Wisconsin Supreme Court sides with Marquette professor John McAdams in free speech case

Karen Herzog , Bruce Vielmetti | Milwaukee Journal Sentinel

Show Caption Hide Caption John McAdams wins free speech case against Marquette University Marquette University Professor John McAdams flanked by his attorney Rick Esenberg, talks about winning his case in the state Supreme Court.

The Wisconsin Supreme Court ruled Friday that Marquette University political science professor John McAdams was improperly suspended after he publicly criticized a graduate student by name on his politically conservative blog, leading to threats against her.

In a 4-2 ruling, the conservative-leaning court ordered the Jesuit university to immediately reinstate McAdams and sent the case back to a Milwaukee County Circuit Court judge to award damages, including "unimpaired rank, tenure, compensation and benefits."

McAdams, 72, has been suspended without pay for the past seven semesters.

"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," said the majority opinion written by Justice Daniel Kelly.

In a dissenting opinion, Justice Ann Walsh Bradley said the majority erred "in conducting only half of the academic freedom analysis."

"It fails to recognize, much less analyze, the academic freedom of Marquette as a private, Catholic, Jesuit university," Bradley wrote. "As a result, it dilutes a private educational institution's autonomy to make its own academic decisions in fulfillment of its unique mission."

Bradley concluded: "Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day."

She was referring to a seven-member faculty hearing committee that considered the case and unanimously decided McAdams should be suspended for unprofessional conduct.

Bradley was joined in her dissent opinion by Justice Shirley Abrahamson. The case was decided by six justices. Justice Annette Ziegler did not participate.

The case could set precedent for academic freedom and free speech protections at a time when universities are hotbeds of political turmoil.

It has become a cause cèlébre among those who believe liberal arts universities are liberal bastions that suppress conservative viewpoints.

McAdams' November 2014 post on his Marquette Warrior blog hit on the hot-button topic of same-sex marriage, and whether graduate student instructor Cheryl Abbate limited a student's ability to speak against it in class.

McAdams said it was important to call out the graduate student's "misconduct" in her role as an instructor.

"It's absurd that when you find misconduct in a bureaucracy, you can't go public with it," the professor told the Milwaukee Journal Sentinel on Friday. "Fighting a battle against bureaucracy is often much less effective than bringing sunlight to the situation."

John McAdams wins free speech case Reporter Karen Herzog talks about the Wisconsin State Supreme Court ruling in favor of MU professor John McAdams on his claim that the university unlawfully terminated him.

McAdams argued the court case was as much about a student not being allowed to express his views in a classroom — in this case, an opinion opposing gay marriage that is consistent with the doctrine of the Catholic Church.

"Make no mistake about it, this is a major day for freedom," said McAdams' attorney, Rick Esenberg of the conservative Wisconsin Institute for Law & Liberty.

"It is our sincere hope that Marquette University appreciates and learns from this episode and takes care to guard free speech on campus,” Esenberg said.

Marquette stands by actions

Marquette issued a statement continuing to defend its actions.

"At Marquette University, we are proud that we have taken a stand for our students, our values and our Catholic, Jesuit mission," it said.

"Marquette will comply with the terms of this decision, and it does not change the university’s commitment to the safety and well-being of our students."

The statement concluded:

"This case has always been about Associate Professor John McAdams’ conduct toward a student teacher. The professor used his personal blog to mock a student teacher, intentionally exposing her name and contact information to a hostile audience that sent her vile and threatening messages."

The Twitter response within academia was swift.

"For academics, this is a troubling case with a good outcome," tweeted University of Wisconsin-Madison professor of public affairs Don Moynihan.

"McAdams behaved unprofessionally toward a grad student. But a conservative plaintiff made it more likely for the WI Supreme Court to champion academic freedom."

For academics, this is a troubling case with a good outcome. McAdams behaved unprofessionally toward a grad student. But a conservative plaintiff made it more likely for the WI Supreme Court to champion academic freedom. https://t.co/vKhc5dAaqB — Don Moynihan (@donmoyn) July 6, 2018

While Moynihan told the Journal Sentinel it's good whenever academic freedom prevails, he found it "distasteful" that McAdams was "unwilling to recognize these sorts of public comments on a campus do have potential consequences for the personal safety of individuals."

Rights and responsibilities must be balanced, he said. "As employees, we should also be thinking about on a daily basis what our responsibilities are to our students and the faculty around us."

Moynihan, who is leaving UW-Madison for a job at Georgetown University, has written extensively on academic freedom and free speech, including an opinion piece in the New York Times.

McAdams was at his Milwaukee attorney's east side office when the court opinion was released early Friday morning. He spent much of the day there, doing news media interviews.

From the beginning, the only thing McAdams wanted to do was teach students "without having to compromise his principles," Esenberg said. "Yet Marquette refused to honor its promises of academic freedom and now, thanks to the Supreme Court, he will be able to teach again."

Marquette University President Michael Lovell had wanted McAdams to apologize to Abbate, and promise not to engage in similar behavior, before McAdams could return to campus.

Friday's ruling would appear to make that demand moot.

McAdams told the Journal Sentinel he likely won't be back in the classroom this fall because class schedules already are set. But he said he plans to teach for as long as his health allows it. He has been teaching at Marquette since 1977.

McAdams became animated when he talked about why he enjoys teaching.

"I like to talk," he said. "I like interchange with students. I'm a debunker by temperament, so I enjoy debunking common notions. I encourage students to think of ideals and ideas that are important, and to think about broader concepts."

McAdams said he's working on a book titled: "Sixty Politically Incorrect Things You Should Know." The second part of the title, following a colon, will either be "Your Professor Won't Tell you or The Mainstream Media Won't tell you," he said.

He's not planning a book about his court battle with Marquette, he said. But he left no doubt that he would continue to express opinions in his blog.

McAdams and the university agreed the professor's employment contract was central to the case.

The professor argued his contract promised academic freedom and free expression protections, while Marquette focused on the contract's professional standards of conduct and disciplinary process involving a committee of peers.

Several manufacturing and business associations sided with Marquette in "friend of the court" briefs, as did national business groups. They supported the private university's right to discipline employees under provisions of their employment contract.

RELATED: In McAdams vs. Marquette hearing, justices focus on speech rights for professors

The Wisconsin Association of Independent Colleges and Universities, which also filed a "friend of the court" brief in support of Marquette's governing independence, released a statement after the court ruling.

Justice hear case of disciplined Marquette professor McAdams Attorneys for Marquette University and Professor John McAdams argued before the Wisconsin Supreme Court about McAdams indefinite suspension from the university.

The statement said colleges and universities could review the court decision "for possible impact on shared governance and employment policies."

Lower court's ruling

Milwaukee County Circuit Judge David Hansher ruled in May 2016 that Marquette had the legal right to suspend McAdams without pay.

Hansher said the professor was prohibited by professional standards from bringing negative public attention to a student.

Hansher dismissed all six of McAdams' claims against Marquette over his suspension and rebuked him in a 33-page ruling with a recitation of what academic freedom is — and is not. Academic freedom, Hansher wrote, "does not mean a faculty member can harass, threaten, intimidate, ridicule."

McAdams maintains that the "unkind" emails the graduate student instructor received after he called attention to her conduct were the result of other media writing about it; not his original blog post.

She left the university to finish her studies in Colorado.

RELATED: Judge backs Marquette University's suspension of professor John McAdams over blog post

In appealing Hansher's ruling, McAdams bypassed the Wisconsin Court of Appeals and appealed directly to the state Supreme Court.

Many conservatives argue universities should have more latitude to fire tenured faculty, but this case played out differently.

The McAdams case favors job protections because conservatives believe their viewpoints are being stifled on college campuses.

Peers cited a pattern of turmoil

While McAdams isolated the Abbate blog post in the debate over his suspension, Marquette focused on what it considered a pattern of bullying behavior, with the Abbate incident being the capstone.

A Marquette faculty committee that reviewed McAdams' suspension as part of the disciplinary process outlined in his employment contract released a 123-page report that laid out a history of turmoil surrounding McAdams within the political science department.

The report included allegations that the professor used his blog to intimidate colleagues by threatening to write about them. The committee concluded McAdams' behavior warranted an unpaid suspension of no more than two semesters.

McAdams argued the committee was biased against him because one faculty member was allowed to remain on the committee after signing a petition supporting Abbate and criticizing McAdams’ blog post.

RELATED: MU report suggests pattern of bullying behavior by suspended McAdams

The majority opinion of the state Supreme Court did not give weight to the faculty hearing committee's decision.

The opinion said an "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."

Kelly said the court defers to arbitration decisions "because they are authoritative resolutions of the disputes they address."

But the university's Discipline Procedure produced "advice, not a decision," he wrote. "We do not defer to advice."

When the state's highest court agreed to hear the case, Lovell told the Journal Sentinel the university did the right thing, regardless of the outcome.

The university says it ultimately wants to ensure "those whom it invests with the responsibility and privilege of teaching its students abide by its governing principles."

Marquette lawyer Ralph Weber referred to McAdams’ blog post as cyberbullying and “doxing” — intentionally generating hostility. He said the post provided the information needed for readers to take action against the former graduate student teacher.

"A tenured faculty member put a graduate student’s name and link to her contact information on the internet so that people could go after her; that’s not academic freedom, it’s cyberbullying," Weber said.

The Foundation for Individual Rights in Education praised the decision as "a win for academic freedom."

Marquette was wrong to discipline McAdams "simply for criticizing a graduate student instructor who unilaterally decided that a matter of public interest was no longer up for debate by students," the statement said.

"This ruling rightly demonstrates that when a university promises academic freedom, it is required to deliver."

An earlier version of this story incorrectly stated thatWisconsin Manufacturers & Commerce filed a friend-of-the-court brief supporting Marquette in this case. It was the Milwaukee Metropolitan Association of Commerce.