WHAT I THINK HAPPENED IN THE CLASSROOM (based on study of the relevant and available documents and accounts). [Slight updates for clarification, in brackets, 21 January 2015; I also recommend people read this blog post by Cheryl Abbate detailing the misogynist hate mail she received as a result of McAdams's action.].
1) During the class there was never a discussion about gay marriage. The point of the class was just to get a basic idea of some contemporary social policies that would violate Rawls’s equal liberty principle ["Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all"]. One student pointed out that a ban on gay marriage would violate Rawls's equal liberty principle [it would deprive a group of people of equal basic liberties] and since Abbate judged this as true and there were more nuanced examples to focus on, she moved on to the next example of a policy that would violate this principle.
2) Another student approached Abbate after class and asked why there was not more discussion of gay marriage.
3) In a move that has been approved by the vast majority of professional philosophers — and here the disciplinary difference between philosophers and political scientists is I think important to note — Abbate told the student that discussion of gay marriage in a class devoted to Rawls’s equal liberty principle would not be relevant as in her judgment [allowing] gay marriage does not violate the principle [allowing gay marriage does not deprive anyone of a basic liberty compatible with a system of liberties for all]. This is a professional judgment call and McAdams does not have the training or standing to challenge this initial point.
4) The student then claimed that there is research that shows children who have gay parents “do a lot worse in life."
5) Abbate pointed out that this was a non-sequitur as gay marriage and child-rearing are not necessarily connected, and further that she would question the research he was referring to, because years of research says otherwise. She also invited him to send her the "research" he was referring to (and Abbate has informed me that he never did this).
6) The student then said “Regardless of why I’m against gay marriage, it’s still wrong for the teacher to completely discredit one person’s opinion when they may have different opinions.’ ”
7) Abbate then said that "SOME comments are not appropriate and are offensive." At this point, she was informing the student that he did not have an absolute right to say whatever he wanted in an ethics class. She then explained that examples of inappropriate / offensive comments would be sexist, racist, and homophobic comments. Thus she DID NOT equate ALL criticism of gay marriage with homophobia.
WHAT I THINK SHOULD HAVE HAPPENED
1) I think the McAdams should not have published his attack on a graduate student at all.
2) If he was unable to restrain himself, he should not have published his attack on a graduate student until he had communicated with Abbate, the Chair of the Philosophy Department, the Dean, the Provost, and the President of the university.
3) In the face of McAdams's attack, the MU administration should have quickly issued a public support of Abbate and a public rebuke of McAdams for violating Abbate's reasonable expectation of mentorship rather than attack from a tenured professor.
WHAT I THINK MIGHT HAPPEN
These remarks attempt to consider three factors: 1) the conventional rights of academic freedom of McAdams, 2) the legal rights under Title VII and IX of students and employees of Marquette to be free of hostile work and educational environments, and 3) Marquette’s legal obligations under Title VII and IX to provide such environments.
Given an assumption that university administrations act mostly in terms of risk management — but that their risks are multiple and sometime orthogonal to each other — I wonder what role their estimation of their risk of reprimand relative to their legal obligations under Title VII and IX is playing in their actions. McAdams has an (academic freedom) right to be cantankerous, but he doesn’t have the (legal) right to harass, and MU is obligated to ensure that he doesn't harass with impunity. That’s the crunch point.
Now, should defenders of academic freedom be worried about the wording and case law and OCR guidance around Title VII and IX? Yes, absolutely. (We should be horrified at the Garcetti lineage of cases too!) But I don’t want to throw the baby out with the bath water and junk my legal protections against workplace harassment either. McAdams being clever enough to play the edges doesn’t mean I should have to put up with a stalker.
Will MU’s case pass academic critical muster against McAdams, balancing academic freedom qua (conventional) rights of professors and the (legal) Title VII and IX rights of students and colleagues? We’ll see.
As for the purely legal side of things, as MU is a private university there are no First Amendment implications and so McAdams will have to fight his fight purely as a contract law matter; as much as he can claim academic freedom in the court of public and academic opinion, he can’t claim “free speech” in the FA sense of the term.
Marquette's desire to uphold Catholic values is going to be important: I don’t know if McAdams has the contractual right to act in the way he does AND to be employed at a Jesuit university whose basic value is “care for the person.” It would be ironic indeed if he loses because of religious freedom of the institution to enforce its code of values. (I don’t know what he thinks about the Hobby Lobby and such decisions; I imagine he liked them at the time, but that he might not like it at the end of his trial.)
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