and three thousand blog posts.313 But academic freedom has its limits, limits
that are slightly more pronounced in the case of extramural statements, and Dr. McAdamss Nov. 9 blog post exceeded those limits by recklessly causing harm indirectly to
Ms. Abbate that was substantial, foreseeable, easily avoidable, and not justified. The
Committee concludes that our determination that discretionary cause exists to a level
sufficient to justify a penalty of suspension will not impair the full and free enjoyment
Marquette University Handbook for Full-Time Faculty, Part III.C., August 27, 2013, 45.
AAUP, 1940 Statement of Principles, 15n6.
313 FOF 2.
311
312
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of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action.314
2.
First Amendment
The Faculty Statutes also provide another limitation on finding that discretionary
cause exists. Faculty Statutes 307.07 2 provides, in the course of establishing the
procedures for the hearing, that [d]ismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution. The relationship of this clause to Section 306.03, which prohibits a finding of discretionary cause where doing so would impair the full and free
enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse,
association, advocacy, or action, is somewhat mysterious. Indeed, at first glance, the
protection of academic freedom or [constitutional] rights in Section 307.07 2 seems
entirely duplicative of the protection for personal or academic freedoms of . . . discourse in Section 306.03. The most likely explanation is that Section 307.07 2 is a
remnant from a time before the Faculty Statutes existed, when the only procedures for
dismissal were those that were adopted by the FHC in 1980.315
There is one possible difference between the two provisions. Whereas Section
306.03s safe harbor imposes a limit based on the effect of a finding of discretionary
cause, namely whether it would impair personal or academic freedoms, Section 307.07
2 imposes a restriction on the purpose of such a finding. Thus, under Section 307.07
2, if dismissal is being sought for the purpose of restraining faculty members in their
exercise of academic freedom or other rights, the Committee must decline to find discretionary cause, even if it has otherwise been established. Section 307.07 2 thus establishes a defense against a pretextual use of dismissal proceedings that is in fact motivated by other, protected conduct. The notorious case of Ward Churchill at the University
of Colorado provides an example of such an occurrence. Churchill was investigated,
and then terminated, for having allegedly plagiarized several sections of his scholarly
works. Plagiarism, if established, can obviously support a finding of discretionary
cause. But a jury later found that the primary motivation of the plagiarism investigation
FS 306.03.
There are other indications of Section 307.07s ancient origins, including the reference in 1 to Part
II-D-3 of Marquette University Faculty Handbook, which no longer exists.
314
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was to punish Churchill for his infamous, but protected, extramural statements about
the victims of the September 11, 2001 terrorist attacks.316 Section 307.07 2, as interpreted here, would prevent such an end run around academic freedom.
It has been suggested that the reference in Section 307.07 2 to rights guaranteed . . . by the United States Constitution means that Marquette has agreed to subject
itself to providing the full panoply of First Amendment rights to its faculty members.
But it is unclear what exactly that would mean. The First Amendment is a restriction on
what the government can do; the government cannot punish persons for their speech
except in very limited circumstances. Thus, under the First Amendment, a lecture about
Aristophaness The Clouds is clearly protected speech, even if it is given by the instructor in a chemistry class, and even if doing so breaches a private employment
agreement.317 But obviously Section 307.07 2 is not intended to surrender all control
over Marquettes curriculum.
Dr. McAdams has argued instead that the clause in Paragraph 2 is intended to have
a much more narrow application; it is intended to give Marquette faculty members the
same rights vis-a-vis Marquette that government employees have under the First
Amendment against their employers.318 But doing so would be problematic for several
reasons. First and foremost, it would add a considerable amount of legal complexity to
a determination that is to be made by a committee drawn from the entire faculty. Current First Amendment law governing the academic freedom rights of public university
professors is both convoluted and in a state of flux. There is the question of whether the
Supreme Courts decision in Garcetti v. Ceballos applies to university professors,319 the
odd fact that part of the test has been interpreted such that matters that concern the
public are not always deemed matters of public concern,320 and an eminently manipu-
Scott Jaschik, Ward Churchill Gets Nothing, Inside Higher Ed, July 8, 2009, http://www.inside
highered.com/news/2009/07/08/churchill; Don Eron, Suzanne Hudson, and Myron Hulen, Report on the
Termination of Ward Churchill (Colorado Conference of the AAUP, 2011), 6.
317 See Piggee v. Carl Sandburg Coll., 464 F.3d 667, 671 (7th Cir. 2006).
318 Doc. 11 at 5, 22.
319 547 U.S. 410 (2006). Compare Renken v. Gregory, 541 F.3d 769, 774 (7th Cir. 2008), with Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014); Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 562
(4th Cir. 2011).
320 See Mosholder v. Barnhardt, 679 F.3d 443, 449 (6th Cir. 2012); Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th
Cir. 1999); Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 587 (7th Cir. 1992).
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lable multi-factor balancing test.321 It seems unlikely that a committee composed mostly
or entirely of nonlawyers would have the ability to fairly and accurately assess the
merits of arguments on this subject. That represents a stark departure from the other
determinations that the FHC must makethe nature of professional obligations, the
extent of academic freedom, the resolution of factual disputes involving academic activitiesthat are within the ken of every university professor. It is unlikely that the drafters of Section 307.07 2 intended to include a provision that could be adequately assessed by the faculty of only one unit of the university.
Second, even aside from the question of institutional competence, there are significant practical and substantive difficulties in interpreting 307.07 2 in the way that
Dr. McAdams suggests. As a substantive matter, it seems dangerous and unwise to
have the freedoms of faculty members hinge on the latest twists and turns of public
employment law. And as a practical matter it is difficult to discern how the Committee
should apply an uncertain legal doctrine as developed in courts to a hypothetical situation in which Marquette is a public institution. For example, where decisions conflict,
which court decisions should the Committee consider binding? Should it look to only
decisions from within the boundaries of the U.S. Court of Appeals for the Seventh Circuit, which includes Wisconsin, or is it free to consider decisions from any jurisdiction?
Could the Committee decide on its own interpretation of First Amendment law, even if
that interpretation conflicts with what the U.S. Supreme Court has held?
Finally, it is not clear that, after navigating through all of these difficulties, a consideration of public employee First Amendment caselaw would add anything to what is
already in the Faculty Statutes. Academic freedom seems a far more extensive protection of faculty rights than the protection public employees receive under the First
Amendment.322 Not only is it unclear whether speech pursuant to official dutiessuch
as teaching and scholarshipis protected under that caselaw, but also employee speech
rights are subject to a balancing test that gives great weight to an employers interest in
See Rankin v. McPherson, 483 U.S. 378, 388 (1987).

Traditional First Amendment categories often are not helpful in analyzing academic freedom
claims of faculty and students in the university classroom because they fail to pay special regard to the
mission of colleges and universities. Academic Freedom of Students and Professors, and Political
Discrimination, AAUP (2015), http://www.aaup.org/academic-freedom-students-and-professors-andpolitical-discrimination.
321
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preventing disruption in the workplace.323 Although the Committee reaches no conclusion on the matter, courts might very well hold that Dr. McAdamss blog post fails to
qualify for First Amendment protection under the relevant tests for public employees.
We therefore interpret Section 307.07 2 to bar the University from making pretextual uses of discretionary cause in order to punish protected speech sub rosa. But
there is no evidence to suggest that the University is using this proceeding for such a
purpose. Dr. McAdams has been blogging for ten years, posting 3,000 posts, and the
University administration has never before sought to punish him for any of his blog
posts. In fact, in at least six controversies involving Dr. McAdamss Internet or campus
speech that have arisen in twenty years, University administrators have gone out of
their way to avoid formally reprimanding him.324 Nor is there anything in this proceeding that has suggested a lack of genuine concern about the Nov. 9 blog post or its effects
on Ms. Abbate. There is no evidence that the charges levied against Dr. McAdams are
stalking-horse claims meant to silence his blogging more generally. We therefore conclude that the University is not using dismissal to restrain Dr. McAdams from exercising his academic freedom or other rights guaranteed him by the United States Constitution.
C. Conclusion
In summary, the Committee concludes that the University has established by clear
and convincing evidence that Dr. McAdamss conduct with respect to his November 9,
2014 blog post violated his obligation to fellow members of the Marquette community
by recklessly causing indirect harm to Ms. Abbate through his conduct, harm that was
substantial, foreseeable, easily avoidable, and not justifiable. The Committee therefore
concludes that this conduct clearly and substantially failed to meet the standard of
personal and professional excellence that generally characterizes University faculties.
Furthermore, the Committee concludes that the University has demonstrated by clear
and convincing evidence that Dr. McAdamss conduct was seriously irresponsible, and
his demonstrated failure to recognize his essential obligations to fellow members of the
Crue v. Aiken, 370 F.3d 668, 685 (7th Cir. 2004).
See Ex. 29 at MU-567 (letter explicitly noted it was not a reprimand); Ex. 30 at MU-525526 (no record of response to request for reprimand); Hrg Tr. vol. 4, 121:18-122:8 (Pauly) (request for public denunciation denied); Hrg Tr., vol. 4, 111:6-25 (Pauly) (no formal reprimand); Ex. 32 at MU-550 (no reprimand,
letter thanks McAdams for service).
323
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Marquette community, and to conform his behavior accordingly, will substantially

impair his fitness to fulfill his responsibilities as a professor unless corrective action is
taken. The Committee therefore concludes that Dr. McAdamss value will probably be
substantially impaired if he continues on his current course. The Committee also concludes that our determination that discretionary cause exists will not impair the full
and free enjoyment of legitimate personal or academic freedoms of thought, doctrine,
discourse, association, advocacy, or action, and that FS 307.07 2 likewise does not
prohibit imposing a sanction on Dr. McAdams for his conduct.
The Committee therefore concludes that discretionary cause under FS 306.03 has
been established, but only to the degree necessary to support a penalty of suspension. The
Committee concludes that the University has established neither a sufficiently egregious failure to meet professional standards nor a sufficiently grave lack of fitness to
justify the sanction of dismissal. Instead, the Committee concludes that only a lesser
penalty than dismissal is warranted. The Committee thus recommends that Dr. McAdams be suspended, without pay but with benefits, for a period of no less than one but
no more than two semesters.
The Committee recognizes that this case arises at a time of heightened sensitivities
concerning the states of both speech and respect on campus, and that the particular
issue of Dr. McAdamss speech has long mirrored the contours of that broader debate.
Nevertheless, the Committee believes that this particular case is heavily dependent on
its own facts, and that it would be unwise to place it cursorily as a data point in some
asserted trend of either coddling students from the rough and tumble of debate or of
excessive solicitude for the protections accorded to tenured professors. The Committee
is simply not aware of any other controversy similar to this one, in which a faculty
member has been accused of using a blog post to expose a surreptitious recording of a
colleagues private conversation with a student that provokes abusive communications
directed at that colleague. It is a situation that appears to clearly invoke both the core
freedoms traditionally accorded faculty members and a powerful obligation to protect
those freedoms for others.
We therefore encourage members of the Marquette community to reflect on the difficult nature of this case, and to particularly imagine whether their views would remain
the same if the political valences were reversed, as in some future case they might be.

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Those who have called for discipline against Dr. McAdams for years should pause to
recognize the important academic freedom issues at stake if university administrations
are given broad leeway to determine that extramural speech, offensive to some, can
negate the protections of tenure. Those who reflexively dismiss the case for discipline
against Dr. McAdams in this case should pause to consider the impact on universities as
havens for the search for truth if faculty members are given free rein to surveil their
colleagues in a search for unguarded remarks for use in shaming campaigns.
It is a hallmark of the current state of public discourse that policy questions are
treated as binary; that anything less than a complete victory is seen as an abject failure.
But inherent in the notion of academic freedom is a balance that must be struck between
individual liberties and obligationsto ones profession, to ones institution, to ones
colleagues and studentsthat restrict those liberties. Finding the middle ground is
essential; the extremes are unhealthy for an academic community. This Committee has
done its best to locate that balance, and finds that in this case Dr. McAdamss misconduct is serious enough that some discipline must be imposed, but that a penalty of
dismissal is too severe given the record and would strike too hard a blow in these
somewhat novel circumstances. We reach this conclusion not as a compromise verdict,
but because that is where the facts and the standards have taken us.
123
Appendix A
List of Abbreviations
AD a student (Anne Doe) who was listed as the contact person on a webpage
for a 2011 production at Marquette of the play, The Vagina Monologues.
AAUP the American Association of University Professors. The AAUP was the
motivating force behind the foundational 1940 Statement of Principles on Academic Freedom and Tenure, as well as the 1970 Interpretive Comments thereto, adopted by many
colleges and universities into their faculty policies and procedures, including Marquette.
Doc. # a reference to an item in the FHCs docket. The docket is a list of all items
formally submitted to the FHC, or produced by the FHC. A copy of the docket is set
forth in Appendix B.
Ex. # a reference to an exhibit placed in the record.
FS ###.## a reference to a particular section of the Faculty Statutes. The Faculty
Statutes are included in the Faculty Handbook, Part III.A.
FHC the Marquette University Faculty Hearing Committee.
FOF the Committees Findings of Fact, located in Part IV.
Hrg Tr. vol. #, ##:## (name) a reference to the transcript of the hearing in this
matter. The first number in the citation represents the volume number, which in this
case corresponds to the day of the hearing; volume 1 is the transcript of the hearing
proceedings on September 21, 2015, and volume 4 is the hearing transcript for September 24, 2015. The citation is followed by two more numbers, representing the page and
the line number of the cited material, separated by a colon; and finally the person testifying or speaking, in parentheses.
JD a student (John Doe) in Ms. Cheryl Abbates Fall 2014 PHIL 2310-114 class,
Theory of Ethics, who initiated the series of events that is the gravamen of this case
when he recorded an after-class confrontation with Ms. Abbate and then sought to
lodge a complaint against her.

Final Report
JM-### a Bates-stamp number referring to a particular page in the exhibits

submitted into the record. Exhibits submitted by Dr. McAdams have Bates-stamps
beginning with JM.
MU-### a Bates-stamp number referring to a particular page in the exhibits
submitted into the record. Exhibits submitted by the University have Bates-stamps
beginning with MU.
UAS Stat. the Statutes of the University Academic Senate.
125
Appendix B
Docket
No.
Date
Author
Description
6/30/2015
Holz
Notice of Pending Dispute (including Exs. 1-21)
9/9/2015
Boyden
Selected Information Governing Marquette Faculty Hearing Committee
8/12/2015
Boyden
Proposed Agenda for 8/13/15 FHC Meeting
8/13/2015
Boyden
Timeline of Events in Record, as of 8/13/2015
8/14/2015
Boyden
Notice of Hearing on Contested Termination of Dr. John C. McAdams
8/24/2015
Weber
University Responses to FHC Questions (including Exs. 22-33)
8/24/2015
Esenberg
Letter re: service date and motions to recuse
8/25/2015
Weber
Response to motions to recuse (Doc. 7)
8/25/2015
Weber
Response re: service date (Doc. 7)
10
8/31/2015
Esenberg
Cover letter fw: Additional Statement (Doc. 11)
11
8/31/2015
Esenberg
Additional Statement of Dr. John C. McAdams
12
[STRICKEN per 9/9/15 meeting]
13
9/4/2015
Boyden
Minutes (approved) for 8/13/2015 FHC Meeting
14
9/4/2015
Boyden
15
9/9/2015
Esenberg
Letter re: AAUP observer
16
9/11/2015
Weber
Notice of Supplemental Authority
17
9/15/2015
Omar
18
9/15/2015
Boyden
19
9/14/2015
Weber
Letter fw: additional exhibits (including Exs. 34-36)
20
9/16/2015
Boyden
Letter to Parties re: Hearing
21
9/18/2015
Weber
Letter re: Witnesses
22
9/24/2015
McGrath
McAdams Trial Exhibits 101-120
23
9/24/2015
Weber
University Trial Exhibits 37-39
127
Final Report
No.
Date
Author
Description
24
9/21/2015
Veritext
Hearing Transcript vol. 1 (condensed and full)
25
9/22/2015
Veritext
26
9/23/2015
Veritext
27
9/24/2015
Veritext
27A
9/28/2015
Omar
28
10/6/2015
Boyden
29
10/23/2015
Boyden
30
10/26/2015
Boyden
Letter re: copy of 11/17/14 recording
31
10/27/2015
Weber
Letter fw: copy of recording (including Ex. 40)
32
10/27/2015
Boyden
33
10/28/2015
Boyden
Cleaned-up copy of Ex. 40 recording
34
10/28/2015
Boyden
Corrected version of Ex. 10 Transcript
35
10/28/2015
Boyden
Redline showing changes to Ex. 10 Transcript
36
11/9/2015
Boyden
37
11/23/2015
Boyden
38
12/15/2015
Boyden
Appendix C
List of Documents in the Record
Ex.
Begin
End
MU001
MU001
MU002
MU018
MU019
Date/Time
Full Name
Author(s)
Recipient(s)
Letter re: Notice of

Termination
Richard Holz
John McAdams, Richard

Esenberg
MU025
McAdams CV
John McAdams
MU026
MU030
Abbate CV
Cheryl Abbate
MU031
MU033
Tue
10/28/2014
9:20 a.m. CT
Taped Conversation
Between Cheryl
Abbate and JD
MU034
MU034
Tue
11/11/2014
Notes of Meeting of
Nov. 11, 2014
James South
MU035
MU037
on/bef. Fri
11/14/2014
Complaint by Cheryl
Abbate against John
McAdams
Cheryl Abbate
Richard Holz
MU038
MU040
~ Mon
11/17/2014
Account Sent to Justin

Weinberg, Who
Operates the Web Site
Daily Nous
Cheryl Abbate
Justin Weinberg
MU041
MU041
Sun
11/16/2014
9:42 a.m. CT
Email re Ms. Cheryl

Abbate PHIL 104
Student A
James South
MU041
MU042
Fri
11/14/2014
6:30 p.m. CT
Email re Ms. Cheryl

Abbate PHIL 104
James South
Student A
MU043
MU043
Mon
11/24/2014
6:46 p.m. CT
Email re Ethics Class
Student B
Cheryl Abbate, James

South, Nancy Snow,
Richard Holz, Michael
Lovell
Marquette University
Guiding Values
Fri
01/30/2015
129
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
MU044
MU045
~ Fri
11/21/2014
Email to Abbate re
Thank You
Student C
Cheryl Abbate, James

South, Nancy Snow
MU046
MU046
Fri
11/21/2014
1:59 p.m. CT
Email re JD
Nancy Snow
James South
MU047
MU047
~ Fri
11/21/2014
Email re JD
Sebastian Luft
James South
MU048
MU048
~ Fri
11/21/2014
Voicemail re Meeting
w/ JD
Nancy Snow
James South
MU049
MU050
Mon
12/08/2014
5:34 p.m. CT
Email re Meetings w/
JD
William Donaldson
James South
MU051
MU051
Thu
10/30/2014
1:28 p.m. CT
Email re Tuesdays
Meeting
JD
Nancy Snow
MU051
MU051
Thu
10/30/2014
9:46 p.m. CT
Email re Tuesdays
Meeting
Nancy Snow
JD
10
MU052
MU053
Mon
11/17/2014
> 8:30 a.m.
CT
Notes re meeting
between JD and James
South
James South
10
MU054
MU071
Mon
11/17/2014
8:00 a.m. CT
Transcript of conversation betw JD and

James South
11
MU072
MU072
Sun
11/09/2014
8:58 a.m. CT
Email re Confrontation w/ JD
John McAdams
12
MU073
MU087
Sun
11/09/2014
6:06 p.m. CT
Blog Post re 10/28

class
John McAdams
13
MU088
MU174
on/aft. Sun
11/09/2014
Hate Mail recd by

Abbate
Cheryl Abbate
Cheryl Abbate
130
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
14
MU175
MU175
Mon
12/01/2014
6:13 p.m. CT
Request for DPS offr
Cheryl Abbate
Paul Mascari, Nancy

Snow, James South
14
MU176
MU176
Tue
11/25/2014
9:29 a.m. CT
Holz fw Jarratt 11/22

9:40am email
Richard Holz
Paul Mascari
14
MU177
MU177
Sun
11/23/2014
11:07 a.m.
CT
Request for PSO at

Abbate classes this
week
Nancy Snow
Paul Mascari, Michael

Lovell, Margaret Callahan, Richard Holz, James
South
14
MU178
MU178
Fri
12/12/2014
10:05 a.m.
CT
South fw note fr
Abbate to Mascari
James South
Paul Mascari, Dale Kaser
14
MU179
MU179
Fri
12/12/2014
9:58 a.m. CT
5th email fr Andrews
Cheryl Abbate
James South
15
MU181
MU181
Wed
11/19/2014
10:42 a.m.
CT
Email re story going

national
Lowell Barrington
James South, Richard

Holz
15
MU183
MU184
Sat
11/22/2014
9:37 p.m. CT
Email re What else?
Lowell Barrington
Margaret Callahan,
Richard Holz, James
South, Dale Kaser
15
MU186
MU187
Mon
11/24/2014
3:00 p.m. CT
Mem re Political
Science Jr Fac Mtg w/
Dr. Richard Holz
Kim Patterson
15
MU188
MU189
Fri
11/21/2014
6:42 p.m. CT
Email re John McAdams
Nancy Snow
Michael Lovell, Margaret

Callahan, Richard Holz,
Lowell Barrington, James
South
15
MU190
MU191
Fri
11/21/2014
8:19 a.m. CT
Email re John McAdams from Chairs
James Marten
Michael Lovell, Margaret

Callahan, Richard Holz,
Lowell Barrington, Krista
Ratcliffe, Jane Peterson,
John Grych, Nancy
Snow, Robert Masson,
Anne Pasero
131
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
15
MU192
MU195
Tue
11/25/2014
Letter re McAdams
effect on PoliSci dept.
Lowell Barrington
Richard Holz
15
MU196
MU204
Tue
11/25/2014
Letter fr Eight Arts &

Sciences Chairs
Lowell Barrington,
Nancy Snow, James
Marten, Jane Peterson, Krista Ratcliffe,
John Grych, Anne
Pasero, Robert
Masson
16
MU205
MU205
Sat
11/22/2014
Letter to the Campus

Community
Michael Lovell
16
MU206
MU206
Fri
11/21/2014
E-mail to faculty re
collegiality
Margaret Callahan
17
MU207
MU208
Fri
11/21/2014
Notes fr mtg w/ John

McAdams
Richard Holz
18
MU209
MU216
Thu
11/13/2014
Blog post on confrontation w/ Snow
John McAdams
18
MU217
MU220
Thu
11/20/2014
10:55 p.m.
CT
Blog post: Another

Philosophy Grad
Student
John McAdams
18
MU221
MU229
Thu
11/20/2014
3:51 p.m. CT
Blog post: Abuse from

the Politically Correct
Crowd
John McAdams
18
MU230
MU233
Sun
11/23/2014
7:36 p.m. CT
Blog post on Cheryl

Abbate complaint
John McAdams
18
MU234
MU243
Mon
11/24/2014
Blog post on Dept.

Chairs letter
John McAdams
18
MU244
MU247
Tue
11/25/2014
Blog post on letters of

support recd
John McAdams
19
MU248
MU251
Mon
03/10/2008
Blog post on rejected

Marquette Tribune ad
John McAdams
Margaret Callahan
132
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
20
MU252
MU252
Fri
03/18/2011
9:24 a.m. CT
Email re Vagina
Monologues
John McAdams
AD
20
MU253
MU253
Fri
02/18/2011
6:15 p.m. CT
Email re Vagina
Monologues
AD
John McAdams
20
MU253
MU253
Mon
02/28/2011
1:01 p.m. CT
Email re Vagina
Monologues
John McAdams
AD
20
MU253
MU254
Fri
02/18/2011
9:24 a.m. CT
Email re Vagina
Monologues
John McAdams
AD
20
MU255
MU255
Sun
03/27/2011
6:32 p.m. CT
Email to Pauly re bias
John McAdams
John Pauly, Barrett

McCormick, Phil Rossi,
Kimberly Newman
20
MU255
MU256
Fri
03/25/2011
1:38 p.m. CT
Email re meeting
John Pauly
John McAdams, Barrett

Kimberly Newman
20
MU256
MU257
Fri
03/25/2011
12:44 p.m.
CT
Email to Pauly re
roles
John McAdams
John Pauly, Barrett

Kimberly Newman
20
MU257
MU257
Fri
03/25/2011
10:14 a.m.
CT
Email re meeting
John McAdams
John Pauly
20
MU258
MU261
Fri
04/01/2011
5:33 p.m. CT
MU DPS Incident
Report
Luke Wagner
20
MU263
MU263
Tue
04/05/2011
2:10 p.m. CT
Email re meeting w/
McAdams
Barrett McCormick
John Pauly
20
MU263
MU265
Wed
03/09/2011
4:41 p.m. CT
Email re DPS report
John Pauly
Barrett McCormick, Phil

Rossi
133
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
20
MU265
MU265
Wed
03/09/2011
3:35 p.m. CT
Email re AD
L. Christopher Miller
John McAdams
20
MU265
MU266
Wed
03/09/2011
3:22 p.m. CT
Email re AD
John McAdams
20
MU266
MU267
Wed
03/09/2011
3:01 p.m. CT
Email re AD
John McAdams
20
MU267
MU269
Wed
03/09/2011
2:33 p.m. CT
Email re AD
John McAdams
20
MU269
MU270
Wed
03/09/2011
2:04 p.m. CT
Email re AD
John McAdams
20
MU270
MU272
Thu
02/24/2011
4:00 p.m. CT
Email to Pauly fw
DPS report
Larry Rickard
John Pauly, Paul Mascari,

Arthur Scheuber, L.
Christopher Miller
20
MU273
MU276
Fri
02/18/2011
9:33 a.m. CT
Blog Post re Vagina

Monologues
John McAdams
20
MU277
MU289
Wed
03/30/2011
4:57 p.m. CT
Blog Post re Harassment by Pauly
John McAdams
20
MU290
MU302
Fri
04/01/2011
11:49 a.m.
CT
Blog Post re Bullied

by Provost
John McAdams
20
MU303
MU308
Sat
04/02/2011
Blog post: Marquette

Warrior Threatened
Bo Ellis
20
MU309
MU312
Mon
04/18/2011
Blog Post re Vagina

Monologues
John McAdams
21
MU313
MU316
Fri
06/12/2015
MU Faculty Rights &

Responsibilities
134
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
22
MU318
MU407
09/1986 05/2011
McAdams Teaching
Evals 86 to Spr 11
22
MU408
MU505
01/2011 12/2014
McAdams Teaching
Evals Spr 11 to
present
23
MU506
MU507
Wed
01/21/2015
Faculty Review of
John McAdams
Lowell Barrington
John McAdams
24
MU508
MU515
Tue
12/16/2014
Ltr re suspension
Richard Holz
John McAdams, Margaret Callahan, Lowell

Barrington
25
MU516
MU519
Mon
12/22/2014
Ltr re suspension
Richard Esenberg,
John McAdams
Michael Lovell, Cynthia

Bauer, Richard Holz
26
MU520
MU521
Fri
01/02/2015
Ltr explaining suspension
Richard Holz
John McAdams, Richard

Esenberg
27
MU524
MU524
Mon
02/02/2015
Letter re McAdams
procedures
Michael Lovell
Gregory F. Scholtz
28
MU522
MU523
Fri
02/06/2015
Ltr responding to Holz

1/30
Richard Esenberg,
John McAdams
Michael Lovell, Richard

Holz, Ralph A. Weber
29
MU555
MU584
on/aft. Mon
07/10/1995
Materials re
alt.conspiracy.jfk
John McAdams
30
MU525
MU526
Mon
05/14/2007
Ltr re McAdams post

on Tobins class
James South
30
MU527
MU530
Sun
05/06/2007
Blog Post re Philosophy Class
John McAdams
31
MU531
MU532
Fri
10/29/2010
Ltr re McAdams
posting of committee
emails
Roberta Coles,
Barrett McCormick
31
MU533
MU541
Tue
10/12/2010
Blog Post re Invited

Speaker
John McAdams
Madeline Wake, Theresa

Tobin, Michael McKinney
John Pauly, Fr. Robert

Wild, Stephanie Russell,
Jeanne Hossenlopp, Phil
Rossi
135
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
31
MU542
MU549
Thu
12/02/2010
Blog Post re Consultants itinerary
John McAdams
32
MU550
MU554
Wed
09/24/2014
Ltr re encounter w/
student group
Richard Holz
33
MU585
MU589
Wed
12/21/2011
Blog Post re Harassment Complaint
John McAdams
34
MU590
MU590
Mon
11/10/2014
Course Withdrawal
Form
JD
35
MU591
MU591
Fri
11/07/2014
11:19 a.m.
CT
Email to class re drop

deadline
Cheryl Abbate
36
MU592
MU592
Thu
10/30/2014
7:24 p.m. CT
Email re 10/30 class
Cheryl Abbate
Nancy Snow
36
MU592
MU593
Tue
10/28/2014
2:29 p.m. CT
Email re Events
Nancy Snow
Cheryl Abbate
36
MU593
MU593
Tue
10/28/2014
1:59 p.m. CT
Email re Events
Cheryl Abbate
Nancy Snow
36
MU593
MU594
Tue
10/28/2014
1:39 p.m. CT
Email re Events
Nancy Snow
Cheryl Abbate, Sebastian

Luft
36
MU594
MU594
Tue
10/28/2014
12:22 p.m.
CT
Email re Events
Nancy Snow
Cheryl Abbate, Sebastian

Luft
Tue
10/28/2014
9:15 a.m. CT
Audio recording of
conversation betw
Abbate and JD
JD
Wed
02/04/2015
Blog Post re MU
Firing
John McAdams
37
38
MU595
MU605
Recipient(s)
John McAdams, Elizabeth Sides
John McAdams
136
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
39
MU606
MU629
05/2009
Academic Freedom:
What It Is, What It
Isnt, and How to Tell
the Difference
Donald Downs
Mon
11/17/2014
8:00 a.m. CT
Recording of
South/JD meeting
James South
Sat
03/01/2014
McAdams Contract
2014
Richard Holz
40
101
JM001
JM002
102
JM003
JM003
Faculty Statutes 306
103
JM004
JM007
Faculty Statutes 307
104
JM008
JM009
Wed
02/04/2015
Blog Post re McAdams
John K. Wilson
105
JM010
JM011
Thu
02/05/2015
Blog Post on McAdams
FIRE
106
JM012
JM014
Tue
02/10/2015
Bloomberg op-ed on
McAdams
Megan McArdle
107
JM015
JM016
Sun
02/08/2015
J-S Update on McAdams
Karen Herzog
108
JM017
JM018
Thu
12/18/2014
J-S on McAdams
Karen Herzog
109
JM019
JM034
Tue
01/20/2015
Blog post re McAdams
Cheryl Abbate
110
JM035
JM056
Fri
09/18/2015
Mem fr FIRE to FHC

re McAdams case
Peter Bonilla
111
JM057
JM060
112
JM061
JM062
USCCB position on
same-sex marriage
Tue
01/20/2015
Academe blog post re

McAdams
Daniel Maguire
Recipient(s)
John McAdams
Bruce E. Boyden
137
Final Report
Ex.
Begin
End
Date/Time
Full Name
Author(s)
Recipient(s)
113
JM063
JM065
Mon
01/26/2015
AAUP Letter re
suspension
Gregory F. Scholtz
Michael Lovell
114
JM066
JM071
Thu
10/19/2006
Blog post on removal

of Dave Barry quote
John McAdams
114
JM071
JM075
Sun
07/13/2014
Blog post on Girls

Night Out
John McAdams
115
JM076
JM078
Wed
01/04/2012
Mem re EthicsPoint
complaint (dept. copy)
Barrett McCormick
116
JM079
JM079
Mon
11/07/2011
EthicsPoint complaint
117
JM080
JM083
Tue
02/25/2014
Blog post re AntiIsrael Program
John McAdams
118
JM084
JM099
2015
Downs CV
Donald Downs
119
JM100
JM101
Wed
01/04/2012
Mem re EthicsPoint
complaint (coll. copy
as produced)
Barrett McCormick
John Pauly, Phil Rossi,

Cynthia Bauer
120
JM102
JM105
Wed
01/04/2012
Mem re EthicsPoint
complaint (coll. copy)
Barrett McCormick

Cynthia Bauer

Cynthia Bauer
Appendix D
FHC Pre-Hearing Letters
139
BYMAILANDBYEMAIL
Bruce E. Boyden
Associate Professor of Law

(414) 288-5492
August14,2015
bruce.boyden@marquette.edu

RalphWeber
GassWeberMullinsLLC
309N.WaterSt.
Milwaukee,WI53202
weber@gasswebermullins.com

CindyBauer
RichardEsenberg
VicePresident&GeneralCounsel
WisconsinInstituteforLaw&Liberty,Inc.
MarquetteUniversity
1139E.KnappSt.
1250W.WisconsinAve.,Suite205
Milwaukee,WI53202
rick@willlaw.org
Milwaukee,WI53233
cindy.bauer@marquette.edu

Re: NoticeofHearingonContestedTerminationofDr.JohnC.McAdams

DearCounsel:

OnJune30,2015,Dr.DavidClark,theChairoftheFacultyHearingCommitteeforthe201415
academicyear,receivedfromDr.RichardC.Holz,DeanoftheCollegeofArts&Sciences,a
NoticeofPendingDisputeintheabovereferencedmatter.Thisistonotifyyouthat,after
consultingwithcounselforbothparties,theFacultyHearingCommitteehassetahearingin
thismatterforthefollowingdatesandtimes:
Monday,September21,2015,from9amto3pm
Tuesday,September22,2015,from9amto4pm
Wednesday,September23,2015,from9amto3pm
Thursday,September24,2015,from9amto4pm
Thevenueisstillbeingarranged.ThishearingisbeingconductedpursuanttoMarquette
FacultyStatutes307.075inordertoallowtheCommitteetodeterminetheexistenceof
causeasdefinedinSection306.03oftheFacultyStatutesandtomakefindingsoffactand
conclusions.Pleaseinformusimmediatelyifthereisanychallengetothevalidityofserviceof
thisnoticeunderFacultyStatutes307.079,andifso,howtoeffectservice.
ECKSTEIN HALL P.O. BOX 1881 MILWAUKEE, WISCONSIN 53201-1881 TELEPHONE (414) 288-7090 FAX (414) 288-6403

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CommitteeMembership
Asthehearingwilloccurafterthestartofthe201516academicyear,theFacultyHearing
Committeeasconstitutedforthismatterconsistsofthefollowingmembersofthecommittee
whosetermsareeffectiveduringthatyear:
x
Prof.BruceBoyden(Law)InterimChair
Dr.StephenMerrill(Math,Statistics&ComputerScience)InterimViceChair
Dr.IrfanOmar(Theology)
Dr.JohnPauly(Journalism&MediaStudies)
Threeothermembersofthe201516FacultyHearingCommitteehaverecusedthemselvesfrom
thismatter.ThustheChairandViceChairaredesignatedasinterimbecausethefull201516
committeehasnotyethadanopportunitytoselectthosepositions.Intheplaceoftherecused
members,threealternateswereselectedpursuanttotheproceduresidentifiedinFaculty
Statutes307.078.Thosealternatemembersare:
x
Dr.RaymondFournelle(MechanicalEngineering)
Dr.RobertLowe(Education)
Dr.LynnTurner(CommunicationStudies)
Twomembersofthecommitteehavehadpriorinvolvementwiththismatter.Dr.Pauly,inhis
roleasProvostatthattime,metwithDr.McAdamsandothersconcerningthe2011incident
recountedinDr.HolzsJan.30,2015lettertoDr.McAdamsatpage14(MU000015).Dr.Turner
addedhersignaturetoaNov.25,2014lettertotheMarquetteTribuneinwhicheightdepartment
chairsdeplore[d]Dr.McAdamssrecenttreatmentofaphilosophygraduatestudent
instructor...onhisMarquetteWarriorblogandexpressedsupportforMs.Abbateand
deep[]regretthatshehasexperiencedharassmentandintimidationasadirectresultof
McAdamssactions.(MU000197,204)Bothcommitteemembersbelievethattheseprior
involvementswillnotimpairtheirabilitytofairlyjudgewhethertherecordestablishedinthis
proceedingmeetsthestandardrequiredundertheFacultyStatutes,andbasedonthesebeliefs
andthematerialswehavereviewed,thecommitteedoesnotatthistimebelieveanyfurther
recusalsarewarranted.IfeitherpartywishestomakeamotionpursuanttoFacultyStatutes
307.078foranycurrentcommitteemembertoberecusedonthegroundsofbiasor
interest,weaskthatthepartiesdosoassoonaspossibleandinanyeventnotlaterthan
August24,2015.

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AdditionalStatementsandEvidence
AsprovidedinSection307.079oftheFacultyStatutes,withintendaysafterserviceofthis
noticethepartiesmaysubmitadditionalstatementssummarizingtheissuesandtheevidence
theretoforeproduced.Weencouragebothpartiestoavailthemselvesofthisopportunity.In
particular,weencouragethepartiestoaddressthefollowing:
Questions
x
Arethereanylimitsonwhataprofessorcansayaboutcampusissuesinanoffcampus
publicsetting,andifso,whatisthesourceofthoselimits?HowwereDr.McAdamss
actionsinthismatterwithinoroutsideanylimitsimposedbyhisroleasaMarquette
professor?
Doprofessorshaveanobligationtoeditblogpoststoavoidthirdpartiestargeting
membersoftheuniversitycommunityforabusivecommunications,andifso,when
doesthatobligationarise,andhowwasitmetornotmetinthiscase?
Whatalternativesanctionstodismissalshouldthecommitteeconsiderrecommending,if
any?
Witnesses
x
Pleasesupplyanyadditions(byeitherside)oralterations(bytheUniversity)tothelist
ofwitnessesprovidedbytheUniversityinDeanHolzsJune30,2015NoticeofPending
Dispute.
Documents.Totheextentgermanetothepartiesadditionalstatements,werequestthatthose
statementsincludethefollowingmaterials,ifavailable.Inanyevent,theCommitteepursuant
toFacultyStatutes307.0711requeststhefollowingdocuments,totheextenttheyexist,as
potentiallyrelevanttoitsinquiry:
x
AnnualperformancereviewsforDr.McAdams,fromthetimetenurewasawardedto
thepresent
TeachingevaluationsforDr.McAdamsforthesametimeperiod
Anydocumentspertainingtothecultureofintolerance,threatstothepracticeof
academicfreedom,ortargetingofwomenorthoseinalowerpositionofpower
referencedonpage13ofDeanHolzsJan.30,2015letter(MU000014),otherthanthose
alreadyincludedinExhibit15ofDeanHolzsNoticeofPendingDispute.

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AnydocumentsconcerninganoralorwrittencommunicationtoDr.McAdamsofany
consequencesthatcouldresultfromthemannerofhisblogging,includingnaming
membersoftheMarquettecommunity,otherthanthosealreadyprovided.
Theacknowledgementmentionedonpage14ofDeanHolzsJan.30,2015letter
(MU000015).
ThelettersentbytheUniversitytoDr.McAdamsinforminghimhewassuspended
fromcampusactivities.
AnyresponsetothatletterbyoronbehalfofDr.McAdams.
AnyresponsetoDeanHolzsJan.30,2015letterbyoronbehalfofDr.McAdams,tothe
extentnotsupersededbyanysubmissionstotheFacultyHearingCommittee.
AnyresponsebytheUniversitytoaletterfromtheAAUPconcerningthismatter.
Wethankyouforyoureffortsinthismatter.Afteranyadditionalstatementshavebeenfiled,
wewillbecommunicatingwiththepartiestodiscusstheproceduresforthehearingitself.
Sincerely,
BruceE.Boyden
InterimChair,FacultyHearingCommittee201516
143
BYMAILANDBYEMAIL
Bruce E. Boyden
Associate Professor of Law

September16,2015
(414) 288-5492
bruce.boyden@marquette.edu

RalphWeber
GassWeberMullinsLLC
309N.WaterSt.
Milwaukee,WI53202
weber@gasswebermullins.com

CindyBauer
RichardEsenberg
VicePresident&GeneralCounsel
WisconsinInstituteforLaw&Liberty,Inc.
MarquetteUniversity
1139E.KnappSt.
1250W.WisconsinAve.,Suite205
Milwaukee,WI53202
rick@willlaw.org
Milwaukee,WI53233
cindy.bauer@marquette.edu

Re: HearingonContestedTerminationofDr.JohnC.McAdams

DearCounsel:

Thisletteristoupdateyouonthelogisticsandproceduresforthehearingthatbeginson
Monday,aswellasthecommitteesresolutionofcertainpendingissues.
HearingLogistics
ThehearingwillbeheldinZilberHall,Room017,whichisinthebasement.Acourtreporter
willbepresenttorecordandmakeatranscriptoftheproceedings.Thehearingwillbeclosed
unlessagreedotherwisebybothparties.FacultyStatutes(FS)307.0710.UnderUAS
Statutesart.4,1.01.1,[d]eliberations,recordsorminutesoftheFacultyHearingCommittee
regardinggrievancespresentedtoitinduecourseascontemplatedbytheFacultyHandbook,
aswellasanyinformationpresentedtotheCommitteesinconjunctionwiththoseissues,will
remainconfidentialwithrespecttothirdparties....Thatincludesalltestimonyand
documentspresentedtothecommitteeduringthehearing.
Thisrequirementofconfidentialityappliestoallparticipantsinthehearing,solongasthe
hearingisclosed.Thecommitteebelievesthattheobligationofconfidentialityservesacritically
importantfunctionintheseproceedings.Itnotonlyprotectsthesubjectfacultymemberagainst
disclosuresofsensitivematerialssuchasevaluations,butalsohelpstoensurethefairnessofthe
ECKSTEIN HALL P.O. BOX 1881 MILWAUKEE, WISCONSIN 53201-1881 TELEPHONE (414) 288-7090 FAX (414) 288-6403

Final Report
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proceedingsbyencouragingwitnesses,whoarenotunderthecompulsionofeithersubpoenas
orpenaltiesofperjury,tovoluntarilyappearandprovidethefullcontentsoftheirrecollections.
ByletterdatedSeptember9,2015,andpursuanttoFS307.0712,Dr.McAdamshas
requestedthatarepresentativeoftheAAUPbepresentatthehearingasanobserver.The
committeeconcursinthisrequest.TheAAUPhasdesignatedProf.ErikaSander(emeritus)of
theUniversityofWisconsinMilwaukeetoserveasanobserver,andProf.Sanderwillbe
permittedtoattendthehearingsunderthetermsoftheAAUPpoliciesgoverningobserversat
institutionalproceedings.
Witnesses.
Thefollowingwitnesseshavebeendesignatedbytheparties:
x
x
x
x
x
x
x
x
Ms.CherylAbbate
Dr.SusanneFoster
Dr.JamesSouth
Dr.LowellBarrington
Dr.RichardHolz
Dr.JohnMcAdams
Dr.DonaldDowns,UniversityofWisconsin
(Potentially)ThestudentwhoreportedhisdiscussionwithMs.AbbatetoDr.McAdams
Wediscusstheorderinwhichthesewitnesseswillbepresentedandtheprocedurefor
questioningbelow.
Withrespecttothelastwitness,thecommitteeobservesthatDr.McAdamshasreserve[d]the
righttocallthatwitness,butnotesthatthestudenthasexpressedthatheisafraidof
retaliation,andisunwillingtotestifyinanymannerthatwouldrevealhisidentitytofaculty
membersoradministratorsoftheUniversity.Thecommitteebelievesthatthestudentwould
beavaluablewitnessandencourageshimtoappear.Asnotedabove,thehearingwillbeclosed
ifeitherpartywishesit,andthehearingproceedingsarerequiredtobekeptconfidential.The
committeemayconsideradditionalprecautionsasthepartiespropose.
Motions
PreliminaryStatement.
Althoughthehearingresemblesajudicialproceedinginsomeways,theFacultyHearing
Committeeisauniversitycommitteecomposedofacrosssectionoftenuredprofessorsfrom
acrosscampus,andisnotajudicialbody.Itisthusnotbound,norcoulditbebound,byformal
legalrulesanddoctrinessuchasrulesofcivilprocedure,rulesofevidence,constitutional
guaranteesofdueprocess,FirstAmendmentcaselaw,ortheCodeofJudicialEthics.Torequire
adherencetosuchruleswouldthreatentheviabilityoftheFacultyHearingCommittee.Thereis

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noguaranteeinanygivenyearthatsomeonewithlegalexperiencewillserveonthecommittee,
andevenwhenalawyerdoeshappentobeonthecommittee,thereisnoguaranteethatthat
personwillbefamiliarwithlitigation.Andevenifitsohappensthatonepersonwithlitigation
experienceisonthecommittee,thefullcommitteeconsistsofsevenmembers,whoareall
entitledtoavoteastohowtointerpretthestatutesandapplytherules.Thus,theonlyrulesand
standardsthatbindthiscommitteearethosefoundintheFacultyHandbook,andtheymustbe
appliedinareasonablefashionwithoutundueadherencetospecializedlegalterminologyor
concepts.
TimelinessofDr.McAdamssAdditionalStatement.
Thecommitteeisdisappointedattheapparentgamesmanshipofusingthelatestpossible
responsedatetothecommitteesAugust14letter.Itisevident,forthereasonsstatedabove,
thatpersonallyservedasusedinFS307.079cannotpossiblymeanwhatitmeansinthe
WisconsinorFederalRulesofCivilProcedure.Thecommitteehasnostaffandcertainlyisinno
positiontohireprocessservers.Itisunrealistictoexpectcommitteememberstotrackdownand
personallyhandpaperstoafacultymemberwho,asinthiscase,isnolongerevenregularlyon
campus.Itisespeciallyperversetorequireinpersondeliverywhenthecommitteehasemail
addressesforboththefacultymemberandhisorhercounselinthedismissalproceedings.
Forfuturereference,thecommitteebelievespersonallyservedunderFS307.079(butnot
otherprovisionswherealternativeformsofservicearepermitted,e.g.FS307.03,or307.07
20),mustbeinterpretedasincludinganyformofservicethatresultsinactualserviceor
acknowledgedreceiptofservice.Inthiscase,thepenaltyforthelatesubmissionofDr.
McAdamssAdditionalStatementisthatthecommitteehasbeenabletoconsideritforseven
fewerdaysthanitwouldotherwisehavedone.
Recusals.
Afterfurtherreviewofbothpartiessubmissions,Dr.Paulyhasconcludedthatheshould
recusehimselffromthismatter,andhasdoneso.Proceedinginorderthroughthelistofduly
designatedalternatesmaintainedpursuanttoFS307.078,Dr.AndrewDentinooftheSchool
ofDentistrywasaskedandhasagreedtoserveasanalternatecommitteememberinthis
matter.Giventhatanyfurthersearchesforalternatescouldseriouslyjeopardizethehearing
date,anyrequestthatDr.Dentinorecusehimselffromthismattermustbemadeimmediately
oritmayberuleduntimely.
Dr.McAdamshasalsorequestedthatDr.LynnTurnerrecuseherselfinthismatter,citingDr.
TurnersonlinesignatureappendedtotheMarquetteTribuneletterthatwedisclosedinour
letterofAugust14,2015.SeeLetterfromRichardEsenbergtoBruceE.Boyden,Aug.24,2015
(hereafterDoc.7).Dr.McAdamshasalsoevidentlyarguedinfavorofthisrequesttothepublic.
Thecommitteehascarefullyconsideredthisrequestandbyaunanimousvoteofthosepresent
hasrejectedit.Wedosoforthefollowingreasons.Firstandforemost,Dr.Turnerdoesnotmeet
thestandardforrecusal.AlthoughcounselforDr.McAdamscitesthepotentialforthe

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appearanceofbias,Doc.7at2,drawingananalogytojudicialrecusals,thatisneitherthe
correctstandardnortheproperanalogy.FS307.078providesthatmembersshallremove
themselves,orberemoved,onlyforbiasorinterest,eitherintheirowndiscretionorinthe
discretionofthecommittee.Indeed,biasorinterestistheonlygroundonwhichthe
committeeispermittedtoremoveoneofitsownmembers;themereappearancewillnot
suffice.
Biasorinterestcannotreasonablybeinterpretedasmeaningthatanyonewhohasformedan
opiniononamatter,orexpressedthatopiniontoothers,mustberecused,evenoutofan
abundanceofcaution.Anabundanceofcautionwouldinthiscasebeaninvitationfor
paralysis.Anycontesteddismissalofatenuredfacultymemberislikelytobeanotorious
controversy;requiringtheFacultyHearingCommitteetobecomposedonlyoffacultymembers
whoholdnoviewsonthematterwouldbesupremelyimpractical.Indeed,inthisverymatter,
everysingleoneofthecommitteememberspresentatourlastmeetingadmittohavingformed
apriorpositiveornegativeopinionoftheproprietyofDr.McAdamssNov.9,2014blogpost.
Undercounselsinterpretationofthestandardthecommitteewouldhavenomembers.
NordoesitmatterthatDr.Turnerhaspubliclystatedanopinion,andothercommittee
membershavenot,oratleastnotinwaysthatwererecordedandhavecometolight.Sincethe
standardisactualbiasorinterest,andnotthemerepublicappearanceofbiasorinterest,any
commitmenttoaparticularviewofthematter...takenbeforetheopportunityfor
investigation(Doc.7at12),evenaninternalone,wouldrequirerecusalundercounsels
interpretationofthestandard.Thatisthoroughlyunworkable.
Theproperanalogytodrawinthiscircumstanceisnottojudges,ascounselforDr.McAdams
does,butjurors.Itisjudges,notjurors,thatmustavoideventheappearanceofbiasintheir
statementsandactions,andtherearetworeasonsforthat.First,judgesmaybytheirstatements
aboutthepartiesimproperlyinfluencetheopinionsofjurors,whoarethefindersoffact.See
RichardE.Flamm,JudicialDisqualification:RecusalandDisqualificationofJudges15.4at420(2d
ed.2007).Butherethereisnoseparatejuryapartfromthecommittee.Second,judgespersonify
forthepublictheoperationofthejudicialsystem,whichisotherwiseobscuretolaypeople.In
ordertomaintainpublicconfidencejudgeshavespecialobligationstoappearneutralatall
times.Seeid.10.9at279.TheFacultyHearingCommitteesimplydoesnotpossessorneedto
maintainthatsortofmystiquewiththerestofthefaculty.
Rather,theFacultyHearingCommitteeismoreakintoajury,albeitonewithinvestigatory
powersandincommandofitsownproceedings.TheFacultyHearingCommitteeis
representativeofandelectedbyallofthefaculty,forthepurposeofrenderingthejudgementof
onespeersingrievancematters.Andthetestfordisqualifyingjurorsforcausebasedonprior
opinionshasalwaysbeenmuchstricterthanthatforjudicialrecusal,reflectingthedifferent
natureofthetworolesandtherespectiveattractionofeachkindofservice.AstheU.S.Supreme
CourtnotedinIrvinv.Dowd,concerningwhatconstitutesanimpartialjury:

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Itisnotrequired...thatthejurorsbetotallyignorantofthefactsandissuesinvolved.In
thesedaysofswift,widespreadanddiversemethodsofcommunication,animportant
casecanbeexpectedtoarousetheinterestofthepublicinthevicinity,andscarcelyany
ofthosebestqualifiedtoserveasjurorswillnothaveformedsomeimpressionor
opinionastothemeritsofthecase....Toholdthatthemereexistenceofany
preconceivednotionastotheguiltorinnocenceofanaccused,withoutmore,is
sufficienttorebutthepresumptionofaprospectivejurorsimpartialitywouldbeto
establishanimpossiblestandard.
366U.S.717,72223(1961).
Thetestisinsteadwhetherthejurorcanlayasidehisimpressionoropinionandrendera
verdictbasedontheevidencepresentedincourt.Id.at723.Ajurorsownpromisetorenderan
impartialverdictbasedontherecordevidenceisordinarilyconsideredsufficient.See,e.g.,
UnitedStatesv.Garza,664F.2d135,140(7thCir.1981);Statev.Oswald,232Wis.2d62,7583
(Wis.Ct.App.1999).AstheU.S.SupremeCourthasobserved,Onemaynotknowor
altogetherunderstandtheimponderableswhichcauseonetothinkwhathethinks,butsurely
onewhoistryingasanhonestmantoliveuptothesanctityofhisoathiswellqualifiedtosay
whetherhehasanunbiasedmindinacertainmatter.Dennisv.UnitedStates,339U.S.162,171
(1950).Theonlyexceptionstothisdefaultrulearisewhenthereisevidenceindicatingthe
particularjuror,orthereasonablepersoninthejurorsplace,wouldbeunabletosetasidetheir
prioropinions,suchasaningrainedattitudeabouttheparticularcase,Oswald,232Wis.2dat
78,orwherethereisanintrusivemediapresencethathasutterlycorruptedthe
proceedings,Whiteheadv.Cowan,263F.3d708,720(7thCir.2001).Merelyusinganewspapers
onlinecommentpagetoappendonesnametoaletterdraftedbyothershardlydemonstrates
aningrainedattitude;norhaveanycommitteemembersopinionsyetbeencorruptedbyan
intrusivemediapresence.Thereisnobasisforrecusal.
Thetaskbeforethecommitteeistodetermine,notwhetherDr.McAdamsactedrightlyor
wronglyinsomeabstractsense,butwhethertheevidencesubmittedinthisproceeding
demonstratesthatthestandardfordismissalprovidedinFS306.03hasbeenmet.Thatisan
issueonwhichnocommitteememberhaspreviouslytakenapublicposition,andwhichall
sevencommitteemembersbelievetheycandecidefreeofbiasorinterest.Dr.McAdamshas
requestedthatajuryofhisfacultypeerspassjudgementonthisissue,facultymemberswhoby
theirverynaturearenotintellectualhermits,butlearnandthinkandopineanddiscuss.Thatis
whathewillreceive.Therequestisdenied.
ExternalSubmissions.
ThecommitteehasalsoreceivedanunsolicitedsubmissionfromtheNationalAcademyof
ScholarsconcerningthemeritsofthiscaseandtherecusalmotionscontainedintheAugust24
letterfromcounselforDr.McAdams.Thecommitteehasdecidednottoplacethesubmissionin

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therecord,butinsteadleavesthedecisionofwhethertheviewsofotherorganizationswouldbe
helpfulforthecommitteetoconsidertotheparties.
RequesttoPostponeHearing/DrawAdverseInference.
CounselforDr.McAdamshasrequestedthat,inlightofitsinabilitytoobtainseveralrequested
itemsorprehearingaccesstowitnessesfromtheUniversity,thatthecommitteeeitherassume
thatallof[the]documents[the]Administrationisrefusingtoturnoverdemonstrate
McAdamssinnocenceorthatthecommitteestaytheproceedingsandorderthe
Administrationtoprovidetherequesteddocumentsandmaketherequestedwitnesses
availableforinterviewing....AdditionalStatementofDr.McAdams(hereafterDoc.11)at29.
Thecommitteedeclinestotakeeitheraction.
TheFacultyStatutesdonothavepretrialdiscoveryrulesinSection307.07comparabletothose
applicabletocivillitigation.Thereisnoobligationthateachsideturnoverallmaterialrelevant
toanypartysclaimordefenseinpreparationforthehearing,ortomakeavailablewitnesses
forsomesortofprehearingdepositionthatisnowherementionedinthestatutes.TheFaculty
Statutesprovideonlythatthefacultymember,theUniversity,andtheFHCitselfwillbe
affordedanopportunitytoobtainnecessarywitnessesanddocumentationorotherevidence.
FS307.0711.Fromthecontext,itseemsclearthatthewitnessesanddocumentationbeing
referredtoarethosethatareintendedtobesubmittedintotherecordatthehearing,sincethe
entiretyofSection307.07concernstheproceduresforthehearing.(ContrastSection307.07with
Sections307.02.06,whichconcernprehearingprocedures.)Thisisapparentfromtherule
itself,whichstatesthatnotonlyshallthesubjectfacultymemberbeaffordedanopportunityto
obtainnecessarywitnessesanddocumentationorotherevidence,butalsothatthefaculty
memberisentitledtoexaminetheevidencesubmittedtotheFHCbytheUniversity
Administration.Therewouldbenoneedforthissecondclauseifthesubjectfacultymember
couldseparatelyrequestallrelevantinformationfromtheUniversity.
Furthermore,readingFS307.0711toincludeageneraldiscoveryobligationwouldmakethe
procedureseverelylopsided,givingthefacultymembera[prehearing]opportunitytoobtain
[all]witnessesanddocumentationrelevanttotheproceeding,buttheUniversitytherightonly
toexaminedocumentaryorotherevidencesubmittedtotheFHC.Itseemsfarmorelikely
thatFS307.0711isintendedtohavetheoppositeeffect,levelingtheplayingfieldina
situationwherethepartieshavedisproportionateresources.Section307.0711ensuresthatthe
facultymemberwillnotbepreventedfromobtainingdocumentstosupporthisorhercase
becausethosedocumentsareinthepossessionoftheUniversity,orunabletopersuade
witnessestotestifybecausetheyareUniversityemployees.Thus,ifasubjectfacultymember
wishestoentercomplaintsreceivedbytheUniversityfromalumniintotherecordofthe
proceeding,theUniversitymustturnthoseovertothefacultymemberonrequestinadvanceof
thehearingsothattheycanbeattachedtothefacultymembersAdditionalStatement.Ifthe
facultymemberwishestocallauniversityadministratortoanswerquestionsaboutsome
matter,theUniversitymustinstructthatpersontoappearatthehearing.

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Noneoftherequestedmaterialsappeartofallintoeitherofthesetwocategories.Asfarascan
bedeterminedfromDr.McAdamssAdditionalStatement,Dr.McAdamshasnotrequestedthe
presenceofanywitnessatthehearingwhowillnotbeattending.Theprehearingavailabilityof
witnessesisnotrequiredunderthestatutesandthereforenotabasisforclaimingviolationof
thestatutes.WhileDr.McAdams,throughcounsel,hasrequesteddocumentsfromthe
Administration,thatrequestappearstohavebeenageneralrequestforeverythingconceivably
relevant,andnotarequestfornecessarydocumentationorotherevidencethatDr.McAdams
intendstouseinhisowndefense.AsfarascanbedeterminedfromDr.McAdamssAdditional
Statement,nospecificdocumentorsetofdocumentsthatheneedstopresenthisdefensehas
beendenied.
CounselforDr.McAdamslistsseveralcategoriesofdocumentsthathebelievescontain
informationthatinsomebroadsenserelatestothesubjectmatterofthehearing.SeeDoc.11at
2829.Buttheprobativevalueofthesedocumentsasevidencehasbeenlefttothecommitteeto
determine,anddoesnotappearfromtheirdescriptionthatthedocumentsinquestionare
necessaryorevenusefulforDr.McAdamssdefense.Rather,therequestsappeartobe
motivatedbyahopethatsomethingdamagingtotheUniversityscasemightbefoundwithin
anyresponsivedocuments.Trawlingforlooselanguageisoutsidethescopeofthehearing
procedures.
Requiringdisclosurewouldbeinsomeinstancesproblematicforotherreasons.Forexample,
counselforDr.McAdamsrequestsnotesofinterviewswithvariouswitnesses.Notonlydoes
thisseemunnecessary,sincethewitnessesthemselves(oneofwhomisDr.McAdams)willbeat
thehearing,butalsoitappearstobeanobviousattempttocircumventtheworkproduct
doctrine,shouldthismattereverbelitigatedinacivilcourt.
Otherrequesteddocumentsincludecoveremails,emailsbetweenvariouspersonsrelatingto
thesubjectmatterofthedispute,memosthathavebeenidentifiedinotherdocuments,
recollectionsfromstudents,andemailsobtainedfromkeywordsearchesofindividualsentire
emailaccounts.Noexplanationhasbeenofferedforwhyanyofthesedocumentsis
necessary,evenpotentially,forDr.McAdamssdefense.Andthecommitteedeclinestoorder
discoverymechanisms,suchassearchesofindividualsaccounts,thatwouldviolatetheprivacy
expectationsoffacultyorstudents,evenifitisarguablypermissibleundertheUniversitys
policyonAcceptableUseofElectronicResources.Ifanysuchdiscoveryweretobeordered,it
wouldinfairnesshavetoapplynotonlytotheUniversitybuttothesubjectfacultymemberas
well,inthisproceedingandinfutureproceedings,requiringasubjectfacultymembertoturn
overallpersonalemailsandsocialmediaposts,fromanyaccount,relatedtothesubjectmatter
ofthefacultymembersdisputewiththeUniversity.SeeFS307.0717.TheFacultyHearing
CommitteedoesnotbelievesuchfarrangingdiscoveryiswarrantedundertheFacultyStatutes.

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IssuesBeforetheCommittee
Aswehavenotedbefore,thepurposeofthehearingistoallowtheCommitteetodetermine
theexistenceofcauseasdefinedintheFacultyStatutesandtomakefindingsoffactand
conclusions,whichitwillreporttotheUniversityPresident.Absolutecauseasdefinedin
FacultyStatutes306.02isnotatissuehere.Discretionarycauseisdefinedin306.03as:
includ[ing]thosecircumstances,exclusiveofabsolutecause,whicharisefromafaculty
membersconductandwhichclearlyandsubstantiallyfailtomeetthestandardof
personalandprofessionalexcellencewhichgenerallycharacterizesUniversityfaculties,
butonlyifthroughthisconductafacultymembersvaluewillprobablybesubstantially
impaired.Examplesofconductthatsubstantiallyimpairthevalueorutilityofafaculty
memberare:seriousinstancesofillegal,immoral,dishonorable,irresponsible,or
incompetentconduct.
Thedefinitionthenprovidesanexception,whichmightbecharacterizedasasafeharbor:
Innocase,however,shalldiscretionarycausebeinterpretedsoastoimpairthefulland
freeenjoymentoflegitimatepersonaloracademicfreedomsofthought,doctrine,
discourse,association,advocacy,oraction.
Finally,theFacultyStatuteselsewhereplacealimitontheUniversitysuseofdismissal
proceedings.Section307.072providesthat[d]ismissalwillnotbeusedtorestrainfaculty
membersintheirexerciseofacademicfreedomorotherrightsguaranteedthembytheUnited
StatesConstitution.Althoughthisisanimportantrestriction,itdoesnotappeartobepartof
thedefinitionofdiscretionarycause,andthusisnotpartoftheUniversitysburdenofproof
underFS307.0714toshowthatdiscretionarycauseexists.
Theaboveprovisionscanthereforebereformulatedintoatestfordiscretionarycause,as
follows:
(1)Discretionarycauseconsistsofconductwhich
(a)clearlyandsubstantiallyfailstomeetthestandardofpersonalandprofessional
excellencethatgenerallycharacterizesUniversityfaculties,and
(b)willlikelysubstantiallyimpairthefacultymembersvalue,includingbutnot
limitedtoseriousinstancesof
(i)illegal,
(ii)immoral,
(iii)dishonorable,
(iv)irresponsible,or

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(v)incompetentconduct.
(2)Innocaseshalldiscretionarycauseincludeanyconductfallingwithinthefulland
freeenjoymentoflegitimatepersonaloracademicfreedomsofthought,doctrine,
discourse,association,advocacy,oraction.
Inordertosustainitscase,therefore,theUniversitymustfirstdemonstratethatdiscretionary
causeasdefinedinparagraph(1)exists,thenthattheconductinquestiondoesnotfallwithin
theexceptioninparagraph(2).Itappearstobewithinthecommitteespurviewtothen
determinewhether,evenifthefacultymembersconductiswithinthescopeof(1)andnot
within(2),dismissalisneverthelessinappropriatebecauseitisbeingusedtorestrainfaculty
membersintheirexerciseofacademicfreedomorotherrightsguaranteedthembytheUnited
StatesConstitution.
Thepartieshavesuppliedthecommitteewithasurfeitofargumentsandallegationsconcerning
whydiscretionarycauseshouldorshouldnotbefoundtoexistinthiscase.Wehavedoneour
besttoorganizeandcategorizetheseargumentsandallegationsbelow.Doingsorevealsthat
someoftheUniversitysargumentsmaybeweakerthanothers,andthecommitteebelievesthat
somemightusefullybedispensedwithasabasisforpursuingdismissal.
TheUniversitysallegations,propoundedinDeanHolzsletterofJanuary30,2015,andMr.
WebersletterofAugust24,2015(hereafterDoc.6),appeartofallintothefollowingcategories:
x
x
x
x
x
x
ThatDr.McAdamssNov.9blogpost(LetterfromDeanRichardHolztoDr.DavidE.
ClarkandDr.JohnC.McAdams,June30,2015(hereafterDoc.1),Ex.12)contained
severalfalsestatementsandmaterialomissions.SeeDoc.1Ex.2at23,MU003004;
Doc.6at23.
ThatDr.McAdamsfailedtoraisehiscomplaintaboutMs.Abbatesclasswithvarious
administratorsbeforepostinghisNov.9blogpost.SeeDoc.1Ex.2at2,MU003.
ThatDr.McAdamsdidnotperformadiligentinvestigationbeforepostingtheNov.9
blogpost.SeeDoc.1Ex.2at13,MU014.
ThatDr.McAdamswrongfullyandunnecessarilyusedMs.AbbatesnameintheNov.9
blogpost,inawaythathekneworshouldhaveknown...wouldresultinvulgar,vile,
andthreateningcommunicationstoMs.Abbate.Doc.1Ex.2at13,MU014;Doc.6at4.
ThatDr.McAdamswrongfullytargetedagraduatestudentforpubliccriticismofher
teaching.SeeDoc.1Ex.2at13,MU014;Doc.6at45.
ThatDr.McAdamssconductcontribut[es]toacultureofintolerancethatintimidates
colleaguesandthreatensthepracticeofacademicfreedom.Doc.1Ex.2at1314,MU
014015.
Someoftheseallegationsappeartofallshortofabasisoffindingdiscretionarycausetoexist,
andwewouldencouragethepartiestodevotetheirresourcestootherissues.Theseinclude
someofthemostcontentiousfactualdisputesbetweentheparties:namely,thefirstthreeitems
listedabove.Whilethepartiesarethefinalarbitersofhowtheywillpresenttheircases,the

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152
committeerecommendsfocusonthoseitemsthatappeartopresentaviablequestionof
whetherdiscretionarycauseexists.
FalseStatementsorMaterialOmissions.
TheUniversityinseveralplacesarguesthatthefactthatDr.McAdamsallegedlymadefalse
statementsormaterialomissionsinhisNov.9blogpostisitselfabasisfordismissalunder
FS306.03.See,e.g.,Doc.6at2(Dr.McAdamsinternetstorywasmateriallyfalseand
misleading,therebydemonstratingdishonorable,irresponsibleandincompetentconduct
withinthemeaningoftheFacultyStatutes....).Theprofferedexamplesofallegedfalse
statementsormaterialomissionsincludewhatwassaidinMs.AbbatesOct.28class,compare
Doc.6at2withDoc.11at1112;whetherthestudentwassatisfiedwiththehandlingofhis
complaintatthedepartmentalandcollegelevel,compareDoc.1Ex.2at3,MU004andDoc.6at
3withDoc.11at1314;whattranspiredinMs.AbbatessubsequentclassonOct.30,compare
Doc.1Ex.2at3,MU004andDoc.6at3withDoc.11at12;andthereasonthestudent
mentionedintheblogpostwasintendingtodroptheclass,compareDoc.1Ex.2at23,MU003
004andDoc.6at3withDoc.11at1213.
ItisnotfullyclearatthistimefromthevarioussubmissionsexactlywhattheUniversitywillbe
arguingwithrespecttoeachallegedmisstatement.However,totheextenttheUniversityis
takingthepositionthatunintentionallymakingafalsestatementoramaterialomissioninablog
post,withoutmore(suchasrecklessness,1defamation,orconductthatseriouslyviolatessome
sortofscholarlyorprofessionalnorm),satisfiesprong(1)ofthetestfordiscretionarycause,the
committeedisagrees.Prong(1)ofthetestfordiscretionarycauserequires,fordismissaltobe
warranted,thattheconductclearlyandsubstantiallyfailstomeetthestandardofpersonaland
professionalexcellencethatgenerallycharacterizesUniversityfacultiesinawaythatlikely
substantiallyimpair[s]thefacultymembersvalue.Thisisseparateandapartfromany
questionofwhetherablogpostcontainingerrorsandomissionswouldqualifyunderthe
definitionofacademicfreedom.2While,obviously,truestatementswithoutmaterialomissions
arebetterthanfalseonesoroneswithomissions,thereisnoscholarlyorothernormthat
requires,onpainofdismissal,thatallblogposts(orothersocialmediacommunications)be
entirelyfreeofunintentionalerrorsoromissions.Unintentionallyandnonnegligentlymaking

Weaddresssomeallegationsofrecklessnessbelow.
BoththeAAUPandtheMarquettedefinitionofacademicfreedom,asitappliestoextramural
statements,appeartoconditionprotectiononatalltimesbe[ing]accurate,...exercis[ing]appropriate
restraint,[and]show[ing]respectfortheopinionsofothers.Inaddition,theMarquettedefinition
providesthatacademicfreedomisgroundedoncompetenceandintegrity,withintegritydefinedas
requiring,inpart,respectfortheobjectivesoftheinstitutioninwhich[facultymembers]choosetocarry
ontheiracademiclives.Doc.1Ex.21.However,giventhatacademicfreedomisasafeharborwithin
thedefinitionofdiscretionarycause,theissueofwhetherconductfallswithinthedefinitionofacademic
freedomisnotevenreacheduntilthefirstprongofthetestfordiscretionarycauseismet.
1
2

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153
errorsandomittingevenmaterialfactsfromasingleblogpostcannot,byitself,begroundsfor
discretionarycause,orbloggingwouldasapracticalmatterbeimpossible.
FailuretoExhaustAdministrativeRemediesPriortoPublishing.
InhisletterofJanuary30,2015(Doc.1Ex.2),DeanHolzidentifiedasonegroundforfinding
thatdiscretionarycauseexiststodismissDr.McAdamsthathefailedtoprocessstudent
complaintsproperlybywritingtheNov.9blogpostwithoutfirstcheckingwithanyofyour
colleaguesaboutwhatthestudenthadtoldthem.Id.at13,MU014.Inparticular,itappears
thatonegroundfordismissalinthiscaseisthatDr.McAdamspostedtheNov.9blogpost
withoutcontactingtheChairofMs.AbbatesDepartment(whohadmettwicewiththe
undergraduatestudent)togetherperspectiveorexpressyourconcerns;...withoutcontacting
anyoneintheCollegeofArts&Sciencestogettheirperspectiveorexpressyourconcerns;[and]
withoutcontactinganyoneintheOfficeoftheProvosttoraiseconcernsthatyoubelievedhad
beenignoredattheDepartmentorCollegelevel.Doc.1Ex.2at2,MU003;seealsoDoc.6at6.
Thecommitteedoesnotbelievethatthereisorcanbeanyrequirementthatallblogpostsabout
onesowninstitutionberunthroughabureaucraticgantletbeforebeingpublished.Thefact
thatDr.McAdamsfailedtomakeareporttoanyoftheseadministratorspriortocriticizinghow
astudentcomplaintwashandledwouldtherefore,withoutmore,appearnottoconstitute
discretionarycause.
FailuretoPerformDiligentInvestigation.
TheUniversityalsooffers,asabasisfordiscretionarycause,thatDr.McAdamsfailedto
exercise[]duecareandstandardsofprofessionalresponsibilityinkeepingwithUniversity
faculty,Doc.1Ex.2at2,MU003,oreventheduediligenceweexpectfrombeginning
students,id.at13,MU014,andthatthatfailureledtotheallegedfalsestatementsandmaterial
omissionsidentifiedabove.SeeDoc.1Ex.2at2,MU003(Dr.McAdamsgaveanaccountof
whathappenedinaclassyoudidnotattendandwasnottaped);Doc.6at3(Dr.McAdams
knew(orshouldhaveknown...)ofreasonstudentdroppedtheclass);Doc.1Ex.2at3,MU
004(Dr.McAdamsmayhavebeenrecklesslyunawareofwhathappenedinthefollowup
class);id.at3,MU004(Dr.McAdamsmayhavebeenrecklesslyunawareofdetailsof
studentsdepartmentalcomplaint);id.(Dr.McAdamsmayhavebeenrecklesslyunawareof
detailsofconversationbetweenstudentandAssociateDeanFoster).
TheUniversityimpliesthat,priortopublishingtheNov.9blogpost,Dr.McAdamswas
obligatedto:
(1)...speak[]withMs.Abbateorget[]herpermissiontousehername;(2)...
contact[]theChairofMs.AbbatesDepartment(whohadmettwicewiththe
undergraduatestudent)togetherperspective...;(3)...contact[][some]oneinthe
CollegeofArts&Sciencestogettheirperspective...;...[and](5)...describ[e]what

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hadhappenedintheverynextclassfollowingtheoneyouwroteaboutwhenMs.
Abbatediscussedandaddressedthestudentsobjection(withoutidentifyinghim).
Doc.1Ex.2at2,MU003;seealsoDoc.6at6.Requiringthislevelofmultiplesourcingfora
singleblogpostinvolvingseveralsubjectsisonerous,tosaytheleast.TheUniversityhasnotto
dateofferedanysupportfortheideathatfacultyblogpostsordinarilyrequirethisamountof
reporting,andthecommitteedoesnotatthistimebelievethereisanysuchscholarlyor
professionalnorm.Norcouldtherebe,giventhatmostblogposts,eventhosebyfaculty
members,consistofcommentsbasedonasinglenewsstory,oraresponsetosomeoneelses
blogpost.Suchonlinecommentarywouldbeimpracticableiffacultymemberswereheldto
requirementsregardingsourcesjustasdemanding,orperhapsevenmoredemanding,than
thosefacedbyprofessionaljournalists.TheamountofinvestigationthatDr.McAdams
performedthusdoesnotappearbyitselfrelevanttoadeterminationofdiscretionarycause.
ProceduresfortheHearing
Thehearingwillbeginwithopeningstatementsforeachside.Thepartiesshouldconferto
determineauniformamountoftimeforopeningandclosingstatements,andinformthe
committeeoftheirdecisionnolaterthanFriday,September18.Theopeningandclosing
statementswouldbeidealopportunitiesforthepartiestoindicatetothecommitteehowthe
evidencesatisfiesordoesnotsatisfythestandardsfordismissalprovidedintheFaculty
Statutes.
Afteropeningstatements,thecommitteewillproceedtohearfromwitnesses.Thewitnesses
willnotbesworn,aspenaltiesofperjuryarenotapplicabletothisproceeding.Witnesseswillbe
undertheirordinaryobligationstotellthetruth.Thosewitnesseswhoarenotanswering
questionswillbeaskedtowaitoutsidethehearingroom.Eachpartywillhaveanopportunity
toaskquestionsofthewitness,andthenthecommitteememberswillaskanyquestionsofthe
witnesstheymayhave.PleasesupplytothecommitteebyFriday,Sept.18,theorderinwhich
thewitnesseswillbecalled,theapproximateamountoftimeeachsideanticipatesitwillneedto
askquestionsofthatwitness,andwhichpartywillbeginquestioningforeachwitness.Redirect
andrecrosswillbepermittedatthecommitteesdiscretion.Sincetherearenomotionsfor
directedverdict,thereisnoneedtodesignateparticularwitnessesastestifyingforonesideor
theother;norwillthecommitteeenforcetrialrulesconcerningtheformofquestionsexceptas
neededforclarity(e.g.,compoundorconvolutedquestions).Butforeverywitnessonesidewill
needtogofirst.
Thecommitteeisconcerned,giventhenatureofthiscase,thatthequestioningofthewitnesses
notbeanymoreburdensomeoroppressiveforthewitnessesthanitmustbe.Inparticular,the
committeeemphasizesthattherebenoquestioningofwitnessesdesignedtoelicitanemotional
response.ThecommitteeisparticularlyconcernedaboutthequestioningofDr.McAdamsand
Ms.Abbateinthisregard,buttheconcernsextendtoeverywitness.Whilethepartieshavethe
righttoanopportunitytoaskquestionsofeachwitness,andwhilethosequestionsmayfairly

Final Report
155
challengethewitnesssrecollectionsoropinionsonanyrelevantsubject,thereisnoright
providedintheFacultyStatutestoaskquestionsinanoverlyaggressiveorintimidating
manner.
Afterthelastwitnessiscalled,thecommitteewillhearclosingstatementsfromtheparties.The
partiesshouldnotethatatthistimeitappearsthecommitteemaynothaveaquorumbetween
noonand2:30pmonThursday,andmaypossiblynothaveaquorumforanyportionof
Thursdayafternoon.Ifpossible,weshouldplantoconcludeonThursdaymorning.
Sincerely,
BruceE.Boyden
InterimChair,FacultyHearingCommittee201516
Appendix E
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Marquette University

University Academic Senate

In the Matter of the Contested Dismissal of

January 18, 2016

In re Contested Dismissal of Dr. John C. McAdams

3. Dr. McAdamss Violation of the Applicable Standards of Conduct .................81

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FS 307.07 8; Minutes of the Faculty Council (Mar. 23, 2015).

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of free speech and academic freedom, were he a professor at a public university.39

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That harm is exacerbated when suspension is accompanied by a banishment order, as is

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prohibiting behaving in an overtly discourteous, abusive or disrespectful manner

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Benjamin, et al., Politically Controversial Personnel Decisions, 107.

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attempt a mutually-acceptable resolution of the issues between them . . . , and neither

FS 307.08 (emphasis added).

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UAS Stat. art. IV 1.01.1(1); FS 307.07 1, 20.

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See below, Subsections V.A.12.

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Evidence, Blacks Law Dictionary; FS 307.07 14.

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Abbreviations, including pseudonyms, are explained in App. A.

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individuals should not have rights is going to be offensive to someone in this