Last week, the Wisconsin Supreme Court issued its opinion in a dispute between a tenured professor, who had been suspended for publicly criticizing a graduate student-instructor in a blog post, and Marquette University, a private Catholic university. The case drew national attention as it appeared to pit the right of free speech against prohibitions against hateful or discriminatory conduct.

Despite being couched as a private contract dispute between two parties, ten amicus (friend of the court) briefs were filed on behalf of non-parties to the dispute, including by the State of Wisconsin and American Association of University Professors. The case is notable not just for its subject matter but the court’s rejection of the notion that the judiciary should afford special deference to a university’s internal procedures regarding tenured faculty. I expect the holding will have ripple effects on the deference usually afforded academia when it comes to student conduct matters as well.

The Facts. The case arose from a blog post by Professor John McAdams criticizing a reported interaction between a Marquette undergraduate student and a graduate student-instructor. According to the blog post, the instructor reportedly gave a lecture touching on the issue of “gay rights” and “airily said that ‘everybody agreed on this, and there is no need to discuss it.'” After class, when approached by an undergraduate student who disagreed with her position, the instructor reportedly said that “some opinions are not appropriate” and “homophobic comments” would not be tolerated in her class.

Dr. McAdams’ subsequent blog post recounting the encounter accused the instructor (whose name and contact information he made available) for “using a tactic typical among liberals now. Opinions with which they disagree are not merely wrong . . . but they are deemed ‘offensive’ and need to be shut up.” When the blog post made national news, the instructor received hate mail.

Marquette initially suspended Dr. McAdams with pay but signaled an intent to revoke his tenure and terminate his employment. Dr. McAdams was then afforded a disciplinary hearing before a faculty hearing committee, consisting solely of Marquette faculty members, pursuant to the university’s “Faculty Statutes.” The faculty hearing committee recommended he be suspended without pay (but with benefits) for one to two semesters. The committee’s recommendation was then submitted to the president, who accepted the recommendation but added an additional condition requiring Dr. McAdams to issue a written acknowledgement that, among other things, his blog post was “reckless and incompatible with the mission and values of Marquette University” and to express “deep regret” for the harm the instructor suffered. Dr. McAdams refused and sued the university instead, asserting multiple counts of breach of contract.

Trial Court Throws The Case Out. The trial court granted summary judgment in Marquette’s favor. The trial court reasoned that the university had not breached the contract for three reasons. First, it found that Dr. McAdams had agreed to be bound by university disciplinary processes as a condition of employment. Second, it afforded the university’s disciplinary process great deference, similar to that which would be afforded an arbitration panel. Finally, it gave “great weight” to the university’s decision, analogizing it to a governmental administrative agency with particularized experience in the matters within its purview.

Wisconsin Supreme Court Reverses. The Wisconsin Supreme Court squarely rejected each university argument the trial court had found compelling. It analyzed the dispute under the lens of a breach of contract suit, closely studying the documents governing the parties’ relationship, including the university’s appointment letter to Dr. McAdams, which in turn incorporated the schools Faculty Statutes.

While the court acknowledged that Dr. McAdams agreed to be bound by the school’s disciplinary proceedings, he never agreed to waive his right to sue in court. The court noted that the parties could have inserted something akin to an arbitration provision in their agreement but chose not to.

The court then went on to analyze whether the university had “cause” to revoke Dr. McAdams’ tenure. Citing Dr. McAdams’ contractual right to “academic freedom,” including the right to make “extramural comments,” the court held that the university lacked cause to revoke his tenure.

Relying on guidance from the American Association of University Professors (AAUP), the court applied a two-step analysis to determine whether the blog post “clearly demonstrate[d] the faculty member’s unfitness for his or her position.” The court quoted additional guidance from the AAUP to the effect that “extramural utterances rarely bear upon the faculty member’s fitness for the position.” The court described this as a “very narrow inquiry” and ultimately ruled in Dr. McAdams’ favor.

Practice Pointers. The decision (which is lengthy) is worth a read by anyone responsible for faculty relations. Consider the following ramifications from this case:

-If an institution wishes to foreclose access to the court system and instead settle faculty disputes via alternative dispute mechanisms, it must do so expressly.

-Take care in appointing faculty to a review committee. The Wisconsin Supreme Court held that the entire proceedings were infected by the bias of a faculty member who, prior to the hearing, publicly denounced Dr. McAdams’ post.

-“Shared governance” is a thorny issue for courts. Here, one of the reasons the appellate court refused to defer to the university was that the university’s decision ultimately came down to the unilateral decision of the president with no procedural guardrails at all. While the Marquette community may have had an implicit understanding that the president would adopt the committee’s recommendation absent some type of clear error, such an understanding (if it existed) did not satisfy the court. Rather, the court held that all of the procedural mechanisms in place at the faculty hearing stage were irrelevant to whether Dr. McAdams’ received a fair process because they were not binding on the ultimate decision maker, the president. To ensure that procedural processes around a fair hearing are effective, they must actually bind the decision maker.

-Schools will continue to walk a tightrope between creating a welcoming environment for all faculty, administrators, employees and students while respecting the rights of individuals to espouse views that are offensive or even hateful.

-Don’t expect the judiciary to afford special deference to a university’s decision on issues of tenure or even student academic progress. While academia may have once enjoyed this privilege, it is slowly eroding.

Written by Therese King Nohos

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