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George F. Will: When judicial deference becomes a dereliction of duty

| Sunday, Dec. 31, 2017, 12:36 a.m.

WASHINGTON

Wisconsin's Supreme Court can soon right a flagrant wrong stemming from events set in motion in 2014 at Milwaukee's Marquette University by Cheryl Abbate.

On Oct. 28, in an undergraduate course she was teaching on ethics, when the subject of same-sex marriage arose there was no debate because, a student said, Abbate insisted that there could be no defensible opposition to this. (Marquette is a Jesuit school.) After class, the student told her that he opposed same-sex marriage and her discouraging of debate about it. She replied (he recorded their interaction) that “there are some opinions that are not appropriate that are harmful ... in this class homophobic comments ... will not be tolerated.” The student's appeals to Abbate's superiors were unavailing so he gave John C. McAdams his recording of Abbate rebuffing him.

McAdams, a tenured professor then in his 41st year at Marquette and a conservative, emailed Abbate seeking her version of the episode. Without responding to him, she immediately forwarded his email to some professors. She has called McAdams “the ringleader” of “extreme white (sic) wing, hateful people,” a “moron,” “a flaming bigot, sexist and homophobic idiot.”

Before McAdams had written a syllable, she claimed for herself the coveted status of victim, branding as “harassment” his request for her side of the story. Abbate drafted a letter asking that McAdams be disciplined. He was.

After this matter gained national media attention, she received some critical emails, some of them vile, and Marquette rightly branded them “hate mail.” However, for these, and for the unspecified “harm” that they supposedly caused Abbate, McAdams was held to be somehow blameworthy. Marquette, however, offered no evidence that he had anything to do with the emails.

After a committee recommended suspending McAdams without pay for two semesters, Marquette's president insisted that McAdams also express in writing “deep regret.” McAdams refused and has been unemployed ever since.

Being a private institution, Marquette had a right to be as hostile as it obviously is to the First Amendment — except for this: Its contract with tenured faculty says no one shall be disciplined for exercising “legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action” and that the threat of dismissal shall not be used to “restrain” constitutional rights. A circuit court, ignoring Marquette's ignoring of a Wisconsin contract, refused to adjudicate this dispute. Deferring to Marquette, the court essentially held that a professor's academic freedom exists only until some other professors, and university administrators, say it does not. So, the deferential court allowed Marquette an unconstrained right to settle a contract dispute. McAdams is asking the state Supreme Court to bypass the appeals court and perform its function as the state's “law-developing court.”

This episode, now in its fourth year, began because McAdams tried to assist a student who suffered unprofessional behavior by a bullying instructor. The wreckage left behind illustrates how rights are imperiled when judicial deference becomes dereliction of judicial duty.

Wisconsin's Supreme Court must lay down the law that can stop some of the rot that this case illustrates.

George F. Will is a columnist for Newsweek and The Washington Post.

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