2018 WI 88

SUPREME COURT
CASE NO.:
COMPLETE TITLE:

OF

WISCONSIN

2014AP1240
John McAdams,
Plaintiff-Appellant,
v.
Marquette University,
Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

July 6, 2018
April 19, 2018

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

Circuit
Milwaukee
David A. Hansher

JUSTICES:
CONCURRED:

R.G. BRADLEY, J., concurs (opinion filed).
KELLY, J., concurs, joined by R.G. BRADLEY, J.
(opinion filed).
A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
ZIEGLER, J., did not participate.

DISSENTED:
NOT PARTICIPATING:
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.
Ralph A. Weber.

There was an oral argument by

 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,

FILED

Plaintiff-Appellant,
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.

of contract claim in our courts.

2017AP1240

Instead, it says, we must

defer to its procedure for suspending and dismissing tenured
faculty members.
long

as

it

It claims we may not question its decision so

did

not

abuse

its

discretion,

infringe

any

constitutional rights, act in bad faith, or engage in fraud.
¶2
do

not

The University is mistaken.
defer.

The

University's

We may question, and we

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.

compensation,
University's

and

McAdams

with

benefits,

Statutes

on

as

unimpaired
required

Faculty

by

rank,
§ 307.09

Appointment,

tenure,
of

the

Promotion

and

Tenure (the "Faculty Statutes").1

This case is before us on bypass of the court of appeals
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 crossmotion for summary judgment.
1

2

 No.

I.
A.
¶4

2017AP1240

FACTUAL BACKGROUND

Dr. McAdams' Contract with the University

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 longterm 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.

Faculty

Statute

§ 304.02.

Tenured

faculty

are

2017AP1240

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

dismissal of a faculty member without cause:

or

"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.
¶7

The Incident

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

3

Dr. McAdams'

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."
contained

a

clickable

link

to

Finally, the blog post

Instructor

Abbate's

contact

information and to her own, publicly-available website.4
¶8

Two

criticizing

days

her

later,

conduct

in

after
this

4

having
incident,

received

an

Instructor

email
Abbate

The entire text of the blog post appears in the attached
exhibit.
5

 No.

filed

a

formal

University.

complaint

against

Dr.

2017AP1240

McAdams

with

the

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

thoughts.

parties,

including

some

that

expressed

violent

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

justification
violated

for

Faculty

University

blog

post

the

November

suspension.

Statute

intended

of

to

It

§ 306.03,

revoke

also

and

his

9,

2014,
stated

that,

tenure

as

the

the

post

therefore,

the

terminate

his

and

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
"FHC")

requirements,

would

advisory

body

convene
whose

faculty members.

to

the

Faculty

consider

membership

his

Hearing

Committee

case.

The

consists

solely

of

FHC

(the
is

an

University

The FHC described its charge in this case as

follows:
6

 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 nonrenewal, 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
expressed

One of the FHC's members, Dr. Lynn Turner, publicly
her

opinion

of

Dr.

McAdams,

his

Instructor Abbate, prior to her appointment.

blog

post,

and

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

committee would decide.
be

a

disqualifying

did

not

bear

on

the

issues

the

In any event, the FHC said, this cannot

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:
stated

above,

the

Committee

recommends

"For the reasons

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

without pay."

faculty

members'

recommendation

to

suspend

you

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

term to the FHC's recommended sanction.

an

additional

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.
¶15

PROCEDURAL HISTORY

On May 2, 2016, Dr. McAdams filed a complaint against

the University in the Milwaukee County Circuit Court, asserting
(inter

alia)

that

the

University

suspending and then dismissing him.5

breached

his

Contract

by

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
suspended him without cause on December 16, 2014;

it

(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 201516 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
covenant of good faith and fair dealing.
10

implied

 No.

eventually moved for summary judgment.
circuit

court

issued

a

decision

and

2017AP1240

On May 4, 2017, the
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

University's resolution of Dr. McAdams' claims:
finds the following:
(2) The

the

"[T]he Court

(1) The FHC Report deserves deference;

[suspension]

deference; . . . ."

to

letter

from

President

Lovell

deserves

McAdams v. Marquette Univ., No. 2016CV3396,

Order for Summary Judgment, 7 (Cir. Ct. for Milwaukee Cty. May
4, 2017).
a

It said it must defer because "public policy compels

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."
¶17

Id. at 11.

The circuit court also concluded that the University's

internal
sufficient
following:

dispute

resolution

"due

process":

process

afforded

"[T]he

Dr.

Court

McAdams

finds

the

. . . (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.
11

 No.

2017AP1240

afforded "Dr. McAdams . . . a detailed, quasi-judicial process
which gave him an adequate opportunity to meaningfully voice his
concerns."
¶18

Id. at 11.
We accepted Dr. McAdams' petition to bypass the court

of appeals and now reverse the circuit court's judgment.

12

 No.

III.
¶19

We

review

judgment

de

novo,

courts apply.

the

2017AP1240

STANDARD OF REVIEW
disposition

applying

the

of

same

a

motion

for

summary

methodology

the

circuit

Green Spring Farms v. Kersten, 136 Wis. 2d 304,

315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc.
v.

Jackson

N.W.2d 615

Cty.,
("We

2010

review

WI 95,
the

judgment de novo, . . . .").

¶11,

grant

of

328
a

Wis. 2d 613,

motion

for

785

summary

First, we "examine the pleadings

to determine whether a claim for relief has been stated."
Spring Farms, 136 Wis. 2d at 315.

Green

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.

(2015-16)7;

§ 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)).
¶20

The

only

dispute

interpretation of a contract.
which we review de novo.
2003

WI 15,

¶15,

before

us

is

the

proper

This presents a question of law,

Deminsky v. Arlington Plastics Mach.,
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.

IV.
¶21

2017AP1240

DISCUSSION

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

Procedure.

of

the

University's

internal

Discipline

We will then address Dr. McAdams' claim that the

University breached his Contract.
A.
¶22

The

conclusion
reasons.

circuit

that

it

court

had

not

deferred
breached

to
the

the

University's

Contract

for

three

First, it said Dr. McAdams agreed to be bound by the

University's
Order

Deference to the University

for

Discipline

Summary

Procedure.

Judgment,

11.

McAdams,
Second,

No.

it

2016CV3396,

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
at 11-13.
to

the

See id.

For the reasons we discuss below, we will not defer

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.

¶23

2017AP1240

We begin with the proposition that "litigants must be

given their day in court.
ingredient

of

the

Access to the courts is an essential

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

meaningful

is

an

time

and

opportunity
in

a

which

meaningful

must

be

granted

manner."

at

a

(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,

requires

the

892

state

N.W.2d 267
to

resolution of disputes.
resolution

is

thus

provide

("The
a

Wisconsin

judicial

Constitution

system

for

the

Access to state courts for conflict

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.

¶24

The scope of judicial review is, however, subject to

statutory and judicially-developed limitations.9
parties

2017AP1240

may

choose

to

have

their

disputes

And, of course,
resolved

through

extra-judicial means, thereby confining the judiciary's review
to

a

very

limited

substitutionary

or

role.10
limiting

We

conclude

principles

that

apply

none

to

Dr.

of

these

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.

1.
¶25

2017AP1240

Contractual Limitations on Judicial Review

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.
today

and

is

agreement.

This is a common feature in society

accomplished

most

often

through

an

arbitration

"[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

78

v.

N.W.2d 536
United

Jefferson

(1977)

Educ.

(internal

Steelworkers

v.

Ass'n,
quotation

Warrior

&

Wis. 2d 94,

mark

Gulf

omitted)

Navigation

101,

253

(quoting
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.

review of a contractual dispute.12

2017AP1240

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
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)).
12

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 nonrenewal, 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.
done that, but they did not.

They could have

They did the opposite:

The

University agreed it would defer to the court's adjudication of
Dr. McAdams' right to reinstatement.

19

 No.

¶29

2017AP1240

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."
¶30
review.

Id.

The Faculty Statutes do not contemplate this type of
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

entitlement

"to

thereto

the
may

extent
be

that

judicially
20

the

faculty

adjudged

or

member's
decreed."

 No.

Faculty

Statute

§ 307.09.

arbitration-style
declaring

the

review,

decision

is

This
which

is

not

would

either

2017AP1240

evocative

exhaust

defective

of

itself

or

an
upon

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

disciplinary

procedure

of
set

his

employment

forth

in

to

the

Faculty

incorporated by reference into his contract."
2016CV3396, Order for Summary Judgment, 11.

abide

by

the

Statutes,

See McAdams, No.

The circuit court's

analysis ended prematurely because it failed to even mention the
Faculty

Statutes

University's

that

Discipline

describe

the

Procedure

relationship

and

Dr.

between

McAdams'

right

the
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.
circuit

This cannot end our analysis, however, because the
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.

the

Discipline

Procedure

would

authoritatively

2017AP1240

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:
how

the

The Discipline Procedure has nothing to say about

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
discretion

with
is

limitations.

the

subject

president,
to

no

and

that

procedural

his

exercise

of

requirements

or

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,
dismissal)

and
of

suspension

a

tenured

discretionary cause."
"composed

of

or

faculty

termination

(hereinafter

member

absolute

for

Faculty Statute § 307.07(1).

seven

tenured

faculty

members

or

The FHC is

elected

by

the

faculty as a whole under the supervision of the Committee on
Committees and Elections."
¶36

§ 307.07(6).

The FHC holds hearings at which the faculty member may

participate

with

§ 307.07(11),

assistance

(14).

It

of

is

counsel.

the

Faculty

University's

Statute

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.").
documentary and testimonial evidence.

The FHC may receive both
§ 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

dismissal

not

conclusions

is

will

Statute

warranted,

set

forth

§ 307.07(18).
"its

a

findings

recommendation

together with supporting reasons."

23

If

See id.

of
to

it

decides

fact
that

and

effect

Finally, the FHC

 No.

2017AP1240

conveys its findings of fact and conclusions to the University
president and to the affected faculty member.
¶38

§ 307.07(19).

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
Wis. 2d 95,

Clerical
103,

&

299

Maint.

Emps.

N.W.2d 210

Union

(1980));

Local

796–A,

Diversified

99

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."
¶39

Wis. Stat. § 788.10(1)(b).

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
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
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

support

Remarkably,

the

for

FHC

Ms.

Abbate's

said

this

position

Ms.

in

the

Abbate's

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
chilled as well as a result of this incident."

may

be

"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
Faculty

The Faculty Handbook says that a "member of . . . the
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.

accept whatever standard upon which they agree.13

2017AP1240

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

"personal

an
or

proceeding."14

appearance

of

financial

interest

And

when

bias,"

an

nor
in

should
the

arbitrator

she

results
fails

to

have

any

of

the

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

Turner would be disqualified.
into

the

outcome.

dispute

and

of

impartiality,

Dr.

She publicly inserted herself

expressed

a

personal

interest

in

its

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

professional colleagues and students.

mistaken.

They

are

her

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.

further

reason

authoritative

that

it

resulted

decision.

The

in

mere

point

of

an

advice,

2017AP1240

not

in

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

Wis. 278

settle

(*261),

the

283-85

controversy");
(*266-67)

Dundon

(1865)

v.

Starin,

(reversing

19

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

controversy.

is

also

designed

to

bring

an

end

to

Employees, unions and employers all rely on the

finality of arbitration decisions in ordering their affairs.").
¶44

The

Discipline

producing such a result.
advisory

body:

"Under

Procedure,

however,

is

incapable

of

The Report says the FHC is just an
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:
is presented to the President."
concludes

that

an

academic

See § 307.07(18) ("If the FHC

penalty
30

"[The FHC's] advice

less

than

dismissal

is

 No.

2017AP1240

warranted by the evidence, its findings of fact and conclusions
will set forth a recommendation to that effect . . . .").
¶45

If

Procedure

we

are

because

of

supposed
its

to

defer

resemblance

to

to

an

the

Discipline

arbitration,

the

analogy does not hold up.

This process cannot produce one of

its

We

essential

hallmarks.

defer

to

arbitration

decisions

because they are authoritative resolutions of the disputes they
address.

The

decision.

Discipline

Procedure

produced

advice,

not

a

We do not defer to advice.
*

¶46
reason

The FHC's lack of authority leads us to the final
we

cannot

give

arbitration-style

deference

University's decision to suspend Dr. McAdams:
relevant process to which we could defer.

to

the

There was no

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.
Report decided anything.

Neither the FHC nor the

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

31

limbo.

Consequently,

the

 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

before it disciplines a tenured faculty member.16

mechanisms
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.

concerned,

the

president

may

proceed

as

if

the

2017AP1240

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.
the

product

discretion.

of

President

Even

if

we

Lovell's
were

exercise

inclined

to

of

It was

unfettered

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.
¶50

The Administrative Agency Deference Doctrine

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.

2016CV3396, Order for Summary Judgment, 11.

McAdams,

No.

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.

conclusions of law.17
principle,
sounder

and

if

We decided the practice was unsound in

there

we

2017AP1240

is

no

resurrected

apparent
it

for

reason

use

in

it

would

contract

become

disputes

between two private parties.
¶52

Second,

deferred

to

a

Yackshaw's

dispute

analysis

resolution

is

flawed

process

that

because

it

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.
of Trustees.

It just makes recommendations to the Board

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.
will.

It could accept, reject, or alter the FBR's work at
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.

¶53

Additionally,

Yackshaw's

deference

appears

2017AP1240

to

have

been founded on the court's unwarranted attribution of the nonauthoritative

FBR's

Trustees' decision.

procedures

to

the

authoritative

Board

of

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,"

procedures.

it

was

presumably

See id. at 229.

referring

to

the

FBR's

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

tendentious

rejection

value
of

is

further

McConnell

v.

weakened

Howard

by

University,

its
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

University advances here.

is

the

same

argument

Marquette

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."
"an astonishing concept."
¶55

This, it said, is

We agree.

The Milwaukee County Circuit Court here nonetheless

determined
required

Id.

Id.

that
it

the

to

administrative

defer

because

agency
"[t]he

deference

doctrine

parties'

contract

incorporates a specialized standard for cause that focuses on
issues

of

professional

duties
No.

and

fitness

2016CV3396,

as

Order

a

university

professor."

McAdams,

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

subject

in

matter

our

courts.

does

not

The

complexity

convince

us

that

of

a

we

contract's
must

give

administrative-agency style deference to one of the disputing
parties.

38

 No.

2017AP1240

*
¶57

In

contractual

sum,

we

reasons

do

not

because

defer

the

to

the

Contract

University

does

not

for

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.

University

in

administrative

the

Finally,

manner

agencies

we

because

we

do

not

defer

have

previously

that

practice

to

the

deferred

to

unsound

in

is

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.
they

are,

and

We have taken these

authorities

as

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.

role

in

the

University's

affairs

than

they

2017AP1240

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.
¶59

Merits of the Suspension Decision

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.

issues.

2017AP1240

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.
¶62

Academic Freedom and the Blog Post

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

The University acknowledges this definition came from

American

Statement

of

Association
Principles

"1940 Statement").20

of

on

University

Academic

Freedom

Professors'
and

Tenure

1940
(the

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
Professors as the "AAUP."

American

42

Association

of

University

 No.

¶64
the

2017AP1240

The AAUP, which participated as amicus curiae, said

doctrine

teaching;

of

academic

research;

correspond

to

and

the

freedom

comprises

three

elements:

extramural

comments.

The

categories

separately-lettered

University's definition (see

supra

paragraphs

in

the

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
that

the

special

obligations

However, the AAUP recognizes
"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.

binding obligations."

2017AP1240

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
appear

to

The Report observed that the special obligations now
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.

¶67

2017AP1240

The documents on which both parties rely also provide

the analytical structure we are to use in analyzing whether an
extramural

comment

freedom doctrine.

has

lost

the

protection

of

the

academic

It is a two-step process, in which the first

determines whether the comment itself demonstrates the faculty
member is clearly unfit to serve:
that

a

cannot

faculty

member's

constitute

expression

grounds
faculty

"The controlling principle is

for

of

opinion

dismissal

member's

as

unless

unfitness

for

a

citizen

it

clearly

demonstrates

the

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.

entire

record

as

a

teacher

scholar."26

and

2017AP1240

The

Report

demonstrates the FHC adopted this analytical structure.
¶68

The

problematic

University's

aspects

to

the

briefing,

however,

analysis.

introduced

First,

the

two

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

scholar."

Although

recites

two

the

their
the

elements

inquiry into one step.

entire

record

University's
of

the

as

a

teacher

formulation

analysis,

it

and

properly

flattens

the

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.

¶69
to

the

freedom

2017AP1240

The University introduced a second problematic aspect
analysis
from

when

any

it

uncoupled

the

doctrine

stable

reference

points.

of

The

academic

University

posited that educational institutions assume academic freedom is
just one value that must be balanced against "other values core
to their mission."
obligation

to

Some of those values, it says, include the

"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,"

community

to

to

exist,"

"safeguard[]

to

"ensur[e]

the

conditions

colleagues

feel

for
free

the
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

competing

freedom

adrift

amongst

these

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,

University

to

use

these
any

two

problematic

extramural

comment

aspects
as

an

allow
excuse

the
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.
Only

The extramural comment goes in the balance alone.

if

the

University

balance

then

clearly

proceed

to

tips
a

to

"unfitness"

comprehensive

review

may

the

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

freedom protects a specific extramural comment.

academic

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
whether

the

actual

The AAUP properly limits the analysis to

extramural

comment,

on

its

face,

demonstrates that the professor is unfit to serve.

clearly

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

28

we

adopted

the

alternative

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.
the

And this would likely chill extramural comments to

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,

problems with its assessment.
conducted

the

analysis

represent

just

one

of

two

The second is that the University

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.
"unfitness" analysis proceeded as follows:

Its

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.

49

But the University can

 No.

reach

this

reverse.

conclusion

only

because

its

analysis

2017AP1240

traveled

in

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.

University's]

McAdams'
students."

"responsibilities
Although

Instructor

to . . . [the
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.
relied

on

improperly

For instance, it says Dr. McAdams

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.

is critical of the student.

2017AP1240

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,

University

rule

that

the

University

prohibited

the

identified
student

from

no

law

or

making

the

recording, or forbade Dr. McAdams from reviewing or distributing
it once made.
the

Ultimately, the recording is not even material to

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
McAdams

Finally, there is the University's assertion that Dr.
drafted

the

blog

post

in

such

a

way

subject Instructor Abbate to public contempt.
30

that

it

would

The blog post is

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.
even attempt to do so.

It did not

Our review of the blog post reveals that

it makes no ad hominem attack on Instructor Abbate, nor does it
invite

readers

implicitly.

to

be

uncivil

to

her,

either

explicitly

or

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
an

We conclude that Dr. McAdams' blog post qualifies as

extramural

freedom.

comment

protected

by

the

doctrine

of

academic

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.
the

protection

it

Consequently, the blog post retains

presumptively

enjoyed

as

an

extramural

comment.
2.
¶78

Breach and Remedy

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.
the

record

imposes

any

procedural

Although nothing in

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

revoked,

a
or

terminated,
§ 306.01;

faculty
any
for

see

member's

current
cause

also

as

reappointment

appointment
defined

Faculty

may

therein."

Statute

may
be

be

denied

or

suspended

or

Faculty

§ 307.07(2)

("A

Statute
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"

discretionary.

comes

in

two

varieties:

absolute

and

Faculty Statute § 306.01 ("Cause may be either

absolute or discretionary.").

Dean Holz's letter of January 30,

2015,

Discipline

which

commenced

the

Procedure,

University was proceeding under the latter.

said

the

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

encompassed by the doctrine of academic freedom:
however,

shall

discretionary

cause

be

activity

"In no case,

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."
Statute § 307.07(2).

54

Faculty

 No.

¶81

2017AP1240

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

concluded,

to

write

proved

substantially

fails

and

publish

that

Dr.

to

meet

the

McAdams'
the

blog

post,

"conduct

standards

of

Dean

Holz

clearly

and

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.

¶82

2017AP1240

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,

disqualified basis for discipline.
56

is

a

contractually-

Discretionary cause cannot

 No.

2017AP1240

include anything that would "impair the full and free enjoyment
of

legitimate

doctrine,

personal

discourse,

or

academic

association,

Faculty Statute § 306.03.

freedoms

advocacy,

or

of

thought,

action."

See

Suspending Dr. McAdams for publishing

the blog post would, of course, "impair" his "full and free
enjoyment of . . . academic freedoms."
¶85

Beginning

Procedure,

and

with

ending

the

with

See id.

inception
President

of

the

Lovell's

Discipline
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

responses directed at Instructor Abbate).

attendant

negative

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
57

 No.

Marquette
¶140.

as

a

private,

Catholic,

Jesuit

2017AP1240

university."

Id.,

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

decisionmaking by the academy itself."
original)

(quoting

Regents

of

Univ.

autonomous

Id., ¶138 (omission in
of

Mich.

v.

Ewing,

474

U.S. 214, 226 n.12 (1985) (internal citations omitted)).
¶87

Much

fetchingly

of

poetic

the
ode

dissent,
to

the

if

not

importance

most,
of

academic freedom in immanentizing its mission.
odes,

however,

is

that

expense of precision.
misapplication

of

one

their

poetry

so

comprises

the

a

University's

The problem with

often

comes

at

the

Here, the imprecision resulted in the
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.
freedom

The dissent says that part of an institution's academic
is

the

right

"to

determine
58

for

itself

on

academic

 No.

grounds who may teach."

2017AP1240

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,

longer

the

relationship

academic compatibility.

is

no

to

remember,

simple

matter

of

The employment contract adds a legally

enforceable aspect to the relationship.
well

a

that

the

Faculty

An aspect, we would do
Statutes

invite

us

to

adjudicate.
¶89

Operationalizing

disastrous

consequences

the

for

dissent's

academic

ode

would

freedom.

The

have

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

relationship into an adversarial contest.

a

cooperative

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).
59

 No.

2017AP1240

*
¶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.
faculty

The letter says Dr. McAdams may not return to the
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.
still

Nonetheless, the University confirmed he was

suspended——not

dismissed——even

after

deadline stated in the Discipline Letter.
President Lovell wrote to

expiration

of

the

On April 13, 2016,

Dr. McAdams "to clarify that your
60

 No.

2017AP1240

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

footnote . . . that
termination.

wrote:
his

"Dr.

continued

McAdams

suspension

argues
is

a

in

de

a

facto

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

suspension

pay).

breached

the

Because
Contract,

we
it

have

concluded

must

McAdams must be restored to the faculty.

be

ended

that

the

and

Dr.

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, . . . .

61

 No.

2017AP1240

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
benefits.

with

unimpaired

rank,

tenure,

compensation,

and

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.
¶94
it

did

CONCLUSION

We do not defer to the University's determination that
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).
62

 No.

2017AP1240

University's Discipline Procedure neither substitutes for, nor
limits, Dr. McAdams' right to litigate his claims in our courts.
¶95
by

We conclude that the University breached the Contract

suspending

Dr.

McAdams

for

exercising

protected right of academic freedom.35
the

circuit

court's

order

and

his

contractually-

Consequently, we reverse

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.
63

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2017AP124O

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333 

2017AP124O

No.

¶97

REBECCA GRASSL BRADLEY, J.

unprecedented

dispute

between

a

(concurring).

university

academic freedom was put on trial.

2017AP1240.rgb

and

a

In this
professor,

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 microaggressions, trigger warnings and safe spaces2 that seeks to
silence
violence?

unpopular

speech

by

deceptively

recasting

it

as

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).
1

 No.

still more than those who hold it.

2017AP1240.rgb

If the opinion is right,

they are deprived of the opportunity of exchanging error for
truth:
the

if wrong, they lose, what is almost as great a benefit,

clearer

produced

by

perception
its

and

collision

livelier
with

impression

error."3

of

Many

truth,
American

universities were founded "on the illimitable freedom of the
human

mind"

ideas

in

Marquette

to

develop,

order

to

articulate,

"follow

University's

own

examine

and

truth

wherever

it

mission

includes

"the

truth, the discovery and sharing of knowledge."5

communicate
may

lead."4

search

for

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/deansoffice/reports/report-committee-freedom-expression-yale
(last
visited June 18, 2018).
2

 No.

creed,7

Jeffersonian

replacing

it

with

2017AP1240.rgb

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

freedom

to

universities

professors,

as

who

contractually

Marquette

did,

extend

as

well

academic
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-ofAcademe-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.
3

 No.

2017AP1240.rgb

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 teachingfreedom 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

evident . . . .

American

universities

is

almost

self-

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

authoritative sources.

can

be

found

in

other

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

9

to

"speak

or

write

as

citizens . . . free

from

Academic Freedom, Black's Law Dictionary (10th ed. 2014).

4

 No.

institutional
described

censorship

academic

freedom

or
as

discipline."10
a

principle

2017AP1240.rgb

Russell
that

Kirk

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.
Spurgeon, A Transcendent Value:
Freedom,

34

J.C.

&

U.L

Larry D.

The Quest to Safeguard Academic

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-academicfreedom-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:
(1955) (quotation marks omitted).
5

An Essay in Definition 1

 No.

2017AP1240.rgb

understanding of academic freedom likely originated in German
principles

of

teach

the

and

Lehrfreiheit
freedom

to

and

Lernfreiheit,

learn,

the

freedom

to

Julie

H.

respectively.

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:

12

"Freedom of extramural

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).
6

 No.

2017AP1240.rgb

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

freedom.

universities

serves

as

the

source

for

academic

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.
Marquette

I

discuss

guaranteed

these

McAdams

doctrines
both

synchronously

rights

and

because

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/895B2C30-29F6-4A88-80B9FCC4D23CF28B/0/PoliticallyControversialDecisionsreport.pdf.
7

 No.

2017AP1240.rgb

II
¶106 The

United

States

Supreme

Court

has

repeatedly

recognized the importance of academic freedom and freedom of
expression

on

America's

college

campuses,

civilization will stagnate and die."

without

which

"our

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."
603 (1967).

Keyishian, 385 U.S. at

The role "played by those who guide and train our

youth" in America's universities cannot be understated.
(quoting

Sweezy,

354

U.S.

at

250).

Public

discourse

Id.
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."
¶108
classroom

Id. (emphasis added).
In
with

1972,
its

the

Court

stressed

that

surrounding

environs

is

'marketplace of ideas.'"
(1972).

the

"college

peculiarly

the

Healy v. James, 408 U.S. 169, 180

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
8

 No.

constitutional tradition."

2017AP1240.rgb

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
appellate

to

courts

professors

vigilantly
have

"to

protect

acknowledged

disseminate

as . . . teacher[s]

or

the

Several

right

publicly

scholar[s]."

F.3d 668, 677 (7th Cir. 2003).

it.

of

federal

university

[their]

Omosegbon

v.

views

Wells,

335

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).
against

society's

most

"Without the right to stand

strongly-held

convictions,

the

marketplace of ideas would decline into a boutique of the banal,
as

the

urge

to

censor

is

greatest

where

disquieting and orthodoxy most entrenched."
¶110 For
University

example,

of

a

federal

Illinois'

district

motion

to

debate

is

most

Id.
court

dismiss

a

denied
newly

the

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.
Kennedy,

118

F.

Supp.

3d

1068,

1075-84

(N.D.

Salaita v.
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.
9

1975)

(firing

professor

for

 No.

2017AP1240.rgb

participating in a protest and making profane remarks critical
of

administration

discipline

as

violated

well

as

a

AAUP
First

standards

that

Amendment

prohibit

right

to

such

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
Marquette,

many

freedom,

however,

universities

have

is

not

adopted

limitless.

Like

the

1940

AAUP's

Statement of Principles on Academic Freedom and Tenure.

With

rights come responsibilities and the AAUP guides the exercise of

10

 No.

2017AP1240.rgb

academic freedom in its Statement on Professional Ethics.15

For

example, this ethics code for professors demands the practice of
"intellectual

honesty,"

freedom,

the

and

the

avoidance

protection
of

of

creating

students'
any

academic

impression

of

speaking on behalf of the university.
¶113 Courts

have

academic freedom.

also

circumscribed

some

limits

around

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

universities

(1995).16
from

But,

punishing

the

academic

doctrine
speakers

does

preclude

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).
11

 No.

public

concern

even

if——especially

if——that

2017AP1240.rgb

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.").

university

employees

The

First

when

it

Amendment
involves

protects
"matters

speech
of

of

public

concern"——speech that can be "fairly considered as relating to"
issues

"of

community."18

political,

social,

or

other

concern

to

the

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)
12

 No.

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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

citizens to confess by word or act their faith therein."

force
Id. at

642.
¶116 In
requiring

university

communists.
freedom

and

"chilling

Keyishian,

the

Court

professors

385 U.S. at 603-04.
the

effect

First
upon

to

certify

New
they

York
were

laws
not

Concerned about both academic

Amendment,
the

nullified

exercise

the

Court

of

vital

identified
First

the

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

organization."
The

Court

"to

be

a

communist

front

or

subversive

Wieman v. Updegraff, 344 U.S. 183, 186 (1952).

held

the

law

infringed

individual

constitutional

rights, was an "assertion of arbitrary power," and offended due
process.

Id.

at

individual

freedom

188-91.
of

It

recognized

movement"

when

a

that

"inhibiting

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

refusing to answer political association questions.
238-45.

for

354 U.S. at

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,"
voices:

the

Court

professed

the

significance

of

divergent

"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."
14

364 U.S. at 480.

 No.

2017AP1240.rgb

The Court held this law abridged teachers' constitutional rights
by inhibiting free speech, assembly, and association.
485-89.

Id. at

"Such unwarranted inhibition upon the free spirit of

teachers . . . has an unmistakable tendency to chill that free
play

of

the

spirit

which

all

teachers

cultivate and practice . . . ."

ought

especially

to

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

freedom and freedom of expression in academia.

of

academic

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

educating

the

to

ensuring

future

that

leaders

teachers——entrusted

of

America——would

with

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

viewpoints play in the advancement of ideas.

that

opposing

From Aristotle

challenging the then-predominant belief that the Earth was flat
to Susan B. Anthony and Elizabeth Cady Stanton asserting the
then-preposterous
replete

with

idea

examples

that
of

women

should

unpopular

15

ideas

vote,

the

proven

past

right

is

when

 No.

freely aired and debated.

2017AP1240.rgb

To squelch discussion of any idea

jeopardizes our future.
¶121 Academic
truth

through

freedom

vigorous

exists

open

to

inquiry,

See, e.g., Healy, 408 U.S. at 180.
"the

security

of

the

further

the

discourse,

search
and

for

debate.

Permitting debate ensures

Republic,

the

very

foundation

of

constitutional government."

DeJonge v. State of Oregon, 299

U.S.

the

353,

responsive

365
to

(1937)
the

("to

will

of

end

the

that

people

and

desired, may be obtained by peaceful means").

government
that

may

be

changes,

if

And, as Pickering

instructs, criticisms of campus administration are part of the
public debate.
¶122 This
freedom,

391 U.S. at 573-74.
court

acknowledged

specifically

the

the

freedom

importance

to

criticize

of

academic

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

either inefficiency or bad behavior."

16

do

not

Id. at 204.

qualify

as

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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
for

this

student,

particular
J.D.,

turned

blog
to

post

arose

McAdams

for

after
help

an

The impetus
undergraduate

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-avictory-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-ledto-a-campus-firestorm--and-a-troubling-lesson-about-selfcensorship/2016/10/28/70e55732-9b97-11e6-a0edab0774c1eaa5_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.
17

 No.

troubled

by

how

his

Philosophy

teacher

(who

2017AP1240.rgb

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"

colleagues.
would

by

a

"jackass"

Absurdly,

later

McAdams

and

support
citing

Marquette's

its

in

email

Faculty

disciplinary

Marquette's

Guiding

exchanges
Hearing

Committee

recommendation
Values,

which

with

against
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

critical of Marquette and of censorship.

people

up."

It

was

Unlike the Philosophy

Department faculty's criticisms of J.D., it did not contain any
intemperate language or ad hominem attack.
not

contain

violence

or

a

call

attack.

to

action

In

fact,

or

make

any

Marquette's

The blog post did
demands
Dean

of

inciting
Arts

and

Sciences did not believe the post was harmful to Abbate at all
and Abbate apparently agreed, remarking:
was pleasantly surprised."
18

"When I saw the blog I

 No.

¶126 Despite
fire.

her

pleasant

surprise,

Abbate

2017AP1240.rgb

flamed

this

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-targetof-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-endingclass-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

McAdams responsible for the actions of third parties.
this

retribution

to

stand

would

set

a

dangerous

holding
Allowing

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.

Weiman, and Shelton, respectively.

2017AP1240.rgb

And academic freedom would

be severely wounded, perhaps fatally.
VI
¶130 "And though all the winds of doctrine were let loose
to

play

upon

injuriously
strength.

by

the

earth,

so

licensing

Truth

and

be

in

the

prohibiting

to

field,

we

misdoubt

do
her

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."
251.

Sweezy, 354 U.S. at

Suppression of viewpoints confronting the current cultural

orthodoxy would surely lead to academic stagnation and imperil
the

future

majority

of

America.

viewpoints

If

replaces

institutional
the

search

silencing
for

of

truth,

non-

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

majority opinion in full.

22

along

with

it.

I

join

the

 No.

¶134 DANIEL KELLY, J.
concurrence

because

I

(concurring).

believe

that

2017AP1240.dk

I offer this brief

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

President Michael Lovell3).

the

University

(in

the

person

of

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.

is

permitted

outcome."

to

try

cases

where

he

has

an

2017AP1240.dk

interest

in

the

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

contract.

A

ascertainable

proposition

contract

is

threatens
supposed

obligations.

the

to

Mgmt.

very

concept

of

the

parties

to

bind

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.
D.C.

Circuit

in

McConnell

(D.C.

Cir.

1987),

v.

recognized

Howard
the

University,

incongruity

of

818

The

F.2d 58

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."

2

Id. at

 No.

69.

2017AP1240.dk

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.

3

 No.

¶138 ANN WALSH BRADLEY, J.

(dissenting).

2017AP1240.awb

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.
freedom

thrives

not

only

on

the

independent

"Academic

and

uninhibited

exchange of ideas among teachers and students, but also . . . on
autonomous decisionmaking by the academy itself."
Univ.

of

Michigan

v.

Ewing,

474

U.S. 214,

226

Regents of
n.12

(1985)

(internal citations omitted).
¶139 Within
governance.

academic

freedom

lies

the

concept

of

shared

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

academic freedom analysis.
analyze,

the

academic

freedom

institution's

conducting

only

half

of

the

It fails to recognize, much less

Catholic, Jesuit university.
educational

in

of

Marquette

as

a

private,

As a result, it dilutes a private

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/4C126513-1194-4317-8123459BD9F30A6D/0/Stetson2011AcadFreedomFirstAmdmtoutline.pdf.
1

 No.

¶141 Further,
rendering

the

meaningless

majority
a

key

compounds

component

of

2017AP1240.awb

this

error

shared

by

governance,

reducing the faculty's bargained-for role in reviewing dismissal
for cause to "nothing" or a mere "distraction."

In disregarding

the

and

faculty

hearing

recommendation,

it

committee's

throws

aside

agreed upon and time-honored.
it

is

in

a

better

position

expertise

a

process

that

unanimous

is

mutually

Apparently, the majority thinks
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

"distributing

record

copies

of

reflects
the

that

audio

McAdams

recording

did
to

so

by

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.

and

transferred

to

another

university

2017AP1240.awb

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.
wrong.

McAdams is

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

itself[.]"
omitted).

autonomous

decisionmaking

Ewing, 474 U.S. at 226 n.12

by

the

academy

(internal citations

The term "academic freedom" is used to denote both
3

 No.

the

freedom

of

the

academic

institution

to

2017AP1240.awb

pursue

its

ends

without interference from the government, as well as the freedom
of

the

individual

teacher

to

pursue

interference from the institution.2

desired

ends

without

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

educational institutions set their own missions.

their

ends,

As a Catholic,

Jesuit institution, Marquette University operates according to
certain

guiding

development

of

values.

These

students"

and

values
a

"commitment

tradition and Catholic social teaching."3
value

of

the

institution

to

include

foster

the
to

"holistic

the

Jesuit

It is also a guiding

"vigorous

yet

respectful

debate."
¶150 Marquette's

status

cornerstone of its identity.
Jesuit

Colleges

and

as

a

Jesuit

institution

is

a

According to amicus Association of

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
http://www.marquette.edu/about/mission.php
22, 2018).
5

(last

University,
visited June

 No.

what

[they]

are. . . . As

Jesuit

colleges

and

2017AP1240.awb

universities,

[they] are a continuation of the Ignatian heritage and of the
distinctive tradition of Jesuit education."
¶151 Jesuit
pedagogy."
consider

operate

under

the

"Ignatian

This educational philosophy encourages faculty to
the

classroom

institutions

"context"

and

of

"uniquely

the

individual

characterizes

students

the

in

the

relationship

the

faculty member has with the student [with whom] he [or] she
attempts to create a teaching/learning environment."4
¶152 Private
unique

concerns

decision making.

institutional
and

a

learning

particular

need

environments
for

present

independence

in

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."
N.H.

by

Wyman,

concurring).

354

U.S.

234,

263

(1957)

Sweezy v. State of
(Frankfurter,

J.,

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":
teach.

Although

also

relevant

to

concern

is

especially

germane

in

public
the

who may

universities,

this

context

of

private

at

its

university,

uphold

its

values

universities.
¶154 In
Marquette

determining

has

principles.

academic

who

may

freedom

teach
to

and

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

rights

are

institution,

not
here

the
a

only

private,

at

issue.5

Catholic,

An

Jesuit

educational
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

 No.

2017AP1240.awb

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

necessary focus of our analysis."

are

distractions

from

the

Majority op., ¶46.

¶157 Further, the majority doubles down on this assertion,
overtly

stating

substance:

that

the

FHC's

work

represents

nothing

of

"As far as the Faculty Statutes and Faculty Handbook

are concerned, the president may proceed as if the Report said
nothing

but

Procedure."

that

the

FHC

had

Id.,

¶49.

It

deems

completed
the

work

the
of

Discipline
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
interest

in

observed

above,

its

academic

own

the

8

university

freedom

to

has
make

a

strong

autonomous

 No.

decisions.

It

exercises

that

academic

freedom

2017AP1240.awb

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
recognized

and

The principles adduced by the AAUP are well

have

been

widely

adopted

throughout

higher

education.9
¶160 Faculty
curriculum,

tenure,

participation
and

other

in

decisions

academic-related

regarding
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-rightsclassroom#.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.

essential to the operation of the university.
Academic

Senate

put

it

in

its

amicus

2017AP1240.awb

As the Marquette

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

procedural protections for faculty members.

recommended

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 threeyear 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

treatment

of
of

the
the

FHC
FHC

to

which

ignores

a

its

court
role

can

defer.

within

the

This
shared

governance structure of the university.12
¶164 The FHC is a mutually agreed-upon dispute resolution
mechanism.
signed

It is composed of Marquette faculty members who

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.

parties

was

in

signing

a

contract

2017AP1240.awb

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
FHC

recommended

Lovell

impose

Consistent

with

that
a

paid
the

Marquette

University

suspension
FHC's

of

up

Accordingly, the
President

to

recommendation,

two

Michael

semesters.

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.

¶166 The

United

States

Supreme

Court

has

2017AP1240.awb

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

deliberation."
by

as

Id.

affording

the

"made

conscientiously

and

with

careful

We can realize the Supreme Court's command
respect

due

to

the

FHC's

expertise

and

specialized knowledge.
¶167 With

regard

to

the

FHC's

respect" is surely appropriate.
evidence

and

produced

a

factual

findings,

"great

The FHC heard four days of

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

credibility.

witnesses

and

is

in

a

position

to

assess

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
committees.

deference

to

the

conclusions

of

faculty

hearing

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
context

of

a

"great

respect"

private,

makes

Catholic,

distinct mission like Marquette.

particular

Jesuit

sense

institution

in

the

with

a

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."
faculty

unanimously

determined

that

McAdams

See id.

The

exhibited

such

behavior that violates the norms of the academic profession so
as

to

call

into

question

university

community.

letter

McAdams,

to

As

a

his

fitness

President

unanimous

academia is no small feat:

as

a

Lovell

decision

member

of

the

observed

in

his

in

the

context

of

"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
President

than

Lovell's

properly
reliance

according
on

the

the
FHC's

respect

due

findings

to
and

conclusions, the majority opinion renders meaningless a key part
of

shared

governance,

reducing

decisionmaking to nothing.

the

faculty's

role

in

this

It disregards the FHC's expertise,

throwing aside a process that is mutually agreed-upon and timehonored.

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.
¶84.

In

the

majority's

view,

"the

relevant to say about Dr. McAdams'
Id.,

¶73.

It

further

determines

blog

Majority op.,

post

fitness as
that

has

nothing

a professor."

"[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

brought

it

is

against

important
you

are

to

state

solely

that

based

on

the

sanctions

your

ACTIONS

being
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.
"whether

[the

protections."

blog

post's]

Id., ¶64.

Thus, the question is not

contents

remove

the

doctrine's

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.

Majority op., ¶65.

2017AP1240.awb

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.
substantial

harm

justifiable,

it

is

I agree with the FHC that "where

foreseeable,

violates

a

easily

professor's

avoidable,

obligations

and
to

not

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."
op., ¶76.

Majority

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.
over

the

next

several

The negative communications multiplied
days,

particularly

after

the

incident

received coverage on Fox News.

She was forced to shut down her

email

email

account

and

remove

her

address

from

Marquette's

graduate student website.
¶182 Several

of

the

communications

expressed violent and profane thoughts.

Abbate

received

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.
transfer

requires

that

she

repeat

three

semesters

of

This
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

blowback or harassment.'"

because

'the

person

was

afraid

of

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

wishes.

they

acted

in

a

manner

inconsistent

with

McAdams'

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"
post.

or

"invite"

the

vileness

that

followed

his

blog

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."
op., ¶72.
for

Abbate,

See majority

McAdams knew what he was doing, and, unfortunately
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

salvation.

argument

that

I

my

begin

the

First

examination

Amendment
of

provides

McAdams'

such

argument

by

defining the parameters of the First Amendment protections to
which McAdams is entitled.
¶190 "The

[F]irst

Constitution

limits

governments.

It

private persons."

the

[A]mendment
actions

provides

no

of

to

the

United

States

the

federal

and

state

protection

against

action

by

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

institutional regulation on this subject.

recommended

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

afforded an American citizen.

recognized

as

less

than

those

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

construed to avoid absurd results).
that

the

protections

granted

by

that

contracts

are

If it is indeed the case
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

Marquette

would

anything
be

or

unable

nothing
to

at

all

discipline

in

his

McAdams

classes.

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.
says.

But that is not what Faculty Statute § 307.07

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
relevant part:

Faculty

Statute

§ 307.07(2)

provides

in

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.

¶198 In fact, McAdams' interpretation of
§ 307.07

would

render

Marquette's

discretionary cause meaningless.
v. Connell, 2010 WI 64,

standards

2017AP1240.awb

Faculty Statute

for

absolute

and

See Maryland Arms Ltd. P'ship

¶45, 326 Wis. 2d 300, 786 N.W.2d 15

("When possible, contract language should be construed to give
meaning
portions

to

every

word,

a

contract

of

surplusage.'").
of

protected

'avoiding

constructions

meaningless,

which

inexplicable

render

or

mere

Under McAdams' misreading, so long as some form

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

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

S.

 No. 2017AP1240.awb