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McAdams v. Marquette University

Supreme Court of Wisconsin

July 6, 2018

John McAdams, Plaintiff-Appellant,
v.
Marquette University, Defendant-Respondent.

          ORAL ARGUMENT: April 19, 2018

         ON BYPASS FROM THE COURT OF APPEALS

          APPEAL from a judgment and an order of the Circuit Court for Milwaukee County, David A. Hansher, Judge. Reversed and remanded.

          For the plaintiff-appellant, there were briefs (in the court of appeals) by Richard M. Esenberg, Brian McGrath, Clyde Taylor, Thomas C. Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

          For the defendant-respondent, there was a brief (in the court of appeals) by Stephen T. Trigg, Ralph A. Weber, and Gass Weber Mullins LLC, Milwaukee. There was an oral argument by Ralph A. Weber.

          An amicus curiae brief was filed on behalf of Law and University Professors and Academics by Bernardo Cueto and Great Lakes Justice Center, La Crosse, with whom on the brief were Erin Elizabeth Mersino and Great Lakes Justice Center, Lansing, Michigan.

          An amicus curiae brief was filed on behalf of Association of Jesuit Colleges and Universities by Thomas L. Shriner, Jr., Aaron R. Wegrzyn, and Foley & Lardner LLP, Milwaukee.

          An amicus curiae brief was filed on behalf of the State of Wisconsin by Ryan J. Walsh, chief deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and Amy C. Miller, assistant solicitor general.

          An amicus curiae brief was filed on behalf of American Association of University Professors by Frederick Perillo and The Previant Law Firm, S.C., Milwaukee, with whom on the brief were Risa L. Lieberwitz and American Association of University Professors, and Aaron M. Nisenson, Nancy A. Long, and American Association of University Professors, Washington, D.C.

          An amicus curiae brief was filed on behalf of Metropolitan Milwaukee Association of Commerce by Michael B. Apfeld and Godfrey & Kahn, S.C., Milwaukee.

          An amicus curiae brief was filed on behalf of Thomas More Society by Andrew Bath, Esq. and Thomas More Society, Chicago, Illinois.

          An amicus curiae brief was filed on behalf of The National Association of Scholars, Edward J. Erler, Duke Pesta, and Mark Zunac by James R. Troupis and Troupis Law Office, Cross Plains, 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.

          OPINION

          DANIEL KELLY, J.

         ¶1 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 of contract claim in our courts. Instead, it says, we must defer to its procedure for suspending and dismissing tenured faculty members. It claims we may not question its decision so long as it did not abuse its discretion, infringe any constitutional rights, act in bad faith, or engage in fraud.

         ¶2 The University is mistaken. We may question, and we do not defer. The University's internal dispute resolution process is not a substitute for Dr. McAdams' right to sue in our courts. The University's internal process may serve it well as an informal means of resolving disputes, but as a replacement for litigation in our courts, it is structurally flawed.

         ¶3 The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom. Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by § 307.09 of the University's Statutes on Faculty Appointment, Promotion and Tenure (the "Faculty Statutes"), [1]

         I. FACTUAL BACKGROUND

         A. Dr. McAdams' Contract with the University

         ¶4 Dr. McAdams has been a professor of political science at Marquette University since 1977; he received tenure in 1989. His most recent contract is evidenced by an appointment letter dated March 1, 2014. It incorporates, and is therefore subject to, the University's Faculty Statutes, the Faculty Handbook, and the other documents identified in the agreement:

This appointment/contract is subject to the University's statutes on Faculty Appointment, Promotion and Tenure [the Faculty Statutes]. As a Marquette faculty member, you agree to comply with applicable Marquette academic and business policies, including those found in the Faculty Handbook, University Policies and Procedures (UPP) and the Marquette University Intellectual Property Policy. [2]

         When we refer to the "Contract" in this opinion, we mean the appointment letter of March 1, 2014, along with all the authorities it incorporates.

         ¶5 "Tenure" at the University means:

[A] faculty status that fosters an environment of free inquiry without regard for the need to be considered for reappointment. Tenure is reserved for Regular Faculty who are recognized by the University as having the capacity to make unique, significant, and long-term future contributions to the educational mission of the University. Tenure is not a reward for services performed; it is a contract and property right granted in accordance with this Chapter[.]

         Faculty Statute § 304.02. Tenured faculty are entitled to yearly reappointment:

Excepting cases of intervening termination for cause and cases of leave of absence or retirement as provided below, every tenured member of the Regular Faculty will be tendered notification of compensation, and every non-tenured member of the Regular Faculty not otherwise notified as provided in Section 304.07, will be tendered an annual reappointment, at a rank and compensation not less favorable than those which the faculty member then enjoys, ....

Faculty Statute § 304.09; see also § 304.07 ("Unless tenured, no faculty member is entitled to reappointment.").

         ¶6 The Faculty Statutes forbid the suspension or dismissal of a faculty member without cause: "The cognizant appointing authority of the University may initiate and execute procedures by which a faculty member's reappointment may be denied or revoked, or any current appointment may be suspended or terminated, for cause as defined therein." Faculty Statute § 306.01.

         B. The Incident

         ¶7 On November 9, 2014, Dr. McAdams published a post on his personal blog, the Marquette Warrior, in which he criticized a philosophy instructor, Cheryl Abbate, for her interchange with a student attending her Theory of Ethics class.[3] Dr. McAdams' blog post said that, after Instructor Abbate listed a number of issues on the board, including "gay rights," she "airily said that 'everybody agrees on this, and there is no need to discuss it.'" One of the students approached Instructor Abbate after class and said that the issue of gay rights should have been open for discussion. The blog post says Instructor Abbate replied that "some opinions are not appropriate, such as racist opinions, sexist opinions," that "you don't have a right in this class to make homophobic comments," that she would "take offense" if a student opposed women serving in certain roles, that a homosexual individual would take similar offense if a student opposed gay marriage, and that "[i]n this class, homophobic comments, racist comments, will not be tolerated." The blog post says Instructor Abbate "then invited the student to drop the class." Dr. McAdams commented that Instructor Abbate employed "a tactic typical among liberals now," namely that "[o]pinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed 'offensive' and need to be shut up." Dr. McAdams then quoted Charles Krauthammer for the proposition that "[t]he proper word for that attitude is totalitarian." Finally, the blog post contained a clickable link to Instructor Abbate's contact information and to her own, publicly-available website.[4]

         ¶8 Two days later, after having received an email criticizing her conduct in this incident, Instructor Abbate filed a formal complaint against Dr. McAdams with the University. The incident came to national attention after other media outlets picked up the story from Dr. McAdams' blog post. Instructor Abbate subsequently received some strongly-worded and offensive communications (emails, blog comments, and letters) from third parties, including some that expressed violent thoughts. Almost all of the feedback occurred after the story spread beyond Dr. McAdams' blog post.

         ¶9 By letter dated December 16, 2014, Dean Richard Holz suspended Dr. McAdams (with pay), but identified no reason for doing so. Dean Holz's follow-up letter of January 30, 2015, identified the blog post of November 9, 2014, as the justification for the suspension. It also stated the post violated Faculty Statute § 306.03, and that, therefore, the University intended to revoke his tenure and terminate his employment because his "conduct clearly and substantially fails to meet the standards of personal and professional excellence that generally characterizes University faculties."

         ¶10 The process for suspending or dismissing a tenured faculty member appears in chapters 306 and 307 of the Faculty Statutes (the "Discipline Procedure") . On August 14, 2015, the University notified Dr. McAdams that, pursuant to the Discipline Procedure's requirements, the Faculty Hearing Committee (the "FHC") would convene to consider his case. The FHC is an advisory body whose membership consists solely of University faculty members. The FHC described its charge in this case as follows:

Under both the Faculty Statutes and the Statutes for the University Academic Senate, the FHC acts as an advisory body in contested cases of appointment non-renewal, or for suspension or termination of tenured faculty for absolute or discretionary cause. Its advice is presented to the President. The specific charge of the Committee in such cases is to convene a hearing "to determine the existence of cause" as defined in Sections 306.02 and .03 of the Faculty Statutes, "and to make findings of fact and conclusions." Those conclusions may, if the Committee finds it is warranted by the evidence, contain a recommendation "that an academic penalty less than dismissal" be imposed.

(Footnotes omitted.)

         ¶11 One of the FHC's members, Dr. Lynn Turner, publicly expressed her opinion of Dr. McAdams, his blog post, and Instructor Abbate, prior to her appointment. She, along with several of her colleagues, signed an open letter published in the Marquette Tribune. The letter says, in relevant part:

The following department chairs in the Klingler College of Arts & Sciences deplore the recent treatment of a philosophy graduate student instructor by political science professor John McAdams on his Marquette Warrior blog. We support Ms. Abbate and deeply regret that she has experienced harassment and intimidation as a direct result of McAdams's actions. McAdams's actions-which have been reported in local and national media outlets-have harmed the personal reputation of a young scholar as well as the academic reputation of Marquette University. They have negatively affected campus climate, especially as it relates to gender and sexual orientation. And they have led members of the Marquette community to alter their behavior out of fear of becoming the subject of one of his attacks.
Perhaps worst of all, McAdams has betrayed his role as a faculty member by pitting one set of students against another, by claiming the protection of academic freedom while trying to deny it to others, and by exploiting current political issues to promote his personal agenda. This is clearly in violation of . . . the Academic Freedom section of Marquette's Faculty Handbook[.]
McAdams . . . has failed to meet the standards we aspire to as faculty, as well as the broader ethical principles that guide Marquette's mission as a Jesuit, Catholic institution.

         ¶12 Dr. McAdams requested that Dr. Turner recuse herself from the FHC's work because the letter created the appearance of bias against him. The FHC unanimously rejected the request, stating that the letter evidenced no disqualifying bias because, inter alia, her comments did not bear on the issues the committee would decide. In any event, the FHC said, this cannot be a disqualifying factor because "every single one of the committee members present at our last meeting admit to having formed a prior positive or negative opinion of the propriety of Dr. McAdams's Nov. 9, 2014 blog post." The FHC said it would be unable to do its work if its membership were limited to those who had not already formed an opinion about the subject matter of Dr. McAdams' case.

         ¶13 Over the course of four days, the FHC received documentary and testimonial evidence from the University and Dr. McAdams. After completing its work, the FHC forwarded its report, titled "In the Matter of the Contested Dismissal of Dr. John C. McAdams" and dated January 18, 2016 (the "Report"), to the University's President, Michael Lovell. The Report concludes as follows:

The Committee [the FHC] therefore concludes that discretionary cause under FS [Faculty Statute] § 306.03 has been established, but only to the degree necessary to support a penalty of suspension. The Committee concludes that the University has established neither a sufficiently egregious failure to meet professional standards nor a sufficiently grave lack of fitness to justify the sanction of dismissal. Instead, the Committee concludes that only a lesser penalty than dismissal is warranted. The Committee thus recommends that Dr. McAdams be suspended, without pay but with benefits, for a period of no less than one but no more than two semesters.

         In keeping with its role as an advisory body, the Report made only a recommendation to President Lovell: "For the reasons stated above, the Committee recommends that the University suspend Dr. McAdams, without pay but with benefits, for a period of one to two semesters."

         ¶14 By letter of March 24, 2016 (the "Discipline Letter"), President Lovell informed Dr. McAdams that, after "carefully reviewing [the FHC's] report along with the transcriptions of your formal hearing last September," he had "decided to accept your fellow faculty members' recommendation to suspend you without pay." The suspension became effective April 1, 2016, and was to continue until the end of the fall 2016 semester. President Lovell-on his own initiative-added an additional term to the FHC's recommended sanction. He informed Dr. McAdams that his resumption of duties (and pay) would be "conditioned upon you delivering a written statement to the President's Office by April 4, 2016," which would be shared with Instructor Abbate, and which must contain the following:

• Your acknowledgement and acceptance of the unanimous judgment of the peers who served on the Faculty Hearing Committee.
• Your affirmation and commitment that your future actions and behavior will adhere to the standards of higher education as defined in the Marquette University Faculty Handbook, Mission Statement and Guiding Values.
• Your acknowledgement that your November 9, 2014, blog post was reckless and incompatible with the mission and values of Marquette University and you express deep regret for the harm suffered by our former graduate student and instructor, Ms. Abbate.

         Dr. McAdams refused to write the required letter.

         II. PROCEDURAL HISTORY

         ¶15 On May 2, 2016, Dr. McAdams filed a complaint against the University in the Milwaukee County Circuit Court, asserting (inter alia) that the University breached his Contract by suspending and then dismissing him.[5] He demanded damages, an injunction requiring reinstatement as a tenured member of the Marquette faculty, and costs and attorneys' fees. Both parties eventually moved for summary judgment. On May 4, 2017, the circuit court issued a decision and order granting summary judgment in favor of the University and dismissing Dr. McAdams' complaint with prejudice.[6]

         ¶16 The circuit court concluded it must defer to the University's resolution of Dr. McAdams' claims: "[T]he Court finds the following: (1) The FHC Report deserves deference; (2) The [suspension] letter from President Lovell deserves deference; . . . ." McAdams v. Marquette Univ., No. 2016CV3396, Order for Summary Judgment, 7 (Cir. Ct. for Milwaukee Cty. May 4, 2017) . It said it must defer because "public policy compels a constraint on the judiciary with respect to Marquette's academic decision-making and governance," out of a recognition that "[p]rofessionalism and fitness in the context of a university professor are difficult if not impossible issues for a jury to assess." Id. at 11.

         ¶17 The circuit court also concluded that the University's internal dispute resolution process afforded Dr. McAdams sufficient "due process": "[T]he Court finds the following: . . . (3) Dr. McAdams was afforded due process that he was entitled to during the FHC hearing; . . . ." Id. at 7. It explained that "Dr. McAdams expressly agreed as a condition of his employment to abide by the disciplinary procedure set forth in the Faculty Statutes," procedures that the court said afforded "Dr. McAdams ... a detailed, quasi-judicial process which gave him an adequate opportunity to meaningfully voice his concerns." Id. at 11.

         ¶18 We accepted Dr. McAdams' petition to bypass the court of appeals and now reverse the circuit court's judgment.

         III. STANDARD OF REVIEW

         ¶19 We review the disposition of a motion for summary judgment de novo, applying the same methodology the circuit courts apply. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc. v. Jackson Cty., 2010 WI 95, ¶11, 328 Wis.2d 613, 785 N.W.2d 615 ("We review the grant of a motion for summary judgment de novo, . . . .") . First, we "examine the pleadings to determine whether a claim for relief has been stated." Green Spring Farms, 136 Wis.2d at 315. Then, "[i]f a claim for relief has been stated, the inquiry . . . shifts to whether any factual issues exist." Id. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis.Stat. § 802.08(2) (2015-16)[7]; see also Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis.2d 70, 661 N.W.2d 776 (citing § 802.08(2) (2001-02)).

         ¶20 The only dispute before us is the proper interpretation of a contract. This presents a question of law, which we review de novo. Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶15, 259 Wis.2d 587, 657 N.W.2d 411 ("Interpretation of a contract is a question of law which this court reviews de novo.").

         IV. DISCUSSION

         ¶21 Before we reach the merits of Dr. McAdams' complaint, we must explain why we do not defer, as the circuit court did, to the results of the University's internal Discipline Procedure. We will then address Dr. McAdams' claim that the University breached his Contract.

         A. Deference to the University

         ¶22 The circuit court deferred to the University's conclusion that it had not breached the Contract for three reasons. First, it said Dr. McAdams agreed to be bound by the University's Discipline Procedure. McAdams, No. 2016CV3396, Order for Summary Judgment, 11. Second, it analogized the Discipline Procedure to an arbitration and concluded that it must afford the results of the University's process the same deference we give to arbitration awards. See id. at 13-14. And third, it said it should defer to the University for the same reasons we have historically given either "great weight" or "due weight" deference to administrative agency decisions.[8] See id. at 11-13. For the reasons we discuss below, we will not defer to the University on any of these bases. And neither the circuit court nor the University has offered any other ground upon which we could conclude that Dr. McAdams' right to litigate his contract claim in our courts is either foreclosed or limited.

         ¶23 We begin with the proposition that "litigants must be given their day in court. Access to the courts is an essential ingredient of the constitutional guarantee of due process." Piper v. Popp, 167 Wis.2d 633, 644, 482 N.W.2d 353 (1992); see also Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ("A fundamental requirement of due process is 'the opportunity to be heard.' It is an opportunity which must be granted at a meaningful time and in a meaningful manner." (citation omitted)); see also State ex rel. Universal Processing Servs. of Wis., LLC v. Circuit Court of Milwaukee Cty., 2017 WI 26, ¶5, 374 Wis.2d 26, 892 N.W.2d 267 ("The Wisconsin Constitution requires the state to provide a judicial system for the resolution of disputes. Access to state courts for conflict resolution is thus implicit in the state constitution."); Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, 474, 565 N.W.2d 521 (1997) ("The right of access to the courts is secured by the First and Fourteenth Amendment[s]. It entitles the individual to a fair opportunity to present his or her claim. Such a right exists where the claim has a 'reasonable basis in fact or law.' Judicial access must be 'adequate, effective, and meaningful.'" (footnote and citations omitted) (quoted sources omitted)).

         ¶24 The scope of judicial review is, however, subject to statutory and judicially-developed limitations.[9] And, of course, parties may choose to have their disputes resolved through extra-judicial means, thereby confining the judiciary's review to a very limited role.[10] We conclude that none of these substitutionary or limiting principles apply to Dr. McAdams' contract dispute with the University.[11]

         1. Contractual Limitations on Judicial Review

         ¶25 The most obvious reason we will not defer to the University is simply that the parties never agreed that its internal Discipline Procedure would either replace or limit the adjudication of their contract dispute in our courts. They certainly could have agreed to an extra-judicial resolution of their contract dispute. This is a common feature in society today and is accomplished most often through an arbitration agreement. "[A]rbitration is a matter of contract[, ] and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit." Joint Sch. Dist. No. 10, Jefferson v. Jefferson Educ. Ass'n, 78 Wis.2d 94, 101, 253 N.W.2d 536 (1977) (internal quotation mark omitted) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 3 63 U.S. 574, 582 (I960)); 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 review of a contractual dispute.[12] Two of the Faculty Statutes acknowledge Dr. McAdams' right to seek judicial adjudication of his claims. The first describes the right negatively by demarcating a period of time in which the parties agree not to litigate:

So long as the periodic compensation and benefits provided by the faculty member's appointment are both continued, and during such further periods of negotiation, mediation, hearing, or review as the parties may mutually stipulate, both parties shall diligently continue in good faith to attempt a mutually-acceptable resolution of the issues between them by one or more of the procedures described in the three preceding sections, and neither shall, during such period, resort to or encourage litigation, demonstration, or tactics of duress, embarrassment, or censure against the other; provided that this paragraph shall not be construed so as to require the University to continue the faculty member's duty assignment during such period.

Faculty Statute § 307.08 (emphasis added) . That period had elapsed by the time Dr. McAdams filed his suit because his pay had been terminated and the Discipline Procedure had concluded. So this provision recognizes Dr. McAdams' right to bring his claim to court.

         ¶27 The Faculty Statutes also contain an explicit, positively-stated recognition of Dr. McAdams' right to litigate:

To the extent that none of the foregoing procedures produces a resolution of the issues arising out of a timely objection to a faculty member's non-renewal, suspension, or termination, at or prior to the time specified in the preceding paragraph, the University shall, for a period of six months thereafter, or until the final determination of any judicial action which may be commenced within such period to test the validity of the non-renewal, suspension, or termination, hold itself ready to reinstate the faculty member, with unimpaired rank, tenure, compensation, and benefits, to the extent that the faculty member's entitlement thereto may be judicially adjudged or decreed, or conceded by the University in such interval.

Faculty Statute § 307.09 (emphasis added) . This provision unambiguously recognizes that the University's suspension and dismissal decisions are subject to litigation in our courts. It was with good reason that the University conceded, during oral arguments, that it had no express agreement with Dr. McAdams that the Discipline Procedure would preclude his right to litigate his cause here.

         ¶28 The University and Dr. McAdams could have agreed that the court would defer to the Report and Discipline Letter in the same way we defer to arbitration decisions. They could have done that, but they did not. They did the opposite: The University agreed It would defer to the court' s adjudication of Dr. McAdams' right to reinstatement.

         ¶29 The Faculty Statutes' description of our role does not resemble the method by which we review arbitration awards. When we review a party's challenge to such a decision, we focus on the process that produced the award: "[T]he court will not overturn the arbitrator's decision for mere errors of law or fact, but only when 'perverse misconstruction or positive misconduct [is] plainly established, or if there is a manifest disregard of the law, or if the award itself is illegal or violates strong public policy.'" City of Madison v. Madison Prof'l Police Officers Ass'n, 144 Wis.2d 576, 586, 425 N.W.2d 8 (1988) (alteration in original) (quoted source omitted) . We will confirm arbitration awards even when they are incorrect: "Because arbitration is what the parties have contracted for, the parties get the arbitrator's award, whether that award is correct or incorrect as a matter of fact or of law." Id.

         ¶30 The Faculty Statutes do not contemplate this type of review. They actually anticipate that the court will reach the merits of Dr. McAdams' claim. The purpose of the "judicial action" identified in Faculty Statute § 307.09 is to "test the validity" of the suspension. It is not to test the process that led to the suspension; it is instead to determine whether there was a legitimate basis for it. This is a question of merit, not procedure.

         ¶31 The University makes this understanding even more explicit by pledging to "hold itself ready to reinstate" the faculty member "to the extent that the faculty member's entitlement thereto may be judicially adjudged or decreed." Faculty Statute § 307.09. This is not evocative of an arbitration-style review, which would exhaust itself upon declaring the decision is either defective or sound. A declaration that a faculty member is entitled to reinstatement is a substantive evaluation of the underlying dispute's merits. Thus, the Faculty Statutes acknowledge that the court will conduct an unabridged inquiry into the parties' compliance with their contractual obligations, not an arbitration-style review.

         ¶32 Therefore, the circuit court erred when it concluded it must defer to the University because "Dr. McAdams expressly agreed as a condition of his employment to abide by the disciplinary procedure set forth in the Faculty Statutes, incorporated by reference into his contract." See McAdams, No. 2016CV3396, Order for Summary Judgment, 11. The circuit court's analysis ended prematurely because it failed to even mention the Faculty Statutes that describe the relationship between the University's Discipline Procedure and Dr. McAdams' right to bring the dispute to court.

         ¶33 We conclude that the Contract's plain meaning is that the parties did not agree that the Discipline Procedure would substitute for, or limit, Dr. McAdams' right to litigate in our courts. This cannot end our analysis, however, because the circuit court deferred to the University on the additional ground that the Discipline Procedure is analogous to an arbitral proceeding. It concluded that the Report and Discipline Letter are entitled to the same deference we afford to arbitration awards, see id. at 13-14, even if there was no agreement that the Discipline Procedure would authoritatively resolve their dispute.

         2. The Discipline Procedure's Fundamental Procedural Flaws

         ¶34 The Report and Discipline Letter are not entitled to deference as something comparable to an arbitration award. The Discipline Procedure is an intricate, thorough, and extensive process. Indeed, at least superficially, it closely resembles a judicial proceeding. In light of the 123-page Report the FHC produced, the process obviously consumed a great deal of several faculty members' attention and valuable time. But all of this cannot make up for the unacceptable bias with which the FHC was infected, or the FHC's lack of authority to bind the parties to its decision. Although these shortcomings are enough to convince us that we must not defer to the Discipline Procedure's results, there is an even greater shortcoming at the heart of the process: The Discipline Procedure has nothing to say about how the actual decision-maker is to decide the case. The Faculty Statutes recognize that, at Marquette University, the authority to suspend or dismiss tenured faculty members rests exclusively with the president, and that his exercise of discretion is subject to no procedural requirements or limitations. There is no process here to which we can defer. We will address each of these defects in turn.

         ¶35 The FHC, to which the Faculty Statutes commit the responsibility for conducting the Discipline Procedure, was not an impartial tribunal. But it is the only entity authorized by the Discipline Procedure to hear testimony from the contesting parties. "[T]he Faculty Hearing Committee (hereinafter the FHC) serves as the advisory body in cases of contested appointment non-renewal, and suspension or termination (hereinafter dismissal) of a tenured faculty member for absolute or discretionary cause." Faculty Statute § 307.07(1) . The FHC is "composed of seven tenured faculty members elected by the faculty as a whole under the supervision of the Committee on Committees and Elections." § 307.07(6).

         ¶36 The FHC holds hearings at which the faculty member may participate with assistance of counsel. Faculty Statute § 307.07(11), (14). It is the University's responsibility, through its designee, to present the case against the faculty member. § 307.07(13) ("The University Administration must appear at the hearing by a designated representative, and it must make the initial showing.") . The FHC may receive both documentary and testimonial evidence. § 307.07(10), (15). The University bears the burden of making its case with "clear and convincing evidence in the record considered as a whole." § 307.07(13).

         ¶37 Once the FHC has received the parties' evidence and conducted its deliberations, it issues "findings of fact and conclusions." Faculty Statute § 307.07(18). If it decides dismissal is not warranted, "its findings of fact and conclusions will set forth a recommendation to that effect together with supporting reasons." See id. Finally, the FHC conveys its findings of fact and conclusions to the University president and to the affected faculty member. § 307.07(19).

         ¶38 The Faculty Statutes describe a procedure and tribunal that, on their face, are characteristic of an arbitral system. Confidence in an arbitration's outcome, however, is predicated on confidence in the arbitrator. That is why we presume parties intend their arbitrators to be impartial. See Borst v. Allstate Ins. Co., 2006 WI 70, ¶3, 291 Wis.2d 361, 717 N.W.2d 42 ("We adopt a presumption of impartiality among all arbitrators, whether named by the parties or not."); Nicolet High Sch. Dist. v. Nicolet Educ. Ass'n, 118 Wis.2d 707, 712-13, 348 N.W.2d 175 (1984) ("A final and binding arbitration clause signifies that the parties to a labor contract desire to have certain contractual disputes determined on the merits by an impartial decision-maker whose determination the parties agree to accept as final and binding." (quoting City of Oshkosh v. Oshkosh Pub. LibraryClerical & Maint. Emps. Union Local 796-A, 99 Wis.2d 95, 103, 299 N.W.2d 210 (1980)); Diversified Mgmt. Servs., Inc. v. Slotten, 119 Wis.2d 441, 448, 351 N.W.2d 176 (Ct. App. 1984) ("If parties are to be encouraged to submit their disputes to arbitration as an alternative to litigation, they must be assured an impartial tribunal.") . Cf. Commonwealth Coatings Corp. v. Cont'1 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 award "[w]here there was evident partiality ... on the part of the arbitrators." Wis.Stat. § 788.10(1) (b).

         ¶39 In this case, the FHC's impartiality was compromised by one of its members. Prior to her appointment to the FHC, Dr. Lynn Turner made her opinion of Dr. McAdams and his blog post available for all to see and read. By subscribing her name to an open letter published in the Marquette Tribune, Dr. Turner:

a. Deplored Dr. McAdams' treatment of Ms. Abbate;
b. Expressed support for Ms. Abbate's position in the dispute;
c. Asserted that Ms. Abbate had been harassed and intimidated as a direct result of Dr. McAdams' blog post;
d. Stated that Dr. McAdams had harmed Ms. Abbate's personal and academic reputation;
e. Claimed Dr. McAdams had created a negative campus climate and caused members of the Marquette community to fear becoming subjects of his attacks;
f. Accused Dr. McAdams of betraying his role as a faculty member by asserting the protection of academic freedom and exploiting political issues to further his personal agenda;
g. Stated that Dr. McAdams' action was a clear violation of the Academic Freedom section of the Faculty Handbook; and
h. Concluded that Dr. McAdams had "failed to meet the standards we aspire to as faculty, as well as the broader ethical principles that guide Marquette's mission as a Jesuit, Catholic institution."

         ¶40 Remarkably, the FHC said this evidenced no disqualifying bias because she had not commented on anything the FHC would be considering. The Report Dr. Turner helped produce says otherwise, as evidenced by the following excerpts (keyed to the lettered paragraphs above):

a. "[T]he Committee concludes that the University has established by clear and convincing evidence that Dr. McAdams's conduct with respect to his November 9, 2014 blog post violated his obligation to fellow members of the Marquette community by recklessly causing indirect harm to Ms. Abbate through his conduct, harm that was substantial, foreseeable, easily avoidable, and not justifiable. "
b. "As the AAUP has feared, Dr. McAdams's use of selective quotations from Ms. Abbate's classroom and after-class discussion has resulted in a chilling effect on Ms. Abbate-indeed she is no longer on the campus to speak at all."
"Ms. Abbate, who was by all indications a star graduate student, was unable to focus on preparing her dissertation topic defense by the end of November."
c. "University spokesperson Brian Dorrington later stated, in reference to Dr. McAdams's suspension, that' [t]he university has a policy in which it clearly states that it does not tolerate harassment . . . .'"
d. "Dr. McAdams has also stated that he does not have an obligation to protect the reputations of members of the Marquette community." "Dr. McAdams has stated that the harm to Ms. Abbate occurred due only to truthful reporting of facts." "[I]t was 'Abbate's actions,' not his, 'that caused the problem.'" "Dr. McAdams does not accept that Ms. Abbate was harmed by this incident."
e. "The speech of other faculty at Marquette may be chilled as well as a result of this incident."
"Junior faculty in the Political Science Department appear to have great anxiety that they may be Dr. McAdams's next targets . . . ."
f. "If the University presses forward, Dr. McAdams promises, Marquette will 'become ground zero in the battle over freedom of expression in academia' and will be 'the poster child for political correctness on America's campuses.'"
g. "But academic freedom has its limits, limits that are slightly more pronounced in the case of extramural statements, and Dr. McAdams's Nov. 9 blog post exceeded those limits by recklessly causing harm indirectly to Ms. Abbate that was substantial, foreseeable, easily avoidable, and not justified."
e. "The Committee therefore concludes that this conduct clearly and substantially failed to meet the standard of personal and professional excellence that generally characterizes University faculties."

         If Dr. Turner did not know she would be addressing matters on which she had already taken a very public and definite stand, she should have recused herself once she discovered the connection.

         ¶41 The Faculty Handbook says that a "member of . . . the Faculty Hearing Committee whose impartiality might be compromised by participating in the processing of the grievance ought to recuse himself or herself from consideration of the grievance." Faculty Handbook art. 8.02 (Conflicts of Interest). Parties to an arbitration agreement may contractually calibrate the level of bias they find acceptable, and we will generally accept whatever standard upon which they agree.[13] The Faculty Statutes, however, do not describe the level of disqualifying bias. But we take notice that the American Arbitration Association says that an arbitrator should "have no relation to the underlying dispute or to the parties or their counsel that may create an appearance of bias," nor should she have any "personal or financial interest in the results of the proceeding."[14] And when an arbitrator fails to disclose information that may call his impartiality into question, we inquire into

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');">263 N.W.2d 204 (1978).

         ¶42 Under any reasonable standard of impartiality, Dr. Turner would be disqualified. She publicly inserted herself into the dispute and expressed a personal interest in its outcome. And she did not just express her opinions on these matters in passing-she committed herself to them in writing. Having done so, she could not decide the FHC proceedings in favor of Dr. McAdams without contradicting what she had already said to the entire Marquette University campus. These are not anonymous members of the public to whom she would be admitting that her initial convictions were mistaken. They are her professional colleagues and students. The natural human impulse to resist acknowledging a mistake, especially in light of the audience to whom she would be making the acknowledgement, is sufficiently powerful to affect Dr. Turner's consideration of the dispute. If an arbitrator evidenced this level of bias, we would set aside the resulting award. The FHC's composition was unacceptably compromised by Dr. Turner's bias.

         ¶43 The Discipline Procedure is not analogous to an arbitration proceeding, as the circuit court assumed, for the further reason that it resulted in mere advice, not in an authoritative decision. The point of an arbitration is to produce a final and binding resolution of the parties' dispute. City of Manitowoc v. Manitowoc Police Dep't, 70 Wis.2d 1006, 1012, 236 N.W.2d 231 (1975) (stating that "an arbitration award must finally settle the controversy"); Dundon v. Starin, 19 Wis. 278 (*261), 283-85 (*266-67) (1865) (reversing judgment because the arbitration award was not "final and definite"); see also Dane Cty. Union Local 65, AFSCME, AFL-CIO, 210 Wis.2d at 279 ("Arbitration is also designed to bring an end to controversy. Employees, unions and employers all rely on the finality of arbitration decisions in ordering their affairs.").

         ¶44 The Discipline Procedure, however, is incapable of producing such a result. The Report says the FHC is just an advisory body: "Under both the Faculty Statutes and the Statutes for the University Academic Senate, the FHC acts as an advisory body in contested cases of appointment non-renewal, or for suspension or termination of tenured faculty for absolute or discretionary cause." See Faculty Statute § 307.07(1) ("[T]he Faculty Hearing Committee . . . serves as the advisory body in cases of contested appointment non-renewal, and suspension or termination ... of a tenured faculty member for absolute or discretionary cause."). In keeping with the nature of that body, it issues nothing authoritative. The Report says the end result of the FHC's work is merely advice: "[The FHC's] advice is presented to the President." See § 307.07(18) ("If the FHC concludes that an academic penalty less than dismissal is warranted by the evidence, its findings of fact and conclusions will set forth a recommendation to that effect . . . .")

         ¶45 If we are supposed to defer to the Discipline Procedure because of its resemblance to an arbitration, the analogy does not hold up. This process cannot produce one of its essential hallmarks. We defer to arbitration decisions because they are authoritative resolutions of the disputes they address. The Discipline Procedure produced advice, not a decision. We do not defer to advice.

         ¶46 The FHC's lack of authority leads us to the final reason we cannot give arbitration-style deference to the University's decision to suspend Dr. McAdams: There was no relevant process to which we could defer. In one sense, all of the time, energy, and resources that went into the Discipline Procedure and the richly-detailed Report are distractions from the necessary focus of our analysis. Neither the FHC nor the Report decided anything. It was President Lovell, not the FHC, who decided whether Dr. McAdams would be disciplined. It was President Lovell, not the FHC, who decided the nature of the discipline that should be imposed. It was President Lovell, not the FHC, who had the authority to impose the discipline. It was President Lovell who actually meted out the discipline when he sent Dr. McAdams the Discipline Letter. And it was President Lovell who created the conditions on reinstatement that have kept Dr. McAdams in suspension limbo. Consequently, the Discipline Letter, not the FHC's Report, is the relevant point of reference.[15]

         ¶47 We assume, for the purpose of this case only, that the University must engage the Discipline Procedure's mechanisms before it disciplines a tenured faculty member.[16] But as a matter of process, the Discipline Procedure controls only the FHC, not the president. To the extent it references the 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 concerned, the president may proceed as if the Report said nothing but that the FHC had completed the Discipline Procedure. Consequently, the efficient cause of Dr. McAdams' suspension without pay was the Discipline Letter, and there is no evidence that it resulted from any prescribed procedure at all. It was the product of President Lovell's exercise of unfettered discretion. Even if we were inclined to defer to the authoritative resolution of Dr. McAdams' case (as opposed to the FHC's Report), there is quite literally nothing to which we could apply an arbitration-style review.

         3. The Administrative Agency Deference Doctrine

         ¶50 The circuit court also said it would defer to the University's decision for the same reasons the judiciary often defers to administrative agency decisions. McAdams, No. 2016CV3396, Order for Summary Judgment, 11. The circuit court cited an Ohio intermediate appellate court for this proposition, which said, in pertinent part: "Even though we . . . are hesitant to equate a private university's hearing powers to that of a statutorily mandated administrative body, we do find rationale and guidance from the standard of review adopted by administrative agencies, especially when the involved parties have bound themselves contractually." Yackshaw v. John Carroll Univ. Bd. of Trs., 624 N.E.2d 225, 228 (Ohio Ct. App. 1993).

         ¶51 We will not defer to the University's decision under the Yackshaw rationale for two reasons. First, the basis for Yackshaw's analogy no longer obtains in Wisconsin. We recently ended the practice of deferring to an administrative agency's conclusions of law.[17] We decided the practice was unsound in principle, and there is no apparent reason it would become sounder if we resurrected it for use in contract disputes between two private parties.

         ¶52 Second, Yackshaw's analysis is flawed because it deferred to a dispute resolution process that incorporated several of the fundamental defects discussed above. At John Carroll University the process of dismissing a professor begins with a hearing before the Faculty Board of Review (the "FBR"). See id. at 226-27. Like the FHC here, the FBR is composed of university employees. See id. at 226-28. And like the process we are considering today, the FBR does not actually resolve the disputes it hears. It just makes recommendations to the Board of Trustees. See id. at 226-27. The Yackshaw opinion suggests the Board of Trustees enjoys the same autonomy as the University president in this case. It is not bound by the FBR's recommendation, and there are apparently no rules, procedures, or standards that govern how it actually makes its decision. See id. It could accept, reject, or alter the FBR's work at will. See id. The dispute resolution process described by Yackshaw allowed the Board to exercise unfettered discretion in terminating one of its professors.

         ¶53 Additionally, Yackshaw's deference appears to have been founded on the court's unwarranted attribution of the non-authoritative FBR's procedures to the authoritative Board of Trustees' decision. It seems the court was especially impressed by the FBR's six-day hearing in which it received forty-five exhibits and heard from fifteen witnesses who together produced a nine-hundred page transcript. So when it said "we find that the university did not deny Yackshaw's procedural rights under his contract," it was presumably referring to the FBR's procedures. See id. at 229. It certainly could not have been referring to the actual decision-maker-the Board of Trustees- whose decision was not subject to any procedural requirements or standards at all. We cannot take guidance from Yackshaw, therefore, because it did not analyze whether a court should defer to a defendant's standard-free assessment of a plaintiff's claims, which is what happened both there and here.

         ¶54 Yackshaw's value is further weakened by its tendentious rejection of McConnell v. Howard University, 818 F.2d 58 (D.C. Cir. 1987) as an "obscure" case in which the court was preoccupied by questions unrelated to deference.[18] McConnell squarely addressed the same deference proposition at issue in Yackshaw, which in turn is the same argument Marquette University advances here. See McConnell, 818 F.2d at 67-68. After thorough consideration, the McConnell court rejected it in terms bordering on exasperation. See id. at 67. Accepting this proposition, it said, would mean that "any Trustees' decision to fire a tenured faculty member is largely unreviewable, with judicial scrutiny limited to a modest inquiry as to whether the Trustees' decision was 'arbitrary,' 'irrational' or infected by improper motivation." Id. It understood that deference in this context would demote tenure from a substantive right to a matter of mere procedure: "Such a reading of the contract renders tenure a virtual nullity. Faculty members like Dr. McConnell would have no real substantive right to continued employment, but only certain procedural rights that must be followed before their appointment may be terminated." Id. This, it said, is "an astonishing concept." Id. We agree.

         ¶55 The Milwaukee County Circuit Court here nonetheless determined that the administrative agency deference doctrine required it to defer because "[t]he parties' contract incorporates a specialized standard for cause that focuses on issues of professional duties and fitness as a university professor." McAdams, No. 2016CV3396, Order for Summary Judgment, 11. "Professionalism and fitness in the context of a university professor," it said, "are difficult if not impossible issues for a jury to assess." Id. We cannot credit this rationale-judges and juries frequently address themselves to some of the most complex matters in life. When a case presents issues beyond our ken, we turn to expert witnesses. McConnell conclusively answers the circuit court's concern as well:

[W]e do not understand why university affairs are more deserving of judicial deference than the affairs of any other business or profession. Arguably, there might be matters unique to education on which courts are relatively ill equipped to pass judgment. However, this is true in many areas of the law, including, for example, technical, scientific and medical issues. Yet, this lack of expertise does not compel courts to defer to the view of one of the parties in such cases. The parties can supply such specialized knowledge through the use of expert testimony.

McConnell, 818 F.2d at 69.

         ¶56 If academics are capable of discussing university affairs in their cloisters, there is no reason they cannot do so as experts in our courts. The complexity of a contract's subject matter does not convince us that we must give ...


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