‘Written perhaps by the ghost of Orwell.”
That is how Wisconsin supreme-court justice Michael Gableman described the Marquette University Faculty Hearing Committee (FHC) report that led to the 2015 termination of tenured professor John McAdams.
Yesterday the court considered whether Marquette had breached its employment contract with McAdams when it fired him for criticizing, in a blog post, philosophy instructor Cheryl Abbate. Abbate had told a student he could not state his opposition to same-sex marriage in her ethics class because “some opinions are not appropriate.”
After Marquette fired McAdams, he sued the university, arguing that his termination violated Marquette’s promise that it would not “impair the full and free enjoyment of [faculty members’] legitimate personal or academic freedom of thought, doctrine, discourse, association, advocacy or action.” Marquette also assured McAdams and other faculty members that “dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed by the United States Constitution.” (Marquette is a private college and so is not bound by the First Amendment directly.)
Notwithstanding these broad contractual protections, a lower court threw out McAdams’s lawsuit against the Jesuit university, refusing to second-guess the FHC’s conclusion “that Mr. McAdams violated his core obligations as a tenured professor when he used his blog needlessly and recklessly to harm [Abbate].” And on appeal to the Wisconsin supreme court, Marquette’s attorney, Ralph Weber, maintained that the Milwaukee-based university was well within its rights to fire McAdams and that the court should defer to the FHC’s findings.
However, over the course of Thursday’s hour-long oral argument, the justices expressed concern over Marquette’s reliance on the FHC’s decision, as well as the university’s ultimate conclusion that McAdams’s firing was justified under the terms of the employment contract.
Chief Justice Patience D. Roggensack and Justices Gableman, Rebecca Grassl Bradley, and Daniel Kelly all challenged Marquette’s claim that a court was bound by the FHC’s decision. Why isn’t McAdams’s breach-of-contract claim an issue for the court, Kelly asked, adding that “this is just a contract dispute.” When Weber countered that a resolution by the FHC — and not a court — was the “agreed-upon dispute resolution,” Justice Kelly demanded that Weber quote the contractual language establishing the FHC as the exclusive forum. Weber couldn’t, falling back on the “essence” of “shared governance.” The justices seemed unpersuaded.
Several justices also stressed the sham nature of the FHC proceedings. Justice Bradley chastised Marquette for allowing a faculty member to participate in the FHC hearing and decision-making who — before the hearing — had publicly condemned McAdams’s actions and blamed him for hostile letters and emails Abbate received from third parties. And when Weber responded that the FHC’s decision that McAdams had violated his faculty duties was unanimous, Chief Justice Roggensack countered that if a juror sitting on a case had expressed a similar bias, the court would throw the verdict out, even though eleven untainted jurors had joined in the conclusion. Justice Gableman also rebuked the university for withholding evidence from both McAdams and the FHC. Justice Kelly added his concern that Marquette had made itself the judge of its own case — something unheard of under general principles of contract law.
Should the court agree, McAdams could be back in the classroom by fall.
While the justices eviscerated Marquette’s position, McAdams’s attorney, Rick Esenberg, faced only one hostile question, when liberal Justice Ann Walsh Bradley demanded to know whether Marquette was “the government,” such that McAdams received the constitutional protection of “freedom of speech.” Of course not, Esenberg countered, stressing that McAdams’s lawsuit presented solely breach-of-contract claims: Marquette did not need to guarantee McAdams the rights to academic freedom and free speech, but it did so in a contract and now is bound by that commitment.
From yesterday’s oral argument, a majority of the court seemed to agree. Where the remaining justice, Shirley S. Abrahamson, comes down is uncertain, as she participated telephonically and did not interject any questions or comments. (The seventh justice on the Wisconsin supreme court, Annette Kingsland Ziegler, is a Marquette Law School alum and donor and has recused from the case.)
It remains uncertain, though, what remedy the court will order. It could merely send the case back to the trial court for a full trial. Alternatively, the court could enter judgment in McAdams’s favor, finding — solely under the undisputed facts — that Marquette breached its employment contract with McAdams and order the university to reinstate him. McAdam’s attorney made a strong argument for just such an outcome, concluding yesterday’s hearing by stressing that whatever the outer boundaries of the speech protected by Marquette’s contractual guarantees, McAdams’s blog post fell safely within them.
Should the court agree, McAdams could be back in the classroom by fall — which is where he belongs. And Marquette students won’t be the only ones to be schooled.