MADISON, Wis. (CN) – The Wisconsin Supreme Court heard oral arguments Thursday in a case centered around whether or not a career-ending blog post made by a former professor allegedly criticizing a colleague is protected speech.
The lawsuit stems from a November 2014 personal blog post made by a tenured professor at Marquette University, John McAdams, about a fellow instructor who he said refused to allow a student in her ethics class to discuss gay rights.
McAdams posted on his blog, “Marquette Warrior,” that instructor Cheryl Abbate invited the student who disagreed with her refusal to drop the class, saying “In this class, homophobic comments, racist comments, will not be tolerated.”
The student made an audio recording of the exchange, according to court records.
McAdams explained the interaction in his post, named Abbate and included a clickable link to her contact information and personal website which caused her to receive a flood of negative and threatening emails. Over the next few months, he was relieved of all teaching duties, banned from campus and was told that the university was starting the process to revoke his tenure and terminate his employment.
A University Faculty Hearing Committee [FHC], comprised of seven tenured faculty members and chaired by a law professor, held a hearing in September 2015 in which a 123-page report containing over 300 findings of fact concluded that his “conduct was seriously irresponsible and his demonstrated failure to recognize his essential obligations to follow members of the Marquette community, and to conform his behavior accordingly will substantially impair his fitness to fulfill his responsibilities as a professor,” according to court records.
The FHC’s report was reviewed by Marquette’s president who agreed and subsequently indefinitely suspended McAdams and banned him from campus.
He was offered reinstatement if he privately acknowledged and accepted the judgment from his peers, affirmed his commitment that future actions would adhere to higher education standards and admitted that the blog post was incompatible with the mission and values of the university.
McAdams declined and instead filed a lawsuit asking the court to reinstate his teaching duties because per his employment contract, he did not agree to such arbitration or alternative dispute resolution. He also said the FHC’s resolution constitutes a violation of free speech because his post is protected under First Amendment rights.
Marquette says his suspension is not due to the opinion expressed in his blog, but his decision to put Abbate’s name and personal contact information on the internet, knowing the possibility of harmful ramifications.
Thursday’s arguments addressed whether the court should defer to the administrative decision made by the FHC and the possible ramifications of finding in favor of the professor.
Justice Annette Ziegler brought up that an FHC member wrote a letter prior to the hearing in support of Abbate and asked Marquette counsel Ralph Weber “Would Marquette University want a member [on] the FHC who wrote a letter saying ‘We support professor McAdams and deeply regret that he has experienced harassment and discrimination as a direct result of Marquette University?’”
Chief Justice Patience Roggensack agreed, adding “We probably wouldn’t let a juror sit on a case before us who said, before the matter was heard, that he or she believed the defendant was guilty.”
Weber responded that although there are conflicting faculty opinions, it was a shared “reasoned decision” made by both the faculty and administration to allow the member who wrote the letter to participate in the hearing.
Justice Daniel Kelly pushed back noting that, “In a contract dispute between the professor and the university, his case was judged by the university’s employees…”
My concern is, generally speaking, for the last 400 years, we have looked down upon arrangements in which a person could be the judge of his own cause, wasn’t Marquette the judge of its own cause in this case?”
“No,” Weber repeated his argument. “It was a mutually agreed disciplinary process with elected, tenured faculty on the one hand and the administration on the other, subject to judicial review, to make sure the process is followed fairly and that there was substantial evidence in the record to support the outcome to a clear and convincing evidence standard: 300 findings of fact and 123 pages.”
In closing arguments, Justice Ziegler reminded the court that it has received several supporting briefs about the case primarily from businesses and professors expressing concern about the court creating a speech right that would supersede the provisions of a private employee/employer contract.
McAdams’ attorney Richard Eisenberg argued that he’s merely asking the court to enforce the employment contract that is devoid of arbitration or alternative dispute agreements and declare that the circuit court erred when it denied McAdams a trial by deferring to the FHC’s decision.
He also added that, “However we interpret these broad guaranties of academic freedom [in the contract] and the First Amendment protection against termination, this blog post was squarely within that protection, there’s no issue of material fact.”
Arguments in the case lasted a little over an hour. It is unknown when the Wisconsin Supreme Court will issue a decision.