BY JOHN K. WILSON
The Wisconsin Supreme Court’s 4-2 ruling on Friday in favor of John McAdams against Marquette University has received an enormous amount of media coverage, and it deserves it. This is a very important decision protecting the contractual right of academic freedom (and the AAUP’s definition of it), which sets a precedent for all private universities (and even public ones). There will be no appeals, because this is an interpretation of state law rather than the US Constitution, so it cannot go up to the US Supreme Court.
Unfortunately, Marquette’s response to the McAdams ruling is particularly alarming: “However, in light of today’s decision, Marquette will work with its faculty to re-examine its policies, with the goal of providing every assurance possible that this never happens again.” Marquette added, “We must, however, ensure that this doesn’t happen to another student. Marquette will continue to uphold its values and protect its students.”
This suggests that Marquette plans to change its policies in order to eliminate (or at least severely restrict) academic freedom as a contractual right. It would be terrible if Marquette’s faculty, out of a desire to please the administration or a personal dislike of McAdams, agreed to throw away their own academic freedom. And it will be terrible if colleges use this case as an excuse to eliminate academic freedom provisions.
The lengthy opinions of the majority, concurrences, and dissent all deserve some careful scrutiny, since they are all some flaws. The McAdams case reveals that judges often have a poor understanding of both academic freedom and shared governance. But the more I read this ruling, the more convinced I am that it is a powerful tool for expanding both academic freedom and shared governance.
The opinions also uncover an important political fact: McAdams won because he is a conservative, and if he had been a leftist in exactly the same position, it is almost impossible to believe that the conservative Wisconsin Supreme Court would have gone his way.
In addition to being an expert witness (unpaid, since that is the usual market value for my thoughts) on behalf of McAdams in this case, I have been arguing for years now that Marquette was wrong to punish McAdams for his blogging.
The McAdams case is really two cases: The first came when a faculty committee endorsed a one-year suspension for McAdams due to writing his blog. The second came when the administration made the suspension permanent, without any hearing or due process, unless McAdams would agree to admit that he was wrong (which would effectively destroy his lawsuit against Marquette).
In the first case, the suspension was procedurally correct but (in my view) substantively wrong as a violation of academic freedom (criticizing a student is a protected extramural utterance). In the second case, as the AAUP argued, the ongoing suspension is both a violation of due process and clearly wrong as an issue of substance (refusing to agree with a punishment is not grounds for further punishment).
The failure to understand the difference between these two cases has created an enormous amount of confusion.
The majority opinion interprets academic freedom correctly, largely by relying upon the AAUP (even to the point of comprehending that the AAUP’s 1940 Statement must be understood with the 1970 Interpretive Comments). But when it gets to shared governance and due process, the majority goes completely off the rails, but in a way that ultimately may strengthen shared governance.
Everybody on the court gets shared governance wrong. The majority argues that the Faculty Hearing Committee’s unanimous finding against McAdams should be ignored due to “the FHC’s lack of authority to bind the parties to its decision” because “the authority to suspend or dismiss tenured faculty members rests exclusively with the president.”
The majority announced, “The Discipline Procedure produced advice, not a decision. We do not defer to advice.” Both the majority and the dissent see deference in absolute terms. The dissent wants total deference to the university, and the majority wants zero deference.
The majority’s hatred of shared governance is puzzling:
Operationalizing the dissent’s ode would have disastrous consequences for academic freedom. The outwardfacing protection against governmental interference would turn inward, pitting the institution’s academic freedom against the faculty’s academic freedom. The result would be a never-ending pitched battle in which each side tries to expand its own sphere of academic freedom at the expense of the other. That reimagining of this doctrine has no support in the Contract, the Faculty Statutes, the Faculty Handbook, or our cases. And there is probably no better way of ending the University’s carefully balanced shared governance than turning a cooperative relationship into an adversarial contest.
This is a very confused understanding of shared governance and academic freedom, but it appears that the majority is saying that the faculty need to cooperate with the administration to utilize shared governance, and if the powerless faculty alone were responsible for enforcing academic freedom without involvement from the courts, that would be bad for the faculty (who would constantly need to spark fights over it) and bad for academic freedom.
I think this is highly dubious reasoning, but it has no real legal enforcement. The majority seems to think that a formal arbitration process will be better for academic freedom than faculty committees. In reality, corporations tend to love forced arbitration clauses because they are often favorable to management. It would be terrible for academic freedom and shared governance if universities followed the majority’s advice and replaced faculty committees with arbitration.
The Wisconsin Supreme Court is not prohibiting faculty committees, just stating that as they exist they provide no cover for contractual violations. And it does open an important door: If colleges agree to follow whatever an impartial faculty committee says the punishment should be (with the president serving solely as the appeal body for the faculty member being punished), then they will be given legal protection. And that’s the way it should be. For too long, we have accepted the idea that faculty committees merely advise and administrators have the only real power. The McAdams ruling is a tool to advocate for faculty committees as the final jury with binding authority because that is the only way to guarantee judicial deference.
Daniel Kelly, who wrote the majority opinion, also wrote a concurring opinion (with Rebecca Grassl Bradley’s support as well) which declared: “I believe that not only was the FHC compositionally biased, the University’s Discipline Procedure is itself structurally biased. The FHC cannot be considered impartial because, even though it was hearing the case, it was also one of the contending parties: The FHC is the University inasmuch as it is composed entirely of University employees.”
Kelly is deeply misguided here. Having decisions made by a faculty committee is a good thing, not a structural bias. Although faculty are employees, tenure provides a strong level of independence. Kelly’s view would prohibit deference to colleges even if faculty committees have binding authority. Apparently Kelly thinks that only outside arbitrators (or judges) should be making these rulings. Still, this is a concurring opinion of two judges, and doesn’t represent the majority.
The dissent by Ann Walsh Bradley accuses the majority of “jettisoning the shared governance of colleges and universities that has been forged over decades to address the specific issues that arise in this unique workplace.” But Walsh Bradley herself ignores shared governance, as Marquette did, by endorsing the ongoing suspension of McAdams without a hearing and in violation of the FHC’s requirement that a suspension could not exceed two semesters.
Even if you accept Marquette’s argument that the FHC should be followed and courts should not second-guess a faculty committee, you would still have to conclude that McAdams must be reinstated and given back pay. The only debate would be over whether he deserves 5 or 7 semesters of back pay.
Walsh Bradley, dissenting, called the majority opinion a “travesty.” Walsh Bradley argued that the idea of academic freedom “embraces the academic freedom of the faculty as well as the academic freedom of the institution.” Accordingly, she claimed, “The majority errs 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.”
Institutional academic freedom is the death of academic freedom. If an institution owns half of the idea of academic freedom, then it will always cancel out an individual’s academic freedom, and the status quo (whatever the institution has decided) will prevail.
The majority is right to reject institutional academic freedom: “A university’s academic freedom is a shield against governmental interference; the dissent, however, would reforge it as a sword with which to strike down contracts it no longer wishes to honor.”
However, two of the judges in the majority have their own flawed ideas about academic freedom. Rebecca Grassl Bradley was more than a bit melodramatic in her concurring opinion (joined by Kelly), declaring that
In this unprecedented dispute between a university and a professor, academic freedom was put on trial. Would the sacred “right of faculty members to speak as citizens—that is, ‘to address the larger community with regard to any matter of social, political, economic or other interest without institutional discipline or restraint'”—succumb to the dominant academic culture of microaggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence? In this battle, only one could prevail, for academic freedom cannot coexist with Orwellian speech police.
There was nothing “unprecedented” about this dispute (faculty have been fired on far flimsier grounds), and it had literally nothing to do with microaggressions, trigger warnings, and safe spaces.
Grassl Bradley argued, “academic freedom, and concomitantly, free speech, is increasingly imperiled in America and within the microcosm of the college campus.” And she was clear about the ideological perspective that needs protection: “It is the expression of opinions divergent from what is currently politically correct that needs protection under the doctrine of academic freedom.” This is a disturbing idea, because it indicates that McAdams’ conservative views were the primary reason why the Supreme Court stepped in.
In fact, I think it’s quite likely that a leftist professor in exactly the same situation as McAdams would have lost this case, because it was only the fear of leftist thought control and “political correctness” that drove the conservative-dominated Wisconsin Supreme Court to rule against Marquette. If a left-wing professor had publicly shamed a conservative student, it’s hard to imagine how a court with at least two judges solely obsessed about leftist “speech police” would have overruled the university in a case that had a one-judge margin..
By embracing academic freedom provisions as an enforceable contract, the Wisconsin Supreme Court has significantly strengthened faculty rights. By overturning Marquette’s ongoing suspension of McAdams (in violation of a faculty committee’s two-semester limit), the decision actually supports shared governance. And by giving colleges the opportunity to avoid judicial scrutiny if they adopt shared governance policies, the court creates an incentive for colleges to support shared governance.
If other courts follow the lead of the Wisconsin Supreme Court (and avoid some of their missteps), this ruling could have a substantial positive impact on academic freedom. But ultimately, the result will depend upon how colleges choose to react. Will they try to revoke academic freedom and shared governance, as Marquette has hinted they will do? Or will colleges support both academic freedom and shared governance by giving faculty committees the full authority to judge cases of faculty misconduct?
