John McAdams v. Marquette University

2018 WI 88
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1240
COMPLETE TITLE: John McAdams,
Plaintiff-Appellant,
v.
Marquette University,
Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David A. Hansher
JUSTICES:
CONCURRED: R.G. BRADLEY, J., concurs (opinion filed).
KELLY, J., concurs, joined by R.G. BRADLEY, J.
(opinion filed).
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
NOT PARTICIPATING: ZIEGLER, J., did not participate.
ATTORNEYS:
For the plaintiff-appellant, there were briefs (in the
court of appeals) by Richard M. Esenberg, Brian McGrath, Clyde
Taylor, Thomas C. Kamenick, and Wisconsin Institute for Law &
Liberty, Milwaukee. There was an oral argument by Richard M.
Esenberg.
For the defendant-respondent, there was a brief (in the
court of appeals) by Stephen T. Trigg, Ralph A. Weber, and Gass
Weber Mullins LLC, Milwaukee. There was an oral argument by
Ralph A. Weber.
An amicus curiae brief was filed on behalf of Law and
University Professors and Academics by Bernardo Cueto and Great
Lakes Justice Center, La Crosse, with whom on the brief were
Erin Elizabeth Mersino and Great Lakes Justice Center, Lansing,
Michigan.
An amicus curiae brief was filed on behalf of Association
of Jesuit Colleges and Universities by Thomas L. Shriner, Jr.,
Aaron R. Wegrzyn, and Foley & Lardner LLP, Milwaukee.
An amicus curiae brief was filed on behalf of the State of
Wisconsin by Ryan J. Walsh, chief deputy solicitor general, with
whom on the brief were Brad D. Schimel, attorney general, and
Amy C. Miller, assistant solicitor general.
An amicus curiae brief was filed on behalf of American
Association of University Professors by Frederick Perillo and
The Previant Law Firm, S.C., Milwaukee, with whom on the brief
were Risa L. Lieberwitz and American Association of University
Professors, and Aaron M. Nisenson, Nancy A. Long, and American
Association of University Professors, Washington, D.C.
An amicus curiae brief was filed on behalf of Metropolitan
Milwaukee Association of Commerce by Michael B. Apfeld and
Godfrey & Kahn, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of Thomas More
Society by Andrew Bath, Esq. and Thomas More Society, Chicago,
Illinois.
An amicus curiae brief was filed on behalf of The National
Association of Scholars, Edward J. Erler, Duke Pesta, and Mark
Zunac by James R. Troupis and Troupis Law Office, Cross Plains,
2
with whom on the brief was Kenneth Chesebro, Cambridge,
Massachusetts.
An amicus curiae brief was filed on behalf of the Wisconsin
Association of Independent Colleges and Universities by Andrew
A. Hitt, Michelle L. Dama, and Michael Best & Friedrich LLP,
Madison.
An amicus curiae brief was filed on behalf of National
Association of Manufacturers by Bryan J. Cahill, Michael B.
Apfeld, and Godfrey & Kahn, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of University
Academic Senate of Marquette University by Amy L. MacArdy and
Reinhart Boerner Van Deuren S.C., Milwaukee.
3
2018 WI 88
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1240
(L.C. No. 2016CV3396)
STATE OF WISCONSIN : IN SUPREME COURT
John McAdams,
Plaintiff-Appellant, FILED
v. JUL 6, 2018
Marquette University, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
APPEAL from a judgment and an order of the Circuit Court
for Milwaukee County, David A. Hansher, Judge. Reversed and
remanded.
¶1 DANIEL KELLY, J. Marquette University suspended a
tenured faculty member because of a blog post criticizing an
encounter between an instructor and a student. Dr. John McAdams
took exception to his suspension, and brought a claim against
the University for breach of contract. He asserts that the
contract guarantees to him the right to be free of disciplinary
repercussions for engaging in activity protected by either the
doctrine of academic freedom or the United States Constitution.
The University denies Dr. McAdams' right to litigate his breach
No. 2017AP1240
of contract claim in our courts. Instead, it says, we must
defer to its procedure for suspending and dismissing tenured
faculty members. It claims we may not question its decision so
long as it did not abuse its discretion, infringe any
constitutional rights, act in bad faith, or engage in fraud.
¶2 The University is mistaken. We may question, and we
do not defer. The University's internal dispute resolution
process is not a substitute for Dr. McAdams' right to sue in our
courts. The University's internal process may serve it well as
an informal means of resolving disputes, but as a replacement
for litigation in our courts, it is structurally flawed.
¶3 The undisputed facts show that the University breached
its contract with Dr. McAdams when it suspended him for engaging
in activity protected by the contract's guarantee of academic
freedom. Therefore, we reverse the circuit court and remand
this cause with instructions to enter judgment in favor of Dr.
McAdams, conduct further proceedings to determine damages (which
shall include back pay), and order the University to immediately
reinstate Dr. McAdams with unimpaired rank, tenure,
compensation, and benefits, as required by § 307.09 of the
University's Statutes on Faculty Appointment, Promotion and
Tenure (the "Faculty Statutes").1
This case is before us on bypass of the court of appeals
1
pursuant to Wis. Stat. § (Rule) 809.60 (2015-16). We are
reviewing an order of the Milwaukee County Circuit Court, the
Honorable David A. Hansher presiding, that denied Dr. McAdams'
motion for summary judgment and granted the University's cross-
motion for summary judgment.
2
No. 2017AP1240
I. FACTUAL BACKGROUND
A. Dr. McAdams' Contract with the University
¶4 Dr. McAdams has been a professor of political science
at Marquette University since 1977; he received tenure in 1989.
His most recent contract is evidenced by an appointment letter
dated March 1, 2014. It incorporates, and is therefore subject
to, the University's Faculty Statutes, the Faculty Handbook, and
the other documents identified in the agreement:
This appointment/contract is subject to the
University's statutes on Faculty Appointment,
Promotion and Tenure [the Faculty Statutes]. As a
Marquette faculty member, you agree to comply with
applicable Marquette academic and business policies,
including those found in the Faculty Handbook,
University Policies and Procedures (UPP) and the
Marquette University Intellectual Property Policy.[2]
When we refer to the "Contract" in this opinion, we mean the
appointment letter of March 1, 2014, along with all the
authorities it incorporates.
¶5 "Tenure" at the University means:
[A] faculty status that fosters an environment of free
inquiry without regard for the need to be considered
for reappointment. Tenure is reserved for Regular
Faculty who are recognized by the University as having
the capacity to make unique, significant, and long-
term future contributions to the educational mission
of the University. Tenure is not a reward for
services performed; it is a contract and property
right granted in accordance with this Chapter[.]
2
The Faculty Statutes and the Faculty Handbook constitute
the equivalent of contract provisions. See Little Chute Area
Sch. Dist. v. Wis. Educ. Ass'n Council, 2017 WI App 11, ¶31, 373
Wis. 2d 668, 892 N.W.2d 312 ("The parties may agree to
incorporate another document by reference, . . . .").
3
No. 2017AP1240
Faculty Statute § 304.02. Tenured faculty are entitled to
yearly reappointment:
Excepting cases of intervening termination for
cause and cases of leave of absence or retirement as
provided below, every tenured member of the Regular
Faculty will be tendered notification of compensation,
and every non-tenured member of the Regular Faculty
not otherwise notified as provided in Section 304.07,
will be tendered an annual reappointment, at a rank
and compensation not less favorable than those which
the faculty member then enjoys, . . . .
Faculty Statute § 304.09; see also § 304.07 ("Unless tenured, no
faculty member is entitled to reappointment.").
¶6 The Faculty Statutes forbid the suspension or
dismissal of a faculty member without cause: "The cognizant
appointing authority of the University may initiate and execute
procedures by which a faculty member's reappointment may be
denied or revoked, or any current appointment may be suspended
or terminated, for cause as defined therein." Faculty Statute
§ 306.01.
B. The Incident
¶7 On November 9, 2014, Dr. McAdams published a post on
his personal blog, the Marquette Warrior, in which he criticized
a philosophy instructor, Cheryl Abbate, for her interchange with
a student attending her Theory of Ethics class.3 Dr. McAdams'
3
Before he published the post, Dr. McAdams contacted
Instructor Abbate for comment. She refused. In emailed
conversations with others, she explained that she believed he
contacted her "so it would look like he 'got both sides.'" She
said she believed Dr. McAdams is a "flaming bigot, sexist, and
homophobic idiot," who "wants to insert his ugly face into my
class business to try to scare me into silence."
4
No. 2017AP1240
blog post said that, after Instructor Abbate listed a number of
issues on the board, including "gay rights," she "airily said
that 'everybody agrees on this, and there is no need to discuss
it.'" One of the students approached Instructor Abbate after
class and said that the issue of gay rights should have been
open for discussion. The blog post says Instructor Abbate
replied that "some opinions are not appropriate, such as racist
opinions, sexist opinions," that "you don't have a right in this
class to make homophobic comments," that she would "take
offense" if a student opposed women serving in certain roles,
that a homosexual individual would take similar offense if a
student opposed gay marriage, and that "[i]n this class,
homophobic comments, racist comments, will not be tolerated."
The blog post says Instructor Abbate "then invited the student
to drop the class." Dr. McAdams commented that Instructor
Abbate employed "a tactic typical among liberals now," namely
that "[o]pinions with which they disagree are not merely wrong,
and are not to be argued against on their merits, but are deemed
'offensive' and need to be shut up." Dr. McAdams then quoted
Charles Krauthammer for the proposition that "[t]he proper word
for that attitude is totalitarian." Finally, the blog post
contained a clickable link to Instructor Abbate's contact
information and to her own, publicly-available website.4
¶8 Two days later, after having received an email
criticizing her conduct in this incident, Instructor Abbate
4
The entire text of the blog post appears in the attached
exhibit.
5
No. 2017AP1240
filed a formal complaint against Dr. McAdams with the
University. The incident came to national attention after other
media outlets picked up the story from Dr. McAdams' blog post.
Instructor Abbate subsequently received some strongly-worded and
offensive communications (emails, blog comments, and letters)
from third parties, including some that expressed violent
thoughts. Almost all of the feedback occurred after the story
spread beyond Dr. McAdams' blog post.
¶9 By letter dated December 16, 2014, Dean Richard Holz
suspended Dr. McAdams (with pay), but identified no reason for
doing so. Dean Holz's follow-up letter of January 30, 2015,
identified the blog post of November 9, 2014, as the
justification for the suspension. It also stated the post
violated Faculty Statute § 306.03, and that, therefore, the
University intended to revoke his tenure and terminate his
employment because his "conduct clearly and substantially fails
to meet the standards of personal and professional excellence
that generally characterizes University faculties."
¶10 The process for suspending or dismissing a tenured
faculty member appears in chapters 306 and 307 of the Faculty
Statutes (the "Discipline Procedure"). On August 14, 2015, the
University notified Dr. McAdams that, pursuant to the Discipline
Procedure's requirements, the Faculty Hearing Committee (the
"FHC") would convene to consider his case. The FHC is an
advisory body whose membership consists solely of University
faculty members. The FHC described its charge in this case as
follows:
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No. 2017AP1240
Under both the Faculty Statutes and the Statutes
for the University Academic Senate, the FHC acts as an
advisory body in contested cases of appointment non-
renewal, or for suspension or termination of tenured
faculty for absolute or discretionary cause. Its
advice is presented to the President. The specific
charge of the Committee in such cases is to convene a
hearing "to determine the existence of cause" as
defined in Sections 306.02 and .03 of the Faculty
Statutes, "and to make findings of fact and
conclusions." Those conclusions may, if the Committee
finds it is warranted by the evidence, contain a
recommendation "that an academic penalty less than
dismissal" be imposed.
(Footnotes omitted.)
¶11 One of the FHC's members, Dr. Lynn Turner, publicly
expressed her opinion of Dr. McAdams, his blog post, and
Instructor Abbate, prior to her appointment. She, along with
several of her colleagues, signed an open letter published in
the Marquette Tribune. The letter says, in relevant part:
The following department chairs in the Klingler
College of Arts & Sciences deplore the recent
treatment of a philosophy graduate student instructor
by political science professor John McAdams on his
Marquette Warrior blog. We support Ms. Abbate and
deeply regret that she has experienced harassment and
intimidation as a direct result of McAdams's actions.
McAdams's actions——which have been reported in local
and national media outlets——have harmed the personal
reputation of a young scholar as well as the academic
reputation of Marquette University. They have
negatively affected campus climate, especially as it
relates to gender and sexual orientation. And they
have led members of the Marquette community to alter
their behavior out of fear of becoming the subject of
one of his attacks.
Perhaps worst of all, McAdams has betrayed his
role as a faculty member by pitting one set of
students against another, by claiming the protection
of academic freedom while trying to deny it to others,
and by exploiting current political issues to promote
his personal agenda. This is clearly in violation
7
No. 2017AP1240
of . . . the Academic Freedom section of Marquette's
Faculty Handbook[.]
. . . .
McAdams . . . has failed to meet the standards we
aspire to as faculty, as well as the broader ethical
principles that guide Marquette's mission as a Jesuit,
Catholic institution.
¶12 Dr. McAdams requested that Dr. Turner recuse herself
from the FHC's work because the letter created the appearance of
bias against him. The FHC unanimously rejected the request,
stating that the letter evidenced no disqualifying bias because,
inter alia, her comments did not bear on the issues the
committee would decide. In any event, the FHC said, this cannot
be a disqualifying factor because "every single one of the
committee members present at our last meeting admit to having
formed a prior positive or negative opinion of the propriety of
Dr. McAdams's Nov. 9, 2014 blog post." The FHC said it would be
unable to do its work if its membership were limited to those
who had not already formed an opinion about the subject matter
of Dr. McAdams' case.
¶13 Over the course of four days, the FHC received
documentary and testimonial evidence from the University and Dr.
McAdams. After completing its work, the FHC forwarded its
report, titled "In the Matter of the Contested Dismissal of Dr.
John C. McAdams" and dated January 18, 2016 (the "Report"), to
the University's President, Michael Lovell. The Report
concludes as follows:
The Committee [the FHC] therefore concludes that
discretionary cause under FS [Faculty Statute]
§ 306.03 has been established, but only to the degree
necessary to support a penalty of suspension. The
8
No. 2017AP1240
Committee concludes that the University has
established neither a sufficiently egregious failure
to meet professional standards nor a sufficiently
grave lack of fitness to justify the sanction of
dismissal. Instead, the Committee concludes that only
a lesser penalty than dismissal is warranted. The
Committee thus recommends that Dr. McAdams be
suspended, without pay but with benefits, for a period
of no less than one but no more than two semesters.
In keeping with its role as an advisory body, the Report made
only a recommendation to President Lovell: "For the reasons
stated above, the Committee recommends that the University
suspend Dr. McAdams, without pay but with benefits, for a period
of one to two semesters."
¶14 By letter of March 24, 2016 (the "Discipline Letter"),
President Lovell informed Dr. McAdams that, after "carefully
reviewing [the FHC's] report along with the transcriptions of
your formal hearing last September," he had "decided to accept
your fellow faculty members' recommendation to suspend you
without pay." The suspension became effective April 1, 2016,
and was to continue until the end of the fall 2016 semester.
President Lovell——on his own initiative——added an additional
term to the FHC's recommended sanction. He informed Dr. McAdams
that his resumption of duties (and pay) would be "conditioned
upon you delivering a written statement to the President's
Office by April 4, 2016," which would be shared with Instructor
Abbate, and which must contain the following:
• Your acknowledgement and acceptance of the
unanimous judgment of the peers who served on the
Faculty Hearing Committee.
• Your affirmation and commitment that your future
actions and behavior will adhere to the standards
of higher education as defined in the Marquette
9
No. 2017AP1240
University Faculty Handbook, Mission Statement and
Guiding Values.
• Your acknowledgement that your November 9, 2014,
blog post was reckless and incompatible with the
mission and values of Marquette University and you
express deep regret for the harm suffered by our
former graduate student and instructor, Ms. Abbate.
Dr. McAdams refused to write the required letter.
II. PROCEDURAL HISTORY
¶15 On May 2, 2016, Dr. McAdams filed a complaint against
the University in the Milwaukee County Circuit Court, asserting
(inter alia) that the University breached his Contract by
suspending and then dismissing him.5 He demanded damages, an
injunction requiring reinstatement as a tenured member of the
Marquette faculty, and costs and attorneys' fees. Both parties
5
Dr. McAdams' complaint contained six counts, which (in
summary form) claimed the following:
(1) The University breached the Contract when it
suspended him without cause on December 16, 2014;
(2) The University breached the Contract when it
suspended him without cause and without pay on April
1, 2016;
(3) The University breached the Contract when it
failed to tender reappointment contracts for the 2015-
16 and 2016-17 academic years;
(4) The University breached the Contract by
conditioning his reinstatement to the faculty on
submission of a letter accepting the FHC's judgment
and expressing regret for his actions;
(5) The University breached his due process rights as
guaranteed by the Contract; and
(6) The University breached the Contract's implied
covenant of good faith and fair dealing.
10
No. 2017AP1240
eventually moved for summary judgment. On May 4, 2017, the
circuit court issued a decision and order granting summary
judgment in favor of the University and dismissing Dr. McAdams'
complaint with prejudice.6
¶16 The circuit court concluded it must defer to the
University's resolution of Dr. McAdams' claims: "[T]he Court
finds the following: (1) The FHC Report deserves deference;
(2) The [suspension] letter from President Lovell deserves
deference; . . . ." McAdams v. Marquette Univ., No. 2016CV3396,
Order for Summary Judgment, 7 (Cir. Ct. for Milwaukee Cty. May
4, 2017). It said it must defer because "public policy compels
a constraint on the judiciary with respect to Marquette's
academic decision-making and governance," out of a recognition
that "[p]rofessionalism and fitness in the context of a
university professor are difficult if not impossible issues for
a jury to assess." Id. at 11.
¶17 The circuit court also concluded that the University's
internal dispute resolution process afforded Dr. McAdams
sufficient "due process": "[T]he Court finds the
following: . . . (3) Dr. McAdams was afforded due process that
he was entitled to during the FHC hearing; . . . ." Id. at 7.
It explained that "Dr. McAdams expressly agreed as a condition
of his employment to abide by the disciplinary procedure set
forth in the Faculty Statutes," procedures that the court said
6
The Honorable David A. Hansher presided at the summary
judgment hearing, authored the summary judgment decision and
order, and issued the judgment.
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No. 2017AP1240
afforded "Dr. McAdams . . . a detailed, quasi-judicial process
which gave him an adequate opportunity to meaningfully voice his
concerns." Id. at 11.
¶18 We accepted Dr. McAdams' petition to bypass the court
of appeals and now reverse the circuit court's judgment.
12
No. 2017AP1240
III. STANDARD OF REVIEW
¶19 We review the disposition of a motion for summary
judgment de novo, applying the same methodology the circuit
courts apply. Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc.
v. Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785
N.W.2d 615 ("We review the grant of a motion for summary
judgment de novo, . . . ."). First, we "examine the pleadings
to determine whether a claim for relief has been stated." Green
Spring Farms, 136 Wis. 2d at 315. Then, "[i]f a claim for
relief has been stated, the inquiry . . . shifts to whether any
factual issues exist." Id. Summary judgment is appropriate
only "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." Wis. Stat. § 802.08(2) (2015-16)7; see also Columbia
Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70,
661 N.W.2d 776 (citing § 802.08(2) (2001-02)).
¶20 The only dispute before us is the proper
interpretation of a contract. This presents a question of law,
which we review de novo. Deminsky v. Arlington Plastics Mach.,
2003 WI 15, ¶15, 259 Wis. 2d 587, 657 N.W.2d 411
("Interpretation of a contract is a question of law which this
court reviews de novo.").
7
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
13
No. 2017AP1240
IV. DISCUSSION
¶21 Before we reach the merits of Dr. McAdams' complaint,
we must explain why we do not defer, as the circuit court did,
to the results of the University's internal Discipline
Procedure. We will then address Dr. McAdams' claim that the
University breached his Contract.
A. Deference to the University
¶22 The circuit court deferred to the University's
conclusion that it had not breached the Contract for three
reasons. First, it said Dr. McAdams agreed to be bound by the
University's Discipline Procedure. McAdams, No. 2016CV3396,
Order for Summary Judgment, 11. Second, it analogized the
Discipline Procedure to an arbitration and concluded that it
must afford the results of the University's process the same
deference we give to arbitration awards. See id. at 13-14. And
third, it said it should defer to the University for the same
reasons we have historically given either "great weight" or "due
weight" deference to administrative agency decisions.8 See id.
at 11-13. For the reasons we discuss below, we will not defer
to the University on any of these bases. And neither the
circuit court nor the University has offered any other ground
upon which we could conclude that Dr. McAdams' right to litigate
his contract claim in our courts is either foreclosed or
limited.
8
See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659–60,
539 N.W.2d 98 (1995), overruled by Tetra Tech EC, Inc. v. DOR,
2018 WI 75, ¶¶82-84, ___ Wis. 2d ___, ___ N.W.2d ___.
14
No. 2017AP1240
¶23 We begin with the proposition that "litigants must be
given their day in court. Access to the courts is an essential
ingredient of the constitutional guarantee of due process."
Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353 (1992); see
also Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ("A
fundamental requirement of due process is 'the opportunity to be
heard.' It is an opportunity which must be granted at a
meaningful time and in a meaningful manner." (citation
omitted)); see also State ex rel. Universal Processing Servs. of
Wis., LLC v. Circuit Court of Milwaukee Cty., 2017 WI 26, ¶5,
374 Wis. 2d 26, 892 N.W.2d 267 ("The Wisconsin Constitution
requires the state to provide a judicial system for the
resolution of disputes. Access to state courts for conflict
resolution is thus implicit in the state constitution.");
Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565
N.W.2d 521 (1997) ("The right of access to the courts is secured
by the First and Fourteenth Amendment[s]. It entitles the
individual to a fair opportunity to present his or her claim.
Such a right exists where the claim has a 'reasonable basis in
fact or law.' Judicial access must be 'adequate, effective, and
meaningful.'" (footnote and citations omitted) (quoted sources
omitted)).
15
No. 2017AP1240
¶24 The scope of judicial review is, however, subject to
statutory and judicially-developed limitations.9 And, of course,
parties may choose to have their disputes resolved through
extra-judicial means, thereby confining the judiciary's review
to a very limited role.10 We conclude that none of these
substitutionary or limiting principles apply to Dr. McAdams'
contract dispute with the University.11
9
See, e.g., Wis. Stat. § 227.57 (describing scope of
judicial review afforded to administrative agency decisions);
Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796
N.W.2d 411 (describing the court's common-law certiorari review
as limited to: "(1) whether the municipality [or administrative
agency or inferior tribunal] kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law; (3) whether
its action was arbitrary, oppressive, or unreasonable and
represented its will and not its judgment; and (4) whether the
evidence was such that it might reasonably make the order or
determination in question").
10
See, e.g., Wis. Stat. § 788.10(1)(a)-(d) (limiting
judicial review of arbitration awards to circumstances
"(a) [w]here the award was procured by corruption, fraud or
undue means; (b) [w]here there was evident partiality or
corruption on the part of the arbitrators, or either of them;
(c) [w]here the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause shown,
or in refusing to hear evidence pertinent and material to the
controversy; or of any other misbehavior by which the rights of
any party have been prejudiced; [or] (d) [w]here the arbitrators
exceeded their powers, or so imperfectly executed them that a
mutual, final and definite award upon the subject matter
submitted was not made"); Joint Sch. Dist. No. 10, Jefferson v.
Jefferson Educ. Ass'n, 78 Wis. 2d 94, 116, 253 N.W.2d 536 (1977)
("Under common law rulings, an award may be set aside for fraud
or partiality or gross mistake by the arbitrator; fraud or
misconduct by the parties affecting the result; or want of
jurisdiction in the arbitrator.").
11
Neither the University nor the circuit court identified
any statutory limitations on the scope of judicial review
available in this case, and so we do not address any here.
16
No. 2017AP1240
1. Contractual Limitations on Judicial Review
¶25 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. They
certainly could have agreed to an extra-judicial resolution of
their contract dispute. This is a common feature in society
today and is accomplished most often through an arbitration
agreement. "[A]rbitration is a matter of contract[,] and a
party cannot be required to submit to arbitration any dispute
which he has not agreed to submit." Joint Sch. Dist. No. 10,
Jefferson v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 101, 253
N.W.2d 536 (1977) (internal quotation mark omitted) (quoting
United Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582 (1960)); see also Dane Cty. v. Dane Cty. Union
Local 65, AFSCME, AFL-CIO, 210 Wis. 2d 267, 278–79, 565
N.W.2d 540 (Ct. App. 1997) (Arbitration "is an informal process,
where the parties have bargained to have a decision maker who is
not restricted by the formalistic rules that govern courtroom
proceedings."). It is true, as the University argues, that Dr.
McAdams agreed he would submit to the University's Discipline
Procedure when he accepted the Contract. But the Discipline
Procedure does not describe an arbitration-style agreement.
¶26 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
17
No. 2017AP1240
review of a contractual dispute.12 Two of the Faculty Statutes
acknowledge Dr. McAdams' right to seek judicial adjudication of
his claims. The first describes the right negatively by
demarcating a period of time in which the parties agree not to
litigate:
So long as the periodic compensation and benefits
provided by the faculty member's appointment are both
continued, and during such further periods of
negotiation, mediation, hearing, or review as the
parties may mutually stipulate, both parties shall
diligently continue in good faith to attempt a
mutually-acceptable resolution of the issues between
them by one or more of the procedures described in the
three preceding sections, and neither shall, during
such period, resort to or encourage litigation,
demonstration, or tactics of duress, embarrassment, or
censure against the other; provided that this
paragraph shall not be construed so as to require the
University to continue the faculty member's duty
assignment during such period.
Faculty Statute § 307.08 (emphasis added). That period had
elapsed by the time Dr. McAdams filed his suit because his pay
had been terminated and the Discipline Procedure had concluded.
As an integrated part of the Contract, we interpret the
12
Faculty Statutes as we would any other contract provision.
Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶22, 270
Wis. 2d 1, 676 N.W.2d 426 ("The primary goal in contract
interpretation is to give effect to the parties' intentions. We
ascertain the parties' intentions by looking to the language of
the contract itself." (citation omitted)); see also Tufail v.
Midwest Hosp., LLC, 2013 WI 62, ¶28, 348 Wis. 2d 631, 833
N.W.2d 586 (stating that courts construe contract language
"according to its plain or ordinary meaning, . . . consistent
with 'what a reasonable person would understand the words to
mean under the circumstances'" (internal citation omitted)
(quoted source omitted)).
18
No. 2017AP1240
So this provision recognizes Dr. McAdams' right to bring his
claim to court.
¶27 The Faculty Statutes also contain an explicit,
positively-stated recognition of Dr. McAdams' right to litigate:
To the extent that none of the foregoing
procedures produces a resolution of the issues arising
out of a timely objection to a faculty member's non-
renewal, suspension, or termination, at or prior to
the time specified in the preceding paragraph, the
University shall, for a period of six months
thereafter, or until the final determination of any
judicial action which may be commenced within such
period to test the validity of the non-renewal,
suspension, or termination, hold itself ready to
reinstate the faculty member, with unimpaired rank,
tenure, compensation, and benefits, to the extent that
the faculty member's entitlement thereto may be
judicially adjudged or decreed, or conceded by the
University in such interval.
Faculty Statute § 307.09 (emphasis added). This provision
unambiguously recognizes that the University's suspension and
dismissal decisions are subject to litigation in our courts. It
was with good reason that the University conceded, during oral
arguments, that it had no express agreement with Dr. McAdams
that the Discipline Procedure would preclude his right to
litigate his cause here.
¶28 The University and Dr. McAdams could have agreed that
the court would defer to the Report and Discipline Letter in the
same way we defer to arbitration decisions. They could have
done that, but they did not. They did the opposite: The
University agreed it would defer to the court's adjudication of
Dr. McAdams' right to reinstatement.
19
No. 2017AP1240
¶29 The Faculty Statutes' description of our role does not
resemble the method by which we review arbitration awards. When
we review a party's challenge to such a decision, we focus on
the process that produced the award: "[T]he court will not
overturn the arbitrator's decision for mere errors of law or
fact, but only when 'perverse misconstruction or positive
misconduct [is] plainly established, or if there is a manifest
disregard of the law, or if the award itself is illegal or
violates strong public policy.'" City of Madison v. Madison
Prof'l Police Officers Ass'n, 144 Wis. 2d 576, 586, 425 N.W.2d 8
(1988) (alteration in original) (quoted source omitted). We
will confirm arbitration awards even when they are incorrect:
"Because arbitration is what the parties have contracted for,
the parties get the arbitrator's award, whether that award is
correct or incorrect as a matter of fact or of law." Id.
¶30 The Faculty Statutes do not contemplate this type of
review. They actually anticipate that the court will reach the
merits of Dr. McAdams' claim. The purpose of the "judicial
action" identified in Faculty Statute § 307.09 is to "test the
validity" of the suspension. It is not to test the process that
led to the suspension; it is instead to determine whether there
was a legitimate basis for it. This is a question of merit, not
procedure.
¶31 The University makes this understanding even more
explicit by pledging to "hold itself ready to reinstate" the
faculty member "to the extent that the faculty member's
entitlement thereto may be judicially adjudged or decreed."
20
No. 2017AP1240
Faculty Statute § 307.09. This is not evocative of an
arbitration-style review, which would exhaust itself upon
declaring the decision is either defective or sound. A
declaration that a faculty member is entitled to reinstatement
is a substantive evaluation of the underlying dispute's merits.
Thus, the Faculty Statutes acknowledge that the court will
conduct an unabridged inquiry into the parties' compliance with
their contractual obligations, not an arbitration-style review.
¶32 Therefore, the circuit court erred when it concluded
it must defer to the University because "Dr. McAdams expressly
agreed as a condition of his employment to abide by the
disciplinary procedure set forth in the Faculty Statutes,
incorporated by reference into his contract." See McAdams, No.
2016CV3396, Order for Summary Judgment, 11. The circuit court's
analysis ended prematurely because it failed to even mention the
Faculty Statutes that describe the relationship between the
University's Discipline Procedure and Dr. McAdams' right to
bring the dispute to court.
¶33 We conclude that the Contract's plain meaning is that
the parties did not agree that the Discipline Procedure would
substitute for, or limit, Dr. McAdams' right to litigate in our
courts. This cannot end our analysis, however, because the
circuit court deferred to the University on the additional
ground that the Discipline Procedure is analogous to an arbitral
proceeding. It concluded that the Report and Discipline Letter
are entitled to the same deference we afford to arbitration
awards, see id. at 13-14, even if there was no agreement that
21
No. 2017AP1240
the Discipline Procedure would authoritatively resolve their
dispute.
2. The Discipline Procedure's Fundamental Procedural Flaws
¶34 The Report and Discipline Letter are not entitled to
deference as something comparable to an arbitration award. The
Discipline Procedure is an intricate, thorough, and extensive
process. Indeed, at least superficially, it closely resembles a
judicial proceeding. In light of the 123-page Report the FHC
produced, the process obviously consumed a great deal of several
faculty members' attention and valuable time. But all of this
cannot make up for the unacceptable bias with which the FHC was
infected, or the FHC's lack of authority to bind the parties to
its decision. Although these shortcomings are enough to
convince us that we must not defer to the Discipline Procedure's
results, there is an even greater shortcoming at the heart of
the process: The Discipline Procedure has nothing to say about
how the actual decision-maker is to decide the case. The
Faculty Statutes recognize that, at Marquette University, the
authority to suspend or dismiss tenured faculty members rests
exclusively with the president, and that his exercise of
discretion is subject to no procedural requirements or
limitations. There is no process here to which we can defer.
We will address each of these defects in turn.
*
¶35 The FHC, to which the Faculty Statutes commit the
responsibility for conducting the Discipline Procedure, was not
an impartial tribunal. But it is the only entity authorized by
22
No. 2017AP1240
the Discipline Procedure to hear testimony from the contesting
parties. "[T]he Faculty Hearing Committee (hereinafter the FHC)
serves as the advisory body in cases of contested appointment
non-renewal, and suspension or termination (hereinafter
dismissal) of a tenured faculty member for absolute or
discretionary cause." Faculty Statute § 307.07(1). The FHC is
"composed of seven tenured faculty members elected by the
faculty as a whole under the supervision of the Committee on
Committees and Elections." § 307.07(6).
¶36 The FHC holds hearings at which the faculty member may
participate with assistance of counsel. Faculty Statute
§ 307.07(11), (14). It is the University's responsibility,
through its designee, to present the case against the faculty
member. § 307.07(13) ("The University Administration must
appear at the hearing by a designated representative, and it
must make the initial showing."). The FHC may receive both
documentary and testimonial evidence. § 307.07(10), (15). The
University bears the burden of making its case with "clear and
convincing evidence in the record considered as a whole."
§ 307.07(13).
¶37 Once the FHC has received the parties' evidence and
conducted its deliberations, it issues "findings of fact and
conclusions." Faculty Statute § 307.07(18). If it decides
dismissal is not warranted, "its findings of fact and
conclusions will set forth a recommendation to that effect
together with supporting reasons." See id. Finally, the FHC
23
No. 2017AP1240
conveys its findings of fact and conclusions to the University
president and to the affected faculty member. § 307.07(19).
¶38 The Faculty Statutes describe a procedure and tribunal
that, on their face, are characteristic of an arbitral system.
Confidence in an arbitration's outcome, however, is predicated
on confidence in the arbitrator. That is why we presume parties
intend their arbitrators to be impartial. See Borst v. Allstate
Ins. Co., 2006 WI 70, ¶3, 291 Wis. 2d 361, 717 N.W.2d 42 ("We
adopt a presumption of impartiality among all arbitrators,
whether named by the parties or not."); Nicolet High Sch. Dist.
v. Nicolet Educ. Ass'n, 118 Wis. 2d 707, 712-13, 348 N.W.2d 175
(1984) ("A final and binding arbitration clause signifies that
the parties to a labor contract desire to have certain
contractual disputes determined on the merits by an impartial
decision-maker whose determination the parties agree to accept
as final and binding." (quoting City of Oshkosh v. Oshkosh Pub.
Library Clerical & Maint. Emps. Union Local 796–A, 99
Wis. 2d 95, 103, 299 N.W.2d 210 (1980)); Diversified Mgmt.
Servs., Inc. v. Slotten, 119 Wis. 2d 441, 448, 351 N.W.2d 176
(Ct. App. 1984) ("If parties are to be encouraged to submit
their disputes to arbitration as an alternative to litigation,
they must be assured an impartial tribunal."). Cf. Commonwealth
Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 147 (1968)
(stating that federal statutory "provisions show a desire of
Congress to provide not merely for any arbitration but for an
impartial one"). That is also why, with respect to arbitrations
governed by the Wisconsin Arbitration Act, we will set aside an
24
No. 2017AP1240
award "[w]here there was evident partiality . . . on the part of
the arbitrators." Wis. Stat. § 788.10(1)(b).
¶39 In this case, the FHC's impartiality was compromised
by one of its members. Prior to her appointment to the FHC, Dr.
Lynn Turner made her opinion of Dr. McAdams and his blog post
available for all to see and read. By subscribing her name to
an open letter published in the Marquette Tribune, Dr. Turner:
a. Deplored Dr. McAdams' treatment of Ms. Abbate;
b. Expressed support for Ms. Abbate's position in the
dispute;
c. Asserted that Ms. Abbate had been harassed and
intimidated as a direct result of Dr. McAdams' blog
post;
d. Stated that Dr. McAdams had harmed Ms. Abbate's
personal and academic reputation;
e. Claimed Dr. McAdams had created a negative campus
climate and caused members of the Marquette community to
fear becoming subjects of his attacks;
f. Accused Dr. McAdams of betraying his role as a faculty
member by asserting the protection of academic freedom
and exploiting political issues to further his personal
agenda;
g. Stated that Dr. McAdams' action was a clear violation
of the Academic Freedom section of the Faculty Handbook;
and
h. Concluded that Dr. McAdams had "failed to meet the
standards we aspire to as faculty, as well as the
broader ethical principles that guide Marquette's
mission as a Jesuit, Catholic institution."
¶40 Remarkably, the FHC said this evidenced no
disqualifying bias because she had not commented on anything the
FHC would be considering. The Report Dr. Turner helped produce
25
No. 2017AP1240
says otherwise, as evidenced by the following excerpts (keyed to
the lettered paragraphs above):
a. "[T]he Committee concludes that the University has
established by clear and convincing evidence that Dr.
McAdams's conduct with respect to his November 9, 2014
blog post violated his obligation to fellow members of
the Marquette community by recklessly causing indirect
harm to Ms. Abbate through his conduct, harm that was
substantial, foreseeable, easily avoidable, and not
justifiable."
b. "As the AAUP has feared, Dr. McAdams's use of selective
quotations from Ms. Abbate's classroom and after-class
discussion has resulted in a chilling effect on Ms.
Abbate——indeed she is no longer on the campus to speak
at all."
"Ms. Abbate, who was by all indications a star
graduate student, was unable to focus on preparing her
dissertation topic defense by the end of November."
c. "University spokesperson Brian Dorrington later stated,
in reference to Dr. McAdams's suspension, that '[t]he
university has a policy in which it clearly states
that it does not tolerate harassment . . . .'"
d. "Dr. McAdams has also stated that he does not have an
obligation to protect the reputations of members of
the Marquette community." "Dr. McAdams has stated
that the harm to Ms. Abbate occurred due only to
truthful reporting of facts." "[I]t was 'Abbate's
actions,' not his, 'that caused the problem.'" "Dr.
McAdams does not accept that Ms. Abbate was harmed by
this incident."
e. "The speech of other faculty at Marquette may be
chilled as well as a result of this incident."
"Junior faculty in the Political Science Department
appear to have great anxiety that they may be Dr.
McAdams's next targets . . . ."
f. "If the University presses forward, Dr. McAdams
promises, Marquette will 'become ground zero in the
battle over freedom of expression in academia' and
will be 'the poster child for political correctness on
America's campuses.'"
26
No. 2017AP1240
g. "But academic freedom has its limits, limits that are
slightly more pronounced in the case of extramural
statements, and Dr. McAdams's Nov. 9 blog post
exceeded those limits by recklessly causing harm
indirectly to Ms. Abbate that was substantial,
foreseeable, easily avoidable, and not justified."
e. "The Committee therefore concludes that this conduct
clearly and substantially failed to meet the standard
of personal and professional excellence that generally
characterizes University faculties."
If Dr. Turner did not know she would be addressing matters on
which she had already taken a very public and definite stand,
she should have recused herself once she discovered the
connection.
¶41 The Faculty Handbook says that a "member of . . . the
Faculty Hearing Committee whose impartiality might be
compromised by participating in the processing of the grievance
ought to recuse himself or herself from consideration of the
grievance." Faculty Handbook art. 8.02 (Conflicts of Interest).
Parties to an arbitration agreement may contractually calibrate
the level of bias they find acceptable, and we will generally
27
No. 2017AP1240
accept whatever standard upon which they agree.13 The Faculty
Statutes, however, do not describe the level of disqualifying
bias. But we take notice that the American Arbitration
Association says that an arbitrator should "have no relation to
the underlying dispute or to the parties or their counsel that
may create an appearance of bias," nor should she have any
"personal or financial interest in the results of the
proceeding."14 And when an arbitrator fails to disclose
information that may call his impartiality into question, we
inquire into
13
"The judiciary should minimize its role in arbitration as
judge of the arbitrator's impartiality. That role is best
consigned to the parties, who are the architects of their own
arbitration process, and are far better informed of the
prevailing ethical standards and reputations within their
business." Richco Structures v. Parkside Vill., Inc., 82
Wis. 2d 547, 561, 263 N.W.2d 204 (1978) (quoting Commonwealth
Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 151 (1968)
(White, J., concurring)); see also Richco Structures, 82 Wis. 2d
at 557 ("Because arbitration is a contractual arrangement,
albeit endorsed and implemented by statute, our construction of
'evident partiality' should also be structured to enhance the
parties' opportunity to assess an arbitrator's qualifications
with a minimum of judicial interference."). Cf. Sphere Drake
Ins. Ltd. v. All Am. Life Ins. Co., 307 F.3d 617, 620 (7th Cir.
2002) ("Parties are free to choose for themselves to what
lengths they will go in quest of impartiality. . . . [A]ll
participants may think the expertise-impartiality tradeoff
worthwhile; the [federal] Arbitration Act does not fasten on
every industry the model of the disinterested generalist
judge.").
14
See American Arbitration Association, Employment:
Arbitration Rules and Mediation Procedures 15 (available at
https://www.adr.org/sites/default/files/employment_arbitration_r
ules_and_mediation_procedures_0.pdf) (listing qualifications of
neutral arbitrators).
28
No. 2017AP1240
whether the reasonable person, as a party to the
arbitration proceeding, upon being advised of the
undisclosed matters, would have such doubts regarding
the prospective arbitrator's impartiality that he or
she would investigate further, would demand that the
arbitration be conducted on terms which would provide
checks on the arbitrator's exercise of discretion, or
would take other protective measures to assure an
impartial arbitration and award.
Richco Structures v. Parkside Vill., Inc., 82 Wis. 2d 547, 562,
263 N.W.2d 204 (1978).
¶42 Under any reasonable standard of impartiality, Dr.
Turner would be disqualified. She publicly inserted herself
into the dispute and expressed a personal interest in its
outcome. And she did not just express her opinions on these
matters in passing——she committed herself to them in writing.
Having done so, she could not decide the FHC proceedings in
favor of Dr. McAdams without contradicting what she had already
said to the entire Marquette University campus. These are not
anonymous members of the public to whom she would be admitting
that her initial convictions were mistaken. They are her
professional colleagues and students. The natural human impulse
to resist acknowledging a mistake, especially in light of the
audience to whom she would be making the acknowledgement, is
sufficiently powerful to affect Dr. Turner's consideration of
the dispute. If an arbitrator evidenced this level of bias, we
would set aside the resulting award. The FHC's composition was
unacceptably compromised by Dr. Turner's bias.
*
¶43 The Discipline Procedure is not analogous to an
arbitration proceeding, as the circuit court assumed, for the
29
No. 2017AP1240
further reason that it resulted in mere advice, not in an
authoritative decision. The point of an arbitration is to
produce a final and binding resolution of the parties' dispute.
City of Manitowoc v. Manitowoc Police Dep't, 70 Wis. 2d 1006,
1012, 236 N.W.2d 231 (1975) (stating that "an arbitration award
must finally settle the controversy"); Dundon v. Starin, 19
Wis. 278 (*261), 283-85 (*266-67) (1865) (reversing judgment
because the arbitration award was not "final and definite"); see
also Dane Cty. Union Local 65, AFSCME, AFL-CIO, 210 Wis. 2d at
279 ("Arbitration is also designed to bring an end to
controversy. Employees, unions and employers all rely on the
finality of arbitration decisions in ordering their affairs.").
¶44 The Discipline Procedure, however, is incapable of
producing such a result. The Report says the FHC is just an
advisory body: "Under both the Faculty Statutes and the
Statutes for the University Academic Senate, the FHC acts as an
advisory body in contested cases of appointment non-renewal, or
for suspension or termination of tenured faculty for absolute or
discretionary cause." See Faculty Statute § 307.07(1) ("[T]he
Faculty Hearing Committee . . . serves as the advisory body in
cases of contested appointment non-renewal, and suspension or
termination . . . of a tenured faculty member for absolute or
discretionary cause."). In keeping with the nature of that
body, it issues nothing authoritative. The Report says the end
result of the FHC's work is merely advice: "[The FHC's] advice
is presented to the President." See § 307.07(18) ("If the FHC
concludes that an academic penalty less than dismissal is
30
No. 2017AP1240
warranted by the evidence, its findings of fact and conclusions
will set forth a recommendation to that effect . . . .").
¶45 If we are supposed to defer to the Discipline
Procedure because of its resemblance to an arbitration, the
analogy does not hold up. This process cannot produce one of
its essential hallmarks. We defer to arbitration decisions
because they are authoritative resolutions of the disputes they
address. The Discipline Procedure produced advice, not a
decision. We do not defer to advice.
*
¶46 The FHC's lack of authority leads us to the final
reason we cannot give arbitration-style deference to the
University's decision to suspend Dr. McAdams: There was no
relevant process to which we could defer. In one sense, all of
the time, energy, and resources that went into the Discipline
Procedure and the richly-detailed Report are distractions from
the necessary focus of our analysis. Neither the FHC nor the
Report decided anything. It was President Lovell, not the FHC,
who decided whether Dr. McAdams would be disciplined. It was
President Lovell, not the FHC, who decided the nature of the
discipline that should be imposed. It was President Lovell, not
the FHC, who had the authority to impose the discipline. It was
President Lovell who actually meted out the discipline when he
sent Dr. McAdams the Discipline Letter. And it was President
Lovell who created the conditions on reinstatement that have
kept Dr. McAdams in suspension limbo. Consequently, the
31
No. 2017AP1240
Discipline Letter, not the FHC's Report, is the relevant point
of reference.15
¶47 We assume, for the purpose of this case only, that the
University must engage the Discipline Procedure's mechanisms
before it disciplines a tenured faculty member.16 But as a
matter of process, the Discipline Procedure controls only the
FHC, not the president. To the extent it references the
15
We note that Dean Holz's letter of January 30, 2015,
suggests the University's Board of Trustees may play some role
in the dismissal of a faculty member (it says discipline "shall
become effective at the time of approval by the University's
Board of Trustees"). However, nothing in the Report, the
Faculty Handbook, the Faculty Statutes, the Contract, or any
other authoritative documents in the record indicates that the
Board of Trustees had any role in Dr. McAdams' suspension or
dismissal. Nor does the Discipline Letter, authored by
President Lovell, mention any role for the Board of Trustees.
Indeed, with respect to imposition of the sanctions, the letter
speaks exclusively in the first person, indicating President
Lovell's understanding that disciplinary authority lies
exclusively with him.
16
We offer this caveat because the Discipline Procedure
does not explicitly determine the order of events. For
instance, Faculty Statute § 307.07(1) simply says the FHC is
"the advisory body" with respect to suspension of a tenured
faculty member. It does not say the contest must be submitted
to the FHC, and as discussed above, it has no authority to
resolve the contest anyway. And although Article 4, § 1.01.1(1)
of the Faculty Handbook says the FHC must comply with the
Discipline Procedure, it does not impose a similar requirement
on the president. Perhaps that mandate exists in other
documents governing the University's procedures, but nothing in
the record expressly requires the president to wait until the
FHC completes its work before dismissing a tenured faculty
member. We have not been asked to opine on this question, and
the answer ultimately has no effect on our analysis in this
case; the purpose of this aside is to confirm we are not
deciding the question.
32
No. 2017AP1240
president's role at all, it does nothing but identify him as the
recipient of the FHC's advice.
¶48 The Discipline Procedure is silent with respect to how
the president must proceed after receiving the Report. Nor is
there any separate set of rules, procedures, or standards that
describe what the president must do with the FHC's advice.
Based on the material before us, the president may adopt the
advice in its entirety, reject it out of hand, pick and choose
amongst the findings and conclusions, or add his own. Although
the Discipline Letter indicates President Lovell carefully read
the Report and adopted the FHC's suspension recommendation, the
Discipline Procedure did not require him to do so. Nor is there
any rule, procedure, or standard that forbade his sua sponte
imposition of the additional conditions that resulted in Dr.
McAdams' unending suspension——conditions the FHC had never
considered.
¶49 As a matter of process, therefore, there is a hard
break between the Discipline Procedure and the actual decision
to suspend Dr. McAdams. While the dispute was in the hands of a
body that had no authority to resolve it (the FHC), the case was
subject to the detailed Discipline Procedure. However, once it
reached the actual decision-maker (President Lovell), there were
no procedures to govern the decision-making process. The
Discipline Procedure does not tell President Lovell how to reach
his decision, and nothing in the record before us suggests the
president's decision must have any relationship to the FHC's
work. As far as the Faculty Statutes and Faculty Handbook are
33
No. 2017AP1240
concerned, the president may proceed as if the Report said
nothing but that the FHC had completed the Discipline Procedure.
Consequently, the efficient cause of Dr. McAdams' suspension
without pay was the Discipline Letter, and there is no evidence
that it resulted from any prescribed procedure at all. It was
the product of President Lovell's exercise of unfettered
discretion. Even if we were inclined to defer to the
authoritative resolution of Dr. McAdams' case (as opposed to the
FHC's Report), there is quite literally nothing to which we
could apply an arbitration-style review.
3. The Administrative Agency Deference Doctrine
¶50 The circuit court also said it would defer to the
University's decision for the same reasons the judiciary often
defers to administrative agency decisions. McAdams, No.
2016CV3396, Order for Summary Judgment, 11. The circuit court
cited an Ohio intermediate appellate court for this proposition,
which said, in pertinent part: "Even though we . . . are
hesitant to equate a private university's hearing powers to that
of a statutorily mandated administrative body, we do find
rationale and guidance from the standard of review adopted by
administrative agencies, especially when the involved parties
have bound themselves contractually." Yackshaw v. John Carroll
Univ. Bd. of Trs., 624 N.E.2d 225, 228 (Ohio Ct. App. 1993).
¶51 We will not defer to the University's decision under
the Yackshaw rationale for two reasons. First, the basis for
Yackshaw's analogy no longer obtains in Wisconsin. We recently
ended the practice of deferring to an administrative agency's
34
No. 2017AP1240
conclusions of law.17 We decided the practice was unsound in
principle, and there is no apparent reason it would become
sounder if we resurrected it for use in contract disputes
between two private parties.
¶52 Second, Yackshaw's analysis is flawed because it
deferred to a dispute resolution process that incorporated
several of the fundamental defects discussed above. At John
Carroll University the process of dismissing a professor begins
with a hearing before the Faculty Board of Review (the "FBR").
See id. at 226-27. Like the FHC here, the FBR is composed of
university employees. See id. at 226-28. And like the process
we are considering today, the FBR does not actually resolve the
disputes it hears. It just makes recommendations to the Board
of Trustees. See id. at 226-27. The Yackshaw opinion suggests
the Board of Trustees enjoys the same autonomy as the University
president in this case. It is not bound by the FBR's
recommendation, and there are apparently no rules, procedures,
or standards that govern how it actually makes its decision.
See id. It could accept, reject, or alter the FBR's work at
will. See id. The dispute resolution process described by
Yackshaw allowed the Board to exercise unfettered discretion in
terminating one of its professors.
17
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶3,
___ Wis. 2d ___, ___ N.W.2d ___. By "conclusions of law" we
mean both the interpretation of the law and the application of
that law to the facts of a case. See id., ¶¶3, 108. In this
context, deference would include interpretation of the Contract
and its application to undisputed facts.
35
No. 2017AP1240
¶53 Additionally, Yackshaw's deference appears to have
been founded on the court's unwarranted attribution of the non-
authoritative FBR's procedures to the authoritative Board of
Trustees' decision. It seems the court was especially impressed
by the FBR's six-day hearing in which it received forty-five
exhibits and heard from fifteen witnesses who together produced
a nine-hundred page transcript. So when it said "we find that
the university did not deny Yackshaw's procedural rights under
his contract," it was presumably referring to the FBR's
procedures. See id. at 229. It certainly could not have been
referring to the actual decision-maker——the Board of Trustees——
whose decision was not subject to any procedural requirements or
standards at all. We cannot take guidance from Yackshaw,
therefore, because it did not analyze whether a court should
defer to a defendant's standard-free assessment of a plaintiff's
claims, which is what happened both there and here.
¶54 Yackshaw's value is further weakened by its
tendentious rejection of McConnell v. Howard University, 818
F.2d 58 (D.C. Cir. 1987) as an "obscure" case in which the court
was preoccupied by questions unrelated to deference.18 McConnell
squarely addressed the same deference proposition at issue in
Yackshaw, which in turn is the same argument Marquette
University advances here. See McConnell, 818 F.2d at 67-68.
18
"McConnell seems to be the obscure one. . . . [T]he
McConnell court appeared preoccupied, and rightfully so, with
the failure of the university to honor the contract." Yackshaw
v. John Carroll Univ. Bd. of Trs., 624 N.E.2d 225, 228-29 (Ohio
Ct. App. 1993).
36
No. 2017AP1240
After thorough consideration, the McConnell court rejected it in
terms bordering on exasperation. See id. at 67. Accepting this
proposition, it said, would mean that "any Trustees' decision to
fire a tenured faculty member is largely unreviewable, with
judicial scrutiny limited to a modest inquiry as to whether the
Trustees' decision was 'arbitrary,' 'irrational' or infected by
improper motivation." Id. It understood that deference in this
context would demote tenure from a substantive right to a matter
of mere procedure: "Such a reading of the contract renders
tenure a virtual nullity. Faculty members like Dr. McConnell
would have no real substantive right to continued employment,
but only certain procedural rights that must be followed before
their appointment may be terminated." Id. This, it said, is
"an astonishing concept." Id. We agree.
¶55 The Milwaukee County Circuit Court here nonetheless
determined that the administrative agency deference doctrine
required it to defer because "[t]he parties' contract
incorporates a specialized standard for cause that focuses on
issues of professional duties and fitness as a university
professor." McAdams, No. 2016CV3396, Order for Summary
Judgment, 11. "Professionalism and fitness in the context of a
university professor," it said, "are difficult if not impossible
issues for a jury to assess." Id. We cannot credit this
rationale——judges and juries frequently address themselves to
some of the most complex matters in life. When a case presents
issues beyond our ken, we turn to expert witnesses. McConnell
conclusively answers the circuit court's concern as well:
37
No. 2017AP1240
[W]e do not understand why university affairs are more
deserving of judicial deference than the affairs of
any other business or profession. Arguably, there
might be matters unique to education on which courts
are relatively ill equipped to pass judgment.
However, this is true in many areas of the law,
including, for example, technical, scientific and
medical issues. Yet, this lack of expertise does not
compel courts to defer to the view of one of the
parties in such cases. The parties can supply such
specialized knowledge through the use of expert
testimony.
McConnell, 818 F.2d at 69.
¶56 If academics are capable of discussing university
affairs in their cloisters, there is no reason they cannot do so
as experts in our courts. The complexity of a contract's
subject matter does not convince us that we must give
administrative-agency style deference to one of the disputing
parties.
38
No. 2017AP1240
*
¶57 In sum, we do not defer to the University for
contractual reasons because the Contract does not say the
Discipline Procedure either substitutes for litigation in our
courts or limits our review. We also do not afford arbitration-
style deference to the University's decision because the FHC was
compositionally biased, the Discipline Procedure did not (and
could not) produce an authoritative decision, and the individual
with the authority to resolve the dispute was subject to no
procedures whatsoever. Finally, we do not defer to the
University in the manner we have previously deferred to
administrative agencies because that practice is unsound in
principle.
¶58 The dissent says we should nonetheless defer to the
University, and that failing to do so "renders meaningless a key
part of shared governance, reducing the faculty's role in this
decisionmaking to nothing." Dissent, ¶173. The author,
however, does not identify the key part of shared governance we
have rendered meaningless, nor could she. The faculty's
authority to share in the University's governance comes from the
Faculty Statutes and Faculty Handbook, not some formless notion
of what shared governance ought to be. We have taken these
authorities as they are, and scrupulously examined their
provisions. The faculty's role is what our opinion says it is
because that is the arrangement upon which the University and
its faculty members have agreed. It is not our place to rewrite
their management structure to give the faculty a more muscular
39
No. 2017AP1240
role in the University's affairs than they currently have.
Because the dissent identified no Faculty Statute or Faculty
Handbook provision that we have overlooked or misconstrued, we
decline the implicit invitation to disregard what these
authorities so plainly say.
B. Merits of the Suspension Decision
¶59 Dr. McAdams says that publishing his blog post is an
act of academic freedom and that the Contract protects him from
discipline because of such acts. The circuit court decided this
case on cross-motions for summary judgment, which means we apply
the same methodology as the circuit court upon review.
¶60 This methodology requires that we first determine
whether Dr. McAdams has stated a claim upon which relief can be
granted. See Green Spring Farms, 136 Wis. 2d at 315. The
University does not argue here that Dr. McAdams has failed to
state a claim, and our review confirms that he adequately
alleged the existence of an enforceable contract and that each
count identifies an alleged failure to abide by the Contract's
terms.
¶61 The next step in our summary judgment analysis is to
determine whether one of the parties is entitled to judgment as
a matter of law.19 In this case, that determination turns on two
19
See Wis. Stat. § 802.08(2); see also Columbia Propane,
L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70, 661
N.W.2d 776 (citing § 802.08(2) (2001-02)). To the extent there
are factual disputes, we have accepted the version favorable to
the University. We conclude that these minor factual
differences are not material because they had no substantive
effect on our analysis.
40
No. 2017AP1240
issues. The first is whether the doctrine of academic freedom
encompasses the publication of Dr. McAdams' blog post. If it
does, then we must decide whether the University nonetheless had
"discretionary cause" to suspend Dr. McAdams.
1. Academic Freedom and the Blog Post
¶62 Although we address ourselves to the concept of
"academic freedom," we do so only to the extent necessary to
determine whether it reaches Dr. McAdams' blog post. Our
analysis is narrowly focused and begins with the definition of
"academic freedom" as it appears in the University's Faculty
Handbook:
Academic freedom is prized as essential to
Marquette University and to its living growth as a
university. Professorial academic freedom is that
proper to the scholar-teacher, whose profession is to
increase knowledge in himself/herself and in others.
As proper to the scholar-teacher, academic freedom is
grounded on competence and integrity.
When scholar-teachers carry on their academic
lives in educational institutions, integrity requires
both respect for the objectives of the institution in
which they choose to carry on their academic lives and
attention to the task of reevaluating these objectives
as a necessary condition of living growth in human
institutions.
The University, because it prizes academic
freedom, proposes the following safeguards*
[footnoting a reference to the AAUP's Statement of
Principles of Academic Freedom] to that freedom:
a. The teacher is entitled to full freedom in research
and in the publication of results, subject to the
adequate performance of his/her other academic
duties; but research for pecuniary return should be
based upon an understanding with the authorities of
the institution.
41
No. 2017AP1240
b. The teacher is entitled to freedom in the classroom
in discussing his/her subject. This freedom must
be integrated with the right of the students not to
be victimized and the rights of the institution to
have its accepted aims respected.
c. The college or university teacher is a citizen, a
member of a learned profession, and an officer of
an educational institution. When he/she speaks or
writes as a citizen, he/she should be free from
institutional censorship or discipline, but his/her
special position in the civil community imposes
special obligations. As a man/woman of learning
and an educational officer, he/she should remember
that the public may judge his/her profession and
institution by his/her utterances. Hence, he/she
should at all times be accurate, should exercise
appropriate restraint, should show respect for the
opinions of others, and should make every effort to
indicate that he/she is not an institutional
spokesperson.
Faculty Handbook, III.C. (Rights and Responsibilities, Academic
Freedom).
¶63 The University acknowledges this definition came from
the American Association of University Professors' 1940
Statement of Principles on Academic Freedom and Tenure (the
"1940 Statement").20 During their arguments, both the University
and Dr. McAdams had recourse to that document, as well as to
subsequent, AAUP-authored,21 explanatory documents such as the
1970 Interpretive Comments (the "1970 Comments"). Consequently,
we will refer to those sources as necessary to understand the
scope of the academic freedom doctrine.
20
The Report said "all [University] faculty members are
guaranteed academic freedom, defined in the Faculty Handbook
using language taken directly from [AAUP's] groundbreaking 1940
Statement of Principles on Academic Freedom and Tenure."
21
We refer to the American Association of University
Professors as the "AAUP."
42
No. 2017AP1240
¶64 The AAUP, which participated as amicus curiae, said
the doctrine of academic freedom comprises three elements:
teaching; research; and extramural comments. The categories
correspond to the separately-lettered paragraphs in the
University's definition (see supra Faculty Handbook, III.C.).
The University and Dr. McAdams agree that we should understand
the blog post as an "extramural comment," a type of expression
made in Dr. McAdams' personal, not professorial, capacity.
Because the parties agree the blog post is covered by one of the
categories of academic freedom, the contest is over whether its
contents remove the doctrine's protection.
¶65 The definition of "extramural comment" recognizes that
a professor occupies a "special position in the community," one
that comes with "special obligations."22 In the original
definition in the 1940 Statement, and in the definition above,
these special obligations included the duty to "exercise
appropriate restraint," to "show respect for the opinions of
others," and to "make every effort to indicate that they are not
speaking for the institution."23 However, the AAUP recognizes
that the special obligations "are generally not viewed as
22
American Association of University Professors
[hereinafter "AAUP"], Policy Documents and Reports, 1940
Statement of Principles on Academic Freedom and Tenure, with
1970 Interpretive Comments 14 (11th ed. 2014) (available at
https://www.aaup.org/file/1940%20Statement.pdf); see also
Faculty Handbook, III.C. (Academic Freedom).
23
See AAUP, Policy Documents and Reports, 1940 Statement of
Principles on Academic Freedom and Tenure, with 1970
Interpretive Comments 14 (11th ed. 2014) (available at
https://www.aaup.org/file/1940%20Statement.pdf).
43
No. 2017AP1240
binding obligations." The Report, after tracing the evolving
nature of these "special obligations," essentially agreed:
[I]t appears that the nature of the "special
obligations" that limit a faculty member's freedom to
make extramural statements has changed. It is
doubtful that there is any longer a binding obligation
to be "accurate" at all times in making such
statements, or to "exercise appropriate restraint," or
to "show respect for the opinions of others," on pain
of dismissal.
¶66 The Report observed that the special obligations now
appear to be "'responsibilities to their subject, to their
students, to their profession, and to their institution;' the
obligation to be clear that they are not speaking for their
institution; and the 'particular obligation to promote
conditions of free inquiry and to further public understanding
of academic freedom.'"24 We will use the University's
understanding of "special obligations" in our analysis.
24
The FHC's Report said it took this understanding of
"special obligations" from the 1970 Comments. It chose to adopt
this interpretation for three reasons:
First, Marquette's definition of academic freedom is
taken essentially verbatim from the 1940 Statement,
and there is nothing in the Faculty Handbook that
indicates any intent to depart from the 1940 Statement
as employed and understood by universities generally.
Second, the 1970 Interpretive Comments were approved
not just by the AAUP, but by the Association of
American Colleges, of which Marquette University is a
member. Third, whatever plausibility the conditions
had as a limit on extramural freedom in 1940, by 2015,
or even by 1980 when Section 307.07 of the Faculty
Statutes was adopted, such a constricted view of the
freedom to engage in public debate would be far
outside the mainstream, and there is no indication
that Marquette's administration or faculty view
(continued)
44
No. 2017AP1240
¶67 The documents on which both parties rely also provide
the analytical structure we are to use in analyzing whether an
extramural comment has lost the protection of the academic
freedom doctrine. It is a two-step process, in which the first
determines whether the comment itself demonstrates the faculty
member is clearly unfit to serve: "The controlling principle is
that a faculty member's expression of opinion as a citizen
cannot constitute grounds for dismissal unless it clearly
demonstrates the faculty member's unfitness for his or her
position."25 If the comment meets this 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: "[A]
final decision should take into account the faculty member's
Marquette's adoption of the norms of academic freedom
as atypical.
At least one other court has used the AAUP's subsequent
publications to interpret and limit the reach and effect of the
special obligations. See Adamian v. Jacobsen, 523 F.2d 929, 935
(9th Cir. 1975) ("That the University has adopted the Statement
of Principles virtually word for word suggests that it also
accepts the narrowing interpretation placed on it by the
Association.").
25
AAUP, Policy Documents and Reports, 1940 Statement of
Principles on Academic Freedom and Tenure with 1970 Interpretive
Comments 15 n.6 (11th ed. 2014) (available at
https://www.aaup.org/file/1940%20Statement.pdf) (internal
quotation mark omitted) (quoting AAUP, Policy Documents and
Reports, Committee A Statement on Extramural Utterances 31 (11th
ed. 2014)).
45
No. 2017AP1240
entire record as a teacher and scholar."26 The Report
demonstrates the FHC adopted this analytical structure.
¶68 The University's briefing, however, introduced two
problematic aspects to the analysis. First, the University
failed to limit the initial inquiry to a consideration of what
the blog post, on its face, says about Dr. McAdams' fitness to
serve as a professor. Whereas the FHC-endorsed structure begins
with a tight focus on the relationship between the comment (and
only the comment) and the professor's fitness, the University
now says the question is whether the extramural comments
"clearly demonstrate the faculty member's unfitness for their
position considering their entire record as a teacher and
scholar." Although the University's formulation properly
recites the two elements of the analysis, it flattens the
inquiry into one step. And in doing so, it expanded the initial
step so broadly that it subsumed the entire analysis. It is
important to keep the two parts of the analysis separate because
the first step serves the critically important function of
keeping our focus where it belongs——on the extramural comment
itself. The AAUP says this step provides a stringent standard
of proof for dismissal. So strict, in fact, that "[e]xtramural
utterances rarely bear upon the faculty member's fitness for the
position."27
26
Id.
27
Id.
46
No. 2017AP1240
¶69 The University introduced a second problematic aspect
to the analysis when it uncoupled the doctrine of academic
freedom from any stable reference points. The University
posited that educational institutions assume academic freedom is
just one value that must be balanced against "other values core
to their mission." Some of those values, it says, include the
obligation to "take care not to cause harm, directly or
indirectly, to members of the university community," "to respect
the dignity of others and to acknowledge their right to express
differing opinions," to "safeguard[] the conditions for the
community to exist," to "ensur[e] colleagues feel free to
explore undeveloped ideas," and to carry out "the concept of
cura personalis," which involves working and caring "for all
aspects of the lives of the members of the institution." These
are worthy aspirations, and they reflect well on the University.
But they contain insufficiently certain standards by which a
professor's compliance may be measured. Setting the doctrine of
academic freedom adrift amongst these competing values would
deprive the doctrine of its instructive power; it would provide
faculty members with little to no guidance on what it covers.
¶70 Combined, these two problematic aspects allow the
University to use any extramural comment as an excuse to
reconsider a faculty member's association with the institution,
which is what occurred here. 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. Instead, it used the extramural
47
No. 2017AP1240
comment merely as a key to open a door onto a broad vista of
considerations in which it compared the professor's entire
career and person against the University's mission to care "for
all aspects of the lives of the members of the institution."
The extramural comment is not supposed to be a key to other
materials the University may wish to place in the "unfitness"
balance. The extramural comment goes in the balance alone.
Only if the balance clearly tips to "unfitness" may the
University then proceed to a comprehensive review of Dr.
McAdams' career.
¶71 On the other hand, the analytical structure described
by the AAUP, and adopted by the FHC, provides a stable framework
within which to evaluate whether the doctrine of academic
freedom protects a specific extramural comment. Although the
doctrine may not be susceptible to precise definition, still it
is sufficiently certain that it can inform faculty members what
is required of them.28 The AAUP properly limits the analysis to
whether the actual extramural comment, on its face, clearly
demonstrates that the professor is unfit to serve. This very
narrow inquiry explains why the AAUP can confidently state that
"[e]xtramural utterances rarely bear upon the faculty member's
fitness for the position."29 If we adopted the alternative
28
See Mgmt. Comput. Servs., Inc. v. Hawkins, Ash, Baptie &
Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67 (1996) ("[A] contract
must be definite as to the parties' basic commitments and
obligations.").
29
See supra n.25.
48
No. 2017AP1240
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. And this would likely chill extramural comments to
the point of extinction. It would be a fearless professor
indeed who would risk such a comment, knowing that it licenses
the University to scrutinize his entire career and assay it
against the care of "all aspects of the lives of the members of
the institution."
¶72 The defects inherent in the University's alternative
analytical structure, however, represent just one of two
problems with its assessment. The second is that the University
conducted the analysis backwards. With the benefit of
hindsight, the University reverse-engineered its conclusion that
Dr. McAdams is a plainly unfit professor because of unknown
third parties' reactions to his blog post. The blog post caused
"harm," the University said, in the form of critical, sometimes
vile, sometimes violently-worded, responses sent to Instructor
Abbate after the story had received national attention. Its
"unfitness" analysis proceeded as follows: Instructor Abbate
suffered harm because she received offensive communications from
third parties; the communications were prompted by Dr. McAdams'
blog post (directly or indirectly); Dr. McAdams has a
responsibility not to harm his students; a professor is unfit to
serve if he violates his responsibilities to the University's
students. Quod erat demonstrandum. But the University can
49
No. 2017AP1240
reach this conclusion only because its analysis traveled in
reverse. So quod non erat demonstrandum.
¶73 Performing the analysis in the correct direction leads
to the unavoidable conclusion that the blog post has nothing
relevant to say about Dr. McAdams' fitness as a professor. The
University's end point is where we start——that is, we consider
first whether the challenged extramural comment, on its face,
violated Dr. McAdams' "responsibilities to . . . [the
University's] students." Although Instructor Abbate was
functioning as a University instructor, we will consider only
her status as a student for purposes of this analysis. The
University identified several aspects of the blog post that it
believes were problematic. For instance, it says Dr. McAdams
relied on improperly obtained information (the surreptitious
recording of the conversation between Instructor Abbate and the
student); he identified Instructor Abbate by name; he linked to
her contact information; he drafted the post in a way that would
subject Instructor Abbate to public contempt; and the post
contains factual errors.
¶74 The undisputed facts show that none of the aspects of
the blog post about which the University is concerned could have
violated Dr. McAdams' responsibility to Instructor Abbate. The
FHC's Report acknowledged that there is no prohibition against
naming a student in a blog post. Nor is it improper for a
faculty member to link to a student's personal webpage, even
when that webpage lists the student's contact information. The
Report acknowledged this is still true even when the blog post
50
No. 2017AP1240
is critical of the student. Nor do blogging faculty members
have a general obligation to ensure every statement they make in
a post is accurate.30
¶75 The Report reflects significant discomfort with the
surreptitious recording the student made of his interaction with
Instructor Abbate and the recording's role in relation to the
blog post. But the University does not claim that Dr. McAdams'
instigated the recording; its concern, apparently, is that he
listened to it and subsequently distributed it to other media
outlets. However, the University identified no law or
University rule that prohibited the student from making the
recording, or forbade Dr. McAdams from reviewing or distributing
it once made. Ultimately, the recording is not even material to
the dispute——Dr. McAdams could have written the blog post
without the recording because the student himself related the
event to him. It may be distasteful for students to secretly
record their instructors' conversations, but the question here
is whether Dr. McAdams' use of the recording (or relationship to
it) violated any responsibilities he owed to Instructor Abbate.
The University has not identified any, so the recording can have
no bearing on this inquiry.
¶76 Finally, there is the University's assertion that Dr.
McAdams drafted the blog post in such a way that it would
subject Instructor Abbate to public contempt. The blog post is
30
Although the University takes issue with the accuracy of
some of the blog post's factual statements, it does not suggest
that any of the inaccuracies are legally actionable.
51
No. 2017AP1240
certainly critical of her, so one could reasonably foresee that
it would engender critical responses. We do not understand the
University to argue that an extramural comment that causes such
responses is beyond the pale——an extraordinarily unusual
argument for an educational institution to make——so we perceive
its concern to be about the responses that go beyond the realm
of reasonable criticism. But the University did not identify
any aspect of what Dr. McAdams actually wrote to support its
charge. Instead, it used third-party responses to the blog post
as a proxy for its allegedly contempt-inducing nature. Here
again, the University demonstrates that reverse-engineering a
conclusion is not the most reliable method of conducting an
analysis. In this instance, the University caught itself up in
the "post hoc ergo propter hoc" fallacy. Just because vile
commentary followed the blog post does not mean the blog post
instigated or invited the vileness. The University must
identify which part of the blog post is supposed to have been
responsible for eliciting the offensive remarks. It did not
even attempt to do so. Our review of the blog post reveals that
it makes no ad hominem attack on Instructor Abbate, nor does it
invite readers to be uncivil to her, either explicitly or
implicitly. Because the University's logical fallacy represents
the entirety of its assertion that Dr. McAdams wrote the blog
post to subject Instructor Abbate to contempt, we must reject
it.
52
No. 2017AP1240
*
¶77 We conclude that Dr. McAdams' blog post qualifies as
an extramural comment protected by the doctrine of academic
freedom. The post is incapable of clearly demonstrating Dr.
McAdams is unfit to serve as a professor because, although the
University identified many aspects of the blog post about which
it was concerned, it did not identify any particular way in
which the blog post violated Dr. McAdams' responsibilities to
the institution's students. Consequently, the blog post retains
the protection it presumptively enjoyed as an extramural
comment.
2. Breach and Remedy
¶78 Because the doctrine of academic freedom protects the
blog post, we must now determine whether the University breached
the Contract when it suspended Dr. McAdams. Although nothing in
the record imposes any procedural restrictions on President
Lovell's authority to suspend or dismiss Dr. McAdams, he is
nonetheless subject to the Contract's substantive restrictions.
Chief amongst these is the promise that a professor may not be
suspended or dismissed without cause: "The cognizant appointing
authority of the University may initiate and execute procedures
by which a faculty member's reappointment may be denied or
revoked, or any current appointment may be suspended or
terminated, for cause as defined therein." Faculty Statute
§ 306.01; see also Faculty Statute § 307.07(2) ("A faculty
member who has been awarded tenure at Marquette University may
53
No. 2017AP1240
only be dismissed upon a showing of absolute or discretionary
cause, . . . .").
¶79 "Cause" comes in two varieties: absolute and
discretionary. Faculty Statute § 306.01 ("Cause may be either
absolute or discretionary."). Dean Holz's letter of January 30,
2015, which commenced the Discipline Procedure, said the
University was proceeding under the latter. Discretionary cause
includes:
[T]hose circumstances, exclusive of absolute cause,
which arise from a faculty member's conduct and which
clearly and substantially fail to meet the standard of
personal and professional excellence which generally
characterizes University faculties, but only if
through this conduct a faculty member's value will
probably be substantially impaired. Examples of
conduct that substantially impair the value or utility
of a faculty member are: serious instances of
illegal, immoral, dishonorable, irresponsible, or
incompetent conduct.
Faculty Statute § 306.03.
¶80 But discretionary cause cannot include activity
encompassed by the doctrine of academic freedom: "In no case,
however, shall discretionary cause be interpreted so as to
impair the full and free enjoyment of legitimate personal or
academic freedoms of thought, doctrine, discourse, association,
advocacy, or action." Faculty Statute § 306.03. The University
is subject to additional restrictions if the discipline includes
dismissal: "Dismissal will not be used to restrain faculty
members in their exercise of academic freedom or other rights
guaranteed them by the United States Constitution." Faculty
Statute § 307.07(2).
54
No. 2017AP1240
¶81 There can be no genuine dispute that the University
commenced proceedings against Dr. McAdams because of his blog
post of November 9, 2014. Dean Holz's letter of January 30,
2015, identified the blog post as the offense for which the
University sought the revocation of Dr. McAdams' tenure and his
dismissal from the faculty.31 The letter identified the date of
the offense as November 9, 2014, and elaborated, in pertinent
part, as follows:
On November 9, 2014, you chose to post on the
Internet a story prompted by a secretly-taped
conversation between a student and a graduate student
instructor. While you left the undergraduate
student's name out of your post, and later insisted
that his anonymity be protected, you posted without
permission the graduate student instructor's name, Ms.
Cheryl Abbate.
The decision to write and publish the blog post, Dean Holz
concluded, proved that Dr. McAdams' "conduct clearly and
substantially fails to meet the standards of personal and
professional excellence that generally characterizes University
faculties. As a result, your value to this academic institution
is substantially impaired."
31
The University must give formal notice that it is
commencing disciplinary proceedings; the notice must contain a
detailed description of the offense for which the University
seeks to impose discipline. Faculty Statute § 307.03 ("The
notice shall include: . . . [t]he statute allegedly violated;
the date of the alleged violation; the location of the alleged
violation; a sufficiently detailed description of the facts
constituting the violation including the names of the witnesses
against the faculty member.").
55
No. 2017AP1240
¶82 Upon completion of the FHC's proceedings, the Report
recommended discipline based on the blog post:
Dr. McAdams's conduct, however, goes beyond
simply making factual errors in a blog post, or
publicly naming a graduate student in the course of
criticism, or linking to a page with her contact
information, or publicly presenting a one-sided
criticism of the teaching of a colleague. It goes
beyond posting an extramural blog post that is
uncivil, assuming his Nov. 9 blog post could fairly be
characterized as uncivil in some way. Instead, Dr.
McAdams used improperly obtained information in a way
that he should have known could lead to harm, harm
that could easily have been avoided. His use of a
surreptitious recording, along with Ms. Abbate's name
and contact information, to hold Ms. Abbate up for
public contempt on his blog, recklessly exposed her to
the foreseeable harm that she suffered due to Dr.
McAdams's actions. Dr. McAdams's irresponsible
behavior in using the recording in this way fell far
short of his obligations to Ms. Abbate as a
professional colleague and as a fellow member of the
Marquette community. We find that such seriously
irresponsible conduct clearly and substantially fails
to meet the standard of professional excellence that
generally characterizes university faculties, although
not, as we explain in Subsection V.A.4 below, to the
degree necessary to support a penalty of dismissal.
¶83 The Discipline Letter, in which President Lovell
detailed his decision to accept the FHC's recommendation, made
it clear that Dr. McAdams was being sanctioned for his blog
post. President Lovell said, "I found that the Faculty Hearing
Committee's written statements . . . unequivocally summarize why
you should be seriously reprimanded for your actions," following
which he reproduced the Report's conclusion that we excerpted
immediately above.
¶84 The blog post, however, is a contractually-
disqualified basis for discipline. Discretionary cause cannot
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No. 2017AP1240
include anything that would "impair the full and free enjoyment
of legitimate personal or academic freedoms of thought,
doctrine, discourse, association, advocacy, or action." See
Faculty Statute § 306.03. Suspending Dr. McAdams for publishing
the blog post would, of course, "impair" his "full and free
enjoyment of . . . academic freedoms." See id.
¶85 Beginning with the inception of the Discipline
Procedure, and ending with President Lovell's decision to
suspend Dr. McAdams, the basis for the University's actions has
been the blog post. The dissent says we neglected to consider
other "key" facts in determining whether the University breached
the Contract, such as Dr. McAdams' efforts to bring his blog
post to national attention (with the attendant negative
responses directed at Instructor Abbate). Dissent, ¶142. This
is not a key fact, and neither are any of the others the dissent
identifies. All of them are derivative of the blog post, and
for that reason they cannot stand as an alternative, independent
basis for the suspension decision. Therefore, the University
had no justifiable cause to suspend Dr. McAdams on December 16,
2014, affirm the suspension on January 30, 2015, or increase the
discipline to suspension without pay effective April 1, 2016.
We conclude the University breached the Contract when it took
these decisions.
¶86 The dissent believes there is more to the analysis and
that we have stopped prematurely. It says "[t]he majority errs
in conducting only half of the academic freedom analysis. It
fails to recognize, much less analyze, the academic freedom of
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Marquette as a private, Catholic, Jesuit university." Id.,
¶140. The author observes that "[a]cademic freedom thrives not
only on the independent and uninhibited exchange of ideas among
teachers and students, but also . . . on autonomous
decisionmaking by the academy itself." Id., ¶138 (omission in
original) (quoting Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 226 n.12 (1985) (internal citations omitted)).
¶87 Much of the dissent, if not most, comprises a
fetchingly poetic ode to the importance of the University's
academic freedom in immanentizing its mission. The problem with
odes, however, is that their poetry so often comes at the
expense of precision. Here, the imprecision resulted in the
misapplication of one of the principles wrapped up in the
concept of institutional academic freedom. The dissent is aware
of it, but addressed it only in passing: "The term 'academic
freedom' is used to denote both the freedom of the academic
institution to pursue its ends without interference from the
government, as well as the freedom of the individual teacher to
pursue desired ends without interference from the institution."
See dissent, ¶148 (emphasis added).
¶88 A university's academic freedom is a shield against
governmental interference; the dissent, however, would reforge
it as a sword with which to strike down contracts it no longer
wishes to honor. But none of the cases on which the dissent
relies convert this pacific principle into such a destructive
tool. The dissent says that part of an institution's academic
freedom is the right "to determine for itself on academic
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grounds who may teach." Id., ¶153 (quoting Sweezy v. N.H. by
Wyman, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).32
That is true, as far as it goes——but it does not go far enough
to address the circumstances here. When the decision to hire is
complete, the relationship is no longer a simple matter of
academic compatibility. The employment contract adds a legally
enforceable aspect to the relationship. An aspect, we would do
well to remember, that the Faculty Statutes invite us to
adjudicate.
¶89 Operationalizing the dissent's ode would have
disastrous consequences for academic freedom. The outward-
facing protection against governmental interference would turn
inward, pitting the institution's academic freedom against the
faculty's academic freedom. The result would be a never-ending
pitched battle in which each side tries to expand its own sphere
of academic freedom at the expense of the other. That
reimagining of this doctrine has no support in the Contract, the
Faculty Statutes, the Faculty Handbook, or our cases. And there
is probably no better way of ending the University's carefully
balanced shared governance than turning a cooperative
relationship into an adversarial contest. Therefore, we decline
the dissent's invitation to consider whether the University may
excuse its breach of the Contract as an exercise of its academic
freedom.
32
See also Feldman v. Ho, 171 F.3d 494, 495-96 (7th Cir.
1999) (recognizing educational institution's right to not offer
a contract of employment).
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*
¶90 There remains the question of Dr. McAdams' remedy for
the University's breach of the Contract. The parties disagree
with respect to his current status——the University says he is
suspended; Dr. McAdams says the suspension has turned into a de
facto dismissal. The difference depends on the effect of a
certain condition President Lovell included in the Discipline
Letter. The letter says Dr. McAdams may not return to the
faculty until he submits a letter to the University (to be
shared with Instructor Abbate) no later than April 4, 2016, that
includes:
• Your [Dr. McAdams'] acknowledgement and acceptance
of the unanimous judgment of the peers who served
on the Faculty Hearing Committee.
. . . .
• Your acknowledgement that your November 9, 2014,
blog post was reckless and incompatible with the
mission and values of Marquette University and you
express deep regret for the harm suffered by our
former graduate student and instructor, Ms. Abbate.
Dr. McAdams says this condition creates a de facto dismissal
because it requires, at least in part, that he recant activity
protected by the doctrine of academic freedom. The University
claims these are reasonable pre-conditions to the resumption of
professorial duties in light of the basis for his sanction.
¶91 Dr. McAdams did not write the missive required by the
Discipline Letter. Nonetheless, the University confirmed he was
still suspended——not dismissed——even after expiration of the
deadline stated in the Discipline Letter. On April 13, 2016,
President Lovell wrote to Dr. McAdams "to clarify that your
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status with the University is unchanged and you remain in a
suspended status as outlined in my March 24th letter." The
University's brief also acknowledges Dr. McAdams has not been
terminated. It wrote: "Dr. McAdams argues in a
footnote . . . that his continued suspension is a de facto
termination. But the conditions for his return were appropriate
according to his own expert and Judge Hansher, and his refusal
to do what is appropriate does not constitute a termination by
Marquette." (Emphasis added.) Nothing in the record indicates
his status has changed since then.
¶92 We will accept the University's concession that it has
not dismissed Dr. McAdams and that he has merely been suspended
from his status as a tenured member of the Marquette University
faculty (without pay). Because we have concluded that the
suspension breached the Contract, it must be ended and Dr.
McAdams must be restored to the faculty. The Faculty Statutes
require the University to comply with our determination of Dr.
McAdams' right to reinstatement:
[T]he University shall, for a period of six months
thereafter, or until the final determination of any
judicial action which may be commenced within such
period to test the validity of
the . . . suspension, . . . hold itself ready to
reinstate the faculty member, with unimpaired rank,
tenure, compensation, and benefits, to the extent that
the faculty member's entitlement thereto may be
judicially adjudged or decreed, . . . .
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Faculty Statute § 307.09.33
¶93 Therefore, we hold the University to its contractual
promise to reinstate Dr. McAdams to the faculty of Marquette
University with unimpaired rank, tenure, compensation, and
benefits. See Ash Park, LLC v. Alexander & Bishop, Ltd., 2010
WI 44, ¶37, 324 Wis. 2d 703, 783 N.W.2d 294 ("When a contract
specifies remedies available for breach of contract, the
intention of the parties generally governs."); Faculty Statute
§ 307.09. Because the suspension was invalid ab initio, the
University may not enforce any of the reinstatement conditions
identified in the Discipline Letter.34
V. CONCLUSION
¶94 We do not defer to the University's determination that
it did not breach its Contract with Dr. McAdams. The
33
Dr. McAdams filed his complaint to "test the validity of"
his suspension, and we have concluded the suspension was not
valid. Further, he filed his complaint within the time required
by Faculty Statute § 307.09. He commenced this case on May 2,
2016, with the filing of his complaint in the Milwaukee County
Circuit Court, which is within six months of the Discipline
Letter. See Wis. Stat. § 801.02(1) ("A civil action in which a
personal judgment is sought is commenced as to any defendant
when a summons and a complaint naming the person as defendant
are filed with the court, . . . ."). The six-month window commenced with
President Lovell's issuance of the Discipline Letter on March 24, 2016, because that is the
document that imposed the discipline under consideration in this case.
34
Because we base our conclusion on the University's
concession that Dr. McAdams has not been dismissed, we do not
address whether the University violated its promise that
"[d]ismissal will not be used to restrain faculty members in
their exercise of . . . rights guaranteed them by the United
States Constitution." Faculty Statute § 307.07(2).
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University's Discipline Procedure neither substitutes for, nor
limits, Dr. McAdams' right to litigate his claims in our courts.
¶95 We conclude that the University breached the Contract
by suspending Dr. McAdams for exercising his contractually-
protected right of academic freedom.35 Consequently, we reverse
the circuit court's order and judgment, and remand with
instructions to:
(1) Enter judgment in favor of Dr. McAdams on his
claims that the University breached the Contract by
suspending him without cause on December 16, 2014
(with pay), affirming the suspension on January 30,
2015, and then increasing the discipline to suspension
without pay effective April 1, 2016 (Complaint, counts
one and two);
(2) Enter an order requiring the University to
immediately reinstate Dr. McAdams to the faculty of
Marquette University with unimpaired rank, tenure,
compensation, and benefits (including the tendering of
any documents necessary to accomplish those ends);
(3) Conduct such other and further proceedings as are
consistent with this decision, including the
determination of Dr. McAdams' damages (which shall
include back pay).36
By the Court.—The judgment and order of the circuit court
are reversed, and the cause is remanded with instructions.
¶96 ANNETTE KINGSLAND ZIEGLER, J., did not participate.
35
Both the concurring and dissenting opinions address what
the First Amendment to the United States Constitution might have
to say about this case. The court, however, does not rely upon
the United States Constitution for any part of its decision.
36
We express no opinion on the merits of any part of Dr.
McAdams' complaint except as expressly addressed herein.
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¶97 REBECCA GRASSL BRADLEY, J. (concurring). In this
unprecedented dispute between a university and a professor,
academic freedom was put on trial. Would the sacred "right of
faculty members to speak as citizens——that is, 'to address the
larger community with regard to any matter of social, political,
economic or other interest without institutional discipline or
restraint'"1——succumb to the dominant academic culture of micro-
aggressions, trigger warnings and safe spaces2 that seeks to
silence unpopular speech by deceptively recasting it as
violence? In this battle, only one could prevail, for academic
freedom cannot coexist with Orwellian speech police. Academic
freedom means nothing if faculty is forced to self-censor in
fear of offending the unforeseen and ever-evolving sensitivities
of adversaries demanding retribution.
¶98 "[T]he peculiar evil of silencing the expression of an
opinion is . . . robbing the human race; posterity as well as
the existing generation; those who dissent from the opinion,
1
American Association of University Professors, Statement
on Civility, https://www.aaup.org/issues/civility (last visited
June 18, 2018).
2
Some universities recognize the incompatibility of
insulating students from micro-aggressions, via trigger warnings
and safe spaces, with academic freedom: "Our commitment to
academic freedom means that we do not support so-called 'trigger
warnings,' we do not cancel invited speakers because their
topics might prove controversial, and we do not condone the
creation of intellectual 'safe spaces' where individuals can
retreat from ideas and perspectives at odds with their own."
John Ellison, Dean of Students at the University of Chicago,
Letter to Class of 2020, https://news.uchicago.edu/sites/default
/files/attachments/Dear_Class_of_2020_Students.pdf (last visited
June 18, 2018).
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still more than those who hold it. If the opinion is right,
they are deprived of the opportunity of exchanging error for
truth: if wrong, they lose, what is almost as great a benefit,
the clearer perception and livelier impression of truth,
produced by its collision with error."3 Many American
universities were founded "on the illimitable freedom of the
human mind" to develop, articulate, examine and communicate
ideas in order to "follow truth wherever it may lead."4
Marquette University's own mission includes "the search for
truth, the discovery and sharing of knowledge."5 When academic
freedom was under attack for being "dangerous" and "oppressive"
forty years ago, one of America's oldest universities reaffirmed
that "[t]he history of intellectual growth and discovery clearly
demonstrates the need for unfettered freedom, the right to think
the unthinkable, discuss the unmentionable, and challenge the
unchallengeable."6 Over time, academia has begun to abandon this
3
John Stuart Mills, On Liberty, in Utilitarianism and On
Liberty 88, 100 (Mary Warnock ed., 2d ed. 2003) (1859).
4
Thomas Jefferson, University of Virginia, Comprehensive
Standards 3.7.4: Academic Freedom, http://www.virginia.edu/sacs/
standards/3-7-4.html (last visited June 18, 2018).
5
Marquette University, Mission Statement,
http://www.marquette.edu/leadership/values.php (last visited
June 18, 2018).
6
Yale University, 1974 Report of the Committee on Freedom
of Expression at Yale, https://yalecollege.yale.edu/deans-
office/reports/report-committee-freedom-expression-yale (last
visited June 18, 2018).
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Jeffersonian creed,7 replacing it with groupthink tribalism
seeking to silence disfavored viewpoints.8
¶99 I join the majority in full. The opinion ably
addresses academic freedom in a manner narrowly tailored to this
case, which was easily resolved by applying the language of
Marquette's contract with McAdams to the undisputed facts. The
court correctly concludes that the contract guarantees McAdams
academic freedom, academic freedom encompasses his blog post,
and Marquette's suspension of McAdams breached the contract.
¶100 I write separately because academic freedom, and
concomitantly, free speech, is increasingly imperiled in America
and within the microcosm of the college campus. 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.
I
¶101 The United States Supreme Court has discussed the
importance of academic freedom in a variety of cases, but has
not definitively expounded its meaning. In Keyishian v. Bd. of
Regents, 385 U.S. 589, 603 (1967), the Court described academic
7
See Bradley Campbell & Jason Manning, The End of Academe:
Free Speech and the Silencing of Dissent, Chron. of Higher Educ.
(Jan. 21, 2018), https://www.chronicle.com/article/The-End-of-
Academe-Free/242290.
8
See Daniel B. Klein & Charlotta Stern, Groupthink in Acade
mia, Am. Enterprise Inst. (Nov. 14, 2007), https://www.aei.org/w
p-content/uploads/2011/10/20071113_GroupthinkinAcademia.pdf.
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freedom as being "of transcendent value to all of us and not
merely to the teachers concerned. That freedom is therefore a
special concern of the First Amendment, which does not tolerate
laws that cast a pall of orthodoxy over the classroom." See
also Shelton v. Tucker, 364 U.S. 479, 487 (1960) ("The vigilant
protection of constitutional freedoms is nowhere more vital than
in the community of American schools."); Barenblatt v. United
States, 360 U.S. 109, 112 (1959) (describing "academic teaching-
freedom and its corollary learning-freedom" as "so essential to
the well-being of the Nation); Sweezy v. New Hampshire, 354 U.S.
234, 250 (1957) (plurality) ("The essentiality of freedom in the
community of American universities is almost self-
evident . . . . Teachers and students must always remain free
to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and
die.").
¶102 Specific definitions can be found in other
authoritative sources. Black's Law Dictionary defines academic
freedom as "the right (esp. of a university teacher) to speak
freely about political or ideological issues without fear of
loss of position or other reprisal."9 The American Association
of University Professors (AAUP) defines academic freedom as the
liberty to "speak or write as citizens . . . free from
9
Academic Freedom, Black's Law Dictionary (10th ed. 2014).
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institutional censorship or discipline."10 Russell Kirk
described academic freedom as a principle that teachers and
scholars should be "protect[ed] . . . from hazards that tend to
prevent [them] from meeting [their] obligations in the pursuit
of truth."11
¶103 The roots of academic freedom are ancient. Dr. Martin
Luther King Jr. attributed the concept's origin to Socrates.
See Martin Luther King, Jr., Letter from Birmingham Jail (Apr.
16, 1963), in The Autobiography of Martin Luther King, Jr. 187,
194 (Clayborne Carson ed., 1998). The search for truth to which
the founder of the first academy, Plato, was dedicated, has been
identified as the progenitor of academic freedom. Larry D.
Spurgeon, A Transcendent Value: The Quest to Safeguard Academic
Freedom, 34 J.C. & U.L 111, 117 (2007). The modern
10
American Association of University Professors, 1940
Statement of Principles on Academic Freedom and Tenure,
https://www.aaup.org/report/1940-statement-principles-academic-
freedom-and-tenure (last visited June 18, 2018). The AAUP,
founded in 1915, is a non-profit organization representing the
interests of over 40,000 faculty, librarians, graduate students,
and academic professionals at institutions of higher learning
across the country. AAUP appears as amicus in this case in
support of McAdams and declares it "is committed to advancing
academic freedom, the free exchange of ideas, and higher
education's contribution to the common good." As the first
organization to develop codes of academic freedom, AAUP's
statements remain the model. Julie H. Margetta, Taking Academic
Freedom Back to the Future: Refining the "Special Concern of
the First Amendment", 7 Loy. J. Pub. Int. L. 1, 5 (2005). As
the court explains, Marquette does not dispute that it adopted
AAUP's 1940 Statement of Principles on Academic Freedom and
Tenure. See majority op., ¶¶61-62, n.20.
11
Russell Kirk, Academic Freedom: An Essay in Definition 1
(1955) (quotation marks omitted).
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understanding of academic freedom likely originated in German
principles of Lehrfreiheit and Lernfreiheit, the freedom to
teach and the freedom to learn, respectively. Julie H.
Margetta, Taking Academic Freedom Back to the Future: Refining
the "Special Concern of the First Amendment", 7 Loy. J. Pub.
Int. L. 1, 5 (2005). The German conception of academic freedom
encompassed students, perhaps a recognition that inhibiting the
freedom of teachers impedes learning.
¶104 The concept appears in American history as early as
the eighteenth century in Thomas Jefferson's founding vision of
the University of Virginia: "This institution will be based on
the illimitable freedom of the human mind. For here we are not
afraid to follow truth wherever it may lead, nor to tolerate any
error so long as reason is left to combat it."12 Nineteenth
century academics did not confine their exercise of academic
freedom to the classroom, but understood the principle to
protect their "right to express their opinions even outside the
walls of academia, even on controversial subjects." Geoffrey R.
Stone, A Brief History of Academic Freedom, in Who's Afraid of
Academic Freedom? 5 (Akeel Bilgrami & Jonathan R. Cole eds.,
2015). Protection of extramural speech——expression beyond the
boundaries of the university——endures: "Freedom of extramural
12
University of Virginia, Comprehensive Standards
3.7.4: Academic Freedom, http://www.virginia.edu/sacs/standards/
3-7-4.html (last visited June 18, 2018).
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utterances is a constitutive part of the American conception of
academic freedom."13
¶105 Academic freedom encompasses "two distinct concepts":
(1) "professional academic freedom" tied to AAUP standards, and
(2) the "legal concept of academic freedoms" tied to the First
Amendment. Margetta, supra ¶7, at 4-5. Academic freedom has
also been expressed as a right under the First Amendment, which
in public universities serves as the source for academic
freedom. See generally Donald A. Downs, Academic Freedom: What
It Is, What It Isn't, and How to Tell the Difference, Pope Ctr.
Series on Higher Educ., May 2009, at 1. The AAUP specifically
accords extramural statements protections that are coextensive
with the First Amendment, noting that a university questioning a
professor's fitness should "remove from consideration any
supposed rhetorical transgressions that would not be found to
exceed the protections of the First Amendment."14 Academic
freedom and free speech are interconnected concepts and frequent
companions. I discuss these doctrines synchronously because
Marquette guaranteed McAdams both rights and contractually
shielded him from discipline for his exercise of either.
13
AAUP, Statement on Civility, https://www.aaup.org/issues/
civility (last visited June 18, 2018).
14
AAUP, Ensuring Academic Freedom in Politically
Controversial Academic Personnel Decisions (Aug. 2011),
https://www.aaup.org/NR/rdonlyres/895B2C30-29F6-4A88-80B9-
FCC4D23CF28B/0/PoliticallyControversialDecisionsreport.pdf.
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II
¶106 The United States Supreme Court has repeatedly
recognized the importance of academic freedom and freedom of
expression on America's college campuses, without which "our
civilization will stagnate and die." Sweezy, 354 U.S. at 250.
In 1957, the Court noted the "essentiality of freedom in the
community of American universities" as "almost self-evident,"
concluding that "[s]cholarship cannot flourish" unless
"[t]eachers and students . . . always remain free to inquire, to
study and to evaluate, to gain new maturity and understanding."
Id.
¶107 A decade later, the Court affirmed: "Our Nation is
deeply committed to safeguarding academic freedom" which is "a
special concern of the First Amendment." Keyishian, 385 U.S. at
603 (1967). The role "played by those who guide and train our
youth" in America's universities cannot be understated. Id.
(quoting Sweezy, 354 U.S. at 250). Public discourse on
controversial topics is essential to our success as a nation.
Id. "To impose any strait jacket upon the intellectual leaders
in our colleges and universities would imperil the future of our
Nation." Id. (emphasis added).
¶108 In 1972, the Court stressed that the "college
classroom with its surrounding environs is peculiarly the
'marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180
(1972). The Court "reaffirm[ed] this Nation's dedication to
safeguarding academic freedom." Id. at 180-81. And, in 2003,
it emphasized that "universities occupy a special niche in our
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constitutional tradition." Grutter v. Bollinger, 539 U.S. 306,
329 (2003).
¶109 This collection of cases establishes the centrality of
academic freedom on college campuses, and the judicial branch's
responsibility to vigilantly protect it. Several federal
appellate courts have acknowledged the right of university
professors "to disseminate publicly [their] views
as . . . teacher[s] or scholar[s]." Omosegbon v. Wells, 335
F.3d 668, 677 (7th Cir. 2003). Protecting academic freedom is
particularly pressing when the views expressed "fall outside the
mainstream." Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605
F.3d 703, 708 (9th Cir. 2010). "Without the right to stand
against society's most strongly-held convictions, the
marketplace of ideas would decline into a boutique of the banal,
as the urge to censor is greatest where debate is most
disquieting and orthodoxy most entrenched." Id.
¶110 For example, a federal district court denied the
University of Illinois' motion to dismiss a newly hired
professor's breach of contract action against the University for
rescinding the contract based on the professor's profanity-laden
diatribe against Israel, which he posted on Twitter. Salaita v.
Kennedy, 118 F. Supp. 3d 1068, 1075-84 (N.D. Ill. 2015)
(classifying professor's personal tweets as a matter of public
concern and determining Salaita's complaint sufficiently alleged
a First Amendment claim); see also Starsky v. Williams, 353 F.
Supp. 900, 922-24, 927 (D. Ariz. 1972), aff'd in part, rev'd in
part, 512 F.2d 109 (9th Cir. 1975) (firing professor for
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participating in a protest and making profane remarks critical
of administration violated AAUP standards that prohibit such
discipline as well as a First Amendment right to express
unpopular views); Adamian v. Jacobsen, 523 F.2d 929, 931, 934
(9th Cir. 1975) (professor who made profane comments, disrupted
campus ceremonies, and incited potential violent confrontation
during Vietnam and Kent State protest cannot be disciplined for
such political agitation; remanded for further proceedings).
¶111 It is the expression of opinions divergent from what
is currently politically correct that needs protection under the
doctrine of academic freedom. "If there is any principle of the
Constitution that more imperatively calls for attachment than
any other it is the principle of free thought——not free thought
for those who agree with us but freedom for the thought that we
hate." United States v. Schwimmer, 279 U.S. 644, 655 (1929)
(Holmes, J., dissenting). If academic freedom does not protect
dissident viewpoints, the doctrine is worthless. After all,
"[i]ntellectual advancement has traditionally progressed through
discord and dissent, as a diversity of views ensures that ideas
survive because they are correct, not because they are popular."
Rodriguez, 605 F.3d at 708.
¶112 Academic freedom, however, is not limitless. Like
Marquette, many universities have adopted the AAUP's 1940
Statement of Principles on Academic Freedom and Tenure. With
rights come responsibilities and the AAUP guides the exercise of
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academic freedom in its Statement on Professional Ethics.15 For
example, this ethics code for professors demands the practice of
"intellectual honesty," the protection of students' academic
freedom, and the avoidance of creating any impression of
speaking on behalf of the university.
¶113 Courts have also circumscribed some limits around
academic freedom. It does not impede a "university's ability to
control its curriculum," Edwards v. Cal. Univ. of Pa., 156 F.3d
488, 491 (3d Cir. 1998), or "to regulate the content of what is
or is not expressed" when it is the university that is speaking,
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 833-34 (1995).16 But, the doctrine does preclude
universities from punishing academic speakers who publicly
discuss matters of public concern beyond the classroom. See
Vikram Amar & Alan Brownstein, Academic Freedom, 9 Green Bag 2d
17, 25-26 (2005). Just as no citizen could "be punished for
writing a book that angers the state legislature——no matter how
outrageous or offensive the book might be," id., professors at
universities should not be punished for speaking on matters of
15
AAUP, Statement on Professional Ethics (1966),
https://www.aaup.org/report/statement-professional-ethics (last
visited June 18, 2018).
16
Similarly, the First Amendment does not protect all
speech. See State v. Breitzman, 2017 WI 100, ¶¶51-54, 378
Wis. 2d 431, 904 N.W.2d 93 (explaining classes of speech not
protected).
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public concern even if——especially if——that speech does not
conform with mainstream thought.17
III
¶114 Courts have been "particularly vigilant" when there is
an "alleged assault" on the First Amendment involving academic
freedom. Larry D. Spurgeon, A Transcendent Value: The Quest to
Safeguard Academic Freedom, 34 J.C. & U.L 111, 150 (2007) ("A
'special concern' means that courts should be particularly
vigilant when an alleged assault on the First Amendment involves
academic speech."). The First Amendment protects speech of
university employees when it involves "matters of public
concern"——speech that can be "fairly considered as relating to"
issues "of political, social, or other concern to the
community."18 Connick v. Myers, 461 U.S. 138, 146 (1983); see
also Pickering v. Bd. of Educ., 391 U.S. 563, 572-73 (1968).19
17
The court received a variety of amicus briefs from
private businesses concerned about the reverberations of this
case on the private sector. Their fears are unfounded.
University campuses inhabit a unique environment. The doctrine
of academic freedom has no application within private
enterprise, unless of course a private entity incorporates the
doctrine into employee contracts. Marquette University,
although a private institution, chose to guarantee academic
freedom to McAdams in his contract.
18
The text of the First Amendment provides:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and
to petition the Government for a redress of
grievances.
(continued)
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¶115 The Court struck down a West Virginia law compelling
all teachers and students to salute the American Flag while
pledging allegiance to it and those who refused were expelled
from school. W. Virginia Bd. of Educ. v. Barnette, 319 U.S.
624, 626-30 (1943). The Court, declaring the law violative of
the First Amendment, proclaimed: "If there is any fixed star in
our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein." Id. at
642.
¶116 In Keyishian, the Court nullified New York laws
requiring university professors to certify they were not
communists. 385 U.S. at 603-04. Concerned about both academic
freedom and the First Amendment, the Court identified the
"chilling effect upon the exercise of vital First Amendment
rights" when vague and general restrictions cause a teacher to
As a private entity, Marquette, of course, is neither
Congress nor the government, and can adopt and enforce rules not
implicated by the Constitution. Marquette, however, chose to
incorporate into McAdams' contract rights guaranteed "by the
United States Constitution."
19
These two cases are often discussed together in assessing
whether speech of a public employee was protected, which is
known as the Pickering-Connick test. But cf. Garcetti v.
Ceballos, 547 U.S. 410, 425 (2006) ("[E]xpression related to
academic scholarship or classroom instruction implicates
additional constitutional interests that are not fully accounted
for by this Court's customary employee-speech jurisprudence.").
13
No. 2017AP1240.rgb
"guess what conduct or utterance may lose him his position."
Id. at 604.
¶117 Similarly, the Court held unconstitutional an Oklahoma
law requiring teachers to take a "loyalty oath" disclaiming
affiliation "directly or indirectly" with any organization or
group determined "to be a communist front or subversive
organization." Wieman v. Updegraff, 344 U.S. 183, 186 (1952).
The Court held the law infringed individual constitutional
rights, was an "assertion of arbitrary power," and offended due
process. Id. at 188-91. It recognized that "inhibiting
individual freedom of movement" when a teacher may have
innocently joined a group would "stifle the flow of democratic
expression and controversy at one of its chief sources." Id. at
191.
¶118 Sweezy involved a professor who was convicted for
refusing to answer political association questions. 354 U.S. at
238-45. The Court reversed the conviction, emphasizing academic
freedom and freedom of expression. Id. at 249-50. Recognizing
freedom of expression as a "fundamental principle of democratic
society," the Court professed the significance of divergent
voices: "Mere unorthodoxy or dissent from the prevailing mores
is not to be condemned. The absence of such voices would be a
symptom of grave illness in our society." Id. at 251.
¶119 Finally, in Shelton, the Court struck down an Arkansas
statute requiring teachers to annually file an affidavit listing
"every organization to which [they have] belonged or regularly
contributed within the preceding five years." 364 U.S. at 480.
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No. 2017AP1240.rgb
The Court held this law abridged teachers' constitutional rights
by inhibiting free speech, assembly, and association. Id. at
485-89. "Such unwarranted inhibition upon the free spirit of
teachers . . . has an unmistakable tendency to chill that free
play of the spirit which all teachers ought especially to
cultivate and practice . . . ." Id. at 487 (quoting Wieman, 344
U.S. at 195 (Frankfurter, J., concurring)).
IV
¶120 In every case presenting the Supreme Court with the
issue, it unfailingly declared the importance of academic
freedom and freedom of expression in academia. It struck down
many laws that undoubtedly had the support of a majority of the
people. In the midst of the fear and tension gridlocking
American international politics during the Cold War, few would
publicly object to ensuring that teachers——entrusted with
educating the future leaders of America——would denounce
Communism and would not influence students to become Communists.
Despite the good intentions underpinning such laws, the Court
repeatedly struck them down and continually emphasized the
importance of academic freedom, the need for free expression on
college campuses, and the significant value that opposing
viewpoints play in the advancement of ideas. From Aristotle
challenging the then-predominant belief that the Earth was flat
to Susan B. Anthony and Elizabeth Cady Stanton asserting the
then-preposterous idea that women should vote, the past is
replete with examples of unpopular ideas proven right when
15
No. 2017AP1240.rgb
freely aired and debated. To squelch discussion of any idea
jeopardizes our future.
¶121 Academic freedom exists to further the search for
truth through vigorous open inquiry, discourse, and debate.
See, e.g., Healy, 408 U.S. at 180. Permitting debate ensures
"the security of the Republic, the very foundation of
constitutional government." DeJonge v. State of Oregon, 299
U.S. 353, 365 (1937) ("to the end that government may be
responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means"). And, as Pickering
instructs, criticisms of campus administration are part of the
public debate. 391 U.S. at 573-74.
¶122 This court acknowledged the importance of academic
freedom, specifically the freedom to criticize university
administration, almost sixty years ago when it decided State ex
rel. Ball v. McPhee, 6 Wis. 2d 190, 94 N.W.2d 711 (1959),
overruled in part on other grounds, Stacy v. Ashland Cty. Dep't.
of Public Welfare, 39 Wis. 2d 595, 159 N.W.2d 630 (1968). In
that case, this court recognized that a university should not be
able to discharge a professor on the basis of the professor's
expression of philosophical disagreements with administration:
"Surely a teacher in a state college is entitled to some
academic freedom in criticizing school programs with which he is
in disagreement. Such acts of criticism do not qualify as
either inefficiency or bad behavior." Id. at 204.
16
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V
¶123 Professional academic freedom is often regarded to be
"alive and well"20 as the dearth of court cases may corroborate.
News reports of intra-campus clashes between professors and
administrators21 suggest otherwise, although many disputes never
reach the courts for obvious reasons, not least among them, "it
is always dangerous to shoot at the king."22 However, when
"there is a breach in the academic fortress . . . the next line
of defense, in some instances, is the court."23 This is one of
those instances.
¶124 McAdams, as he had done many times before, wrote a
blog post on a matter of public concern calling into question
the prevailing orthodoxy on Marquette's campus.24 The impetus
for this particular blog post arose after an undergraduate
student, J.D., turned to McAdams for help because J.D. was
20
Larry D. Spurgeon, A Transcendent Value: The Quest to
Safeguard Academic Freedom, 34 J.C. & U.L 111, 130 (2007).
21
Heather MacDonald, The Penn Law School Mob Scores A
Victory, Wall St. J. (Mar. 18, 2018),
https://www.wsj.com/articles/the-penn-law-school-mob-scores-a-
victory-1521397094; Erika Christakis, My Halloween Email Led to
a Campus Firestorm, The Wash. Post (Oct. 28, 2016),
https://www.washingtonpost.com/opinions/my-halloween-email-led-
to-a-campus-firestorm--and-a-troubling-lesson-about-self-
censorship/2016/10/28/70e55732-9b97-11e6-a0ed-
ab0774c1eaa5_story.html?utm_term=.7fae2361b7d7.
22
Spurgeon, supra note 20, at 130.
23
Id.
24
McAdams has been employed as a professor at Marquette
since 1977. Marquette granted him tenure in 1989.
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troubled by how his Philosophy teacher (who was a graduate
student), and Marquette's Philosophy Department Chair Nancy Snow
and Assistant Chair Sebastian Luft had shut down his attempt to
understand why the topic of same sex marriage had been censored
during a class discussion. Abbate invited J.D. to drop the
class and Snow told him to "change his attitude so he comes
across as less insolent and disrespectful," later calling him a
"little twit" and a "jackass" in email exchanges with
colleagues. Absurdly, Marquette's Faculty Hearing Committee
would later support its disciplinary recommendation against
McAdams by citing Marquette's Guiding Values, which obligate
professors to "respect the dignity of others" to "acknowledge
their right to express differing opinions" and to "nurture an
inclusive, diverse community that fosters . . . vigorous yet
respectful debate."
¶125 McAdams reached out to Abbate for comment, but Abbate
declined the opportunity to respond. The blog post reported on
the student's experience and discussed McAdams' political view
of popular tactics used for "shutting people up." It was
critical of Marquette and of censorship. Unlike the Philosophy
Department faculty's criticisms of J.D., it did not contain any
intemperate language or ad hominem attack. The blog post did
not contain a call to action or make any demands inciting
violence or attack. In fact, Marquette's Dean of Arts and
Sciences did not believe the post was harmful to Abbate at all
and Abbate apparently agreed, remarking: "When I saw the blog I
was pleasantly surprised."
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No. 2017AP1240.rgb
¶126 Despite her pleasant surprise, Abbate flamed this
fire. She drafted a formal letter of complaint insisting that
Marquette discipline McAdams for the blog. Abbate also asserted
she had been "the target of harassing emails, sent by [McAdams']
followers," although as of the date of that statement, Abbate
had only received a single email critical of her. Two weeks
later, Abbate threatened to sue Marquette and subject it to
adverse publicity, unless the University acceded to her demands
that the University fire McAdams, punish J.D., and pay
"reparations" to her.25
¶127 J.D. and Abbate each shared their respective sides of
the story with online news sources——J.D. with College Fix26 and
Abbate with the Daily Nous.27 Other news sources picked up the
story and it became national news.28 After the story went viral,
Abbate received numerous emails, some in support, some critical,
and others vile and threatening.
25
A short time later, Abbate left Marquette for University
of Colorado.
26
Matt Lamb, Student told he can't openly disagree with gay
marriage in class at Jesuit college, The C. Fix (Nov. 17, 2014),
http://www.thecollegefix.com/post/20138/.
27
Justin Weinberg, Philosophy Grad Student Target of
Political Smear Campaign, Daily Nous (Nov. 18, 2014),
http://dailynous.com/2014/11/18/philosophy-grad-student-target-
of-political-smear-campaign/.
28
See, e.g., Colleen Flaherty, Ethics Lesson, Inside Higher
Ed (Nov. 20, 2014), https://www.insidehighered.com/news/2014/11/
20/marquette-u-grad-student-shes-being-targeted-after-ending-
class-discussion-gay; Todd Starnes, Teacher to student: If you
don't support gay marriage, drop my class, Fox News: Opinions
(Nov. 22, 2014), http://www.foxnews.com/opinion/2014/11/22/teach
er-to-student-if-dont-support-gay-marriage-drop-my-class.html.
19
No. 2017AP1240.rgb
¶128 Marquette found itself embroiled in a controversy it
did not initiate. In response, it suspended McAdams from
teaching, banished him from campus, and initiated disciplinary
proceedings against him. After hearings, the Faculty Hearing
Committee (FHC) recommended McAdams be suspended without pay.
Marquette's President, Michael Lovell, accepted the FHC's
recommendation but as a condition of reinstatement as a member
of the faculty, demanded McAdams express his "deep regret"——a
proviso reminiscent of forced confessions of guilt for imaginary
crimes in oppressive regimes. Instead of abiding by its
contract, which guaranteed academic freedom, Marquette breached
it. As the court correctly holds, McAdams' blog post plainly
falls within the definition of academic freedom under McAdams'
contract.
¶129 Marquette subjected a tenured professor to discipline
for writing something that triggered an adverse response from
third parties over whom he has no control, thereby holding
McAdams responsible for the actions of third parties. Allowing
this retribution to stand would set a dangerous precedent,
leading faculty to self-censor for fear of third-party reactions
to speech and post hoc disapproval of it. If universities
impose culpability on professors for the actions of others, it
will undoubtedly cause the same chilling effect and result in
the same stifling of expression that led the Supreme Court to
strike down the legal imposition of "not-a-communist" promises,
loyalty pledges, and disclosures of association in Keyishian,
20
No. 2017AP1240.rgb
Weiman, and Shelton, respectively. And academic freedom would
be severely wounded, perhaps fatally.
VI
¶130 "And though all the winds of doctrine were let loose
to play upon the earth, so Truth be in the field, we do
injuriously by licensing and prohibiting to misdoubt her
strength. Let her and Falsehood grapple; who ever knew Truth
put to the worse, in a free and open encounter." John Milton,
Areopagitica 166-67 (James Russell Lowell ed., 1890) (1644).
¶131 Academic freedom is deeply entrenched in the history
of this country and its college campuses. Universities are
unique places for intellectual growth, where both students and
professors can "follow truth wherever it may lead." Those who
engage in the pursuit of truth, who propound ideas and challenge
others, must enjoy the freedom to speak on matters of public
concern without the sword of Damocles menacing their discourse.
¶132 "Mere unorthodoxy or dissent from the prevailing mores
is not to be condemned. The absence of such voices would be a
symptom of grave illness in our society." Sweezy, 354 U.S. at
251. Suppression of viewpoints confronting the current cultural
orthodoxy would surely lead to academic stagnation and imperil
the future of America. If institutional silencing of non-
majority viewpoints replaces the search for truth, higher
education becomes nothing more than an echo chamber of familiar
and recycled perspectives, and the dialectic dies with it.
21
No. 2017AP1240.rgb
¶133 The court ensures the dialectic is alive and well in
Wisconsin, and academic freedom along with it. I join the
majority opinion in full.
22
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¶134 DANIEL KELLY, J. (concurring). I offer this brief
concurrence because I believe that not only was the FHC
compositionally biased, the University's Discipline Procedure is
itself 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.
Faculty Statutes § 307.07(6). But it was not just the FHC——
everyone in the disciplinary process was a University employee.
Thus, the University (by its designated prosecutor1) presented
its case to the University (in the form of the FHC2), which then
made a recommendation to the University (in the person of
President Michael Lovell3). We have long known the problems
attendant upon allowing a party to decide its own case:
No man is allowed to be a judge in his own cause;
because his interest would certainly bias his
judgment, and, not improbably, corrupt his integrity.
With equal, nay with greater reason, a body of men,
are unfit to be both judges and parties, at the same
time; . . . .
The Federalist No. 10, at 59 (James Madison) (Jacob Cooke ed.,
1961). Echoing Madison, the United States Supreme Court has
said that "no man can be a judge in his own case[,] and no man
1
See Faculty Statute § 307.07(11) (stating the
"Administration may appear or be represented by its legal
counsel"). At the hearing, the University appeared by two
attorneys.
2
See Faculty Statute § 307.07(1).
3
See Faculty Statutes § 307.07(18)-(19); Faculty Handbook
art. 4, § 1.01.1(1).
1
No. 2017AP1240.dk
is permitted to try cases where he has an interest in the
outcome." In re Murchison, 349 U.S. 133, 136 (1955).
¶135 And yet, the University tells us we are to defer to
its determination that it did not breach its contract with Dr.
McAdams. That proposition threatens the very concept of
contract. A contract is supposed to bind the parties to
ascertainable obligations. Mgmt. Comput. Servs., Inc. v.
Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67
(1996) ("[A] contract must be definite as to the parties' basic
commitments and obligations."). But if in a contract between
Mr. Smith and Mr. Brown, Mr. Smith is the unreviewable judge of
whether he has himself breached the contract, then his
contractual obligations mean nothing but what he wishes them to
mean. That, of course, is no contract at all.
¶136 I am not the only one to notice how this type of
structural bias can turn tenure into employment-at-will. The
D.C. Circuit in McConnell v. Howard University, 818 F.2d 58
(D.C. Cir. 1987), recognized the incongruity of casting a
university as the unreviewable judge of its dispute with one of
its faculty members. "If we were to adopt a view limiting
judicial review over the substance of the Board of Trustees'
decision, we would be allowing one of the parties to the
contract to determine whether the contract had been breached."
Id. at 68. I agree with McConnell that it "would make no sense
for a court blindly to defer to a university's interpretation of
a tenure contract to which it is an interested party." Id. at
2
 No. 2017AP1240.dk
69. Doing so "would make a sham of the parties' contractual
tenure arrangement." Id. at 68.
¶137 I am authorized to state that REBECCA GRASSL BRADLEY
joins this concurrence.
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No. 2017AP1240.awb
¶138 ANN WALSH BRADLEY, J. (dissenting). At its core,
academic freedom is a professional principle, not merely a legal
construct.1 It embraces the academic freedom of the faculty as
well as the academic freedom of the institution. "Academic
freedom thrives not only on the independent and uninhibited
exchange of ideas among teachers and students, but also . . . on
autonomous decisionmaking by the academy itself." Regents of
Univ. of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985)
(internal citations omitted).
¶139 Within academic freedom lies the concept of shared
governance. It includes the right of faculty to participate in
the governance of the institution on academic-related matters.
Shared governance in colleges and universities has been forged
over decades to address the specific issues that arise in the
workplace of higher education.
¶140 The majority errs in conducting only half of the
academic freedom analysis. It fails to recognize, much less
analyze, the academic freedom of Marquette as a private,
Catholic, Jesuit university. As a result, it dilutes a private
educational institution's autonomy to make its own academic
decisions in fulfillment of its unique mission.
1
Rachel B. Levinson, Academic Freedom, Shared Governance,
and the First Amendment after Garcetti v. Ceballos, Stetson
University College of Law, 31st Annual National Conference on
Law and Higher Education 2 (Feb. 2011),
https://www.aaup.org/NR/rdonlyres/4C126513-1194-4317-8123-
459BD9F30A6D/0/Stetson2011AcadFreedomFirstAmdmtoutline.pdf.
1
No. 2017AP1240.awb
¶141 Further, the majority compounds this error by
rendering meaningless a key component of shared governance,
reducing the faculty's bargained-for role in reviewing dismissal
for cause to "nothing" or a mere "distraction." In disregarding
the faculty hearing committee's expertise and unanimous
recommendation, it throws aside a process that is mutually
agreed upon and time-honored. Apparently, the majority thinks
it is in a better position to address concerns of academic
freedom than a group of tenured faculty members who live the
doctrine every day.
¶142 Additionally, the majority conducts its analysis with
a selective view of the facts. Missing from its opinion are key
facts that informed McAdams' action. After publishing the blog
post, McAdams actively promoted it to local and national media
outlets. The record reflects that McAdams did so by
"distributing copies of the audio recording to interested
journalists and bloggers, posting follow-up stories linking back
to the Nov. 9 post, creating a category of posts linked to
Abbate by name, and arranging to appear on radio and television
interviews about the story and subsequent controversy." McAdams
wrote that he was aware that "'[w]hen one does something that
gets national publicity, some jerks are going to say nasty
things."
¶143 That prophecy was fulfilled here. Within hours of the
blog post, Abbate started receiving negative emails, which only
multiplied in the following weeks. She feared for her safety at
Marquette and within weeks withdrew her dissertation proposal
2
No. 2017AP1240.awb
and transferred to another university despite adverse
consequences to her academic progress.
¶144 The travesty of the majority opinion lies not just in
its decision for Marquette University. Because Marquette has
adopted a definition of academic freedom and uniform procedures
that have been embraced by many other colleges and universities,
the decision is far reaching. The majority's decision to so
readily discard institutional academic freedom and to disrespect
part of the time-honored and bargained-for shared governance
procedures will reverberate throughout this state.
¶145 Finally, because I determine that the doctrine of
academic freedom does not protect McAdams from discipline, I
address his argument that the First Amendment does. McAdams is
wrong. His contract does not give him the full-throated First
Amendment rights that would be given a private citizen vis-à-vis
the government.
¶146 Accordingly, I respectfully dissent.
I
¶147 The majority errs first by curbing its discussion of
academic freedom. It takes an expansive view of McAdams'
academic freedom, but does not pay any mind to the academic
freedom of the university.
¶148 "Academic freedom thrives not only on the independent
and uninhibited exchange of ideas among teachers and students,
but also . . . on autonomous decisionmaking by the academy
itself[.]" Ewing, 474 U.S. at 226 n.12 (internal citations
omitted). The term "academic freedom" is used to denote both
3
No. 2017AP1240.awb
the freedom of the academic institution to pursue its ends
without interference from the government, as well as the freedom
of the individual teacher to pursue desired ends without
interference from the institution.2 Piarowski v. Illinois Cmty.
2
The definition of academic freedom in Marquette's faculty
handbook focuses on this second type of academic freedom,
"[p]rofessorial academic freedom," or "that proper to the
scholar-teacher." Marquette University, Handbook for Full-Time
Faculty, "Rights and Responsibilities" 47 (version approved Aug.
27, 2013, last amended Nov. 13, 2017),
http://www.marquette.edu/provost/_includes/documents/Facultyhand
booklastupdatedMay82018numbered.pdf. Marquette's definition of
academic freedom follows closely that of the AAUP's 1940
Statement of Principles on Academic Freedom and Tenure.
Marquette's definition provides in relevant part:
Academic freedom is prized as essential to Marquette
University and to its living growth as a university.
Professorial academic freedom is that proper to the
scholar-teacher, whose profession is to increase
knowledge in himself/herself and in others. As proper
to the scholar-teacher, academic freedom is grounded
on competence and integrity.
When scholar-teachers carry on their academic lives in
educational institutions, integrity requires both
respect for the objectives of the institution in which
they choose to carry on their academic lives and
attention to the task of reevaluating these objectives
as a necessary condition of living growth in human
institutions.
The University, because it prizes academic freedom,
proposes the following safeguards to that freedom:
. . .
c. The college or university teacher is a
citizen, a member of a learned profession, and an
officer of an educational institution. When
he/she speaks or writes as a citizen, he/she
should be free from institutional censorship or
discipline, but his/her special position in the
civil community imposes special obligations. As
(continued)
4
No. 2017AP1240.awb
Coll. Dist. 515, 759 F.2d 625, 629 (7th Cir. 1985) (citations
omitted); see also Feldman v. Ho, 171 F.3d 494, 495 (7th Cir.
1999); J. Peter Byrne, Academic Freedom: A "Special Concern of
the First Amendment", 99 Yale L.J. 251 (1989).
¶149 To manifest this freedom to pursue their ends,
educational institutions set their own missions. As a Catholic,
Jesuit institution, Marquette University operates according to
certain guiding values. These values include the "holistic
development of students" and a "commitment to the Jesuit
tradition and Catholic social teaching."3 It is also a guiding
value of the institution to foster "vigorous yet respectful
debate."
¶150 Marquette's status as a Jesuit institution is a
cornerstone of its identity. According to amicus Association of
Jesuit Colleges and Universities: "Being 'Catholic, Jesuit
universities' is not simply one characteristic among others but
is [their] defining character, what makes [them] to be uniquely
a man/woman of learning and an educational
officer, he/she should remember that the public
may judge his/her profession and institution by
his/her utterances. Hence, he/she should at all
times be accurate, should exercise appropriate
restraint, should show respect for the opinions
of others, and should make every effort to
indicate that he/she is not an institutional
spokesperson.
Id.
3
See Marquette University,
http://www.marquette.edu/about/mission.php (last visited June
22, 2018).
5
No. 2017AP1240.awb
what [they] are. . . . As Jesuit colleges and universities,
[they] are a continuation of the Ignatian heritage and of the
distinctive tradition of Jesuit education."
¶151 Jesuit institutions operate under the "Ignatian
pedagogy." This educational philosophy encourages faculty to
consider the "context" of the individual students in the
classroom and "uniquely characterizes the relationship the
faculty member has with the student [with whom] he [or] she
attempts to create a teaching/learning environment."4
¶152 Private institutional learning environments present
unique concerns and a particular need for independence in
decision making. If the founding principles of each individual
university are to be given life, the institution must possess
the freedom to determine the consistency or inconsistency of
actions with those principles.
¶153 Institutional academic freedom is inclusive of four
"essential freedoms": "to determine for itself on academic
grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study." Sweezy v. State of
N.H. by Wyman, 354 U.S. 234, 263 (1957) (Frankfurter, J.,
concurring). Although no court has clearly defined the scope of
institutional academic freedom, McAdams' conduct and the faculty
hearing committee procedures at issue in this case appear to
4
Dr. Susan Mountin, What is Ignatian Pedagogy?, Marquette
University Explore Series,
http://www.marquette.edu/mission/IgnatianPedagogy.php (last
visited June 25, 2018).
6
No. 2017AP1240.awb
implicate the first of these "essential freedoms": who may
teach. Although also relevant to public universities, this
concern is especially germane in the context of private
universities.
¶154 In determining who may teach at its university,
Marquette has academic freedom to uphold its values and
principles. It has academic freedom to provide an educational
environment that is consistent with its mission as a university.
¶155 McAdams' appeal focuses on his individual rights, and
the majority follows suit. However, McAdams' rights to academic
freedom are not the only rights at issue.5 An educational
institution, here a private, Catholic, Jesuit institution,
possesses the academic freedom to operate in accordance with its
principles as long as it does not violate governing laws.6 Such
a right should be given some consideration, rather than the
silent treatment the majority offers.
5
See J. Peter Byrne, Academic Freedom: A "Special Concern
of the First Amendment", 99 Yale L.J. 251 (1989) (explaining
that institutional autonomy is a key facet of academic freedom);
David M. Rabban, A Functional Analysis of "Individual" and
"Institutional" Academic Freedom Under the First Amendment, 53
Law & Contemp. Probs. 227, 256 (1990),
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=405
7&context=lcp; Donna R. Euben, Academic Freedom of Individual
Professors and Higher Education Institutions: The Current Legal
Landscape, American Association of University Professors 6 (May
2002),
https://www.aaup.org/sites/default/files/files/Academic%20Freedo
m%20-%20Whose%20Right%20(WEBSITE%20COPY)_6-26-02.pdf.
6
See, e.g., Powell v. Syracuse Univ., 580 F.2d 1150, 1154
(2d Cir. 1978) (explaining that institutional academic freedom
does not embrace the freedom to discriminate).
7
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II
¶156 Within the concept of academic freedom lies the right
of faculty to participate in the governance of the institution
in academic-related matters. The majority errs next in
jettisoning the shared governance of colleges and universities
that has been forged over decades to address the specific issues
that arise in this unique workplace. In the majority's view,
the work of the faculty hearing committee (FHC) is of no import.
It instead serves as a mere "distraction": "all of the time,
energy, and resources that went into the Discipline Procedure
and the richly-detailed Report are distractions from the
necessary focus of our analysis." Majority op., ¶46.
¶157 Further, the majority doubles down on this assertion,
overtly stating that the FHC's work represents nothing of
substance: "As far as the Faculty Statutes and Faculty Handbook
are concerned, the president may proceed as if the Report said
nothing but that the FHC had completed the Discipline
Procedure." Id., ¶49. It deems the work of the FHC not
relevant and even raises the specter that perhaps the university
need not have convened the FHC at all. See id., ¶47 n.16. Each
of these conclusions ignores the context in which this dispute
arises. Such analysis renders the concept of shared governance
merely illusory and completely removes faculty input from these
important decisions.
¶158 As observed above, the university has a strong
interest in its own academic freedom to make autonomous
8
No. 2017AP1240.awb
decisions. It exercises that academic freedom through the
manifestation of the framework of shared governance.7
¶159 "Shared governance" allows university faculty to play
a role in decisions that affect the academic mission of the
university. The American Association of University Professors
(AAUP) has extensively considered and set forth principles of
shared governance in guidance documents. In 1940, it issued a
Statement of Principles on Academic Freedom and Tenure, and in
the decades that followed, it further refined the foundational
principles therein.8 The principles adduced by the AAUP are well
recognized and have been widely adopted throughout higher
education.9
¶160 Faculty participation in decisions regarding
curriculum, tenure, and other academic-related matters is
7
See Emergency Coal. to Defend Educ. Travel v. U.S. Dep't
of the Treasury, 545 F.3d 4, 15 (D.C. Cir. 2008) (Edwards, J.,
concurring); Judith Areen, Government as Educator: A New
Understanding of First Amendment Protection of Academic Freedom
and Governance, 97 Geo. L.J. 945, 953-66 (2009).
8
The 1940 Statement had its genesis much earlier, in 1915,
when the AAUP's Committee on Academic Freedom and Academic
Tenure formulated a "Declaration of Principles." In 1970,
"interpretive comments" were added to the 1940 Statement
clarifying certain statements and illuminating the intent of
others.
9
See Aaron Nisenson, Faculty Rights in the Classroom,
Academe, Sept.-Oct. 2017, at 10,
https://www.aaup.org/article/faculty-rights-
classroom#.WykylGrwZhE ("[M]any colleges and universities have
adopted, either in whole or in substantial part, AAUP policies
on academic freedom, tenure, and governance in faculty
handbooks, faculty contracts, or collective bargaining
agreements.").
9
No. 2017AP1240.awb
essential to the operation of the university. As the Marquette
Academic Senate put it in its amicus brief to this court,
"[s]hared governance includes, as a necessary component, prior
faculty review of any attempt by the University administration
to override the protections of tenure and dismiss or suspend a
tenured faculty member."
¶161 AAUP's guidance documents include recommended
procedural protections for faculty members. These procedural
protections require that any proposed suspension or dismissal of
a tenured faculty member come before an independent faculty
committee for review prior to any adverse employment action.
Marquette adopted a statutory procedure consistent with the
AAUP's recommended methodology, which sets forth procedures for
contested suspensions or terminations.10
¶162 The independent committee called for in the AAUP's
guidance documents manifest in Marquette's case as the FHC. It
is made up of tenured faculty members elected to serve three-
year terms. In accordance with the adopted procedure, the FHC
serves as an advisory body tasked with scheduling a hearing,
determining the existence of cause, and making findings of fact
and conclusions.
10
See Marquette University Statutes on Faculty Appointment,
Promotion and Tenure § 307.07,
http://www.marquette.edu/provost/_includes/documents/Facultyhand
booklastupdatedMay82018numbered.pdf.; compare American
Association of University Professors, Recommended Institutional
Regulations on Academic Freedom and Tenure 79, 83-84,
https://www.aaup.org/file/RIR%202014.pdf (last visited June 25,
2018).
10
No. 2017AP1240.awb
¶163 Under the majority's analysis, the FHC proceedings are
rendered completely unnecessary.11 It is the President who makes
the decision as to discipline, the majority states, so there is
no product of the FHC to which a court can defer. This
treatment of the FHC ignores its role within the shared
governance structure of the university.12
¶164 The FHC is a mutually agreed-upon dispute resolution
mechanism. It is composed of Marquette faculty members who
signed contracts similar to McAdams' and whose employment
relationships are governed by the same faculty statutes. In
other words, the members of the FHC live and breathe academic
freedom and are in a position to say what the intent of the
11
The majority accuses this dissent of proffering a
"formless notion of what shared governance ought to be" rather
than grounding its interpretation in the language of the Faculty
Statutes. See majority op., ¶58. I acknowledge that the
Faculty Statutes define the FHC as an "advisory" board. Faculty
Statute § 307.07(1). However, the faculty statutes also include
the bargained-for procedural safeguards giving the faculty the
imperative to weigh in prior to any adverse employment action.
See Faculty Statute § 307.07. The "form" of shared governance
is provided by these procedural safeguards, which the majority
discards as a "distraction."
12
The majority exhorts that this dissent would end the
University's "carefully balanced shared governance" by "turning
a cooperative relationship into an adversarial contest." See
majority op., ¶89. But the facts of this case fail to bear this
out. Indeed, in this case the faculty, who the majority
indicates "tries to expand its own sphere of academic freedom at
the expense of the other," unanimously determined that McAdams'
conduct was unprotected. Id.
11
No. 2017AP1240.awb
parties was in signing a contract guaranteeing "academic
freedom."13
¶165 Indeed here, the FHC was composed of seven tenured
members of the faculty, chaired by a law professor, and was
observed by a representative of the AAUP. After receiving
evidence over the course of four days, the FHC unanimously found
that there was clear and convincing evidence that Marquette had
"discretionary cause" to impose discipline.14 Accordingly, the
FHC recommended that Marquette University President Michael
Lovell impose a paid suspension of up to two semesters.
Consistent with the FHC's recommendation, President Lovell
imposed upon McAdams a two-semester suspension.
13
I also observe that professors like those who make up the
FHC are likely to support a robust academic freedom doctrine.
The members of the FHC are not only sitting in judgment of a
colleague, but interpreting the rules that govern themselves.
It is telling that this group of people unanimously arrived at
the conclusion that McAdams' conduct crossed the line.
14
Marquette University Statute on Faculty Appointment,
Promotion and Tenure § 306.03 defines "discretionary cause" as
inclusive of:
[T]hose circumstances, exclusive of absolute cause,
which arise from a faculty member's conduct and which
clearly and substantially fail to meet the standard of
personal and professional excellence which generally
characterizes University faculties, but only if
through this conduct a faculty member's value will
probably be substantially impaired. Examples of
conduct that substantially impair the value or utility
of a faculty member are: serious instances of
illegal, immoral, dishonorable, irresponsible, or
incompetent conduct. In no case, however, shall
discretionary cause be interpreted so as to impair the
full and free enjoyment of legitimate personal or
academic freedoms of thought, doctrine, discourse,
association, advocacy, or action.
12
No. 2017AP1240.awb
¶166 The United States Supreme Court has directed that
"[w]hen judges are asked to review the substance of a genuinely
academic decision, . . . they should show great respect for the
faculty's professional judgment." Ewing, 474 U.S. at 225. It
made this pronouncement with respect to a faculty decision that
it characterized as "made conscientiously and with careful
deliberation." Id. We can realize the Supreme Court's command
by affording the respect due to the FHC's expertise and
specialized knowledge.
¶167 With regard to the FHC's factual findings, "great
respect" is surely appropriate. The FHC heard four days of
evidence and produced a detailed 123-page report that was
clearly "made conscientiously and with careful deliberation."
See id.
¶168 It is the FHC, and not this court, that observed the
demeanor of witnesses and is in a position to assess
credibility. Deference to circuit courts' factual findings is
appropriate in similar circumstances. Welytok v. Ziolkowski,
2008 WI App 67, ¶28, 312 Wis. 2d 435, 752 N.W.2d 359 (citation
omitted) (explaining that "such deference is appropriate because
the court has the opportunity to observe firsthand the demeanor
of the witnesses and gauge the persuasiveness of their
testimony").
¶169 Other jurisdictions have echoed this approach, and
realize the Supreme Court's exhortation of "great respect" by
affording deference to the conclusions of faculty hearing
committees. For example, in Yackshaw v. John Carroll University
13
No. 2017AP1240.awb
Board of Trustees, 624 N.E.2d 225, 225-27 (Ohio Ct. App. 1993),
the Ohio court of appeals reviewed a similar breach of contract
case involving a private university's hearing committee. The
Yackshaw court found "rationale and guidance from the standard
of review adopted by administrative agencies, especially when
the involved parties have bound themselves contractually." Id.
at 228.
¶170 Such "great respect" makes particular sense in the
context of a private, Catholic, Jesuit institution with a
distinct mission like Marquette. Indeed, in Murphy v. Duquesne
University of the Holy Ghost, 777 A.2d 418, 433 (Pa. 2001), the
Pennsylvania Supreme Court further explained the rationale for
its determination that a faculty hearing procedure like that at
issue here was an exclusive procedure. The Murphy court
observed that Duquesne, like Marquette, is a private, Catholic
university with a particular mission:
The University is an ecumenically-based institution
dedicated to promoting through the members of its
tenured faculty the ethical and religious values of
the "Judaeo–Christian tradition in its Catholic
dimension." It comes as no surprise that the
University and its faculty agreed not to cede to any
lay outsider or secular institution the right to
define and determine what behavior on the part of a
faculty member was so antithetical to its mission that
he could not remain a member of the University's
community, and instead, concurred that the process set
out in the Contract would finally decide whether a
faculty member's actions rose to the level of serious
misconduct and whether forfeiture was in order.
Id. at 433.
¶171 Here, it is also the faculty that is in the best
position to determine "what behavior on the part of a faculty
14
No. 2017AP1240.awb
member [is] so antithetical to its mission that he could not
remain a member of the University's community." See id. The
faculty unanimously determined that McAdams exhibited such
behavior that violates the norms of the academic profession so
as to call into question his fitness as a member of the
university community. As President Lovell observed in his
letter to McAdams, a unanimous decision in the context of
academia is no small feat: "Getting a diverse group of faculty
to unanimously agree on any topic can be difficult, so to have
seven of your peers uniformly condemn and characterize your
actions as egregious sends a strong message to my office and to
the broader Marquette community."
¶172 By refusing to afford "great respect" to President
Lovell's reliance on the unanimous faculty determination, the
court as the third branch of government inserts itself into the
fray. Such an exercise is antithetical to the freedom of the
academic institution to pursue its ends without interference
from the government.
¶173 Rather than properly according the respect due to
President Lovell's reliance on the FHC's findings and
conclusions, the majority opinion renders meaningless a key part
of shared governance, reducing the faculty's role in this
decisionmaking to nothing. It disregards the FHC's expertise,
throwing aside a process that is mutually agreed-upon and time-
honored.
15
No. 2017AP1240.awb
III
¶174 The majority errs third by disregarding significant
facts in its analysis. It concludes that McAdams' blog post
cannot be the basis for discipline because the posting was a
legitimate exercise of McAdams' academic freedom. Majority op.,
¶84. In the majority's view, "the blog post has nothing
relevant to say about Dr. McAdams' fitness as a professor."
Id., ¶73. It further determines that "[j]ust because vile
commentary followed the blog post does not mean the blog post
instigated or invited the vileness." Id., ¶76. The majority
misframes the issue.
¶175 In his letter to McAdams informing him of the
disciplinary action taken, President Lovell is clear that it was
not the views expressed in the blog post that led to discipline:
"I think it is important to state that the sanctions being
brought against you are solely based on your ACTIONS as a
tenured faculty member at Marquette University, and have nothing
to do with the political or ideological views expressed in your
blog" (capitalization in original). President Lovell's letter
thus makes clear that McAdams was disciplined for his actions,
and not the blog post's viewpoint. Thus, the question is not
"whether [the blog post's] contents remove the doctrine's
protections." Id., ¶64. It is whether McAdams' actions are
worthy of protection.
¶176 The majority recognizes that in engaging in extramural
activities, a professor "occupies a 'special position in the
civil community,' one that comes with 'special obligations.'"
16
No. 2017AP1240.awb
Majority op., ¶65. Included in these "special obligations" is
the duty to "exercise appropriate restraint." Id.
¶177 McAdams did not exercise any restraint at all, let
alone appropriate restraint. I agree with the FHC that "where
substantial harm is foreseeable, easily avoidable, and not
justifiable, it violates a professor's obligations to fellow
members of the Marquette community to proceed anyway, heedless
of the consequences."
¶178 McAdams' actions were well summarized in President
Lovell's discipline letter, where he approvingly quoted from the
FHC report: "[McAdams'] use of a surreptitious recording, along
with Ms. Abbate's name and contact information, to hold Ms.
Abbate up for public contempt on his blog, recklessly exposed
her to the foreseeable harm that she suffered due to Dr.
McAdams's actions."
¶179 The majority unpersuasively asserts that the vile
commentary immediately following the blog post "does not mean
the blog post instigated or invited the vileness." Majority
op., ¶76. The only way the majority can reach this conclusion
is by ignoring significant facts in the record.15
15
The record reflects that at the time of the events at
issue in this case, Abbate was a graduate student in the
philosophy department at Marquette. In addition to working on
her dissertation, in the fall of 2014 Abbate taught two sections
of Theory of Ethics, a philosophy class for undergraduates. I
observe that throughout its opinion, the majority cherry-picks
facts when it refers to Abbate as an "instructor" and not a
"student." See, e.g., majority op., ¶1. In doing so, it colors
the facts, disregarding the realities of the power dynamics at
play here between a tenured professor and a graduate student.
17
No. 2017AP1240.awb
¶180 First, McAdams knew the effect his blog post would
have on Abbate. Among the FHC's factual findings that go
unmentioned by the majority is that Dr. McAdams wrote in a blog
post that "[w]hen one does something that gets national
publicity, some jerks are going to say nasty things," indicating
he was well aware of this modern media phenomenon. Indeed, that
is exactly what happened here.
¶181 Shortly after the post's publication, Abbate began to
receive hateful emails. The negative communications multiplied
over the next several days, particularly after the incident
received coverage on Fox News. She was forced to shut down her
email account and remove her email address from Marquette's
graduate student website.
¶182 Several of the communications Abbate received
expressed violent and profane thoughts. She feared for her
physical safety and experienced significant detrimental effects
on her mental and physical health. A public safety officer was
even posted outside Abbate's classes for two weeks.
¶183 Abbate ultimately withdrew from her dissertation
proposal defense and transferred to another university. This
transfer requires that she repeat three semesters of course
work.
¶184 The majority further fails to mention that "Dr.
McAdams purposefully omitted the name of a supporter of his blog
from a comment he posted because 'the person was afraid of
blowback or harassment.'" Why would McAdams do this if he was
18
No. 2017AP1240.awb
blissfully unaware of the consequences of publishing a student's
name, as the majority asserts?
¶185 Additionally, the FHC report demonstrates that McAdams
has "on at least three occasions used the prospect of a mention
on his blog as a threat." It indicates that McAdams threatened
a Marquette student, the vice president for student affairs, a
university provost, and a Dean that he would "raise hell" on his
blog if they acted in a manner inconsistent with McAdams'
wishes. McAdams pointedly told a Dean to "be careful" because
"you don't want to be on my blog." Why would McAdams make such
threats if he did not know what would happen to those whose
names were published?
¶186 Also conveniently omitted from the majority opinion
are any facts related to McAdams' active promotion of the blog
post to local and national media outlets. After he made the
blog post, McAdams actively promoted the story by distributing
copies of the audio recording to interested journalists and
bloggers, posting follow-up stories linking back to the post,
creating a category of posts linked to Abbate by name, and
arranging to appear on radio and television interviews about the
story and subsequent controversy. He provided copies of the
surreptitious recording to representatives of Fox News, Inside
Higher Ed, and a local Fox television affiliate.
¶187 These omitted facts indicate that McAdams indeed did
"instigate" or "invite" the vileness that followed his blog
post. He knew what would happen, and he actively ensured that
it would happen.
19
No. 2017AP1240.awb
¶188 McAdams' actions certainly have something "relevant to
say about Dr. McAdams' fitness as a professor." See majority
op., ¶72. McAdams knew what he was doing, and, unfortunately
for Abbate, the blog post had its intended effect. The
revealing of a student's contact information for the purpose of
holding that student up for public ridicule and harassment is
not a protected act of academic freedom.16
IV
¶189 Because I determine that academic freedom does not
save McAdams from the consequences of his actions, I also must
address his argument that the First Amendment provides such
salvation. I begin my examination of McAdams' argument by
defining the parameters of the First Amendment protections to
which McAdams is entitled.
¶190 "The [F]irst [A]mendment to the United States
Constitution limits the actions of the federal and state
governments. It provides no protection against action by
private persons." Harman v. La Crosse Tribune, 117 Wis. 2d 448,
452, 344 N.W.2d 536 (Ct. App. 1984) (citation omitted); see also
Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("It is, of course, a
commonplace that the constitutional guarantee of free speech is
16
I also observe the potential effects of the majority
opinion on the uninhibited exchange of ideas between faculty and
students at Marquette. The direct effect of the majority's
decision is to condone or acquiesce in professors' publicly
subjecting students to ridicule and harassment. But it also
sends an indirect message that may chill the exchange between
faculty and students, lest they find themselves in the same
position as Abbate.
20
No. 2017AP1240.awb
a guarantee only against abridgement by government, federal or
state.") (citation omitted).
¶191 Thus, as a private institution, Marquette's actions
are not limited by the First Amendment. The First Amendment
does not, without more, protect McAdams from discipline in his
capacity as a professor at a private university.17
¶192 However, Marquette Faculty Statute § 307.07(2)
provides that "[d]ismissal will not be used to restrain faculty
members in their exercise of academic freedom or other rights
guaranteed them by the United States Constitution." McAdams
contends that this language grants him a contractual right to
free speech that "is coextensive with his right to freedom of
expression under the First Amendment as a private citizen."18
17
The First Amendment to the United States Constitution
provides in relevant part: "Congress shall make no
law . . . abridging the freedom of speech . . . ." Over the
years, "Congress" has been defined as any government actor.
See, e.g., Matal v. Tam, 582 U.S. __, 137 S. Ct. 1744, 1757
(2017) ("The First Amendment prohibits Congress and other
government entities and actors from 'abridging the freedom of
speech'").
18
In his argument before the FHC, McAdams advanced a
different interpretation of this language. He maintained that
the provision was intended to give Marquette faculty members the
same right vis-à-vis Marquette that government employees have
under the First Amendment to their employers. Although neither
party argues ambiguity here, it appears that such an argument
could be made given the varied interpretation advanced by
McAdams. The First Amendment rights of a private citizen are
not coterminous with the First Amendment rights of an employee
of a government employer. See, e.g., Pickering v. Board of Ed.
of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563,
568 (1968).
21
No. 2017AP1240.awb
¶193 Of note in this discussion is the difference between
the Marquette Faculty Statute and the AAUP's recommended
institutional regulation on this subject. McAdams relies on
language that is nonexistent, having been specifically removed
from the Marquette Faculty Statute.
¶194 The AAUP recommends for inclusion in faculty contracts
language stating that: "Dismissal will not be used to restrain
faculty members in the exercise of academic freedom or other
rights of American citizens."19 Marquette's choice not to adopt
the recommended "American citizens" language likely explains why
McAdams' arguments before the FHC asserted rights not as a
citizen but rather rights tantamount to those of an employee of
a government employer.
¶195 He now changes course before this court, appearing to
realize that the First Amendment rights of an employee of a
government employer have been recognized as less than those
afforded an American citizen. See, e.g., Pickering v. Board of
Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S.
563, 568 (1968). Marquette's choice not to adopt the language
also supports the argument that it did not intend that Faculty
Statute § 307.07 afford to McAdams the contractual right to the
full-throated First Amendment protections of a citizen.
19
American Association of University Professors,
Recommended Institutional Regulations on Academic Freedom and
Tenure 79, 83, https://www.aaup.org/file/RIR%202014.pdf (last
visited June 25, 2018).
22
No. 2017AP1240.awb
¶196 Further, I agree with the FHC, the circuit court, and
Marquette that McAdams' proffered interpretation leads to absurd
results. See Star Direct, Inc. v. Dal Pra, 2009 WI 76, ¶62, 319
Wis. 2d 274, 767 N.W.2d 898 (explaining that contracts are
construed to avoid absurd results). If it is indeed the case
that the protections granted by Marquette Faculty Statute
§ 307.07 are "coextensive" with the rights afforded to private
citizens under the First Amendment, McAdams would be free to
teach virtually anything or nothing at all in his classes.
Marquette would be unable to discipline McAdams unless his
speech fell into one of the few, narrow categories of speech
that is not afforded First Amendment protections.20
¶197 McAdams asserts that this conclusion does not follow
because conduct within the classroom is governed by the
provisions on absolute cause set forth in his contract, and
conduct amounting to absolute cause is not protected by the
First Amendment. But that is not what Faculty Statute § 307.07
says. By its plain language, Faculty Statute § 307.07, applies
equally to dismissals based on absolute or discretionary cause.21
20
See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
(speech intended and likely to incite imminent lawless action);
Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942) (fighting
words).
21
Marquette Faculty Statute § 307.07(2) provides in
relevant part:
A faculty member who has been awarded tenure at
Marquette University may only be dismissed upon a
showing of absolute or discretionary cause, as these
terms are defined by the Handbook for Full-Time
Faculty (hereinafter University Statutes), Section
(continued)
23
No. 2017AP1240.awb
¶198 In fact, McAdams' interpretation of Faculty Statute
§ 307.07 would render Marquette's standards for absolute and
discretionary cause meaningless. See Maryland Arms Ltd. P'ship
v. Connell, 2010 WI 64, ¶45, 326 Wis. 2d 300, 786 N.W.2d 15
("When possible, contract language should be construed to give
meaning to every word, 'avoiding constructions which render
portions of a contract meaningless, inexplicable or mere
surplusage.'"). Under McAdams' misreading, so long as some form
of protected speech was involved, he could not be punished
despite failing the tests for absolute or discretionary cause.
¶199 Accordingly, I conclude that neither academic freedom
nor the First Amendment saves McAdams from the consequences of
his reckless actions.
¶200 For the foregoing reasons, I respectfully dissent.
¶201 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
306.02 (absolute cause) or 306.03 (discretionary
cause). Dismissal will not be used to restrain
faculty members in their exercise of academic freedom
or other rights guaranteed them by the United States
Constitution.
24
No. 2017AP1240.awb
1