[Cross posted at Eric Goldman’s Technology and Marketing Law Blog.]
At the heart of an important and deeply troubling faculty committee report involving academic freedom at Marquette University is the conclusion that a blog post by a tenured political scientist was “reckless” and thus the professor should be subject to discipline by the University. The report deserves careful consideration by anyone concerned about either academic freedom or academic blogging.
The report stems from the attempt in early 2015 by Marquette to fire John McAdams, Associate Professor of Political Science, a long time member of the Marquette faculty. McAdams was told in November of 2104 by an undergraduate who was also an advisee of Professor McAdams that he had had a conversation with a graduate student instructor (GSI) after a discussion in a class led by the GSI related to gay marriage.* While the facts about what was said in the classroom discussion are contested, the post-class conversation was, controversially, surreptitiously recorded by the undergraduate on a smart phone.
Professor McAdams felt that the GSI was, inappropriately, attempting to shut down discussion of views that the GSI disagreed with normatively. He wrote about the incident in his blog and included snippets of the recorded post-class discussion along with an account of the in-class discussion based only on the account relayed by the undergraduate. He attempted to reach the GSI for her side of the story but was unsuccessful.
The post included a link to the website and blog maintained by the GSI, and in the wake of the post she received numerous negative, overtly hostile and threatening communications, many of them quite disturbing. She has since transferred out of the Ph.D. program she was part of at Marquette, suffering a three semester delay in her career as a result.
Charging Professor McAdams responsible for these untoward events because of his single blog post, Marquette unilaterally suspended him (with pay) and banned him from campus. They began the steps required to fire him, including, finally, nine months after the suspension had been imposed, a hearing before a Faculty Hearing Committee (FHC), chaired by a Marquette law professor. The FHC’s 164 page Final Report dated January 28, 2016, was recently made public as the FHC had requested, although over the objections of Professor McAdams.
The FHC recommended against outright dismissal of Professor McAdams and instead recommended adding a one or two semester suspension without pay (but with benefits) to the current suspension (although it concluded the summary suspension with pay by the administration had been wrongful).
The disposition of the recommendation remains unclear. Marquette University’s President wrote to Professor McAdams stating that he accepted the FHC recommendation of a suspension without pay but conditioned that on an additional requirement that McAdams draft a kind of Maoist style form of self-criticism that must include an “acknowledgment,” an “acceptance,” an “affirmation,” a “commitment,” a second “acknowledgment” as well as an expression of “deep” regret.
At that point, he might as well become a Jesuit!
The Due Process Problem
It is not clear how the FHC recommendation, much the less the burdensome conditioned offer of the President to impose their recommendation, can be reconciled with the professor’s right to due process. He had been disciplined once without any due process (the suspension with pay and banning), and now a new additional disciplinary action is being proposed on top of this (albeit, in the latter case, after a form of due process via the FHC internal hearing).
It should come as no surprise that Professor McAdams has now filed suit against the University in court, and no doubt the due process issue will be central to his complaint. Arguably he should have been compensated for the failure to provide him due process in the first place, and only then should the hearing process have taken place.
There are several other due process issues at stake as well. Many are detailed in the complaint that lawyers for Professor McAdams have now filed in Milwaukee County Circuit Court. The professor was widely known on the campus as a prolific and provocative blogger. As the FHC itself states several times, he had made more than 3,000 posts on his blog over a decade. Despite the controversy stirred by many of his posts, he had never been subject to any form of disciplinary action by the University. Yet, this single post – made in late 2014 – has led to an effort to fire him.
It has been longstanding practice in colleges and universities to engage in what is called “progressive” discipline, a process developed in large industrial workplaces often in collective bargaining agreements. Typically, when there is solid basis to consider disciplinary action, warnings come first together with other efforts to insure the individual is fully aware of the alleged problems he or she has caused, then followed by progressively more serious forms of discipline if warranted because of continuation of the problematic behavior.
In any case, each step should be preceded by notice to the individual as well as an opportunity to be heard prior to the imposition of discipline. This is known as “procedural” due process. The FHC concluded in its Findings of Fact, however, that: “Dr. McAdams has never been formally reprimanded or received a written warning for any prior incidents that have generated complaints about his behavior.”
Instead of using widely accepted forms of progressive discipline, here, the University acted without notice, without warning and without any serious attempt to ameliorate the problem. They simply suspended the faculty member and banned him from campus and then announced their intention to fire him. All for what, arguably, was his exercise of speech, protected by both academic freedom and what one presumes is the respected norm on American university campuses in favor of vigorous debate about, in particular, controversial issues.
No wonder even the left liberal Atlantic magazine issued a clarion call to faculty across America to defend the rights of this conservative professor at a Catholic university who was defending a student critical of gay marriage!
There is far more than just the procedural due process issue, however, that is troubling about the FHC report. It is a long, complex and oddly drafted document and thus challenging to make sense of. The FHC was chaired by a campus law professor and former litigator, and in many ways it reads more like an argument being made to a jury rather than as an objective assessment by an independent committee.
Let me, therefore, here just highlight two key aspects: the “reckless” charge against the professor and the focus on blogging in the academic context.
The reckless charge of “reckless” behavior
The word “reckless” is repeated 23 times in the report. It is the key to the FHC’s decision as it makes clear throughout the document. The charge of recklessness was first made by the University in its initial suspension and banning order of the professor. In turn, the FHC agreed. They state over and over that the professor “recklessly” caused harm by his blog post, that he “recklessly exposed” a campus colleague to harm, that he “violated his obligations” as a faculty member by “recklessly, albeit indirectly, causing harm” to his colleague, and that the post “was reckless” “in posing a significant, albeit indirect, risk of harm,” and “[h]is actions, if not intentional, were certainly reckless in creating a risk of harm” to the GSI.
Yet, the FHC never defines the term “reckless.” This, despite the fact that it is a notoriously challenging standard to define even where it is used explicitly in a statute or other legal framework. (I teach securities law where “recklessness” remains contested terrain after decades of debate.) Nor is there any evidence that the University or its faculty ever adopted “recklessness” as either the boundary line for conduct expected from its faculty or as the standard of liability that could trigger disciplinary action. In fact, the FHC admits “there is no specific written prohibition on recklessly causing others to be harmed” in any Marquette rule, principle, norm, value or document.
Arguably, then, the FHC had no legal basis upon which to apply a new, previously unknown, and undefined legal standard to the behavior of Professor McAdams.
If one is feeling generous, one could attempt to apply definitions of “recklessness” from other contexts and test them against the facts here. I am not suggesting that is a valid procedural approach for a committee like the FHC – in fact, it is not. It is “black letter” law, one might say, that one who is potentially subject to discipline should know in advance the legal standards that might be applied to their behavior. Without that standard, we are in the land of Kafka, at best.
But, feeling generous, how might one be convinced that Professor McAdams was reckless and thus reasonably subject to some form of sanction or discipline?
Well, if, for example, he must have known that the kinds of individuals who sent the GSI harmful or threatening communications were out there, that they read his blog regularly and had in the past engaged in similar reactions to individuals he had named on his blog, then, arguably, if he, in fact, knowing that, went ahead anyway and posted on the blog, then he may have behaved recklessly: his actions could have been found to have gone beyond ordinary negligence (a legal standard below “recklessness”); and, while perhaps not rising to the level of conscious intent (a legal standard above “recklessness”), could be considered reckless. And, then, if, in fact, he was on notice (either actually or constructively) that “recklessness” was subject to discipline by the University, then, and only then, would there have been a basis for imposing (appropriate and progressive) disciplinary action.
But there is no evidence I can discern in the FHC Report even hinting at a basis to conclude that Professor McAdams “must” have known that the disturbing communications that were sent in reaction to his post would take place. All that I can find are a few references to prior incidents in which Professor McAdams indicates that an issue he cared about might end up on his blog and therefore might get some form of public attention.
In fact, the FHC’s Findings of Fact suggest the opposite conclusion about Professor McAdams’ motivations: “No prior blog post of Dr. McAdams’s received the media coverage or resulted in abusive emails to the extent that this one did.” That’s based on a record over ten years and 3,000 blog posts – many of them on what could easily be called controversial issues, and many written in what could be easily called a provocative style.
Alternatively, one could adopt a lower bar to liability: he “should” have known that harm could come to the GSI in the manner that it did and therefore he was reckless in posting on his blog about the incident. But apply the same facts here and they fail equally to convince that he should have known the negative consequences that followed his blog post. It had never happened before despite the fact that he had similarly criticized other colleagues by name. And although the kind of cyber stalking experienced by the GSI is ugly when it does happen, it is relatively rare and certainly appears unpredictable. Certainly the FHC provided no data or argumentation to suggest otherwise.
In any case, the FHC shows no hint of recognizing the problematic nature of the standard they apply rather, well, recklessly, throughout their report.
The FHC goes on to note that there was a notable increase in the harmful communications to the GSI after coverage of the classroom incident by Fox News. That seems to suggest that had the situation been limited to the far less well known blog maintained by Professor McAdams the harm to the GSI would also have been contained. Could it have been reasonably foreseeable to Professor McAdams that this incident would end up on national television? Can he be held liable for any contribution by Fox to that harm?
I am personally aware of only one other incident involving a woman academic who was attacked in the manner of the GSI at Marquette (in part, because I came to her defense on my own blog). There is no doubt that there is a kind of pack mentality that exists on the internet and that women, in particular, seem to have been made victims of this kind of behavior. But there is no evidence provided by the FHC that Professor McAdams was aware of that kind of behavior, or should have been (blogging does not, yet, require a license), and certainly no indication that he posted the GSI’s name and a link to her blog without caring whether or not he triggered that kind of reaction. Absent such evidence, how can one conclude that he was reckless?
As I suggest below, there is no formal definition at Marquette of “blogging” but certainly it can be presumed that a “blogger” expects to generate some public interest in their posts. That, however, is a far cry from intending that harm come to an individual named in a blog post or not caring at all whether, in fact, such harm may come to that individual.
What does it mean to be an academic blogger?
The “recklessness” issue is closely linked to the second issue I want to highlight here: academic blogging. Just as with the question of ambiguity about the appropriate legal standard to be applied, there is no clarity at all at Marquette about the question of blogging by academics. They are not alone in this, of course. Blogging by academics, however, has been around for more than a decade (I personally started blogging in 2003 and Professor McAdam’s first post is dated to 2002), but there are few accepted rules about the role it is supposed to play in academia. And there are certainly no formal rules about what is or is not appropriate. There are emerging practices and perhaps even what might be called norms, but there is also a good deal of gray.
One point that has gotten lost in the debate about the Marquette incident is that the GSI herself hosted a blog at which she expressed very clear (and no doubt to the eyes of many, very controversial) views. Those who may be quick to claim that Professor McAdams had no right to blog about what was being discussed in the GSI’s classroom have to keep in mind that she, too, blogged and there is no evidence that she set any formal limits on what she might blog about.
This is not a claim that there should be no limits to blogging, particularly blogging by academics (which may be deserving of new guiding norms). But it is a claim that the FHC proceeded as if there were clear rules and standards about academic blogging when, in fact, there are none.
There are 272 instances in which the word “blog” or “blogging” is used in the FHC report. Yet, never is the term defined. Nor is there any reference to a Marquette University rule, standard, norm, value or document that puts faculty on notice about what is or is not appropriate blogging.
The FHC, for example, mentions in passing the infamous case of Professor Ward Churchill, who was pushed out of a tenured position at the University of Colorado in clear retaliation for his inane remarks about the September 11 attack on the United States. In that case, the faculty committee that reviewed his academic work (which, it must be said, had problems) at least cloaked their attack on Churchill behind well-established academic norms about citations, proof, evidence, etc.
But no such principles exist to guide an entity like the FHC in the case of blogging. This actually works in both directions. While the original University attempt to suspend, ban and fire Professor McAdams charged him with inaccuracy in his post, the FHC admitted they could not hold McAdams to a requirement of accuracy because: “There is no general obligation on the part of blogging faculty members to ensure that every statement they make in their posts is accurate.” There is no “general obligation” because there are no explicit obligations for academic blogging at all.
In the face of this, the FHC made them up.
They engaged, in other words, in legislating from the bench. Yet, in doing so, they borrow from such a wide range of sources (intramural speech standards, extramural speech standards, journalism, peer review) that one’s head is left spinning. There is no coherence or substance to the standards they apply.
Certainly one can conclude that the FHC Final Report provides Professor McAdams with sufficient material to claim, credibly, that he has been subject to the same kind of hindsight bias used to mete out rough justice to Professor Churchill in the wake of 9/11. Ironically, that was a case that the FHC itself chose to discuss as an example of an inappropriate “end run around academic freedom.”
Just as ironic, Churchill, too, has been a target of Professor McAdam’s blog.
*Full disclosure: I fully support the right to gay marriage, find the kind of views expressed by the undergraduate in this situation to be reactionary and biased, find the “gotcha” tactics he used with the GSI distasteful at best, and think many (though not all) of the viewpoints expressed by Professor McAdams on his blog to be largely absurd, overblown and equally reactionary and biased.