July 9, 2018 – The Wisconsin Supreme Court has ruled (4-2) that a political science professor at Marquette University must be reinstated as a tenured professor and receive damages (including back pay) after he was suspended for a blog he posted in 2014.
The university’s president suspended John McAdams without pay after his blog post criticized a graduate student instructor for prohibiting class discussion on gay rights.
A student had secretly audio recorded the graduate student instructor, Cheryl Abbate, in a one-on-one, post-class conversation after Abbate deleted gay rights from the possible list of class discussion items for a philosophy class on the “theory of ethics.”
In his blog post, McAdams quoted Abbate as saying that “everybody agrees on this” – referring to gay rights – and suggested that class discussion could invite homophobic comments. McAdams characterized Abbate as using a “liberal” tactic to silence people with opposing viewpoints on issues such as gay marriage and gay adoption.
The blog post received national attention from media outlets and Abbate received offensive communications, including those expressing violent thoughts. McAdams’ blog post had contained a link to Abbate’s contact information and her public website.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Abbate filed a formal complaint against McAdams. Ultimately, after review and recommendation by a Faculty Hearing Committee, Marquette University President Michael Lovell suspended McAdams without pay for two semesters.
Lovell, as a condition of reinstatement, also required McAdams to write a letter that would be shared with Abbate acknowledging the post was “reckless and incompatible with the values of Marquette University,” in addition to other acknowledgments.
McAdams declined. Instead, he filed a complaint against Marquette University in Milwaukee County Circuit Court, alleging the school breached his contract, which granted him academic freedom to discuss, teach, and write without censorship.
McAdams requested damages and reinstatement as a tenured faculty member. The circuit court ruled against McAdams, concluding McAdams received due process and the university’s process that led to a final decision was entitled to deference. The Wisconsin Court of Appeals certified the case directly to the state Supreme Court.
And in McAdams v. Marquette University, 2018 WI 88 (July 6, 2018), the Supreme Court reversed (4-2), concluding the disciplinary process was not entitled to any deference and the school breached a contractually protected right of academic freedom.
The majority declined to defer to the university’s disciplinary process because McAdams never agreed to be bound by it, he wasn’t bound by it, and the Supreme Court “recently ended the practice of deferring to an administrative agency’s conclusions of law.”
“The most obvious reason we will not defer to the University is simply that the parties never agreed that its internal Discipline Procedure would either replace or limit the adjudication of their contract dispute in our courts,” wrote Justice Daniel Kelly.
Justice Kelly noted that the parties could have agreed to go through arbitration to resolve disciplinary matters but did not.
“Our exhaustive review of the Faculty Statutes reveals no indication that the University and Dr. McAdams agreed the Discipline Procedure would supplant the courts or limit their review of a contractual dispute,” Justice Kelly continued.
The majority also pointed to Faculty Statute provisions that recognized or suggested that suspension and dismissal decisions were still subject to litigation, and said the Faculty Hearing Committee (FHC) that recommended McAdams be suspended was not impartial, which undermined the finality of the decision to recommend suspension.
One of the FHC members had published a letter, in the Marquette Tribune, that the blog post was deplorable and harmed Abbate’s personal and academic reputation, among other things. The FHC member, Dr. Lynn Turner, was not required to recuse herself from the matter, even though the Faculty Handbook says “impartiality” is cause for recusal.
“She publicly inserted herself into the dispute and expressed a personal interest in its outcome,” Kelly wrote. “And she did not just express her opinions in passing – she committed herself to them in writing.”
In doing so, wrote Justice Kelly, Dr. Turner could not change her mind on the matter “without contradicting what she had already said to the entire Marquette University campus.” Because of this, Kelly said the FHC was “unacceptably compromised.”
McAdams Protected by Academic Freedom
Reviewing the matter de novo, with no deference to the FHC or Marquette President Lovell’s ultimate decision, the Supreme Court said McAdams was protected.
McAdams’ tenured faculty position was protected by academic freedom, as outlined in Marquette’s Faculty Handbook, which referenced the American Association of University Professors (AAUP). The AAUP, which filed an amicus brief, said the doctrine of academic freedom comprises teaching, researching, and “extramural comments.”
The parties agreed that the blog post was an extramural comment – one made in a personal and not professional capacity – but disagreed on whether it was protected.
The analytical structure for deciding that question, the majority noted, contemplates a two-step process “in which the first determines whether the comment itself demonstrates the faculty member is clearly unfit to serve.”
“If the comment meets the standard, the second part of the analysis considers the broader context of the faculty member’s complete record before deciding whether the extramural comment is protected by the doctrine of academic freedom,” Kelly wrote.
The majority said the FHC employed the correct framework to decide the matter but employed it incorrectly. That is, the University went beyond what the inquiry requires.
“The University’s analysis did not begin with an inquiry into whether the blog post, on its face, is so egregious that it clearly demonstrates that Dr. McAdams is unfit to serve as a professor,” wrote Kelly. Instead, the University used the blog post “as a key to open a door onto a broad vista of considerations,” including the school’s mission, Kelly noted.
“If we adopted the alternative structure now favored by the University, academic freedom would be nothing but a subjective, post-hoc analysis of what the institution might find unacceptable after watching how events unfolded,” Justice Kelly wrote.
He also said it was an error for the University to place weight on third-party reactions to the blog post, directed at Abbate, outside of what McAdams actually wrote.
“The undisputed facts show that none of the aspects of the blog post with which the University is concerned could have violated Dr. McAdams’ responsibility to Instructor Abbate,” Justice Kelly wrote in a 63-page opinion. “Just because vile commentary followed the blog post does not mean the blog post instigated or invited the vileness.”
The majority concluded that tenured faculty at Marquette University can only be disciplined “for cause,” and there was no cause to discipline McAdams. His blog post was protected by the doctrine of academic freedom, the majority explained.
Concurrences and Dissent
Justice Rebecca Bradley joined the majority in full but wrote a separate, 22-page concurrence to discuss, more broadly, the doctrine of academic freedom.
“[A]cademic freedom, and concomitantly, free speech, is increasingly imperiled in America and within the microcosm of the college campus,” Justice R. Bradley wrote.
“A broader discussion of the significance and meaning of academic freedom will benefit universities who contractually extend academic freedom to professors, as Marquette did, as well as courts across the nation tackling these issues.”
Justice Daniel Kelly wrote a concurrence to address more fully how the FHC was compositionally biased and how the Discipline Procedure was structurally biased.
“The FHC cannot be considered impartial because, even though it was hearing the case, it was also one of the contending parties: The FHC is the University inasmuch as it is composed entirely of University employees,” Justice Kelly wrote.
Justice Ann Walsh Bradley wrote a 24-page dissent, joined by Justice Shirley Abrahamson, concluding that “neither academic freedom nor the First Amendment saves McAdams from the consequences of his reckless action.”
The dissenters said the majority conducted its analysis with a “selective view of the facts,” and erred “in conducting only half of the academic freedom analysis.”
“[The majority] fails to recognize, much less analyze, the academic freedom of Marquette as a private, Catholic, Jesuit university,” Justice A.W. Bradley wrote.
“As a result, it dilutes a private educational institution’s autonomy to make its own academic decisions in fulfillment of its unique mission.”