The Wisconsin Supreme Court late last week rendered a decision in McAdams v. Marquette University. 2018 WI 88, _____ N.W.2d _____ (WI 2018)(Case no. 2017AP1240). It will be much discussed in weeks to come. The Court was called upon, in a "bypass" proceeding (the state's appellate court did not consider the case and instead the Supreme Court directly reviewed a trial decision), to evaluate the First Amendment rights of a college professor within the context of an employment contract dispute. The decision will quite possibly implicate the manner in which university contracts and procedures are written. The Court was critical of the university and its legal arguments.
The facts are reasonably straightforward. A philosophy instructor, Ms. Abbate, decided that certain topics or viewpoints were not appropriate for discussion in her class. She lectured that these topics were inappropriate topics because "everybody agrees on this, and there is no need to discuss it." A student challenged that constraint after one class, and the professor was adamant, even allegedly suggesting that the student "drop the class" if her constriction on conversation or debate was perceived as too restrictive. Some may perceive that this restricted the student's expression.
A tenured political science professor at the university, Dr. McAdams, somehow became aware of Ms. Abbate's conversations with the student. He contacted her, but she declined to discuss the issue with him. She later sent an email in which she was both dismissive and critical of Dr. McAdams. Despite Ms. Abbate declining to discuss the incident with him, Dr. McAdams published a November 2014 blog post critical of her interaction with the student. That post included a link that allowed readers to contact Ms. Abbate directly, and to visit her "publicly-available website." Apparently, a fair few people did contact her, and some were less than cordial regarding their perceptions of her and the interactions with the student.
Ms. Abate filed a complaint with the university, and a Faculty Hearing Committee (FHC) was convened (or "named," as there were issues with the previously designated membership hearing the issue) to review the allegations. The FHC is an "advisory body" of faculty, charged with investigating facts and making a recommendation to the ultimate decision-maker, the university president. In the meantime, Dr. McAdams' criticisms garnered interest, and "spread beyond Dr. McAdams' blog post," apparently gaining a national exposure. The First Amendment and suppression of debate on college campuses was and may still be newsworthy. The dean of Dr. McAdams' college suspended him with pay in December, for the duration of the FHC investigation.
The university has a website dedicated to this dispute. The university asserts that if this blog post had been published without Ms. Abbate's "name and contact information, no disciplinary action would have been taken." Thus, it acknowledges that the content of the speech was, in its perspective, of paramount importance. Despite that admission, the university clearly and unequivocally states that this dispute is not about either freedom of speech, academic freedom, or the professor's political views. The university's conclusions in that regard may be perceived as differing from the Wisconsin Supreme Court's, but that analysis and discussion is for others. The Daily Beast has already weighed in as has the Chronicle of Higher Education. There may be perspectives and factual disputes (the Daily Beast article claims McAdams was fired and that he did more than link to Abbate's public Internet information). The perspectives are likely to be varied and in some cases opinionated.
The short conclusion of the Wisconsin Supreme Court is that the university's actions breached the employment contract between Dr. McAdams and the University. The Court ordered Dr. McAdams reinstated, that he be compensated for "back pay," and that the trial court hold proceedings to determine what other damages are appropriate. It is an interesting analysis of free speech, contract law, and due process. And, it has little or nothing substantively to do with workers' compensation.
But, it is of interest in the context of both disputes and due process. But of value here, an understanding of the Court's analysis may be of assistance as regards the role of the adjudicator, and of "appearances."
After the blog post was published, and Dr. McAdams was suspended, another Marquette professor expressed her thoughts on the dispute between Ms. Abbate and Dr. McAdams. The professor, Dr. Lynn Turner, was one of several who signed an "open" letter later published in a newspaper. The letter expressed that the writers "deplore(d)" Dr. McAdams' treatment of Abbate, "support Ms. Abbate," and stated their conclusion that "McAdams's actions" "harmed the personal reputation" of Ms. Abbate and "the academic reputation of Marquette University." Those conclusions were reached and published before any proceedings, due process, or presentation of evidence.
Dr. Turner was later appointed as a member of the FHC that would investigate Ms. Abbate's complaint against Dr. McAdams. Based upon Dr. Turner's public and published comments, Dr. McAdams asked her to recuse (disqualify) herself from serving regarding the complaint and investigation, However:
"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."
This quote, and a vote by the FHC, suggests that Dr. McAdams first asked Dr. Turner not to participate (recusal) and that his request later morphed into a request that the FHC as a body preclude her participation (disqualification).
The FHC investigated and then recommended that the university president suspend Dr. McAdams. In March 2016 (16 months after the publication of the blog post), the president did suspend McAdams, adding conditions that were required before reinstatement, essentially an acknowledgment and apology letter regarding his comments about Ms. Abbate. Dr. McAdams declined (he allegedly said he would do so "when hell freezes over") and sued the university instead. As noted, the university prevailed at trial, and Dr. McAdams' was successful in obtaining both review and relief from the Wisconsin Supreme Court.
Despite concluding that the FHC acted as merely an advisory panel (many judges act in that capacity as "fact finders" for some decisional authority), the Court addressed the motion to disqualify Dr. Turner from the FHC at some length. It found the committee's denial of that request "remarkable." The Court concluded that the presence of Dr. Turner "compromised" "the FHC's impartiality." It noted that prior to her appointment to the FHC, Dr. Turner had (in the letter made public):
"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.""
The Court explained that the extensive report submitted by the FHC to the university president in fact addressed multiple issues which were included on, or related to, that list of previous conclusions adopted by Dr. Turner. It disagreed with the conclusions of both Dr. Turner and the FHC regarding the issues that would be addressed and the propriety of disqualification. The Court listed five FHC report paragraphs that were directly implicated by the "lettered paragraphs above."
The Court noted that even if Dr. Turner did not recognize the conflict when Dr. McAdams asked her to recuse herself, "she should have recused herself once she discovered the connection" between the FHC efforts and her prior public comments. In fact, the university's faculty handbook specifically says that a faculty member "whose impartiality might be compromised by participating in the processing of the grievance ought to recuse himself or herself." Recusal and disqualification are periodic issues in workers' compensation cases, and thus the Court's analysis of prior comments is of interest and import.
The Court held that "under any reasonable standard of impartiality, Dr. Turner would be disqualified." It noted that she not only "publicly inserted herself into the dispute and expressed a personal interest in its outcome," but that she "committed herself to" her conclusions in writing. As a result, Dr. Turner could not thereafter "decide the FHC proceedings in favor of Dr. McAdams without contradicting what she had already said to the entire Marquette University campus." In other words, acting as an impartial arbiter, Dr. Turner would perhaps have had to admit "that her initial convictions were mistaken."
A change of heart in such a setting, the Court concluded, is contrary to human nature. The Court noted that publicly changing her previously expressed stance or views and ruling in favor of Dr. McAdams, might have proven difficult. It noted that the "natural human impulse to resist acknowledging a mistake, especially in light of the audience to whom she would be making the acknowledgment, is sufficiently powerful to affect Dr. Turner's consideration of the dispute." In other words, admitting we were wrong is not easy, and doing so before our peers and the public may be more difficult still.
Analogizing the implications if such statements were made by an arbitrator while concluding the FHC was not necessarily akin to arbitration proceedings, the Court said that "if an arbitrator evidenced this level of bias, we would set aside the resulting award." The bias defeats the due process, which requires an unbiased arbitrator. The proceedings were not akin essentially because the FHC was advisory and not adjudicatory. But, despite that foundational distinction and the Court's decision to disregard the FHC on that basis, the Court spent pages on the recusal/disqualification issue. Simply stated, "the FHC's composition was unacceptably compromised by Dr. Turner's bias." And clearly, the Court nonetheless thought it important to describe why bias and appearances were important for the FHC process.
The Court acknowledged that faculty committee conclusions are generally due significant deference when courts review the "substance of a genuinely academic decision(s)." Notably, this was perceived by the Court as a freedom of expression and contract issue, more so than an academic issue. It also noted the usual and logical appropriateness of deference to factual findings in this and similar instances, as the committee was present to observe witnesses and to judge candor (as is any trial judge). However, it declined to afford such deference in this setting, at least in part due to Dr. Turner's "compromise" of impartiality.
As an aside, in addressing Dr. McAdams' constitutional rights asserted in this challenge, the Court acknowledged that this private university is "neither Congress nor the government, and can adopt and enforce rules not implicated by the Constitution." The absence of that "state action" element might have been the first thought of lawyers examining this post. The Court noted, however, that the university "chose to incorporate into McAdams' contract rights guaranteed 'by the United States Constitution.'" This reminds us that while private actors may have the authority to restrict freedoms, they are nonetheless bound by the contracts that they write and to which they agree.
Another aside, the 160-page FHC Report notes (pages 8-9) that delay in the FHC efforts resulted when multiple members did in fact recuse her or himself. One, Dr. John Pauly, removed himself from the FHC upon a specific request from Dr. McAdams. This was based upon Dr. Pauly's prior work with Dr. McAdams while serving as university provost and is seemingly somewhat similar to his request regarding Dr. Turner. The report is less than clear regarding the identity of all the members ultimately responsible for its findings. The report is signed by Professor Bruce Boyden ("McAdams disclaimer": by linking to his Marquette University webpage, I in no way seek to either identify him or encourage anyone to contact him, a practice The Daily Beast terms "doxing"). Therefore, the FHC clearly had some legal training and expertise.
Thus, the decision provides an important examination of the role that public comments might play in a recusal or disqualification analysis. That is not the logic and explanation that will garner attention in the coming days, as various authorities are sure to weigh in on the implications and importance of this decision. Instead, their attention will likely be focused on the values of free expression, academic freedom, and public perceptions of America's current university environment. I understand the draw of those aspects, but those analysis I leave to others.
The decision is, instead, relevant and noteworthy because (1) it reinforces that contracts are enforceable, (2) that due process is appropriate, (3) that process necessarily requires an unbiased arbiter, and (4) that public comments specific to a case by one who will decide a case are simply inappropriate. This portion of the analysis bears consideration by judges, lawyers, and litigants. The broader context of McAdams v. Marquette may otherwise be of interest and worthy of the time to read. But, the explanation of bias and appearance are "must" read for all, including judges.
