Wisconsin Supreme Court Upholds Academic Freedom

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Thursday, July 19th, 2018 during a live teleforum conference call held exclusively for Federalist Society members.           

 

Wesley Hodges:  Welcome to the Federalist Society's teleforum conference call. This afternoon, our topic is titled Wisconsin Supreme Court Upholds Academic Freedom and is hosted by our Free Speech & Election Law Practice Group. My name is Wesley Hodges and I am the Associated Director of Practice Groups at the Federal Society. As always please note that all expressions of opinion are those of the expert on today's call.

 

            Today, we are very fortunate to have with us Mr. Rick Esenberg, who is the Founder, President, and General Counsel at the Wisconsin Institute for Law and Liberty. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for our speaker, for the case in general. Well, thank you very much for speaking with us today, Rick. The floor is yours.

 

Rick Esenberg:  Well, thank you, Wesley. And thank you to the Federal Society for hosting this opportunity for me to do something that all lawyers love to do and that is to talk, not only about a case that they've litigated, but about a case that they've won. And I have to think that it's an important case because it deals with an issue that has been arising in so many contexts across the country, and that is, the scope of academic freedom and really the nature of free and open discourse, and when and how it can be limited.

 

            And I want to take a moment to explain how that can be the case with what was essentially a state court breach of contract case. Our client was a political science professor, named Dr. John McAdams. He has been a professor at Marquette University for almost 40 years. He is a conservative professor on a liberal campus and is a blogger. He has run for the past 12 to 13 years a blog, which he calls the Marquette Warrior. Now, the name of the blog itself is a shot across the bow of the University. Marquette's athletic teams used to be called the Warriors. About 20 years ago, in response to a complaint by no-one, they decided that was offensive and changed the team name to the Golden Eagles.

 

            For many people who are concerned with the political drift at Marquette University, the Warriors/Golden Eagles controversy has been a type of flashpoint. And what John does with his blog is he comments on what's happening at Marquette University, and in particular, ways in which he believes that the University has departed from its sort of traditional Catholic orientation, even though, ironically, John is not a Catholic. John, like most university professors, is promised academic freedom by contract. His contract incorporates faculty statutes, which adopt concepts of academic freedom that have been endorsed by the American Association of university professors.

 

            The reason that I think this case is important is that it construes those concepts. Concepts that are used, not only in agreements with professors at Marquette, but at private universities and even public universities across the country.

 

            I want to take a moment to talk about the facts of the case. The case stems from a blog post that John wrote in November of 2014. John had heard from a student. The student had been in a philosophy class that was taught by a graduate instructor. Now, this was a student who was, as the term is used in the academy, ABD—it's All But Dissertation—was completing her dissertation but was employed by the University to be the instructor of record and deliver a number of courses, and this was a course on moral philosophy and ethics.

 

            In the course of the class, she was discussing John Rawls concept of equal liberty and she said that she was using contemporary issues to illustrate how Rawls' theory might be applied. One contemporary issue, suggested by a member of the class, was same-sex marriage. The instructor said that well, Rawls' theory would cause one to support same-sex marriage and everyone should agree with that, or if you don't agree with it see me after class. The student came up to the instructor after class and said that he did disagree. That he was opposed to same-sex marriage and did not believe she should have dismissed his opposition that way.

 

            Now, the instructor might have said, well, look we were just talking about John Rawls, or I didn't think there was any need to spend more time on it, but that's not what she did. She preceded, in the course of the conversation, to tell this undergraduate student several times that under no circumstances would opposition to same-sex marriage would be tolerated in her classroom because it would come off as offensive and homophobic. We know that she said this because the student -- something that perhaps he should not have done, but he did surreptitiously record the conversation with his phone.

 

            Following his encounter with the graduate instructor, he went, and he complained to the Philosophy Department. The Philosophy Department essentially blew him off. They told him to change his attitude and that they would be watching him. Eventually, he mentioned this exchange to Dr. McAdams, who was his advisor. McAdams mentioned that he had a blog and asked whether it would be okay for him to write about this topic because he thought it was illustrative of something that happens at Marquette and college universities too often. The student said that he could. John reached out to the graduate instructor to get her side of the story. She declined to respond. And he wrote a post in which he recounted accurately and I think civilly, although, in a sharply critical terms, the nature of this conversation, and then connected it to what he believes is a larger problem on college campuses in which certain points of views are deemed to be unsafe and are thought to be something that should be silenced and not debated. And, so, he wrote the post.

 

            For a couple of days nothing happened, but then it got picked up by a website called The College Fix and it went viral. It was discussed on Fox News, it was discussed in the Chronicle of Higher Education. It was discussed in the philosophy blogs. There are philosophy blogs for those of you who didn't know. And, as a result of that, the graduate instructor received some critical emails, a percentage of which, I think, were particular nasty. Now, John McAdams had nothing to do these emails being sent. He didn't know the people who sent them, but they were certainly not civil; abused, crude, vulgar. I mean awful language.

 

            The graduate instructor then complained to Marquette. She demanded "reparations," the term she used. And Marquette eventually told John—and this is happening, of course, at the end of the fall semester in 2014—eventually told Dr. McAdams that his classes for the spring semester were cancelled and he was banned from campus. Ultimately, the ban was lifted, but the suspension of his classes remained in place and Marquette began the process to terminate his contract.

 

            Now, under the contract, which I mentioned earlier, incorporates the faculty statutes. A university professor under these circumstances can be, a tenured one, can be terminated only for what is called a discretionary cause. And discretionary cause essentially means a failure to live up to the standards of excellence commonly shared by university faculty, that's part one. And part two is and that substantially impairs the value of the professor to the university community.

 

            But there's an exception to discretionary cause because the faculty statutes also say, that under no circumstances shall this concept of termination and suspension for discretionary cause be used so as to impair the full and free enjoyment of legitimate personal or academic freedom of thought, doctrine, discourse, association, advocacy, or action. So it is subject to what appears to be a robust guarantee of academic freedom and free discourse. The faculty statues further say that this missile will not be used to restrain faculty members in the exercise of academic freedom or the rights guaranteed by the United States Constitution. But not with standing what appears to be a strong guarantee of freedom of expression, Marquette University moved to terminate Dr. McAdams because of a blog post that he wrote.

 

            Its reasons for doing so varied over time, but essentially amounted to an argument that he wrote the post and he identified the graduate instructor that he was criticizing, and he linked to her public website, a website on which she placed articles and posts about controversial issues that were of interest to her. And on that public website she chose to put her Marquette University email address. And, so, if somebody followed the link after reading John's blog, they would eventually come to her contact information and they can send her an email. And in Marquette's view that made John McAdams responsible for the nasty emails that she got.

 

            Now, the contract provides that when a university professor is being terminated, the matter first go to what is called a Faculty Hearing Committee. The Faculty Hearing Committee consists of seven professors, and that's what happened here. As the Faculty Hearing Committee was assembled, one of the members, it turned out, we discovered, had signed a public statement criticizing and condemning John McAdams for his blog post. We moved to recuse that member on the grounds that someone who is prejudged the manner ought not to sit in a hearing in which it is going to be adjudicated. Our motion was declined, and the matter proceeded with this biased member on the panel. A hearing was held, and the Faculty Hearing Committee ultimately produced a quite lengthy report in which it recommended to the University President that John not be terminated but be suspended for one or two semesters.

 

            And, in course of doing this, it adopted the definition of academic freedom which essentially said, "Well, academic freedom is one value among many. You balance it, and you decide whether or not, whatever the university professor has said should be considered protected." It is a radically indeterminate ad-hoc, post-hoc balancing test of the type that we normally would not recognize when it comes to protecting freedom of speech because no one can know in the face of such a thing just what they can say and what they cannot.

 

            Distressingly, the Faculty Hearing Committee said that McAdams could be held responsible for the reaction of others because he admits that he knows -- in the world that we live in today and when you put something out on the internet, people may react poorly to it and therefore this somehow makes us responsible for the possibility that is will occur. The report of the Faculty Hearing Committee acknowledged that what it was doing was a very indeterminate in its employment of this balancing test, but it said not to worry because academic freedom could be impaired only if the faculty permitted it. Not recognizing, of course, that academic freedom is a protection not only against the University Administration, but against the faculty itself.

 

            Now, the Faculty Hearing Committee report under the faculty statutes and contract was not binding on the University. It is only a recommendation. The recommendation went to the University President. He decided to accept it, but in a Machiavellian twist he said, that he would only suspend John for a semester or two, but he would re-instate him only if he issued a statement acknowledging that he had done wrong and expressing his deep regret. Now, I'm firmly of the view that the Marquette University Administration knew John McAdams and they knew there was no way that he would do such a thing. He would recognize their right to criticize him and to criticize what he wrote, but he was not going to engage in this type of compelled speech, this type of Soviet-type apology, and that this would be a way to effectively terminate him.

 

            So, we brought suit as a breach of contract action in circuit court for Milwaukee County. After some discovery, the parties filed cross motions for summary judgement and the circuit court judge denied Dr. McAdams motion for summary judgement but granted Marquette's motion. And he did so, not based on an independent assessment of academic freedom in the blog post, but because he concluded that he should defer to Marquette University much in the same way that a trial court would defer to an arbitration panel or an administrative agency. And because he could not conclude that they were wrong, he concluded that they were right, effectively making Marquette and its employees a judge of whether or not they had complied with the contract or not. And he granted summary judgment to Marquette University.

 

            We then appealed and asked the Wisconsin Supreme Court to bypass the intermediate court of appeals in Wisconsin and the Wisconsin Supreme Court decided to do so. It granted our petition for bypass and the case was argued just this past April. On July 6th, in a four to two decision, the Wisconsin Supreme Court fully reversed the circuit court. It reversed its grant of summary judgement to Marquette University holding that courts do not need to defer to universities on questions of university personal decisions, and in particular, when they involve academic freedom. And, it did so, based on a fairly straight forward reading of the contract. It said -- and in doing so it had to discuss two lines of cases. There's a line of cases that suggest that university decisions like this should be deferred to -- it's a case which is represented typically by Ohio intermediate court of appeals case called Yackshaw. And there's another line of cases that argue that universities should not be deferred to in these circumstances. The leading case there is a D.C. Circuit case called McConnell.

 

            The Wisconsin Supreme Court resolved these conflicting lines of cases for Wisconsin by concluding that Wisconsin courts would not defer to university determinations in this context. And, it did so, essentially by reading the contract and saying, look, there's nothing about this that looks like an arbitration provision. The contract does not make this an exclusive or presumptive dispute resolution mechanism. It doesn't say that a court or anyone else must defer to the recommendation in the Faculty Hearing Committee. It doesn't even say the University President should defer to the Faculty Hearing Committee. It is, at best, advice, and in the words of Justice Dan Kelly—who I should note is the former Milwaukee Chapter President of the Federal Society—Justice Kelly concluded that we do not defer to advice. And, so, the Court ruled that circuit court was in error to deferring to Marquette's own determination of what's its contract means.

 

            The Court then went on to -- and I think that's important because there has been a split among courts across the country as how to handle cases like this. I think Justice Kelly's well- reasoned determination that they should not is one that will be significant in other contexts. Perhaps, more importantly the Court went on and reversed the circuit court's denial of summary judgement to Marquette University. And, in doing so, it interpreted the concepts of academic freedom as developed by the American Association of university professors, essentially resolutions and documents that Marquette has agreed to over the years and incorporated into its faculty statutes and contract.

 

            The Court said that this was an example of something called extramural comment. Extramural comment in the contexts of academic freedom is a comment that is made in the course of a -- not something that the professor does in the course of exercising his professional responsibilities, teaching a class, or in the course of scholarship, but of public and community comment outside of that context. The AAUP has typically said that professors right of extramural comments should be exercised with the use of proper restraint, there should be respect for the opinions of others. Professors should take care to say that he or she is not speaking on behalf of the university. But the AAUP has also said, and Marquette agreed in its faculty hearing report, that none of that is binding.

 

            In fact, in its Faculty Hearing Committee report, Marquette said that there is no rule against criticizing ones colleague, there is no rule against criticizing a graduate instructor, or even a student. There is no rule against linking to someone's public website even if it has contact information on it. It said, in essence, that nothing that Dr. McAdams had done in particular was wrong, but that somehow taken all together, given the reaction of others to the post that Dr. McAdams wrote that he had caused harm and could somehow be disciplined.

 

            Justice Kelly's opinion took issue with that. He said that Marquette had gone about it backwards. That it had reversed engineered its conclusion starting with the fact that nasty emails had been sent. It, then, in sort of a Palsgraf-ian way said that well the nasty emails wouldn't have been sent if he had never written about this at all or if he had never identified he person who he was criticizing, and therefore, he must be held responsible for it.

 

            Justice Kelly pointed out that when it comes to academic freedom that's not how it works. What you have to do to is you have to look at the content of the speech itself, and you have to see whether there was something about the speech that would itself, be outside the standards of excellence; that would itself, impair the value of a university professor; that would itself, be outside the bounds of academic freedom. That one cannot engage in some type of post-hoc reverse engineered analysis which attributes the reaction of others to the speaker without identifying what it was in the speech that was somehow so clearly beyond the bounds of acceptable discourse that it should not be protected by these robust protections that the faculty statues, and the concept of academic freedom provides to university professors.

 

            Looking at the particular post, Justice Kelly concluded that there's nothing about it that would cause it to fall outside the scope of academic freedom. It's not inaccurate, it's not uncivil, it does not call on anything, anyone to do anything to anybody. It does not violate any particular rule of the University. It is, in fact, comment on a matter of great public concern, and it was clearly protected, and under the circumstances, Dr. McAdams was entitled to summary judgement. The Court then remanded the case back to the circuit court for entry of judgement in Dr. McAdams favor and order reinstating him to the Marquette University faculty and the termination of his damages.

 

            I should note, in concluding, that in doing this the Wisconsin Supreme Court rejected the notion that university commitments of academic freedom are somehow simply internal university matters. And I think that is important, particularly, in the context of increasing acceptance within the university community of the notion that speech should be silenced or that some speech is sort of beyond the pale. When you promise academic freedom to a university professor, to an individual university professor such as Dr. McAdams, it is important that protection be extended not only against the administration, but against the professor's faculty colleagues because if the point of academic freedom is to ensure that open discourse will exist on college campuses, that people will feel free to say what they want to say in pursuit of the truth, and engaging in the type of conversation that we typically want to have on college campuses, one has to know, not only that the University President cannot harm you, but also that you cannot be harmed by the majority sentiment on campus. And so the only way to do that really is to make this a guarantee that is enforceable in court just as any other contractual guarantee would be enforced.

 

            There's, of course, more that I can say about the case and the circumstances surrounding it, but I am happy now to -- I think I've described, perhaps in more detail than anyone needs, the particulars of the case, and the nature of the holding by the Wisconsin Supreme Court. And if anyone has any questions or comments I would be happy to entertain them.

 

Wesley Hodges:  Thank you very much, Rick, for the insightful explanation and analysis. Let's go ahead and move to audience questions. In a moment, you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor with your question, just enter the star key and pound key on your telephone. When we get to your request you'll hear a prompt indicating if the floor mode has been turned on. You probably just heard that tone. Now, if you'd like to present your question, just enter the star key and pound key on your telephone. The queue is empty, so please feel free to jump in with your question, but in the meantime, Rick I wanted to ask you, what would you say the position of the dissent was?

 

Rick Esenberg: Well, the position of the dissent was that the dissent wanted to view academic freedom has an institutional thing. That it's something that the university itself has. And not unless -- although, it didn't say that there's no such thing as individual academic freedom. It was more concerned about protecting the institution. Now, I think that there is some validity to that. There is, I think, in the context of First Amendment law, I think that there's reason to believe that there might be special considerations and concerns presented when the government attempts to do something which interferes with academic freedom. But there isn't law which goes so far as to say that this guarantee of academic freedom then becomes nonjusticiable as it's applied to an individual university professor.

 

            You know, one of the interesting things that happened in this case is, of course, there were some private universities that came in and a lot of amicus briefs on both sides in this case. There were amici from some private universities that said, well, look, you know universities have the right to have a distinct mission and if they want to have a different set of rules then say a large public university like the University of California or Wisconsin, or Texas they can have that. There were also business groups that came in, I think, largely at the behest of Marquette as a powerful player within the Milwaukee community, who said that, well, look private employers should be able to discipline their employees for speech. And Marquette's a private employer and so they should be able to discipline their employees for speech.

 

            Now, our response to both of those lines of criticism was that they are right as abstract principles. No university is required to guarantee academic freedom. Now, all major research universities do. They would be foolish not to do it because no one would take them seriously as a research university, and they wouldn't be able to hire the kind of faculty that they want to hire if they didn't make this guarantee. The market really demands it. But they don't have to and not all do.

 

            And, of course, a private employer is absolutely free to discipline employees for speech until it promises that it won't do so in a contract. And then it, like the rest of us, has to abide by the contractual commitments they make. And so, as I've said before all this was something prosaic in a sense. It was a breach of contract case and Marquette could write its contracts differently. The fact of the matter is that Marquette writes its contracts in the way that most major universities across the country do. They have a provision for a faculty participation in the decision-making through something like a Faculty Hearing Committee. They have these guarantees of academic freedom, and I think that Justice Kelly's very well-reasoned decision will be impactful in resolving disputes arising from those comparable contractual commitments elsewhere.

 

Wesley Hodges:  Thank you, Rick. It does look like we have two questions in the queue. If anyone would like to join the queue today, just enter the star key and pound key with your question. Let's go ahead and move to our first caller.

 

Dan Jett 1:  Hello, my name is Dan Jett. I'm a lawyer in Los Angeles, and I'm actually representing an adjunct faculty member at public junior college in Southern California that is in the midst of this same exact problem. And I have a two-part, two-prong question. Do you feel that this ruling has any traction outside of -- in a public-school sphere, or/and do you think it has any type -- I don't know whether you're familiar with California's laws as to whether this type of argument might work outside of Wisconsin?

 

Rick Esenberg:  Well, I'm not aware that there any of the cases in which involved deference to— and I would have to go back and make sure—but I'm not that aware any of the cases involving deference to a university process came out of California. I don't think they did. A public university, of course, is a little bit different because you have another sling in your arrow, another arrow in your bag there, and you have the First Amendment, which is something that we didn't have. Now, one of the issues that the Court didn't address, in this case, is Marquette's contract also said that termination cannot be used to restrain rights guaranteed by the United States Constitution. And we argued that incorporated full First Amendment protection for Dr. McAdams.

 

            At that point, the argument was sort of revolved around the Pickering-Connick line of cases involving speech by public employees. How those cases apply to university professors has not been determined by the United States Supreme Court. Justice Breyer in a concurrence said that professors might have greater protection than other public employees. But our argument, essentially, was that even under that particular test of First Amendment rights, if we are incorporating the First Amendment, then McAdams' speech would be protected. And, in fact, part of his job as a university professor in some ways, even though this is extramural comment, is to be able to speak freely. I think that, and I don't know the facts of your case, but I would really commend to you Justice Kelly's decision and his discussion of extramural comment and the methodology for analyzing whether or not speech can be impaired because I think what happened here, is Marquette wanted to hold Dr. McAdams responsible for all the falderal that happened in the wake of his blog post.

 

            And I think Justice Kelly explains in a very analytic way why it can't work that way. That, in fact, if that's the way that it did work, no one would ever know what they can and cannot say because something like this can always happen. And we used the example of a blogger at National Review, Katherine Timpf, who wrote something about it…I can't remember now, Star Wars or Star Trek, and got the same type of nasty emails that this graduate instructor received. It's always a possibility in the internet age. But that you have to really, just as if you were evaluating whether something constitutes fighting words under Chaplinsky or incitement under Brandenburg, you have to look at the words of the speech itself. And there's nothing about what McAdams did, nothing about the blog post itself. And I don't know whether that helps your case or not, but in the event it does, do you have that same type of reaction by the university employer. I think that Justice Kelly's decision is quite persuasive.

 

Westley Hodges:  Thank you very much, caller, for your question. We do have one question remaining in the queue, so if anyone would like to join the queue with a question, just enter star key and pound key on your telephone. Let's go ahead and move to our second caller.

 

Chris Garvey:  Hi, this Chris Garvey, the Libertarian Candidate for Attorney General in the State of New York. It seems to me there's a certain irony in that the professor was telling a student he couldn’t say something, and he's now been given the freedom to restrict a student's academic freedom. Did anyone point that out?

 

Rick Esenberg:  I'm not sure -- I want to make sure that I understand what you're saying. When you say the professor told a student that he couldn't say something, what --

 

Chris Garvey:  I'm looking at the write-up. Unfortunately, I missed the first part of this because I had to do some other work before I could get to it, but the graduate instructor had told the student that the student's oppositions to the same-sex marriage would come off as offensive and homophobic and would not be tolerated.

 

Rick Esenberg:  Right.

 

Chris Garvey:  I don't know what was meant by 'would not be tolerated,' would be kicked out of the class, or he had to shut up or what. I'm not sure about that. But it seems to me that's the restriction of the student's right to free speech or academic freedom.

 

Rick Esenberg:  Right. Right. And so, that was Dr. McAdams point. But what happened here, our client, wrote about this situation where a graduate instructor told an undergraduate student that his opposition to same-sex marriage would not be tolerated in her class. Our client, Dr. McAdams wrote about that and he said, look, that's not the way the universities work. It's perfectly appropriate for her to challenge him. To say, you know what, I think that same sex-marriage, it's marriage equality, it's justified. I believe John Rawls' theory of equal liberty support same sex marriage, and I challenge you to give your reasons for opposing it. That's what should happen in a university. But then, she shouldn't have told him, look, your opinion is beyond the pale.

 

            The irony here that was commented on more than once in the course of this case is that Marquette made a big deal about power and balances. And they said that John McAdams, our client, was a tenured professor of political science and the graduate instructor was a graduate instructor. And, of course, McAdams has absolutely no authority of her, whatsoever. He has nothing to do with her evaluation, nothing to do with her at all. And, in fact, you know, her position within -- the position that she espoused probably has a great deal more support on Marquette's campus then the position of the undergraduate espoused.

 

            And the thing that was ironic about this is that if you want to talk about power and balances, the person in this whole story that was the least powerful was the undergraduate student who was told, not only by his professor but by the department, to change his attitude. One of the, I think, the most distressing examples of things that came out of this story, and Marquette spent a lot of time emphasizing it's a Jesuit college and it is committed to Cura Personalis, the care for others. But there was no care whatsoever for this undergraduate student who was told that his opinion simply wouldn't be permitted. And so, this is in that sense, I think a case about a whistleblower, about a tenured professor who wrote about something that happened at his university that shouldn't have happened and who is able to do so only because, and only if he enjoys the protection of academic freedom.

 

Chris Garvey:  Thank you.

 

Wesley Hodges:  Thank you very much for you question, caller. The queue is now empty, so if anybody would like to join with a question before we end today, just enter the star key and pound key on your telephone. I do want to let everyone that our next teleforum conference call is scheduled for Monday, July 23rd Eastern Time and the title of it is Arbitration in the #MeToo Era. I encourage you to visit that teleforum as well. It looks like we do have two more questions in the queue. Thank you very much for joining. Let's go ahead and move to our next caller.

 

Robert Orellan:  Hi, this Robert Orellana. I'm an attorney in California, and I work for a government agency. I was wondering about another irony. Was there any discussion of the church's own position on the issue, and the fact that the student was defending the position of the church that founded the university?

 

Rick Esenberg:  You know, I think that that was remarked from time and time. The Faculty Hearing Committee sort of conceded that it could not be said that opposition to same-sex marriage was beyond the pale of civil discourse.  So it made that particular concession. Nobody really tried to make -- because I don't think anybody really, at least we didn't see the case, as being a case about same-sex marriage. We saw it as being about academic freedom and freedom of speech. But there was irony in this, in that there was -- one professor at Marquette University who was a staunch supporter of Dr. McAdams was a fellow named Daniel McGuire.

 

            And Daniel McGuire is sort of a radical, left-of-center theologian that's been at Marquette for years and years and years, and who dissents in many ways from court teachings of the Catholic Church, and who has, himself, come under fire as somebody who should be removed from the Marquette faculty. And Marquette has not removed him. They said he has a right to academic freedom and he can express the views that he wishes to express. I think there's been some adjustments there. He can't teach a class in Catholic Theology because he doesn't believe in Catholic Theology. But McGuire supported McAdams and said, look, even though they don't agree on anything, that this is something that ought not to happen.

 

            Now, some people will argue a religious institution, like Marquette, should be able to insist on some type of doctrinal consistency. And there are universities, religious universities around the country that say, look, faculty members should adhere to church teaching. We're operating within a particular religious tradition. And I think they have the right to do that. I think any university has the right to organize itself in that way if it wishes to do so. Marquette chose not to do that and having chosen not to do that, I think, it shows to buy into this concept of academic freedom.

 

Wesley Hodges:  Thank you very much for your question. It looks like do we have one more question in the queue. If anyone would like to join today, just press the star key and pound on your telephone. Let's turn to our next caller.

 

Jack Park:  Thank you, Rick. This is Jack Park, and this one is a little tongue and cheek. When I was in law school, there was a class where all the students were carrying around Rawls, Nozick, and Unger, and I didn't take the class, but what if McAdams had said, "Well, yeah, maybe a pass is must under Rawls, but not under Nozick and Unger, and for that reason there's something wrong here?"

 

Rick Esenberg:  Yeah. You know, one point, Marquette tried to argue that, well, she wasn't telling him that he could not oppose same-sex marriage. Marquette initially tried to say that he got the conversation wrong, but he didn't get the conversation wrong. But in one of the ways they did that is to say that she wasn't really talking about that he couldn't express his opinion, she was saying that he couldn't express his opinion in the context of Rawls. You can't use Rawls to support same-sex marriage. Now, one of the things that I found, and contemplated using on cross examination, is scholarly work in which people who actually had instructed Rawls-ian arguments against same-sex marriage, so apparently it can be done. But that did not turn out. You know, there's all these things that happen in the course of litigation that are kind of amusing at the time, but actually don't have much to do with the outcome and that didn't.

 

Jack Part:  Thank you. There are three cases. The case you're going to try, the case you try, and the case you would've have tried after you get done.

 

Rick Esenberg:  That's right.

 

Jack Park:  Thanks.

 

Rick Esenberg:  Thank you.

 

Wesley Hodges:  Thank you Jack. The queue is empty again. So if anyone would like to ask a question before we end today, just enter the star key and pound key. We'll give you a couple more moments to join in if you'd like, but in the meantime, Rick, is there is anything else that you'd like to comment on or any remarks you'd like to make before we finish the call today?

 

Rick Esenberg:  No, I think we've explored the issues. I know that this is a case that has gotten a fair amount of attention. Marquette engaged in a rather significant public relations campaign, ads in the Wall Street Journal, and spun Kathleen Parker into not particularly good op-eds. I think, however, given all the various claims that are made about it, at the end of the day, this is a case about what happens when we guarantee academic freedom. And does free and open discourse mean free and open discourse? And had the approach taken by Marquette and its Faculty Hearing Committee become a recognized way to evaluate claims of academic freedom, I think academic freedom would've become essentially meaningless because it would have meant nothing more than you can speak, unless, after the fact, university administration, either supported or not supported by a majority sentiment of your colleagues, decides for some reason that you shouldn't have said what you said. And if that's what academic freedom means, then academic freedom means nothing.

 

Wesley Hodges:  Thank you very much, Rick. I want to let everyone know that this call has been recorded and very soon you'll be able to find it on our website, along with a full roster of other recorded teleforum calls as podcasts. And we encourage you to check this out and the others out as well, and keep an eye out for any emails have announcing teleforum calls.

 

            So, on behalf of the Federal Society, I'd like to thank Rick for the benefit of his valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all you for joining us. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.