John McAdams v. Marquette University, Circuit Court, State of Wisconsin, Case No. 16-CV-003396

In one of the best decisions on academic freedom in decades, the Wisconsin Supreme Court, citing AAUP policies and an amicus brief filed by the AAUP, ruled that Marquette University wrongly disciplined Dr. John McAdams for comments he made on his personal blog in 2014. Dr. McAdams criticized a graduate teaching instructor by name for her refusal to allow a student to debate gay rights because "everybody agrees on this." The blog was publicized in the national press, and the instructor received numerous harassing communications from third parties.  Marquette suspended Dr. McAdams, and demanded an apology as a condition of reinstatement. Relying heavily on AAUP’s standards and principles on academic freedom, as detailed in AAUP’s amicus brief, the court held 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, the court reversed and remanded this case with instructions that the lower court enter judgment in favor of Dr. McAdams and determine damages, and it ordered Marquette to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits.

In late 2014, Dr. McAdams, a tenured professor at Marquette University, published a blog post on his personal blog, which criticized Cheryl Abbate, a graduate student and philosophy instructor, on the way she handled a student’s question on a potential controversial topic during one of her philosophy classes. The blog post was picked up by the national media, and Ms. Abate received numerous harassing and offensive emails and other communications. In December 16, 2014, Dr. McAdams was suspended with pay and banned from campus. On January 26, 2015, the AAUP Department of Academic Freedom, Tenure, and Governance sent a letter to the university president informing him that the suspension appeared to violate AAUP policies.

On January 30, 2015, Marquette formally notified Dr. McAdams that it was commencing the process to revoke his tenure and terminate his employment.  Per Marquette’s Faculty Statutes the matter was referred to a Faculty Hearing Committee (“FHC”). The FHC concluded “that the suspension of Dr. McAdams pending the outcome of this proceeding, imposed by the University with no faculty review and in the absence of any viable threat posed by the continuation of his job duties, was an abuse of the University’s discretion granted under the Faculty Statutes.” The FHC further concluded there was not sufficient cause for Marquette to terminate Dr. McAdams, but that he could be suspended for up to two semesters without pay. 

On March 24, 2016, President Lovell advised Dr. McAdams that he was to be suspended without pay for two semesters, as the FHC had recommended. The president went beyond the FHC recommendation, and demanded that as a condition of his reinstatement to the faculty, Dr. McAdams provide him (and Ms.  Abbate) with a written statement  expressing “deep regret” and admitting  that  his  blog  post  was  “reckless  and  incompatible  with  the  mission  and  values  of  Marquette University.”  By letter dated April 4, 2016, McAdams advised President Lovell that  he  would  not  say  what  he  did  not  believe  to  be  true,  and  that  Lovell  was  exceeding  his authority  under  the  Faculty  Statutes  by  demanding  that  he  do  so.  As a result, McAdams was not reinstated to the faculty at the end of his two semester suspension and was effectively fired.

Dr. McAdams brought suit and claimed, inter alia, that Marquette violated his due process rights under the contract and his right to academic freedom. The court granted Marquette’s motion for summary judgment and found that Dr. McAdams “expressly agreed as a condition of his employment to abide by the disciplinary procedure set forth in the Faculty Statutes, incorporated by reference into his contract” and that Marquette substantially compiled with these procedures. On the academic freedom claim, the court opined, “In short, academic freedom gives a professor, such a Dr. McAdams, the right to express his view in speeches, writing and on the internet, so long as he does not infringe on the rights of others.” Dr. McAdams appealed the trial court’s decision. On January 22, 2018, the Wisconsin Supreme Court agreed to bypass the Court of Appeals, and to hear the case immediately.

 The AAUP submitted an amicus brief to the Wisconsin Supreme Court, which explained that

Such a formulation of limiting academic freedom to ‘views’ that do ‘not infringe on the rights of others’ vastly undermines academic freedom. The nature of offering opinions, particularly controversial ones, is that they may prompt vigorous responses, including assertions that the right of others have been infringed. Views and opinions should be subject to debate, not to limitations based on claims that the expression of views infringes upon the rights of others. Adding such a component will only serve to limit the openness and breadth of the views expressed in academia, compromising essential rights of academic freedom. 

The amicus brief urged the court to adopt AAUP standards to interpret academic freedom policies, including those at Marquette, as protecting faculty from discipline for extramural speech unless the university administration proves that such speech clearly demonstrates the faculty member’s unfitness to serve, taking into account his entire record as a teacher and scholar. As AAUP standards explain, “Extramural utterances rarely bear upon the faculty member’s fitness for continuing service.” The amicus brief also argued that Marquette violated Dr. McAdams’s due process rights by unilaterally imposing a new penalty that required Dr. McAdams to write a statement of apology/admission as a condition of reinstatement. This severe sanction would compel Dr. McAdams to renounce his opinions, a fundamental violation of his academic freedom. It also amounted to a de facto termination that was imposed in contravention of the Faculty Hearing Committee’s recommended lesser penalty.

The Wisconsin Supreme Court determined that it would decide this case on the merits. As an initial matter, the court declined to defer to the university’s decision. One important reason was that the faculty hearing committee’s decision was only advisory and not binding on the administration. The court stated, “The Discipline Procedure produced advice [from the FHC], not a decision. We do not defer to advice.” In addition, the court noted there were no rules for the president on appeal, stating “The Discipline Procedure is silent with respect to how the president must proceed after receiving the report.” And “once it reached the actual decision-maker (President Lovell), there were no procedures to govern the decision-making process.” The lack of procedures governing appeals to the president was one area in which the Marquette’s grievance procedure did not track AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure.

In its analysis of the merits of Dr. McAdams’ academic freedom argument, the court specifically cited the AAUP’s standards and principles as outlined in our amicus brief. The court stated, “The University acknowledges this definition (of academic freedom) came from the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure. During their arguments, both the University and Dr. McAdams had recourse to that document, as well as to subsequent AAUP-authored, explanatory documents such as the 1970 Interpretive Comments. Consequently, we will refer to those sources as necessary to understand the scope of the academic freedom doctrine.”(Emphasis added.)

Relying on AAUP’s standards and principles, the court determined that Dr. McAdams’s blog post was an “extramural comment,” a type of expression made in Dr. McAdams’s personal, rather than professional, capacity. In the next step of its analysis, the court adopted the AAUP’s “analytical structure” to analyze the impact of the blog post. The controlling principle, the court noted, quoting from the AAUP’s 1940 Statement of Principles of Academic Freedom and Tenure with 1970 Interpretive Comments and its Committee A Statement of Extramural Utterances, is that a

faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. If the comment meets this standard, the second part of this 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 entire record as a teacher and scholar.” .

Marquette failed to follow these long-standing AAUP standards and principles.

The court further touted AAUP’s standards and principles:

The AAUP properly limits the analysis to whether the actual extramural comment, on its face, clearly demonstrates that the professor is unfit to serve. This very narrow inquiry explains why the AAUP can confidently state that “[e]xtramural utterances rarely bear upon the faculty member’s fitness for a particular positon.” If we adopted the alternative structure now favored by the University, academic freedom would be nothing but a subjective, post-hoc analysis of what the institution might find unacceptable after watching how events unfolded. And this would likely chill extramural comments to the point of extinction. It would be a fearless professor indeed who would risk such a comment, knowing that it licenses the University to scrutinize his entire career and assay it against the care of “all aspects of the lives of the members of the institution.”

Ultimately, Justice Daniel Kelly concluded

McAdams's blog post qualifies as an extramural comment protected by the doctrine of academic freedom. . . .The post is incapable of clearly demonstrating 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 McAdams's responsibilities to the institution's students.