ARGUMENT: April 19, 2018
BYPASS FROM THE COURT OF APPEALS
from a judgment and an order of the Circuit Court for
Milwaukee County, David A. Hansher, Judge. Reversed and
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.
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
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,
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.
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.
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,
amicus curiae brief was filed on behalf of Metropolitan
Milwaukee Association of Commerce by Michael B. Apfeld and
Godfrey & Kahn, S.C., Milwaukee.
amicus curiae brief was filed on behalf of Thomas More
Society by Andrew Bath, Esq. and Thomas More Society,
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,
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.
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.
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.
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.
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
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
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
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. 
refer to the "Contract" in this opinion, we mean
the appointment letter of March 1, 2014, along with all the
authorities it incorporates.
"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[.]
Statute § 304.02. Tenured faculty are entitled to yearly
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
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.
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. 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
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.
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
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.
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
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
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.
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.
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."
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
• 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.
McAdams refused to write the required letter.
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. 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.
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.
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.
We accepted Dr. McAdams' petition to bypass the court of
appeals and now reverse the circuit court's judgment.
STANDARD OF REVIEW
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); 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)).
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.").
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.
Deference to the University
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. 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.
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)).
The scope of judicial review is, however, subject to
statutory and judicially-developed limitations. 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. We conclude that none of these
substitutionary or limiting principles apply to Dr.
McAdams' contract dispute with the
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. 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
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. 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.
The Faculty Statutes also contain an explicit,
positively-stated recognition of Dr. McAdams' right to
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.
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.
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.
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.
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.
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
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.
Discipline Procedure's Fundamental Procedural Flaws
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.
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).
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).
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).
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)
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,
a. Deplored Dr. McAdams' treatment of Ms. Abbate;
b. Expressed support for Ms. Abbate's position in the
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."
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
"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
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."
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
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. 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." 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
Richco Structures v. Parkside Vill., Inc., 82 Wis.2d
547, 562, 263 N.W.2d 204');">263 N.W.2d 204 (1978).
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.
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.").
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 .
. . .")
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.
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
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. 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.
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.
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.
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.
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).
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. 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.
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.
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.
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. 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.
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.
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