Many private colleges and universities have faculty handbooks and/or collective bargaining agreements that, among other things, establish internal disciplinary procedures and make promises to faculty about academic freedom. On July 6, internal disciplinary procedures and academic freedom were front and center in the Wisconsin Supreme Court’s much-anticipated decision in McAdams v. Marquette University. In that decision, the Supreme Court held that Marquette University breached a contract with faculty by suspending a tenured faculty member for engaging in conduct that was protected by the university’s contractually guaranteed right to academic freedom.
In McAdams, tenured faculty member John McAdams was suspended from employment by Marquette University after he used his personal blog to criticize a philosophy instructor for her interactions with an undergraduate student in her ethics class. McAdams criticized the philosophy instructor for precluding students in her class from discussing the issue of “gay rights.” In the post, McAdams claimed that, after introducing the topic of gay rights to her class, the instructor advised the class that “everyone agrees on [gay rights], and there is no need to discuss it.” McAdams claimed that, after the lecture, an undergraduate student approached the instructor and advised her that the issue of gay rights should be open for discussion. The instructor responded by telling the student that in her class homophobic and racist comments will not be tolerated and invited the student to drop the class. The undergraduate student secretly recorded the interactions with the philosophy instructor and then gave the tape to McAdams, who used his blog to publicize the encounter and criticize the instructor for suppressing opinions with which she disagreed. McAdams also included in the blog a clickable link to the instructor’s personal website and contact information, and he shared the blog post and recording with the media. Following the post, the philosophy instructor, who also was a graduate student at Marquette, received a number offensive and vile communications from third parties. Fearing for her safety, the philosophy instructor ultimately transferred to another university to complete her graduate work.
Before transferring, the philosophy instructor filed a formal complaint against McAdams, who was subjected to disciplinary procedures under the university’s Faculty Statutes. A seven-member faculty hearing committee (FHC), consisting of Marquette faculty members, including one faculty member who previously signed a public letter condemning McAdams’s conduct, proceeded to review documentation and take testimony of the incident in order to make a recommendation to the university president on whether absolute or discretionary cause existed for the university to suspend or terminate McAdams.
The FHC issued a 123-page report concluding that there was discretionary cause established, “but only to the degree necessary to support a penalty of suspension.” The FHC recommended that the university suspend McAdams without pay, but with benefits, for a period of one to two semesters. University president Michael Lovell accepted the FHC’s recommendation and suspended McAdams without pay. President Lovell added to the discipline a condition that, in order to be reinstated following the suspension, McAdams was required to deliver a letter acknowledging his blog post was reckless and incompatible with the university’s values and mission and expressing regret for the harm suffered by the philosophy instructor.
McAdams refused to write the letter. Instead, he sued the university, claiming the university breached its contract with him by suspending and then dismissing him from his position. McAdams’s suit sought damages and reinstatement. A Wisconsin circuit court granted the university summary judgment and dismissed McAdams’s claims. In its ruling, the circuit court did not address the issue of academic freedom, but based its decision on a determination that public policy requires the judiciary to afford deference to the university’s contractually agreed-upon disciplinary procedures.
Wisconsin Supreme Court’s Decision
After accepting McAdams’s motion to bypass the Court of Appeals, in a 4-2 decision, the Wisconsin Supreme Court reversed the circuit court. It found that the university’s disciplinary procedures were not entitled to any deference and could not prevent McAdams from litigating his breach of contract claims against Marquette University in court. The Supreme Court noted that McAdams and the university “certainly could have agreed to an extra-judicial resolution of their contract dispute,” but there is nothing in the Faculty Statutes indicating any agreement that the university’s disciplinary procedures would replace or limit the court’s review of the breach of contract claims. Moreover, the Court found that, even if the disciplinary procedures were subject to a limited judicial review, akin to the review of an arbitration award, the circuit court decision could not be upheld because the FHC process was “infected” with unacceptable bias because the FHC included a panel member who signed a letter publicly condemning McAdams’s conduct.
Court’s Academic Freedom Analysis
The Supreme Court’s analysis did not end with a discussion of deference afforded to disciplinary proceedings. The court went on to address the issue of academic freedom. It noted the Marquette University Faculty Statutes clearly promised faculty that activity constituting academic freedom could not be used as a basis for “discretionary cause” for discipline. The Supreme Court then recognized that academic freedom encompasses three concepts: research, teaching and extramural comments (or comments a faculty member makes in his or her personal capacity or as a member of the community). There was no dispute that McAdams’s blog post constituted “extramural comments.”
The Supreme Court proceeded to articulate a two-step process to analyze whether an extramural comment has lost the protection of academic freedom and can be the basis for discipline. Relying on the AAUP, Policy Documents and Reports, 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments, 15 n.6 (11th ed. 2014), which Marquette adopted, the court found that the first step in the analysis is to determine if the extramural comment on its face demonstrates the faculty member is clearly unfit to serve. In this regard, the court noted that the focus of this step is purely on the extramural comment itself and whether that comment violated a responsibility to university students. If the first step is satisfied, the court noted that the second step of the analysis then requires an examination of the faculty member’s complete record as a teacher and scholar.
Focusing on the extramural comment itself, the court ruled that the blog post did not demonstrate McAdams’s unfitness to teach. The court found that the content of the post did not violate any responsibility McAdams owed to the philosophy instructor, who was a graduate student. In reaching this conclusion, the court recognized there is no prohibition against naming a student in a blog post and no prohibition against linking a post to a student’s personal website, even when that website contains the student’s contact information. Further, the court found that the post was not an ad hominem attack on the instructor and did not invite, either explicitly or implicitly, the uncivil and offensive comments from third parties that followed.
The court also was critical of the FHC’s academic freedom analysis of the blog post, finding it improperly collapsed the two-step extramural comment analysis into a single step that allowed an analysis of McAdams’s entire faculty career and other subjective factors to subsume the initial determination and gatekeeping function of whether the content of the post itself demonstrated the faculty member was unfit. Because the language of the blog post did not demonstrate any unfitness, the court found the post was a protected activity and that Marquette University breached its contract with McAdams. As a remedy, the court held that McAdams is entitled to immediate reinstatement to his faculty position with unimpaired rank and tenure along with all the compensation and benefits he lost during the period of his suspension.
While faculty have hailed the McAdams decision as a rousing endorsement of academic freedom, it is important to place the decision in proper context. When honed to its essentials, McAdams is a breach of contract case that was decided on the facts presented and the specific language in Marquette University’s contractual documents with faculty. Although McAdams provides important guidance for private universities on the protections afforded under the doctrine of academic freedom, each university’s contract with faculty will be probative evidence of the appropriate scope of judicial review of faculty discipline and the specific activities that may or may not be afforded academic freedom protections.
McAdams recognizes that judicial review of a university’s disciplinary process can be precluded or limited by express language in a faculty handbook or collective bargaining agreement. If a university wants issues of internal discipline to substitute for judicial review, it needs to ensure appropriate preclusive or limiting language is incorporated into contractual documents. There was no such limiting or preclusive language in the Marquette University documents.
In addition, the McAdams decision recognizes that a university’s contractual guarantee of academic freedom to its faculty will be upheld by the courts. In McAdams the court issued an opinion that articulates the high standard that must be shown to overcome the academic freedom protections afforded to teaching, research and extramural comments. The McAdams opinion does not, however, preclude a private university from defining specific activities that constitute cause for discipline or unfitness to teach. The key is clear and precise definitions of conduct that would fall outside the protections of academic freedom.
Pepper Hamilton’s Higher Education Practice Group is composed of labor and employment attorneys, white collar investigators and higher education litigators with the skills and practical experience to negotiate, draft and review agreements between a university and its faculty, investigate misconduct, and provide guidance and support on internal disciplinary matters.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.