2018 WI 88

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP1240

COMPLETE TITLE: John McAdams,

 Plaintiff-Appellant,

 v.

Marquette University,

 Defendant-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 6, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: April 19, 2018

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: David A. Hansher

JUSTICES:

CONCURRED: R.G. BRADLEY, J., concurs (opinion filed).

KELLY, J., concurs, joined by R.G. BRADLEY, J. 

(opinion filed).

DISSENTED: A.W. BRADLEY, J., dissents, joined by 

ABRAHAMSON, J. (opinion filed).

NOT PARTICIPATING: ZIEGLER, J., did not participate. 

ATTORNEYS:

For the plaintiff-appellant, there were briefs (in the 

court of appeals) by Richard M. Esenberg, Brian McGrath, Clyde 

Taylor, Thomas C. Kamenick, and Wisconsin Institute for Law & 

Liberty, Milwaukee. There was an oral argument by Richard M. 

Esenberg.

For the defendant-respondent, there was a brief (in the 

court of appeals) by Stephen T. Trigg, Ralph A. Weber, and Gass 

Weber Mullins LLC, Milwaukee. There was an oral argument by

Ralph A. Weber.
2

An amicus curiae brief was filed on behalf of Law and 

University Professors and Academics by Bernardo Cueto and Great 

Lakes Justice Center, La Crosse, with whom on the brief were 

Erin Elizabeth Mersino and Great Lakes Justice Center, Lansing, 

Michigan.

An amicus curiae brief was filed on behalf of Association 

of Jesuit Colleges and Universities by Thomas L. Shriner, Jr., 

Aaron R. Wegrzyn, and Foley & Lardner LLP, Milwaukee.

An amicus curiae brief was filed on behalf of the State of 

Wisconsin by Ryan J. Walsh, chief deputy solicitor general, with 

whom on the brief were Brad D. Schimel, attorney general, and

Amy C. Miller, assistant solicitor general.

An amicus curiae brief was filed on behalf of American 

Association of University Professors by Frederick Perillo and 

The Previant Law Firm, S.C., Milwaukee, with whom on the brief 

were Risa L. Lieberwitz and American Association of University 

Professors, and Aaron M. Nisenson, Nancy A. Long, and American 

Association of University Professors, Washington, D.C.

An amicus curiae brief was filed on behalf of Metropolitan 

Milwaukee Association of Commerce by Michael B. Apfeld and 

Godfrey & Kahn, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of Thomas More 

Society by Andrew Bath, Esq. and Thomas More Society, Chicago, 

Illinois.

An amicus curiae brief was filed on behalf of The National 

Association of Scholars, Edward J. Erler, Duke Pesta, and Mark 

Zunac by James R. Troupis and Troupis Law Office, Cross Plains, 
3

with whom on the brief was Kenneth Chesebro, Cambridge, 

Massachusetts.

An amicus curiae brief was filed on behalf of the Wisconsin 

Association of Independent Colleges and Universities by Andrew 

A. Hitt, Michelle L. Dama, and Michael Best & Friedrich LLP, 

Madison.

An amicus curiae brief was filed on behalf of National 

Association of Manufacturers by Bryan J. Cahill, Michael B. 

Apfeld, and Godfrey & Kahn, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of University 

Academic Senate of Marquette University by Amy L. MacArdy and 

Reinhart Boerner Van Deuren S.C., Milwaukee.
2018 WI 88

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP1240

(L.C. No. 2016CV3396)

STATE OF WISCONSIN : IN SUPREME COURT

John McAdams,

 Plaintiff-Appellant,

 v.

Marquette University,

 Defendant-Respondent.

FILED

JUL 6, 2018

Sheila T. Reiff

Clerk of Supreme Court

APPEAL from a judgment and an order of the Circuit Court 

for Milwaukee County, David A. Hansher, Judge. Reversed and 

remanded.

¶1 DANIEL KELLY, J. Marquette University suspended a 

tenured faculty member because of a blog post criticizing an 

encounter between an instructor and a student. Dr. John McAdams 

took exception to his suspension, and brought a claim against 

the University for breach of contract. He asserts that the 

contract guarantees to him the right to be free of disciplinary

repercussions for engaging in activity protected by either the 

doctrine of academic freedom or the United States Constitution. 

The University denies Dr. McAdams' right to litigate his breach 
No. 2017AP1240

2

of contract claim in our courts. Instead, it says, we must 

defer to its procedure for suspending and dismissing tenured 

faculty members. It claims we may not question its decision so 

long as it did not abuse its discretion, infringe any 

constitutional rights, act in bad faith, or engage in fraud.

¶2 The University is mistaken. We may question, and we 

do not defer. The University's internal dispute resolution 

process is not a substitute for Dr. McAdams' right to sue in our 

courts. The University's internal process may serve it well as 

an informal means of resolving disputes, but as a replacement 

for litigation in our courts, it is structurally flawed.

¶3 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. Therefore, we reverse the circuit court and remand 

this cause with instructions to enter judgment in favor of Dr. 

McAdams, conduct further proceedings to determine damages (which 

shall include back pay), and order the University to immediately 

reinstate Dr. McAdams with unimpaired rank, tenure, 

compensation, and benefits, as required by § 307.09 of the 

University's Statutes on Faculty Appointment, Promotion and 

Tenure (the "Faculty Statutes").

1

 

1 This case is before us on bypass of the court of appeals 

pursuant to Wis. Stat. § (Rule) 809.60 (2015-16). We are 

reviewing an order of the Milwaukee County Circuit Court, the 

Honorable David A. Hansher presiding, that denied Dr. McAdams' 

motion for summary judgment and granted the University's crossmotion for summary judgment.
No. 2017AP1240

3

I. FACTUAL BACKGROUND

A. Dr. McAdams' Contract with the University

¶4 Dr. McAdams has been a professor of political science 

at Marquette University since 1977; he received tenure in 1989. 

His most recent contract is evidenced by an appointment letter 

dated March 1, 2014. It incorporates, and is therefore subject 

to, the University's Faculty Statutes, the Faculty Handbook, and 

the other documents identified in the agreement:

This appointment/contract is subject to the 

University's statutes on Faculty Appointment, 

Promotion and Tenure [the Faculty Statutes]. As a 

Marquette faculty member, you agree to comply with 

applicable Marquette academic and business policies, 

including those found in the Faculty Handbook, 

University Policies and Procedures (UPP) and the 

Marquette University Intellectual Property Policy.[2]

When we refer to the "Contract" in this opinion, we mean the 

appointment letter of March 1, 2014, along with all the 

authorities it incorporates.

¶5 "Tenure" at the University means:

[A] faculty status that fosters an environment of free 

inquiry without regard for the need to be considered 

for reappointment. Tenure is reserved for Regular 

Faculty who are recognized by the University as having 

the capacity to make unique, significant, and longterm future contributions to the educational mission 

of the University. Tenure is not a reward for 

services performed; it is a contract and property 

right granted in accordance with this Chapter[.]

 

2 The Faculty Statutes and the Faculty Handbook constitute 

the equivalent of contract provisions. See Little Chute Area 

Sch. Dist. v. Wis. Educ. Ass'n Council, 2017 WI App 11, ¶31, 373 

Wis. 2d 668, 892 N.W.2d 312 ("The parties may agree to 

incorporate another document by reference, . . . .").
No. 2017AP1240

4

Faculty Statute § 304.02. Tenured faculty are entitled to 

yearly reappointment:

Excepting cases of intervening termination for 

cause and cases of leave of absence or retirement as 

provided below, every tenured member of the Regular 

Faculty will be tendered notification of compensation, 

and every non-tenured member of the Regular Faculty 

not otherwise notified as provided in Section 304.07, 

will be tendered an annual reappointment, at a rank 

and compensation not less favorable than those which

the faculty member then enjoys, . . . .

Faculty Statute § 304.09; see also § 304.07 ("Unless tenured, no 

faculty member is entitled to reappointment.").

¶6 The Faculty Statutes forbid the suspension or 

dismissal of a faculty member without cause: "The cognizant 

appointing authority of the University may initiate and execute 

procedures by which a faculty member's reappointment may be 

denied or revoked, or any current appointment may be suspended 

or terminated, for cause as defined therein." Faculty Statute 

§ 306.01.

B. The Incident

¶7 On November 9, 2014, Dr. McAdams published a post on 

his personal blog, the Marquette Warrior, in which he criticized 

a philosophy instructor, Cheryl Abbate, for her interchange with 

a student attending her Theory of Ethics class.

3 Dr. McAdams' 

 

3 Before he published the post, Dr. McAdams contacted 

Instructor Abbate for comment. She refused. In emailed 

conversations with others, she explained that she believed he 

contacted her "so it would look like he 'got both sides.'" She 

said she believed Dr. McAdams is a "flaming bigot, sexist, and 

homophobic idiot," who "wants to insert his ugly face into my 

class business to try to scare me into silence."
No. 2017AP1240

5

blog post said that, after Instructor Abbate listed a number of 

issues on the board, including "gay rights," she "airily said 

that 'everybody agrees on this, and there is no need to discuss 

it.'" One of the students approached Instructor Abbate after 

class and said that the issue of gay rights should have been 

open for discussion. The blog post says Instructor Abbate 

replied that "some opinions are not appropriate, such as racist 

opinions, sexist opinions," that "you don't have a right in this 

class to make homophobic comments," that she would "take 

offense" if a student opposed women serving in certain roles, 

that a homosexual individual would take similar offense if a 

student opposed gay marriage, and that "[i]n this class, 

homophobic comments, racist comments, will not be tolerated."

The blog post says Instructor Abbate "then invited the student 

to drop the class." Dr. McAdams commented that Instructor 

Abbate employed "a tactic typical among liberals now," namely

that "[o]pinions with which they disagree are not merely wrong, 

and are not to be argued against on their merits, but are deemed 

'offensive' and need to be shut up." Dr. McAdams then quoted 

Charles Krauthammer for the proposition that "[t]he proper word 

for that attitude is totalitarian." Finally, the blog post 

contained a clickable link to Instructor Abbate's contact 

information and to her own, publicly-available website.4

¶8 Two days later, after having received an email 

criticizing her conduct in this incident, Instructor Abbate 

 

4 The entire text of the blog post appears in the attached 

exhibit.
No. 2017AP1240

6

filed a formal complaint against Dr. McAdams with the 

University. The incident came to national attention after other 

media outlets picked up the story from Dr. McAdams' blog post. 

Instructor Abbate subsequently received some strongly-worded and 

offensive communications (emails, blog comments, and letters) 

from third parties, including some that expressed violent 

thoughts. Almost all of the feedback occurred after the story 

spread beyond Dr. McAdams' blog post.

¶9 By letter dated December 16, 2014, Dean Richard Holz 

suspended Dr. McAdams (with pay), but identified no reason for 

doing so. Dean Holz's follow-up letter of January 30, 2015, 

identified the blog post of November 9, 2014, as the 

justification for the suspension. It also stated the post 

violated Faculty Statute § 306.03, and that, therefore, the 

University intended to revoke his tenure and terminate his 

employment because his "conduct clearly and substantially fails 

to meet the standards of personal and professional excellence 

that generally characterizes University faculties."

¶10 The process for suspending or dismissing a tenured 

faculty member appears in chapters 306 and 307 of the Faculty 

Statutes (the "Discipline Procedure"). On August 14, 2015, the 

University notified Dr. McAdams that, pursuant to the Discipline 

Procedure's requirements, the Faculty Hearing Committee (the 

"FHC") would convene to consider his case. The FHC is an 

advisory body whose membership consists solely of University 

faculty members. The FHC described its charge in this case as 

follows:
No. 2017AP1240

7

Under both the Faculty Statutes and the Statutes 

for the University Academic Senate, the FHC acts as an 

advisory body in contested cases of appointment nonrenewal, or for suspension or termination of tenured 

faculty for absolute or discretionary cause. Its 

advice is presented to the President. The specific 

charge of the Committee in such cases is to convene a 

hearing "to determine the existence of cause" as 

defined in Sections 306.02 and .03 of the Faculty 

Statutes, "and to make findings of fact and 

conclusions." Those conclusions may, if the Committee 

finds it is warranted by the evidence, contain a 

recommendation "that an academic penalty less than 

dismissal" be imposed.

(Footnotes omitted.)

¶11 One of the FHC's members, Dr. Lynn Turner, publicly 

expressed her opinion of Dr. McAdams, his blog post, and 

Instructor Abbate, prior to her appointment. She, along with 

several of her colleagues, signed an open letter published in 

the Marquette Tribune. The letter says, in relevant part:

The following department chairs in the Klingler 

College of Arts & Sciences deplore the recent 

treatment of a philosophy graduate student instructor 

by political science professor John McAdams on his 

Marquette Warrior blog. We support Ms. Abbate and 

deeply regret that she has experienced harassment and 

intimidation as a direct result of McAdams's actions. 

McAdams's actions——which have been reported in local 

and national media outlets——have harmed the personal 

reputation of a young scholar as well as the academic 

reputation of Marquette University. They have 

negatively affected campus climate, especially as it 

relates to gender and sexual orientation. And they 

have led members of the Marquette community to alter 

their behavior out of fear of becoming the subject of 

one of his attacks.

Perhaps worst of all, McAdams has betrayed his 

role as a faculty member by pitting one set of 

students against another, by claiming the protection 

of academic freedom while trying to deny it to others, 

and by exploiting current political issues to promote 

his personal agenda. This is clearly in violation 
No. 2017AP1240

8

of . . . the Academic Freedom section of Marquette's 

Faculty Handbook[.]

. . . .

McAdams . . . has 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.

¶12 Dr. McAdams requested that Dr. Turner recuse herself 

from the FHC's work because the letter created the appearance of 

bias against him. 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. In any event, the FHC said, this cannot 

be a disqualifying factor because "every single one of the 

committee members present at our last meeting admit to having 

formed a prior positive or negative opinion of the propriety of 

Dr. McAdams's Nov. 9, 2014 blog post." The FHC said it would be 

unable to do its work if its membership were limited to those 

who had not already formed an opinion about the subject matter 

of Dr. McAdams' case.

¶13 Over the course of four days, the FHC received 

documentary and testimonial evidence from the University and Dr. 

McAdams. After completing its work, the FHC forwarded its 

report, titled "In the Matter of the Contested Dismissal of Dr. 

John C. McAdams" and dated January 18, 2016 (the "Report"), to 

the University's President, Michael Lovell. The Report 

concludes as follows:

The Committee [the FHC] therefore concludes that 

discretionary cause under FS [Faculty Statute] 

§ 306.03 has been established, but only to the degree 

necessary to support a penalty of suspension. The 
No. 2017AP1240

9

Committee concludes that the University has 

established neither a sufficiently egregious failure 

to meet professional standards nor a sufficiently 

grave lack of fitness to justify the sanction of 

dismissal. Instead, the Committee concludes that only 

a lesser penalty than dismissal is warranted. The 

Committee thus recommends that Dr. McAdams be 

suspended, without pay but with benefits, for a period 

of no less than one but no more than two semesters.

In keeping with its role as an advisory body, the Report made 

only a recommendation to President Lovell: "For the reasons 

stated above, the Committee recommends that the University 

suspend Dr. McAdams, without pay but with benefits, for a period 

of one to two semesters."

¶14 By letter of March 24, 2016 (the "Discipline Letter"), 

President Lovell informed Dr. McAdams that, after "carefully 

reviewing [the FHC's] report along with the transcriptions of 

your formal hearing last September," he had "decided to accept 

your fellow faculty members' recommendation to suspend you 

without pay." The suspension became effective April 1, 2016,

and was to continue until the end of the fall 2016 semester. 

President Lovell——on his own initiative——added an additional 

term to the FHC's recommended sanction. He informed Dr. McAdams 

that his resumption of duties (and pay) would be "conditioned 

upon you delivering a written statement to the President's

Office by April 4, 2016," which would be shared with Instructor 

Abbate, and which must contain the following:

• Your acknowledgement and acceptance of the 

unanimous judgment of the peers who served on the 

Faculty Hearing Committee.

• Your affirmation and commitment that your future 

actions and behavior will adhere to the standards 

of higher education as defined in the Marquette 
No. 2017AP1240

10

University Faculty Handbook, Mission Statement and 

Guiding Values.

• Your acknowledgement that your November 9, 2014, 

blog post was reckless and incompatible with the 

mission and values of Marquette University and you 

express deep regret for the harm suffered by our 

former graduate student and instructor, Ms. Abbate.

Dr. McAdams refused to write the required letter.

II. PROCEDURAL HISTORY

¶15 On May 2, 2016, Dr. McAdams filed a complaint against 

the University in the Milwaukee County Circuit Court, asserting 

(inter alia) that the University breached his Contract by 

suspending and then dismissing him.5 He demanded damages, an 

injunction requiring reinstatement as a tenured member of the 

Marquette faculty, and costs and attorneys' fees. Both parties 

 

5 Dr. McAdams' complaint contained six counts, which (in 

summary form) claimed the following:

(1) The University breached the Contract when it 

suspended him without cause on December 16, 2014;

(2) The University breached the Contract when it 

suspended him without cause and without pay on April 

1, 2016;

(3) The University breached the Contract when it 

failed to tender reappointment contracts for the 2015-

16 and 2016-17 academic years;

(4) The University breached the Contract by 

conditioning his reinstatement to the faculty on 

submission of a letter accepting the FHC's judgment 

and expressing regret for his actions;

(5) The University breached his due process rights as 

guaranteed by the Contract; and

(6) The University breached the Contract's implied 

covenant of good faith and fair dealing.
No. 2017AP1240

11

eventually moved for summary judgment. On May 4, 2017, the 

circuit court issued a decision and order granting summary 

judgment in favor of the University and dismissing Dr. McAdams' 

complaint with prejudice.6

¶16 The circuit court concluded it must defer to the 

University's resolution of Dr. McAdams' claims: "[T]he Court 

finds the following: (1) The FHC Report deserves deference; 

(2) The [suspension] letter from President Lovell deserves 

deference; . . . ." McAdams v. Marquette Univ., No. 2016CV3396, 

Order for Summary Judgment, 7 (Cir. Ct. for Milwaukee Cty. May 

4, 2017). It said it must defer because "public policy compels 

a constraint on the judiciary with respect to Marquette's 

academic decision-making and governance," out of a recognition 

that "[p]rofessionalism and fitness in the context of a 

university professor are difficult if not impossible issues for 

a jury to assess." Id. at 11.

¶17 The circuit court also concluded that the University's 

internal dispute resolution process afforded Dr. McAdams 

sufficient "due process": "[T]he Court finds the 

following: . . . (3) Dr. McAdams was afforded due process that 

he was entitled to during the FHC hearing; . . . ." Id. at 7. 

It explained that "Dr. McAdams expressly agreed as a condition 

of his employment to abide by the disciplinary procedure set 

forth in the Faculty Statutes," procedures that the court said 

 

6 The Honorable David A. Hansher presided at the summary 

judgment hearing, authored the summary judgment decision and 

order, and issued the judgment.
No. 2017AP1240

12

afforded "Dr. McAdams . . . a detailed, quasi-judicial process 

which gave him an adequate opportunity to meaningfully voice his 

concerns." Id. at 11.

¶18 We accepted Dr. McAdams' petition to bypass the court 

of appeals and now reverse the circuit court's judgment.
No. 2017AP1240

13

III. STANDARD OF REVIEW

¶19 We review the disposition of a motion for summary 

judgment de novo, applying the same methodology the circuit 

courts apply. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 

315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc. 

v. Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785 

N.W.2d 615 ("We review the grant of a motion for summary 

judgment de novo, . . . ."). First, we "examine the pleadings 

to determine whether a claim for relief has been stated." Green 

Spring Farms, 136 Wis. 2d at 315. Then, "[i]f a claim for 

relief has been stated, the inquiry . . . shifts to whether any 

factual issues exist." Id. Summary judgment is appropriate 

only "if the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of 

law." Wis. Stat. § 802.08(2) (2015-16)7; see also Columbia 

Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70, 

661 N.W.2d 776 (citing § 802.08(2) (2001-02)).

¶20 The only dispute before us is the proper 

interpretation of a contract. This presents a question of law, 

which we review de novo. Deminsky v. Arlington Plastics Mach., 

2003 WI 15, ¶15, 259 Wis. 2d 587, 657 N.W.2d 411 

("Interpretation of a contract is a question of law which this 

court reviews de novo.").

 

7 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.
No. 2017AP1240

14

IV. DISCUSSION

¶21 Before we reach the merits of Dr. McAdams' complaint, 

we must explain why we do not defer, as the circuit court did, 

to the results of the University's internal Discipline 

Procedure. We will then address Dr. McAdams' claim that the 

University breached his Contract.

A. Deference to the University

¶22 The circuit court deferred to the University's 

conclusion that it had not breached the Contract for three 

reasons. First, it said Dr. McAdams agreed to be bound by the 

University's Discipline Procedure. McAdams, No. 2016CV3396, 

Order for Summary Judgment, 11. Second, it analogized the 

Discipline Procedure to an arbitration and concluded that it 

must afford the results of the University's process the same 

deference we give to arbitration awards. See id. at 13-14. And 

third, it said it should defer to the University for the same 

reasons we have historically given either "great weight" or "due 

weight" deference to administrative agency decisions.8 See id.

at 11-13. For the reasons we discuss below, we will not defer 

to the University on any of these bases. And neither the 

circuit court nor the University has offered any other ground 

upon which we could conclude that Dr. McAdams' right to litigate 

his contract claim in our courts is either foreclosed or 

limited.

 

8 See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659–60, 

539 N.W.2d 98 (1995), overruled by Tetra Tech EC, Inc. v. DOR, 

2018 WI 75, ¶¶82-84, ___ Wis. 2d ___, ___ N.W.2d ___.
No. 2017AP1240

15

¶23 We begin with the proposition that "litigants must be 

given their day in court. Access to the courts is an essential 

ingredient of the constitutional guarantee of due process." 

Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353 (1992); see 

also Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ("A 

fundamental requirement of due process is 'the opportunity to be 

heard.' It is an opportunity which must be granted at a 

meaningful time and in a meaningful manner." (citation 

omitted)); see also State ex rel. Universal Processing Servs. of 

Wis., LLC v. Circuit Court of Milwaukee Cty., 2017 WI 26, ¶5, 

374 Wis. 2d 26, 892 N.W.2d 267 ("The Wisconsin Constitution 

requires the state to provide a judicial system for the 

resolution of disputes. Access to state courts for conflict 

resolution is thus implicit in the state constitution."); 

Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565 

N.W.2d 521 (1997) ("The right of access to the courts is secured 

by the First and Fourteenth Amendment[s]. It entitles the 

individual to a fair opportunity to present his or her claim. 

Such a right exists where the claim has a 'reasonable basis in 

fact or law.' Judicial access must be 'adequate, effective, and 

meaningful.'" (footnote and citations omitted) (quoted sources 

omitted)).
No. 2017AP1240

16

¶24 The scope of judicial review is, however, subject to 

statutory and judicially-developed limitations.9 And, of course, 

parties may choose to have their disputes resolved through 

extra-judicial means, thereby confining the judiciary's review 

to a very limited role.10 We conclude that none of these 

substitutionary or limiting principles apply to Dr. McAdams' 

contract dispute with the University.11

 

9 See, e.g., Wis. Stat. § 227.57 (describing scope of 

judicial review afforded to administrative agency decisions); 

Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 

N.W.2d 411 (describing the court's common-law certiorari review 

as limited to: "(1) whether the municipality [or administrative 

agency or inferior tribunal] kept within its jurisdiction; 

(2) whether it proceeded on a correct theory of law; (3) whether 

its action was arbitrary, oppressive, or unreasonable and 

represented its will and not its judgment; and (4) whether the 

evidence was such that it might reasonably make the order or 

determination in question").

10 See, e.g., Wis. Stat. § 788.10(1)(a)-(d) (limiting 

judicial review of arbitration awards to circumstances 

"(a) [w]here the award was procured by corruption, fraud or 

undue means; (b) [w]here there was evident partiality or 

corruption on the part of the arbitrators, or either of them; 

(c) [w]here the arbitrators were guilty of misconduct in 

refusing to postpone the hearing, upon sufficient cause shown, 

or in refusing to hear evidence pertinent and material to the 

controversy; or of any other misbehavior by which the rights of 

any party have been prejudiced; [or] (d) [w]here the arbitrators 

exceeded their powers, or so imperfectly executed them that a 

mutual, final and definite award upon the subject matter 

submitted was not made"); Joint Sch. Dist. No. 10, Jefferson v. 

Jefferson Educ. Ass'n, 78 Wis. 2d 94, 116, 253 N.W.2d 536 (1977) 

("Under common law rulings, an award may be set aside for fraud 

or partiality or gross mistake by the arbitrator; fraud or 

misconduct by the parties affecting the result; or want of 

jurisdiction in the arbitrator.").

11 Neither the University nor the circuit court identified 

any statutory limitations on the scope of judicial review 

available in this case, and so we do not address any here.
No. 2017AP1240

17

1. Contractual Limitations on Judicial Review

¶25 The most obvious reason we will not defer to the 

University is simply that the parties never agreed that its 

internal Discipline Procedure would either replace or limit the 

adjudication of their contract dispute in our courts. They 

certainly could have agreed to an extra-judicial resolution of 

their contract dispute. This is a common feature in society 

today and is accomplished most often through an arbitration 

agreement. "[A]rbitration is a matter of contract[,] and a 

party cannot be required to submit to arbitration any dispute 

which he has not agreed to submit." Joint Sch. Dist. No. 10, 

Jefferson v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 101, 253 

N.W.2d 536 (1977) (internal quotation mark omitted) (quoting 

United Steelworkers v. Warrior & Gulf Navigation Co., 363 

U.S. 574, 582 (1960)); see also Dane Cty. v. Dane Cty. Union 

Local 65, AFSCME, AFL-CIO, 210 Wis. 2d 267, 278–79, 565 

N.W.2d 540 (Ct. App. 1997) (Arbitration "is an informal process, 

where the parties have bargained to have a decision maker who is 

not restricted by the formalistic rules that govern courtroom 

proceedings."). It is true, as the University argues, that Dr. 

McAdams agreed he would submit to the University's Discipline 

Procedure when he accepted the Contract. But the Discipline 

Procedure does not describe an arbitration-style agreement.

¶26 Our 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 
No. 2017AP1240

18

review of a contractual dispute.12 Two of the Faculty Statutes 

acknowledge Dr. McAdams' right to seek judicial adjudication of 

his claims. The first describes the right negatively by 

demarcating a period of time in which the parties agree not to 

litigate:

So long as the periodic compensation and benefits 

provided by the faculty member's appointment are both 

continued, and during such further periods of 

negotiation, mediation, hearing, or review as the 

parties may mutually stipulate, both parties shall 

diligently continue in good faith to attempt a 

mutually-acceptable resolution of the issues between 

them by one or more of the procedures described in the 

three preceding sections, and neither shall, during 

such period, resort to or encourage litigation, 

demonstration, or tactics of duress, embarrassment, or 

censure against the other; provided that this 

paragraph shall not be construed so as to require the 

University to continue the faculty member's duty 

assignment during such period.

Faculty Statute § 307.08 (emphasis added). That period had 

elapsed by the time Dr. McAdams filed his suit because his pay 

had been terminated and the Discipline Procedure had concluded. 

 

12 As an integrated part of the Contract, we interpret the 

Faculty Statutes as we would any other contract provision. 

Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶22, 270 

Wis. 2d 1, 676 N.W.2d 426 ("The primary goal in contract 

interpretation is to give effect to the parties' intentions. We 

ascertain the parties' intentions by looking to the language of 

the contract itself." (citation omitted)); see also Tufail v. 

Midwest Hosp., LLC, 2013 WI 62, ¶28, 348 Wis. 2d 631, 833 

N.W.2d 586 (stating that courts construe contract language 

"according to its plain or ordinary meaning, . . . consistent 

with 'what a reasonable person would understand the words to 

mean under the circumstances'" (internal citation omitted)

(quoted source omitted)).
No. 2017AP1240

19

So this provision recognizes Dr. McAdams' right to bring his 

claim to court.

¶27 The Faculty Statutes also contain an explicit, 

positively-stated recognition of Dr. McAdams' right to litigate:

To the extent that none of the foregoing 

procedures produces a resolution of the issues arising 

out of a timely objection to a faculty member's nonrenewal, suspension, or termination, at or prior to 

the time specified in the preceding paragraph, the 

University shall, for a period of six months 

thereafter, or until the final determination of any 

judicial action which may be commenced within such 

period to test the validity of the non-renewal, 

suspension, or termination, hold itself ready to 

reinstate the faculty member, with unimpaired rank, 

tenure, compensation, and benefits, to the extent that 

the faculty member's entitlement thereto may be 

judicially adjudged or decreed, or conceded by the 

University in such interval.

Faculty Statute § 307.09 (emphasis added). This provision 

unambiguously recognizes that the University's suspension and 

dismissal decisions are subject to litigation in our courts. It 

was with good reason that the University conceded, during oral 

arguments, that it had no express agreement with Dr. McAdams 

that the Discipline Procedure would preclude his right to 

litigate his cause here.

¶28 The University and Dr. McAdams could have agreed that 

the court would defer to the Report and Discipline Letter in the 

same way we defer to arbitration decisions. They could have 

done that, but they did not. They did the opposite: The 

University agreed it would defer to the court's adjudication of 

Dr. McAdams' right to reinstatement.
No. 2017AP1240

20

¶29 The Faculty Statutes' description of our role does not 

resemble the method by which we review arbitration awards. When 

we review a party's challenge to such a decision, we focus on 

the process that produced the award: "[T]he court will not 

overturn the arbitrator's decision for mere errors of law or 

fact, but only when 'perverse misconstruction or positive 

misconduct [is] plainly established, or if there is a manifest 

disregard of the law, or if the award itself is illegal or 

violates strong public policy.'" City of Madison v. Madison 

Prof'l Police Officers Ass'n, 144 Wis. 2d 576, 586, 425 N.W.2d 8 

(1988) (alteration in original) (quoted source omitted). We 

will confirm arbitration awards even when they are incorrect: 

"Because arbitration is what the parties have contracted for, 

the parties get the arbitrator's award, whether that award is 

correct or incorrect as a matter of fact or of law." Id.

¶30 The Faculty Statutes do not contemplate this type of 

review. They actually anticipate that the court will reach the 

merits of Dr. McAdams' claim. The purpose of the "judicial 

action" identified in Faculty Statute § 307.09 is to "test the 

validity" of the suspension. It is not to test the process that 

led to the suspension; it is instead to determine whether there 

was a legitimate basis for it. This is a question of merit, not 

procedure.

¶31 The University makes this understanding even more 

explicit by pledging to "hold itself ready to reinstate" the 

faculty member "to the extent that the faculty member's 

entitlement thereto may be judicially adjudged or decreed." 
No. 2017AP1240

21

Faculty Statute § 307.09. This is not evocative of an 

arbitration-style review, which would exhaust itself upon 

declaring the decision is either defective or sound. A 

declaration that a faculty member is entitled to reinstatement 

is a substantive evaluation of the underlying dispute's merits. 

Thus, the Faculty Statutes acknowledge that the court will 

conduct an unabridged inquiry into the parties' compliance with 

their contractual obligations, not an arbitration-style review.

¶32 Therefore, the circuit court erred when it concluded 

it must defer to the University because "Dr. McAdams expressly 

agreed as a condition of his employment to abide by the 

disciplinary procedure set forth in the Faculty Statutes, 

incorporated by reference into his contract." See McAdams, No. 

2016CV3396, Order for Summary Judgment, 11. The circuit court's 

analysis ended prematurely because it failed to even mention the 

Faculty Statutes that describe the relationship between the 

University's Discipline Procedure and Dr. McAdams' right to 

bring the dispute to court.

¶33 We conclude that the Contract's plain meaning is that 

the parties did not agree that the Discipline Procedure would 

substitute for, or limit, Dr. McAdams' right to litigate in our 

courts. This cannot end our analysis, however, because the 

circuit court deferred to the University on the additional 

ground that the Discipline Procedure is analogous to an arbitral 

proceeding. It concluded that the Report and Discipline Letter 

are entitled to the same deference we afford to arbitration 

awards, see id. at 13-14, even if there was no agreement that 
No. 2017AP1240

22

the Discipline Procedure would authoritatively resolve their 

dispute.

2. The Discipline Procedure's Fundamental Procedural Flaws

¶34 The Report and Discipline Letter are not entitled to 

deference as something comparable to an arbitration award. The 

Discipline Procedure is an intricate, thorough, and extensive 

process. Indeed, at least superficially, it closely resembles a 

judicial proceeding. In light of the 123-page Report the FHC 

produced, the process obviously consumed a great deal of several 

faculty members' attention and valuable time. But all of this 

cannot make up for the unacceptable bias with which the FHC was 

infected, or the FHC's lack of authority to bind the parties to 

its decision. Although these shortcomings are enough to 

convince us that we must not defer to the Discipline Procedure's 

results, there is an even greater shortcoming at the heart of 

the process: The Discipline Procedure has nothing to say about 

how the actual decision-maker is to decide the case. The 

Faculty Statutes recognize that, at Marquette University, the 

authority to suspend or dismiss tenured faculty members rests 

exclusively with the president, and that his exercise of 

discretion is subject to no procedural requirements or 

limitations. There is no process here to which we can defer. 

We will address each of these defects in turn.

*

¶35 The FHC, to which the Faculty Statutes commit the 

responsibility for conducting the Discipline Procedure, was not 

an impartial tribunal. But it is the only entity authorized by 
No. 2017AP1240

23

the Discipline Procedure to hear testimony from the contesting 

parties. "[T]he Faculty Hearing Committee (hereinafter the FHC) 

serves as the advisory body in cases of contested appointment 

non-renewal, and suspension or termination (hereinafter 

dismissal) of a tenured faculty member for absolute or 

discretionary cause." Faculty Statute § 307.07(1). The FHC is 

"composed of seven tenured faculty members elected by the 

faculty as a whole under the supervision of the Committee on 

Committees and Elections." § 307.07(6).

¶36 The FHC holds hearings at which the faculty member may 

participate with assistance of counsel. Faculty Statute 

§ 307.07(11), (14). It is the University's responsibility, 

through its designee, to present the case against the faculty 

member. § 307.07(13) ("The University Administration must 

appear at the hearing by a designated representative, and it 

must make the initial showing."). The FHC may receive both 

documentary and testimonial evidence. § 307.07(10), (15). The 

University bears the burden of making its case with "clear and 

convincing evidence in the record considered as a whole." 

§ 307.07(13).

¶37 Once the FHC has received the parties' evidence and 

conducted its deliberations, it issues "findings of fact and 

conclusions." Faculty Statute § 307.07(18). If it decides 

dismissal is not warranted, "its findings of fact and 

conclusions will set forth a recommendation to that effect 

together with supporting reasons." See id. Finally, the FHC 
No. 2017AP1240

24

conveys its findings of fact and conclusions to the University 

president and to the affected faculty member. § 307.07(19).

¶38 The Faculty Statutes describe a procedure and tribunal 

that, on their face, are characteristic of an arbitral system. 

Confidence in an arbitration's outcome, however, is predicated 

on confidence in the arbitrator. That is why we presume parties 

intend their arbitrators to be impartial. See Borst v. Allstate 

Ins. Co., 2006 WI 70, ¶3, 291 Wis. 2d 361, 717 N.W.2d 42 ("We 

adopt a presumption of impartiality among all arbitrators, 

whether named by the parties or not."); Nicolet High Sch. Dist. 

v. Nicolet Educ. Ass'n, 118 Wis. 2d 707, 712-13, 348 N.W.2d 175 

(1984) ("A final and binding arbitration clause signifies that 

the parties to a labor contract desire to have certain 

contractual disputes determined on the merits by an impartial 

decision-maker whose determination the parties agree to accept 

as final and binding." (quoting City of Oshkosh v. Oshkosh Pub. 

Library Clerical & Maint. Emps. Union Local 796–A, 99 

Wis. 2d 95, 103, 299 N.W.2d 210 (1980)); Diversified Mgmt. 

Servs., Inc. v. Slotten, 119 Wis. 2d 441, 448, 351 N.W.2d 176 

(Ct. App. 1984) ("If parties are to be encouraged to submit 

their disputes to arbitration as an alternative to litigation, 

they must be assured an impartial tribunal."). Cf. Commonwealth 

Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 147 (1968) 

(stating that federal statutory "provisions show a desire of 

Congress to provide not merely for any arbitration but for an 

impartial one"). That is also why, with respect to arbitrations 

governed by the Wisconsin Arbitration Act, we will set aside an 
No. 2017AP1240

25

award "[w]here there was evident partiality . . . on the part of 

the arbitrators." Wis. Stat. § 788.10(1)(b).

¶39 In this case, the FHC's impartiality was compromised 

by one of its members. Prior to her appointment to the FHC, Dr. 

Lynn Turner made her opinion of Dr. McAdams and his blog post 

available for all to see and read. By subscribing her name to 

an open letter published in the Marquette Tribune, Dr. Turner:

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."

¶40 Remarkably, the FHC said this evidenced no 

disqualifying bias because she had not commented on anything the 

FHC would be considering. The Report Dr. Turner helped produce 
No. 2017AP1240

26

says otherwise, as evidenced by the following excerpts (keyed to 

the lettered paragraphs above):

a. "[T]he Committee concludes that the University has 

established by clear and convincing evidence that Dr. 

McAdams's conduct with respect to his November 9, 2014 

blog post violated his obligation to fellow members of 

the Marquette community by recklessly causing indirect 

harm to Ms. Abbate through his conduct, harm that was 

substantial, foreseeable, easily avoidable, and not 

justifiable."

b. "As the AAUP has feared, Dr. McAdams's use of selective 

quotations from Ms. Abbate's classroom and after-class 

discussion has resulted in a chilling effect on Ms. 

Abbate——indeed she is no longer on the campus to speak 

at all."

"Ms. Abbate, who was by all indications a star 

graduate student, was unable to focus on preparing her 

dissertation topic defense by the end of November."

c. "University spokesperson Brian Dorrington later stated, 

in reference to Dr. McAdams's suspension, that '[t]he 

university has a policy in which it clearly states 

that it does not tolerate harassment . . . .'"

d. "Dr. McAdams has also stated that he does not have an 

obligation to protect the reputations of members of 

the Marquette community." "Dr. McAdams has stated 

that the harm to Ms. Abbate occurred due only to 

truthful reporting of facts." "[I]t was 'Abbate's 

actions,' not his, 'that caused the problem.'" "Dr. 

McAdams does not accept that Ms. Abbate was harmed by 

this incident."

e. "The speech of other faculty at Marquette may be 

chilled as well as a result of this incident."

"Junior faculty in the Political Science Department 

appear to have great anxiety that they may be Dr. 

McAdams's next targets . . . ."

f. "If the University presses forward, Dr. McAdams 

promises, Marquette will 'become ground zero in the 

battle over freedom of expression in academia' and 

will be 'the poster child for political correctness on 

America's campuses.'"
No. 2017AP1240

27

g. "But academic freedom has its limits, limits that are 

slightly more pronounced in the case of extramural 

statements, and Dr. McAdams's Nov. 9 blog post 

exceeded those limits by recklessly causing harm 

indirectly to Ms. Abbate that was substantial, 

foreseeable, easily avoidable, and not justified."

e. "The Committee therefore concludes that this conduct 

clearly and substantially failed to meet the standard 

of personal and professional excellence that generally 

characterizes University faculties."

If Dr. Turner did not know she would be addressing matters on 

which she had already taken a very public and definite stand, 

she should have recused herself once she discovered the 

connection.

¶41 The Faculty Handbook says that a "member of . . . the 

Faculty Hearing Committee whose impartiality might be 

compromised by participating in the processing of the grievance 

ought to recuse himself or herself from consideration of the 

grievance." Faculty Handbook art. 8.02 (Conflicts of Interest). 

Parties to an arbitration agreement may contractually calibrate 

the level of bias they find acceptable, and we will generally 
No. 2017AP1240

28

accept whatever standard upon which they agree.13 The Faculty 

Statutes, however, do not describe the level of disqualifying 

bias. But we take notice that the American Arbitration 

Association says that an arbitrator should "have no relation to 

the underlying dispute or to the parties or their counsel that 

may create an appearance of bias," nor should she have any 

"personal or financial interest in the results of the 

proceeding."

14 And when an arbitrator fails to disclose 

information that may call his impartiality into question, we 

inquire into

 

13 "The judiciary should minimize its role in arbitration as 

judge of the arbitrator's impartiality. That role is best 

consigned to the parties, who are the architects of their own 

arbitration process, and are far better informed of the 

prevailing ethical standards and reputations within their 

business." Richco Structures v. Parkside Vill., Inc., 82 

Wis. 2d 547, 561, 263 N.W.2d 204 (1978) (quoting Commonwealth 

Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 151 (1968)

(White, J., concurring)); see also Richco Structures, 82 Wis. 2d

at 557 ("Because arbitration is a contractual arrangement, 

albeit endorsed and implemented by statute, our construction of 

'evident partiality' should also be structured to enhance the 

parties' opportunity to assess an arbitrator's qualifications 

with a minimum of judicial interference."). Cf. Sphere Drake 

Ins. Ltd. v. All Am. Life Ins. Co., 307 F.3d 617, 620 (7th Cir. 

2002) ("Parties are free to choose for themselves to what 

lengths they will go in quest of impartiality. . . . [A]ll 

participants may think the expertise-impartiality tradeoff 

worthwhile; the [federal] Arbitration Act does not fasten on 

every industry the model of the disinterested generalist 

judge.").

14 See American Arbitration Association, Employment: 

Arbitration Rules and Mediation Procedures 15 (available at

https://www.adr.org/sites/default/files/employment_arbitration_r

ules_and_mediation_procedures_0.pdf) (listing qualifications of 

neutral arbitrators).
No. 2017AP1240

29

whether the reasonable person, as a party to the 

arbitration proceeding, upon being advised of the 

undisclosed matters, would have such doubts regarding 

the prospective arbitrator's impartiality that he or 

she would investigate further, would demand that the 

arbitration be conducted on terms which would provide 

checks on the arbitrator's exercise of discretion, or 

would take other protective measures to assure an 

impartial arbitration and award.

Richco Structures v. Parkside Vill., Inc., 82 Wis. 2d 547, 562, 

263 N.W.2d 204 (1978).

¶42 Under any reasonable standard of impartiality, Dr. 

Turner would be disqualified. She publicly inserted herself 

into the dispute and expressed a personal interest in its 

outcome. And she did not just express her opinions on these 

matters in passing——she committed herself to them in writing. 

Having done so, she could not decide the FHC proceedings in 

favor of Dr. McAdams without contradicting what she had already 

said to the entire Marquette University campus. These are not 

anonymous members of the public to whom she would be admitting 

that her initial convictions were mistaken. They are her 

professional colleagues and students. The natural human impulse 

to resist acknowledging a mistake, especially in light of the 

audience to whom she would be making the acknowledgement, is 

sufficiently powerful to affect Dr. Turner's consideration of 

the dispute. If an arbitrator evidenced this level of bias, we 

would set aside the resulting award. The FHC's composition was 

unacceptably compromised by Dr. Turner's bias.

*

¶43 The Discipline Procedure is not analogous to an 

arbitration proceeding, as the circuit court assumed, for the 
No. 2017AP1240

30

further reason that it resulted in mere advice, not in an 

authoritative decision. The point of an arbitration is to 

produce a final and binding resolution of the parties' dispute. 

City of Manitowoc v. Manitowoc Police Dep't, 70 Wis. 2d 1006, 

1012, 236 N.W.2d 231 (1975) (stating that "an arbitration award 

must finally settle the controversy"); Dundon v. Starin, 19 

Wis. 278 (*261), 283-85 (*266-67) (1865) (reversing judgment 

because the arbitration award was not "final and definite"); see 

also Dane Cty. Union Local 65, AFSCME, AFL-CIO, 210 Wis. 2d at 

279 ("Arbitration is also designed to bring an end to 

controversy. Employees, unions and employers all rely on the 

finality of arbitration decisions in ordering their affairs.").

¶44 The Discipline Procedure, however, is incapable of 

producing such a result. The Report says the FHC is just an 

advisory body: "Under both the Faculty Statutes and the 

Statutes for the University Academic Senate, the FHC acts as an 

advisory body in contested cases of appointment non-renewal, or 

for suspension or termination of tenured faculty for absolute or 

discretionary cause." See Faculty Statute § 307.07(1) ("[T]he 

Faculty Hearing Committee . . . serves as the advisory body in 

cases of contested appointment non-renewal, and suspension or 

termination . . . of a tenured faculty member for absolute or 

discretionary cause."). In keeping with the nature of that 

body, it issues nothing authoritative. The Report says the end 

result of the FHC's work is merely advice: "[The FHC's] advice 

is presented to the President." See § 307.07(18) ("If the FHC 

concludes that an academic penalty less than dismissal is 
No. 2017AP1240

31

warranted by the evidence, its findings of fact and conclusions 

will set forth a recommendation to that effect . . . .").

¶45 If we are supposed to defer to the Discipline 

Procedure because of its resemblance to an arbitration, the 

analogy does not hold up. This process cannot produce one of 

its essential hallmarks. We defer to arbitration decisions 

because they are authoritative resolutions of the disputes they 

address. The Discipline Procedure produced advice, not a 

decision. We do not defer to advice.

*

¶46 The FHC's lack of authority leads us to the final 

reason we cannot give arbitration-style deference to the 

University's decision to suspend Dr. McAdams: There was no 

relevant process to which we could defer. In one sense, all of 

the time, energy, and resources that went into the Discipline 

Procedure and the richly-detailed Report are distractions from 

the necessary focus of our analysis. Neither the FHC nor the 

Report decided anything. It was President Lovell, not the FHC, 

who decided whether Dr. McAdams would be disciplined. It was 

President Lovell, not the FHC, who decided the nature of the 

discipline that should be imposed. It was President Lovell, not 

the FHC, who had the authority to impose the discipline. It was 

President Lovell who actually meted out the discipline when he 

sent Dr. McAdams the Discipline Letter. And it was President 

Lovell who created the conditions on reinstatement that have 

kept Dr. McAdams in suspension limbo. Consequently, the 
No. 2017AP1240

32

Discipline Letter, not the FHC's Report, is the relevant point 

of reference.15

¶47 We assume, for the purpose of this case only, that the 

University must engage the Discipline Procedure's mechanisms 

before it disciplines a tenured faculty member.16 But as a 

matter of process, the Discipline Procedure controls only the 

FHC, not the president. To the extent it references the 

 

15 We note that Dean Holz's letter of January 30, 2015,

suggests the University's Board of Trustees may play some role 

in the dismissal of a faculty member (it says discipline "shall 

become effective at the time of approval by the University's 

Board of Trustees"). However, nothing in the Report, the 

Faculty Handbook, the Faculty Statutes, the Contract, or any 

other authoritative documents in the record indicates that the 

Board of Trustees had any role in Dr. McAdams' suspension or 

dismissal. Nor does the Discipline Letter, authored by 

President Lovell, mention any role for the Board of Trustees. 

Indeed, with respect to imposition of the sanctions, the letter 

speaks exclusively in the first person, indicating President 

Lovell's understanding that disciplinary authority lies 

exclusively with him.

16 We offer this caveat because the Discipline Procedure 

does not explicitly determine the order of events. For 

instance, Faculty Statute § 307.07(1) simply says the FHC is 

"the advisory body" with respect to suspension of a tenured 

faculty member. It does not say the contest must be submitted 

to the FHC, and as discussed above, it has no authority to 

resolve the contest anyway. And although Article 4, § 1.01.1(1) 

of the Faculty Handbook says the FHC must comply with the 

Discipline Procedure, it does not impose a similar requirement 

on the president. Perhaps that mandate exists in other 

documents governing the University's procedures, but nothing in 

the record expressly requires the president to wait until the 

FHC completes its work before dismissing a tenured faculty 

member. We have not been asked to opine on this question, and 

the answer ultimately has no effect on our analysis in this 

case; the purpose of this aside is to confirm we are not 

deciding the question.
No. 2017AP1240

33

president's role at all, it does nothing but identify him as the 

recipient of the FHC's advice.

¶48 The Discipline Procedure is silent with respect to how 

the president must proceed after receiving the Report. Nor is 

there any separate set of rules, procedures, or standards that 

describe what the president must do with the FHC's advice. 

Based on the material before us, the president may adopt the 

advice in its entirety, reject it out of hand, pick and choose 

amongst the findings and conclusions, or add his own. Although 

the Discipline Letter indicates President Lovell carefully read 

the Report and adopted the FHC's suspension recommendation, the 

Discipline Procedure did not require him to do so. Nor is there 

any rule, procedure, or standard that forbade his sua sponte

imposition of the additional conditions that resulted in Dr. 

McAdams' unending suspension——conditions the FHC had never 

considered.

¶49 As a matter of process, therefore, there is a hard 

break between the Discipline Procedure and the actual decision 

to suspend Dr. McAdams. While the dispute was in the hands of a 

body that had no authority to resolve it (the FHC), the case was 

subject to the detailed Discipline Procedure. However, once it 

reached the actual decision-maker (President Lovell), there were 

no procedures to govern the decision-making process. The 

Discipline Procedure does not tell President Lovell how to reach

his decision, and nothing in the record before us suggests the 

president's decision must have any relationship to the FHC's 

work. As far as the Faculty Statutes and Faculty Handbook are 
No. 2017AP1240

34

concerned, the president may proceed as if the Report said 

nothing but that the FHC had completed the Discipline Procedure. 

Consequently, the efficient cause of Dr. McAdams' suspension 

without pay was the Discipline Letter, and there is no evidence 

that it resulted from any prescribed procedure at all. It was 

the product of President Lovell's exercise of unfettered 

discretion. Even if we were inclined to defer to the 

authoritative resolution of Dr. McAdams' case (as opposed to the 

FHC's Report), there is quite literally nothing to which we 

could apply an arbitration-style review.

3. The Administrative Agency Deference Doctrine

¶50 The circuit court also said it would defer to the 

University's decision for the same reasons the judiciary often 

defers to administrative agency decisions. McAdams, No. 

2016CV3396, Order for Summary Judgment, 11. The circuit court 

cited an Ohio intermediate appellate court for this proposition, 

which said, in pertinent part: "Even though we . . . are 

hesitant to equate a private university's hearing powers to that 

of a statutorily mandated administrative body, we do find 

rationale and guidance from the standard of review adopted by 

administrative agencies, especially when the involved parties 

have bound themselves contractually." Yackshaw v. John Carroll 

Univ. Bd. of Trs., 624 N.E.2d 225, 228 (Ohio Ct. App. 1993).

¶51 We will not defer to the University's decision under 

the Yackshaw rationale for two reasons. First, the basis for 

Yackshaw's analogy no longer obtains in Wisconsin. We recently 

ended the practice of deferring to an administrative agency's 
No. 2017AP1240

35

conclusions of law.17 We decided the practice was unsound in 

principle, and there is no apparent reason it would become 

sounder if we resurrected it for use in contract disputes 

between two private parties.

¶52 Second, Yackshaw's analysis is flawed because it 

deferred to a dispute resolution process that incorporated 

several of the fundamental defects discussed above. At John 

Carroll University the process of dismissing a professor begins 

with a hearing before the Faculty Board of Review (the "FBR"). 

See id. at 226-27. Like the FHC here, the FBR is composed of 

university employees. See id. at 226-28. And like the process 

we are considering today, the FBR does not actually resolve the 

disputes it hears. It just makes recommendations to the Board 

of Trustees. See id. at 226-27. The Yackshaw opinion suggests 

the Board of Trustees enjoys the same autonomy as the University 

president in this case. It is not bound by the FBR's 

recommendation, and there are apparently no rules, procedures, 

or standards that govern how it actually makes its decision. 

See id. It could accept, reject, or alter the FBR's work at 

will. See id. The dispute resolution process described by 

Yackshaw allowed the Board to exercise unfettered discretion in 

terminating one of its professors.

 

17 Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶3, 

___ Wis. 2d ___, ___ N.W.2d ___. By "conclusions of law" we 

mean both the interpretation of the law and the application of 

that law to the facts of a case. See id., ¶¶3, 108. In this 

context, deference would include interpretation of the Contract 

and its application to undisputed facts.
No. 2017AP1240

36

¶53 Additionally, Yackshaw's deference appears to have 

been founded on the court's unwarranted attribution of the nonauthoritative FBR's procedures to the authoritative Board of 

Trustees' decision. It seems the court was especially impressed 

by the FBR's six-day hearing in which it received forty-five 

exhibits and heard from fifteen witnesses who together produced 

a nine-hundred page transcript. So when it said "we find that 

the university did not deny Yackshaw's procedural rights under 

his contract," it was presumably referring to the FBR's 

procedures. See id. at 229. It certainly could not have been 

referring to the actual decision-maker——the Board of Trustees——

whose decision was not subject to any procedural requirements or 

standards at all. We cannot take guidance from Yackshaw, 

therefore, because it did not analyze whether a court should 

defer to a defendant's standard-free assessment of a plaintiff's 

claims, which is what happened both there and here.

¶54 Yackshaw's value is further weakened by its 

tendentious rejection of McConnell v. Howard University, 818 

F.2d 58 (D.C. Cir. 1987) as an "obscure" case in which the court 

was preoccupied by questions unrelated to deference.18 McConnell

squarely addressed the same deference proposition at issue in 

Yackshaw, which in turn is the same argument Marquette 

University advances here. See McConnell, 818 F.2d at 67-68. 

 

18 "McConnell seems to be the obscure one. . . . [T]he 

McConnell court appeared preoccupied, and rightfully so, with 

the failure of the university to honor the contract." Yackshaw

v. John Carroll Univ. Bd. of Trs., 624 N.E.2d 225, 228-29 (Ohio 

Ct. App. 1993).
No. 2017AP1240

37

After thorough consideration, the McConnell court rejected it in 

terms bordering on exasperation. See id. at 67. Accepting this 

proposition, it said, would mean that "any Trustees' decision to 

fire a tenured faculty member is largely unreviewable, with 

judicial scrutiny limited to a modest inquiry as to whether the 

Trustees' decision was 'arbitrary,' 'irrational' or infected by 

improper motivation." Id. It understood that deference in this 

context would demote tenure from a substantive right to a matter

of mere procedure: "Such a reading of the contract renders 

tenure a virtual nullity. Faculty members like Dr. McConnell 

would have no real substantive right to continued employment, 

but only certain procedural rights that must be followed before 

their appointment may be terminated." Id. This, it said, is 

"an astonishing concept." Id. We agree.

¶55 The Milwaukee County Circuit Court here nonetheless 

determined that the administrative agency deference doctrine 

required it to defer because "[t]he parties' contract 

incorporates a specialized standard for cause that focuses on 

issues of professional duties and fitness as a university 

professor." McAdams, No. 2016CV3396, Order for Summary 

Judgment, 11. "Professionalism and fitness in the context of a 

university professor," it said, "are difficult if not impossible 

issues for a jury to assess." Id. We cannot credit this 

rationale——judges and juries frequently address themselves to 

some of the most complex matters in life. When a case presents 

issues beyond our ken, we turn to expert witnesses. McConnell

conclusively answers the circuit court's concern as well:
No. 2017AP1240

38

[W]e do not understand why university affairs are more 

deserving of judicial deference than the affairs of 

any other business or profession. Arguably, there 

might be matters unique to education on which courts 

are relatively ill equipped to pass judgment. 

However, this is true in many areas of the law, 

including, for example, technical, scientific and 

medical issues. Yet, this lack of expertise does not 

compel courts to defer to the view of one of the 

parties in such cases. The parties can supply such 

specialized knowledge through the use of expert 

testimony.

McConnell, 818 F.2d at 69.

¶56 If academics are capable of discussing university 

affairs in their cloisters, there is no reason they cannot do so 

as experts in our courts. The complexity of a contract's 

subject matter does not convince us that we must give 

administrative-agency style deference to one of the disputing 

parties.
No. 2017AP1240

39

*

¶57 In sum, we do not defer to the University for 

contractual reasons because the Contract does not say the 

Discipline Procedure either substitutes for litigation in our 

courts or limits our review. We also do not afford arbitrationstyle deference to the University's decision because the FHC was 

compositionally biased, the Discipline Procedure did not (and 

could not) produce an authoritative decision, and the individual 

with the authority to resolve the dispute was subject to no 

procedures whatsoever. Finally, we do not defer to the 

University in the manner we have previously deferred to 

administrative agencies because that practice is unsound in 

principle.

¶58 The dissent says we should nonetheless defer to the 

University, and that failing to do so "renders meaningless a key 

part of shared governance, reducing the faculty's role in this 

decisionmaking to nothing." Dissent, ¶173. The author, 

however, does not identify the key part of shared governance we 

have rendered meaningless, nor could she. The faculty's 

authority to share in the University's governance comes from the 

Faculty Statutes and Faculty Handbook, not some formless notion 

of what shared governance ought to be. We have taken these 

authorities as they are, and scrupulously examined their 

provisions. The faculty's role is what our opinion says it is 

because that is the arrangement upon which the University and 

its faculty members have agreed. It is not our place to rewrite 

their management structure to give the faculty a more muscular 
No. 2017AP1240

40

role in the University's affairs than they currently have. 

Because the dissent identified no Faculty Statute or Faculty 

Handbook provision that we have overlooked or misconstrued, we 

decline the implicit invitation to disregard what these 

authorities so plainly say.

B. Merits of the Suspension Decision

¶59 Dr. McAdams says that publishing his blog post is an 

act of academic freedom and that the Contract protects him from 

discipline because of such acts. The circuit court decided this 

case on cross-motions for summary judgment, which means we apply 

the same methodology as the circuit court upon review.

¶60 This methodology requires that we first determine 

whether Dr. McAdams has stated a claim upon which relief can be 

granted. See Green Spring Farms, 136 Wis. 2d at 315. The 

University does not argue here that Dr. McAdams has failed to 

state a claim, and our review confirms that he adequately 

alleged the existence of an enforceable contract and that each 

count identifies an alleged failure to abide by the Contract's 

terms.

¶61 The next step in our summary judgment analysis is to 

determine whether one of the parties is entitled to judgment as 

a matter of law.19 In this case, that determination turns on two 

 

19 See Wis. Stat. § 802.08(2); see also Columbia Propane, 

L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70, 661 

N.W.2d 776 (citing § 802.08(2) (2001-02)). To the extent there 

are factual disputes, we have accepted the version favorable to 

the University. We conclude that these minor factual 

differences are not material because they had no substantive 

effect on our analysis.
No. 2017AP1240

41

issues. The first is whether the doctrine of academic freedom 

encompasses the publication of Dr. McAdams' blog post. If it 

does, then we must decide whether the University nonetheless had 

"discretionary cause" to suspend Dr. McAdams.

1. Academic Freedom and the Blog Post

¶62 Although we address ourselves to the concept of 

"academic freedom," we do so only to the extent necessary to 

determine whether it reaches Dr. McAdams' blog post. Our 

analysis is narrowly focused and begins with the definition of 

"academic freedom" as it appears in the University's Faculty 

Handbook:

Academic freedom is prized as essential to 

Marquette University and to its living growth as a 

university. Professorial academic freedom is that 

proper to the scholar-teacher, whose profession is to 

increase knowledge in himself/herself and in others. 

As proper to the scholar-teacher, academic freedom is 

grounded on competence and integrity.

When scholar-teachers carry on their academic 

lives in educational institutions, integrity requires 

both respect for the objectives of the institution in 

which they choose to carry on their academic lives and 

attention to the task of reevaluating these objectives 

as a necessary condition of living growth in human 

institutions.

The University, because it prizes academic 

freedom, proposes the following safeguards* 

[footnoting a reference to the AAUP's Statement of 

Principles of Academic Freedom] to that freedom:

a. The teacher is entitled to full freedom in research 

and in the publication of results, subject to the 

adequate performance of his/her other academic 

duties; but research for pecuniary return should be 

based upon an understanding with the authorities of 

the institution.
No. 2017AP1240

42

b. The teacher is entitled to freedom in the classroom 

in discussing his/her subject. This freedom must 

be integrated with the right of the students not to 

be victimized and the rights of the institution to 

have its accepted aims respected.

c. The college or university teacher is a citizen, a 

member of a learned profession, and an officer of 

an educational institution. When he/she speaks or 

writes as a citizen, he/she should be free from 

institutional censorship or discipline, but his/her 

special position in the civil community imposes 

special obligations. As a man/woman of learning 

and an educational officer, he/she should remember 

that the public may judge his/her profession and 

institution by his/her utterances. Hence, he/she 

should at all times be accurate, should exercise 

appropriate restraint, should show respect for the 

opinions of others, and should make every effort to 

indicate that he/she is not an institutional 

spokesperson.

Faculty Handbook, III.C. (Rights and Responsibilities, Academic 

Freedom).

¶63 The University acknowledges this definition came from 

the American Association of University Professors' 1940 

Statement of Principles on Academic Freedom and Tenure (the 

"1940 Statement").20 During their arguments, both the University 

and Dr. McAdams had recourse to that document, as well as to 

subsequent, AAUP-authored,21 explanatory documents such as the 

1970 Interpretive Comments (the "1970 Comments"). Consequently, 

we will refer to those sources as necessary to understand the 

scope of the academic freedom doctrine.

 

20 The Report said "all [University] faculty members are 

guaranteed academic freedom, defined in the Faculty Handbook 

using language taken directly from [AAUP's] groundbreaking 1940 

Statement of Principles on Academic Freedom and Tenure."

21 We refer to the American Association of University 

Professors as the "AAUP."
No. 2017AP1240

43

¶64 The AAUP, which participated as amicus curiae, said 

the doctrine of academic freedom comprises three elements: 

teaching; research; and extramural comments. The categories 

correspond to the separately-lettered paragraphs in the 

University's definition (see supra Faculty Handbook, III.C.). 

The University and Dr. McAdams agree that we should understand 

the blog post as an "extramural comment," a type of expression 

made in Dr. McAdams' personal, not professorial, capacity. 

Because the parties agree the blog post is covered by one of the 

categories of academic freedom, the contest is over whether its 

contents remove the doctrine's protection.

¶65 The definition of "extramural comment" recognizes that 

a professor occupies a "special position in the community," one 

that comes with "special obligations."22 In the original 

definition in the 1940 Statement, and in the definition above, 

these special obligations included the duty to "exercise 

appropriate restraint," to "show respect for the opinions of 

others," and to "make every effort to indicate that they are not 

speaking for the institution."

23 However, the AAUP recognizes 

that the special obligations "are generally not viewed as 

 

22 American Association of University Professors

[hereinafter "AAUP"], Policy Documents and Reports, 1940 

Statement of Principles on Academic Freedom and Tenure, with 

1970 Interpretive Comments 14 (11th ed. 2014) (available at 

https://www.aaup.org/file/1940%20Statement.pdf); see also

Faculty Handbook, III.C. (Academic Freedom).

23 See AAUP, Policy Documents and Reports, 1940 Statement of 

Principles on Academic Freedom and Tenure, with 1970 

Interpretive Comments 14 (11th ed. 2014) (available at 

https://www.aaup.org/file/1940%20Statement.pdf).
No. 2017AP1240

44

binding obligations." The Report, after tracing the evolving 

nature of these "special obligations," essentially agreed:

[I]t appears that the nature of the "special 

obligations" that limit a faculty member's freedom to 

make extramural statements has changed. It is 

doubtful that there is any longer a binding obligation 

to be "accurate" at all times in making such 

statements, or to "exercise appropriate restraint," or 

to "show respect for the opinions of others," on pain 

of dismissal.

¶66 The Report observed that the special obligations now 

appear to be "'responsibilities to their subject, to their 

students, to their profession, and to their institution;' the 

obligation to be clear that they are not speaking for their 

institution; and the 'particular obligation to promote 

conditions of free inquiry and to further public understanding 

of academic freedom.'"24 We will use the University's 

understanding of "special obligations" in our analysis.

 

24 The FHC's Report said it took this understanding of 

"special obligations" from the 1970 Comments. It chose to adopt 

this interpretation for three reasons:

First, Marquette's definition of academic freedom is 

taken essentially verbatim from the 1940 Statement, 

and there is nothing in the Faculty Handbook that 

indicates any intent to depart from the 1940 Statement

as employed and understood by universities generally. 

Second, the 1970 Interpretive Comments were approved 

not just by the AAUP, but by the Association of 

American Colleges, of which Marquette University is a 

member. Third, whatever plausibility the conditions 

had as a limit on extramural freedom in 1940, by 2015, 

or even by 1980 when Section 307.07 of the Faculty 

Statutes was adopted, such a constricted view of the 

freedom to engage in public debate would be far 

outside the mainstream, and there is no indication 

that Marquette's administration or faculty view 

(continued)
No. 2017AP1240

45

¶67 The documents on which both parties rely also provide 

the analytical structure we are to use in analyzing whether an 

extramural comment has lost the protection of the academic 

freedom doctrine. It is a two-step process, in which the first 

determines whether the comment itself demonstrates the faculty 

member is clearly unfit to serve: "The controlling principle is 

that a faculty member's expression of opinion as a citizen 

cannot constitute grounds for dismissal unless it clearly 

demonstrates the faculty member's unfitness for his or her 

position."

25 If the comment meets this standard, the second part 

of the analysis considers the broader context of the faculty 

member's complete record before deciding whether the extramural 

comment is protected by the doctrine of academic freedom: "[A]

final decision should take into account the faculty member's 

 

Marquette's adoption of the norms of academic freedom 

as atypical.

At least one other court has used the AAUP's subsequent 

publications to interpret and limit the reach and effect of the 

special obligations. See Adamian v. Jacobsen, 523 F.2d 929, 935 

(9th Cir. 1975) ("That the University has adopted the Statement 

of Principles virtually word for word suggests that it also 

accepts the narrowing interpretation placed on it by the 

Association.").

25 AAUP, Policy Documents and Reports, 1940 Statement of 

Principles on Academic Freedom and Tenure with 1970 Interpretive 

Comments 15 n.6 (11th ed. 2014) (available at 

https://www.aaup.org/file/1940%20Statement.pdf) (internal 

quotation mark omitted) (quoting AAUP, Policy Documents and 

Reports, Committee A Statement on Extramural Utterances 31 (11th 

ed. 2014)).
No. 2017AP1240

46

entire record as a teacher and scholar."26 The Report 

demonstrates the FHC adopted this analytical structure.

¶68 The University's briefing, however, introduced two 

problematic aspects to the analysis. First, the University 

failed to limit the initial inquiry to a consideration of what 

the blog post, on its face, says about Dr. McAdams' fitness to 

serve as a professor. Whereas the FHC-endorsed structure begins 

with a tight focus on the relationship between the comment (and 

only the comment) and the professor's fitness, the University 

now says the question is whether the extramural comments 

"clearly demonstrate the faculty member's unfitness for their 

position considering their entire record as a teacher and 

scholar." Although the University's formulation properly 

recites the two elements of the analysis, it flattens the 

inquiry into one step. And in doing so, it expanded the initial 

step so broadly that it subsumed the entire analysis. It is 

important to keep the two parts of the analysis separate because 

the first step serves the critically important function of 

keeping our focus where it belongs——on the extramural comment 

itself. The AAUP says this step provides a stringent standard 

of proof for dismissal. So strict, in fact, that "[e]xtramural 

utterances rarely bear upon the faculty member's fitness for the 

position."27

 

26 Id.

27 Id.
No. 2017AP1240

47

¶69 The University introduced a second problematic aspect 

to the analysis when it uncoupled the doctrine of academic 

freedom from any stable reference points. The University 

posited that educational institutions assume academic freedom is 

just one value that must be balanced against "other values core 

to their mission." Some of those values, it says, include the 

obligation to "take care not to cause harm, directly or 

indirectly, to members of the university community," "to respect 

the dignity of others and to acknowledge their right to express 

differing opinions," to "safeguard[] the conditions for the

community to exist," to "ensur[e] colleagues feel free to 

explore undeveloped ideas," and to carry out "the concept of 

cura personalis," which involves working and caring "for all 

aspects of the lives of the members of the institution." These 

are worthy aspirations, and they reflect well on the University. 

But they contain insufficiently certain standards by which a 

professor's compliance may be measured. Setting the doctrine of 

academic freedom adrift amongst these competing values would 

deprive the doctrine of its instructive power; it would provide 

faculty members with little to no guidance on what it covers.

¶70 Combined, these two problematic aspects allow the 

University to use any extramural comment as an excuse to 

reconsider a faculty member's association with the institution, 

which is what occurred here. The University's analysis did not 

begin with an inquiry into whether the blog post, on its face, 

is so egregious that it clearly demonstrates that Dr. McAdams is 

unfit to serve as a professor. Instead, it used the extramural 
No. 2017AP1240

48

comment merely as a key to open a door onto a broad vista of 

considerations in which it compared the professor's entire 

career and person against the University's mission to care "for 

all aspects of the lives of the members of the institution." 

The extramural comment is not supposed to be a key to other 

materials the University may wish to place in the "unfitness" 

balance. The extramural comment goes in the balance alone. 

Only if the balance clearly tips to "unfitness" may the 

University then proceed to a comprehensive review of Dr. 

McAdams' career.

¶71 On the other hand, the analytical structure described 

by the AAUP, and adopted by the FHC, provides a stable framework 

within which to evaluate whether the doctrine of academic 

freedom protects a specific extramural comment. Although the 

doctrine may not be susceptible to precise definition, still it 

is sufficiently certain that it can inform faculty members what 

is required of them.28 The AAUP properly limits the analysis to 

whether the actual extramural comment, on its face, clearly 

demonstrates that the professor is unfit to serve. This very 

narrow inquiry explains why the AAUP can confidently state that 

"[e]xtramural utterances rarely bear upon the faculty member's 

fitness for the position."29 If we adopted the alternative 

 

28 See Mgmt. Comput. Servs., Inc. v. Hawkins, Ash, Baptie & 

Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67 (1996) ("[A] contract 

must be definite as to the parties' basic commitments and 

obligations.").

29 See supra n.25.
No. 2017AP1240

49

structure now favored by the University, academic freedom would 

be nothing but a subjective, post-hoc analysis of what the 

institution might find unacceptable after watching how events 

unfolded. And this would likely chill extramural comments to 

the point of extinction. It would be a fearless professor 

indeed who would risk such a comment, knowing that it licenses 

the University to scrutinize his entire career and assay it 

against the care of "all aspects of the lives of the members of 

the institution."

¶72 The defects inherent in the University's alternative 

analytical structure, however, represent just one of two 

problems with its assessment. The second is that the University 

conducted the analysis backwards. With the benefit of 

hindsight, the University reverse-engineered its conclusion that 

Dr. McAdams is a plainly unfit professor because of unknown 

third parties' reactions to his blog post. The blog post caused 

"harm," the University said, in the form of critical, sometimes 

vile, sometimes violently-worded, responses sent to Instructor 

Abbate after the story had received national attention. Its 

"unfitness" analysis proceeded as follows: Instructor Abbate 

suffered harm because she received offensive communications from 

third parties; the communications were prompted by Dr. McAdams' 

blog post (directly or indirectly); Dr. McAdams has a 

responsibility not to harm his students; a professor is unfit to 

serve if he violates his responsibilities to the University's 

students. Quod erat demonstrandum. But the University can 
No. 2017AP1240

50

reach this conclusion only because its analysis traveled in 

reverse. So quod non erat demonstrandum.

¶73 Performing the analysis in the correct direction leads 

to the unavoidable conclusion that the blog post has nothing 

relevant to say about Dr. McAdams' fitness as a professor. The 

University's end point is where we start——that is, we consider 

first whether the challenged extramural comment, on its face, 

violated Dr. McAdams' "responsibilities to . . . [the 

University's] students." Although Instructor Abbate was 

functioning as a University instructor, we will consider only 

her status as a student for purposes of this analysis. The 

University identified several aspects of the blog post that it 

believes were problematic. For instance, it says Dr. McAdams 

relied on improperly obtained information (the surreptitious 

recording of the conversation between Instructor Abbate and the 

student); he identified Instructor Abbate by name; he linked to 

her contact information; he drafted the post in a way that would 

subject Instructor Abbate to public contempt; and the post 

contains factual errors.

¶74 The undisputed facts show that none of the aspects of 

the blog post about which the University is concerned could have 

violated Dr. McAdams' responsibility to Instructor Abbate. The 

FHC's Report acknowledged that there is no prohibition against 

naming a student in a blog post. Nor is it improper for a 

faculty member to link to a student's personal webpage, even 

when that webpage lists the student's contact information. The 

Report acknowledged this is still true even when the blog post 
No. 2017AP1240

51

is critical of the student. Nor do blogging faculty members 

have a general obligation to ensure every statement they make in 

a post is accurate.30

¶75 The Report reflects significant discomfort with the 

surreptitious recording the student made of his interaction with 

Instructor Abbate and the recording's role in relation to the 

blog post. But the University does not claim that Dr. McAdams' 

instigated the recording; its concern, apparently, is that he 

listened to it and subsequently distributed it to other media 

outlets. However, the University identified no law or 

University rule that prohibited the student from making the 

recording, or forbade Dr. McAdams from reviewing or distributing 

it once made. Ultimately, the recording is not even material to 

the dispute——Dr. McAdams could have written the blog post 

without the recording because the student himself related the 

event to him. It may be distasteful for students to secretly 

record their instructors' conversations, but the question here 

is whether Dr. McAdams' use of the recording (or relationship to 

it) violated any responsibilities he owed to Instructor Abbate. 

The University has not identified any, so the recording can have 

no bearing on this inquiry.

¶76 Finally, there is the University's assertion that Dr. 

McAdams drafted the blog post in such a way that it would 

subject Instructor Abbate to public contempt. The blog post is 

 

30 Although the University takes issue with the accuracy of 

some of the blog post's factual statements, it does not suggest 

that any of the inaccuracies are legally actionable.
No. 2017AP1240

52

certainly critical of her, so one could reasonably foresee that 

it would engender critical responses. We do not understand the 

University to argue that an extramural comment that causes such 

responses is beyond the pale——an extraordinarily unusual 

argument for an educational institution to make——so we perceive 

its concern to be about the responses that go beyond the realm 

of reasonable criticism. But the University did not identify 

any aspect of what Dr. McAdams actually wrote to support its 

charge. Instead, it used third-party responses to the blog post 

as a proxy for its allegedly contempt-inducing nature. Here 

again, the University demonstrates that reverse-engineering a 

conclusion is not the most reliable method of conducting an 

analysis. In this instance, the University caught itself up in 

the "post hoc ergo propter hoc" fallacy. Just because vile 

commentary followed the blog post does not mean the blog post 

instigated or invited the vileness. The University must 

identify which part of the blog post is supposed to have been 

responsible for eliciting the offensive remarks. It did not 

even attempt to do so. Our review of the blog post reveals that 

it makes no ad hominem attack on Instructor Abbate, nor does it 

invite readers to be uncivil to her, either explicitly or 

implicitly. Because the University's logical fallacy represents 

the entirety of its assertion that Dr. McAdams wrote the blog 

post to subject Instructor Abbate to contempt, we must reject 

it.
No. 2017AP1240

53

*

¶77 We conclude that Dr. McAdams' blog post qualifies as 

an extramural comment protected by the doctrine of academic 

freedom. The post is incapable of clearly demonstrating Dr. 

McAdams is unfit to serve as a professor because, although the 

University identified many aspects of the blog post about which 

it was concerned, it did not identify any particular way in 

which the blog post violated Dr. McAdams' responsibilities to 

the institution's students. Consequently, the blog post retains 

the protection it presumptively enjoyed as an extramural 

comment.

2. Breach and Remedy

¶78 Because the doctrine of academic freedom protects the 

blog post, we must now determine whether the University breached 

the Contract when it suspended Dr. McAdams. Although nothing in 

the record imposes any procedural restrictions on President 

Lovell's authority to suspend or dismiss Dr. McAdams, he is 

nonetheless subject to the Contract's substantive restrictions. 

Chief amongst these is the promise that a professor may not be 

suspended or dismissed without cause: "The cognizant appointing 

authority of the University may initiate and execute procedures 

by which a faculty member's reappointment may be denied or 

revoked, or any current appointment may be suspended or 

terminated, for cause as defined therein." Faculty Statute 

§ 306.01; see also Faculty Statute § 307.07(2) ("A faculty

member who has been awarded tenure at Marquette University may 
No. 2017AP1240

54

only be dismissed upon a showing of absolute or discretionary 

cause, . . . .").

¶79 "Cause" comes in two varieties: absolute and 

discretionary. Faculty Statute § 306.01 ("Cause may be either 

absolute or discretionary."). Dean Holz's letter of January 30, 

2015, which commenced the Discipline Procedure, said the 

University was proceeding under the latter. Discretionary cause 

includes:

[T]hose circumstances, exclusive of absolute cause, 

which arise from a faculty member's conduct and which 

clearly and substantially fail to meet the standard of 

personal and professional excellence which generally 

characterizes University faculties, but only if 

through this conduct a faculty member's value will 

probably be substantially impaired. Examples of 

conduct that substantially impair the value or utility 

of a faculty member are: serious instances of 

illegal, immoral, dishonorable, irresponsible, or 

incompetent conduct.

Faculty Statute § 306.03.

¶80 But discretionary cause cannot include activity 

encompassed by the doctrine of academic freedom: "In no case, 

however, shall discretionary cause be interpreted so as to 

impair the full and free enjoyment of legitimate personal or 

academic freedoms of thought, doctrine, discourse, association, 

advocacy, or action." Faculty Statute § 306.03. The University 

is subject to additional restrictions if the discipline includes 

dismissal: "Dismissal will not be used to restrain faculty 

members in their exercise of academic freedom or other rights 

guaranteed them by the United States Constitution." Faculty 

Statute § 307.07(2).
No. 2017AP1240

55

¶81 There can be no genuine dispute that the University 

commenced proceedings against Dr. McAdams because of his blog 

post of November 9, 2014. Dean Holz's letter of January 30, 

2015, identified the blog post as the offense for which the 

University sought the revocation of Dr. McAdams' tenure and his 

dismissal from the faculty.31 The letter identified the date of 

the offense as November 9, 2014, and elaborated, in pertinent 

part, as follows:

On November 9, 2014, you chose to post on the 

Internet a story prompted by a secretly-taped 

conversation between a student and a graduate student 

instructor. While you left the undergraduate 

student's name out of your post, and later insisted 

that his anonymity be protected, you posted without 

permission the graduate student instructor's name, Ms. 

Cheryl Abbate.

The decision to write and publish the blog post, Dean Holz 

concluded, proved that Dr. McAdams' "conduct clearly and 

substantially fails to meet the standards of personal and 

professional excellence that generally characterizes University

faculties. As a result, your value to this academic institution 

is substantially impaired."

 

31 The University must give formal notice that it is 

commencing disciplinary proceedings; the notice must contain a 

detailed description of the offense for which the University 

seeks to impose discipline. Faculty Statute § 307.03 ("The 

notice shall include: . . . [t]he statute allegedly violated; 

the date of the alleged violation; the location of the alleged 

violation; a sufficiently detailed description of the facts 

constituting the violation including the names of the witnesses 

against the faculty member.").
No. 2017AP1240

56

¶82 Upon completion of the FHC's proceedings, the Report 

recommended discipline based on the blog post:

Dr. McAdams's conduct, however, goes beyond 

simply making factual errors in a blog post, or 

publicly naming a graduate student in the course of 

criticism, or linking to a page with her contact 

information, or publicly presenting a one-sided 

criticism of the teaching of a colleague. It goes 

beyond posting an extramural blog post that is 

uncivil, assuming his Nov. 9 blog post could fairly be 

characterized as uncivil in some way. Instead, Dr. 

McAdams used improperly obtained information in a way 

that he should have known could lead to harm, harm 

that could easily have been avoided. His use of a 

surreptitious recording, along with Ms. Abbate's name 

and contact information, to hold Ms. Abbate up for 

public contempt on his blog, recklessly exposed her to 

the foreseeable harm that she suffered due to Dr. 

McAdams's actions. Dr. McAdams's irresponsible 

behavior in using the recording in this way fell far 

short of his obligations to Ms. Abbate as a 

professional colleague and as a fellow member of the 

Marquette community. We find that such seriously 

irresponsible conduct clearly and substantially fails 

to meet the standard of professional excellence that 

generally characterizes university faculties, although 

not, as we explain in Subsection V.A.4 below, to the 

degree necessary to support a penalty of dismissal.

¶83 The Discipline Letter, in which President Lovell 

detailed his decision to accept the FHC's recommendation, made 

it clear that Dr. McAdams was being sanctioned for his blog 

post. President Lovell said, "I found that the Faculty Hearing 

Committee's written statements . . . unequivocally summarize why 

you should be seriously reprimanded for your actions," following 

which he reproduced the Report's conclusion that we excerpted 

immediately above.

¶84 The blog post, however, is a contractuallydisqualified basis for discipline. Discretionary cause cannot 
No. 2017AP1240

57

include anything that would "impair the full and free enjoyment 

of legitimate personal or academic freedoms of thought, 

doctrine, discourse, association, advocacy, or action." See

Faculty Statute § 306.03. Suspending Dr. McAdams for publishing 

the blog post would, of course, "impair" his "full and free 

enjoyment of . . . academic freedoms." See id.

¶85 Beginning with the inception of the Discipline 

Procedure, and ending with President Lovell's decision to 

suspend Dr. McAdams, the basis for the University's actions has 

been the blog post. The dissent says we neglected to consider 

other "key" facts in determining whether the University breached 

the Contract, such as Dr. McAdams' efforts to bring his blog 

post to national attention (with the attendant negative 

responses directed at Instructor Abbate). Dissent, ¶142. This 

is not a key fact, and neither are any of the others the dissent 

identifies. All of them are derivative of the blog post, and 

for that reason they cannot stand as an alternative, independent 

basis for the suspension decision. Therefore, the University 

had no justifiable cause to suspend Dr. McAdams on December 16, 

2014, affirm the suspension on January 30, 2015, or increase the 

discipline to suspension without pay effective April 1, 2016. 

We conclude the University breached the Contract when it took 

these decisions.

¶86 The dissent believes there is more to the analysis and 

that we have stopped prematurely. It says "[t]he majority errs 

in conducting only half of the academic freedom analysis. It 

fails to recognize, much less analyze, the academic freedom of 
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Marquette as a private, Catholic, Jesuit university." Id., 

¶140. The author observes that "[a]cademic freedom thrives not 

only on the independent and uninhibited exchange of ideas among 

teachers and students, but also . . . on autonomous 

decisionmaking by the academy itself." Id., ¶138 (omission in 

original) (quoting Regents of Univ. of Mich. v. Ewing, 474 

U.S. 214, 226 n.12 (1985) (internal citations omitted)).

¶87 Much of the dissent, if not most, comprises a 

fetchingly poetic ode to the importance of the University's 

academic freedom in immanentizing its mission. The problem with 

odes, however, is that their poetry so often comes at the 

expense of precision. Here, the imprecision resulted in the 

misapplication of one of the principles wrapped up in the 

concept of institutional academic freedom. The dissent is aware 

of it, but addressed it only in passing: "The term 'academic 

freedom' is used to denote both the freedom of the academic 

institution to pursue its ends without interference from the 

government, as well as the freedom of the individual teacher to 

pursue desired ends without interference from the institution." 

See dissent, ¶148 (emphasis added).

¶88 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. But none of the cases on which the dissent 

relies convert this pacific principle into such a destructive 

tool. The dissent says that part of an institution's academic 

freedom is the right "to determine for itself on academic
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grounds who may teach." Id., ¶153 (quoting Sweezy v. N.H. by 

Wyman, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).

32 

That is true, as far as it goes——but it does not go far enough 

to address the circumstances here. When the decision to hire is 

complete, the relationship is no longer a simple matter of 

academic compatibility. The employment contract adds a legally 

enforceable aspect to the relationship. An aspect, we would do 

well to remember, that the Faculty Statutes invite us to 

adjudicate.

¶89 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. Therefore, we decline 

the dissent's invitation to consider whether the University may 

excuse its breach of the Contract as an exercise of its academic 

freedom.

 

32 See also Feldman v. Ho, 171 F.3d 494, 495-96 (7th Cir. 

1999) (recognizing educational institution's right to not offer 

a contract of employment).
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*

¶90 There remains the question of Dr. McAdams' remedy for 

the University's breach of the Contract. The parties disagree 

with respect to his current status——the University says he is 

suspended; Dr. McAdams says the suspension has turned into a de 

facto dismissal. The difference depends on the effect of a 

certain condition President Lovell included in the Discipline 

Letter. The letter says Dr. McAdams may not return to the 

faculty until he submits a letter to the University (to be 

shared with Instructor Abbate) no later than April 4, 2016, that 

includes:

• Your [Dr. McAdams'] acknowledgement and acceptance 

of the unanimous judgment of the peers who served 

on the Faculty Hearing Committee.

. . . .

• Your acknowledgement that your November 9, 2014, 

blog post was reckless and incompatible with the 

mission and values of Marquette University and you 

express deep regret for the harm suffered by our 

former graduate student and instructor, Ms. Abbate.

Dr. McAdams says this condition creates a de facto dismissal 

because it requires, at least in part, that he recant activity 

protected by the doctrine of academic freedom. The University 

claims these are reasonable pre-conditions to the resumption of 

professorial duties in light of the basis for his sanction.

¶91 Dr. McAdams did not write the missive required by the 

Discipline Letter. Nonetheless, the University confirmed he was 

still suspended——not dismissed——even after expiration of the 

deadline stated in the Discipline Letter. On April 13, 2016, 

President Lovell wrote to Dr. McAdams "to clarify that your 
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status with the University is unchanged and you remain in a 

suspended status as outlined in my March 24th letter." The 

University's brief also acknowledges Dr. McAdams has not been 

terminated. It wrote: "Dr. McAdams argues in a 

footnote . . . that his continued suspension is a de facto 

termination. But the conditions for his return were appropriate 

according to his own expert and Judge Hansher, and his refusal 

to do what is appropriate does not constitute a termination by 

Marquette." (Emphasis added.) Nothing in the record indicates 

his status has changed since then.

¶92 We will accept the University's concession that it has 

not dismissed Dr. McAdams and that he has merely been suspended 

from his status as a tenured member of the Marquette University 

faculty (without pay). Because we have concluded that the 

suspension breached the Contract, it must be ended and Dr. 

McAdams must be restored to the faculty. The Faculty Statutes 

require the University to comply with our determination of Dr. 

McAdams' right to reinstatement:

[T]he University shall, for a period of six months 

thereafter, or until the final determination of any 

judicial action which may be commenced within such 

period to test the validity of 

the . . . suspension, . . . hold itself ready to 

reinstate the faculty member, with unimpaired rank, 

tenure, compensation, and benefits, to the extent that 

the faculty member's entitlement thereto may be 

judicially adjudged or decreed, . . . .
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Faculty Statute § 307.09.33

¶93 Therefore, we hold the University to its contractual 

promise to reinstate Dr. McAdams to the faculty of Marquette 

University with unimpaired rank, tenure, compensation, and 

benefits. See Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 

WI 44, ¶37, 324 Wis. 2d 703, 783 N.W.2d 294 ("When a contract 

specifies remedies available for breach of contract, the 

intention of the parties generally governs."); Faculty Statute 

§ 307.09. Because the suspension was invalid ab initio, the

University may not enforce any of the reinstatement conditions 

identified in the Discipline Letter.34

V. CONCLUSION

¶94 We do not defer to the University's determination that 

it did not breach its Contract with Dr. McAdams. The 

 

33 Dr. McAdams filed his complaint to "test the validity of" 

his suspension, and we have concluded the suspension was not 

valid. Further, he filed his complaint within the time required 

by Faculty Statute § 307.09. He commenced this case on May 2, 

2016, with the filing of his complaint in the Milwaukee County 

Circuit Court, which is within six months of the Discipline 

Letter. See Wis. Stat. § 801.02(1) ("A civil action in which a 

personal judgment is sought is commenced as to any defendant 

when a summons and a complaint naming the person as defendant 

are filed with the court, . . . ."). The six-month window commenced with 

President Lovell's issuance of the Discipline Letter on March 24, 2016, because that is the 

document that imposed the discipline under consideration in this case.

34 Because we base our conclusion on the University's 

concession that Dr. McAdams has not been dismissed, we do not 

address whether the University violated its promise that 

"[d]ismissal will not be used to restrain faculty members in 

their exercise of . . . rights guaranteed them by the United 

States Constitution." Faculty Statute § 307.07(2).
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University's Discipline Procedure neither substitutes for, nor 

limits, Dr. McAdams' right to litigate his claims in our courts.

¶95 We conclude that the University breached the Contract 

by suspending Dr. McAdams for exercising his contractuallyprotected right of academic freedom.35 Consequently, we reverse 

the circuit court's order and judgment, and remand with 

instructions to:

(1) Enter judgment in favor of Dr. McAdams on his 

claims that the University breached the Contract by 

suspending him without cause on December 16, 2014 

(with pay), affirming the suspension on January 30, 

2015, and then increasing the discipline to suspension 

without pay effective April 1, 2016 (Complaint, counts 

one and two); 

(2) Enter an order requiring the University to 

immediately reinstate Dr. McAdams to the faculty of 

Marquette University with unimpaired rank, tenure, 

compensation, and benefits (including the tendering of 

any documents necessary to accomplish those ends);

(3) Conduct such other and further proceedings as are 

consistent with this decision, including the 

determination of Dr. McAdams' damages (which shall 

include back pay).36

By the Court.—The judgment and order of the circuit court 

are reversed, and the cause is remanded with instructions.

¶96 ANNETTE KINGSLAND ZIEGLER, J., did not participate.

 

35 Both the concurring and dissenting opinions address what 

the First Amendment to the United States Constitution might have 

to say about this case. The court, however, does not rely upon 

the United States Constitution for any part of its decision.

36 We express no opinion on the merits of any part of Dr. 

McAdams' complaint except as expressly addressed herein.
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¶97 REBECCA GRASSL BRADLEY, J. (concurring). 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'"1——succumb to the dominant academic culture of microaggressions, trigger warnings and safe spaces2 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. Academic 

freedom means nothing if faculty is forced to self-censor in 

fear of offending the unforeseen and ever-evolving sensitivities 

of adversaries demanding retribution. 

¶98 "[T]he peculiar evil of silencing the expression of an 

opinion is . . . robbing the human race; posterity as well as 

the existing generation; those who dissent from the opinion, 

 

1 American Association of University Professors, Statement

on Civility, https://www.aaup.org/issues/civility (last visited 

June 18, 2018).

2 Some universities recognize the incompatibility of 

insulating students from micro-aggressions, via trigger warnings 

and safe spaces, with academic freedom: "Our commitment to 

academic freedom means that we do not support so-called 'trigger 

warnings,' we do not cancel invited speakers because their 

topics might prove controversial, and we do not condone the 

creation of intellectual 'safe spaces' where individuals can 

retreat from ideas and perspectives at odds with their own."

John Ellison, Dean of Students at the University of Chicago, 

Letter to Class of 2020, https://news.uchicago.edu/sites/default

/files/attachments/Dear_Class_of_2020_Students.pdf (last visited 

June 18, 2018). 
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still more than those who hold it. If the opinion is right, 

they are deprived of the opportunity of exchanging error for 

truth: if wrong, they lose, what is almost as great a benefit, 

the clearer perception and livelier impression of truth, 

produced by its collision with error."

3 Many American 

universities were founded "on the illimitable freedom of the 

human mind" to develop, articulate, examine and communicate

ideas in order to "follow truth wherever it may lead."4

Marquette University's own mission includes "the search for 

truth, the discovery and sharing of knowledge."5 When academic 

freedom was under attack for being "dangerous" and "oppressive" 

forty years ago, one of America's oldest universities reaffirmed 

that "[t]he history of intellectual growth and discovery clearly 

demonstrates the need for unfettered freedom, the right to think 

the unthinkable, discuss the unmentionable, and challenge the 

unchallengeable."6 Over time, academia has begun to abandon this 

 

3 John Stuart Mills, On Liberty, in Utilitarianism and On 

Liberty 88, 100 (Mary Warnock ed., 2d ed. 2003) (1859).

4 Thomas Jefferson, University of Virginia, Comprehensive 

Standards 3.7.4: Academic Freedom, http://www.virginia.edu/sacs/

standards/3-7-4.html (last visited June 18, 2018).

5 Marquette University, Mission Statement, 

http://www.marquette.edu/leadership/values.php (last visited 

June 18, 2018). 

6 Yale University, 1974 Report of the Committee on Freedom 

of Expression at Yale, https://yalecollege.yale.edu/deansoffice/reports/report-committee-freedom-expression-yale (last 

visited June 18, 2018). 
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Jeffersonian creed,7 replacing it with groupthink tribalism 

seeking to silence disfavored viewpoints.8

¶99 I join the majority in full. The opinion ably 

addresses academic freedom in a manner narrowly tailored to this 

case, which was easily resolved by applying the language of 

Marquette's contract with McAdams to the undisputed facts. The 

court correctly concludes that the contract guarantees McAdams 

academic freedom, academic freedom encompasses his blog post, 

and Marquette's suspension of McAdams breached the contract. 

¶100 I write separately because academic freedom, and 

concomitantly, free speech, is increasingly imperiled in America 

and within the microcosm of the college campus. A broader 

discussion of the significance and meaning of academic freedom 

will benefit universities who contractually extend academic 

freedom to professors, as Marquette did, as well as courts 

across the nation tackling these issues.

I

¶101 The United States Supreme Court has discussed the 

importance of academic freedom in a variety of cases, but has 

not definitively expounded its meaning. In Keyishian v. Bd. of 

Regents, 385 U.S. 589, 603 (1967), the Court described academic 

 

7 See Bradley Campbell & Jason Manning, The End of Academe: 

Free Speech and the Silencing of Dissent, Chron. of Higher Educ. 

(Jan. 21, 2018), https://www.chronicle.com/article/The-End-ofAcademe-Free/242290.

8 See Daniel B. Klein & Charlotta Stern, Groupthink in Acade

mia, Am. Enterprise Inst. (Nov. 14, 2007), https://www.aei.org/w

p-content/uploads/2011/10/20071113_GroupthinkinAcademia.pdf.
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freedom as being "of transcendent value to all of us and not 

merely to the teachers concerned. That freedom is therefore a 

special concern of the First Amendment, which does not tolerate 

laws that cast a pall of orthodoxy over the classroom." See

also Shelton v. Tucker, 364 U.S. 479, 487 (1960) ("The vigilant 

protection of constitutional freedoms is nowhere more vital than 

in the community of American schools."); Barenblatt v. United 

States, 360 U.S. 109, 112 (1959) (describing "academic teachingfreedom and its corollary learning-freedom" as "so essential to 

the well-being of the Nation); Sweezy v. New Hampshire, 354 U.S. 

234, 250 (1957) (plurality) ("The essentiality of freedom in the 

community of American universities is almost selfevident . . . . Teachers and students must always remain free 

to inquire, to study and to evaluate, to gain new maturity and 

understanding; otherwise our civilization will stagnate and 

die."). 

¶102 Specific definitions can be found in other 

authoritative sources. Black's Law Dictionary defines academic 

freedom as "the right (esp. of a university teacher) to speak 

freely about political or ideological issues without fear of 

loss of position or other reprisal."9 The American Association 

of University Professors (AAUP) defines academic freedom as the 

liberty to "speak or write as citizens . . . free from 

 

9 Academic Freedom, Black's Law Dictionary (10th ed. 2014).
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institutional censorship or discipline."10 Russell Kirk 

described academic freedom as a principle that teachers and 

scholars should be "protect[ed] . . . from hazards that tend to 

prevent [them] from meeting [their] obligations in the pursuit 

of truth."11

¶103 The roots of academic freedom are ancient. Dr. Martin 

Luther King Jr. attributed the concept's origin to Socrates. 

See Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 

16, 1963), in The Autobiography of Martin Luther King, Jr. 187, 

194 (Clayborne Carson ed., 1998). The search for truth to which 

the founder of the first academy, Plato, was dedicated, has been 

identified as the progenitor of academic freedom. Larry D. 

Spurgeon, A Transcendent Value: The Quest to Safeguard Academic 

Freedom, 34 J.C. & U.L 111, 117 (2007). The modern 

 

10 American Association of University Professors, 1940 

Statement of Principles on Academic Freedom and Tenure, 

https://www.aaup.org/report/1940-statement-principles-academicfreedom-and-tenure (last visited June 18, 2018). The AAUP, 

founded in 1915, is a non-profit organization representing the 

interests of over 40,000 faculty, librarians, graduate students, 

and academic professionals at institutions of higher learning 

across the country. AAUP appears as amicus in this case in 

support of McAdams and declares it "is committed to advancing 

academic freedom, the free exchange of ideas, and higher 

education's contribution to the common good." As the first 

organization to develop codes of academic freedom, AAUP's 

statements remain the model. Julie H. Margetta, Taking Academic 

Freedom Back to the Future: Refining the "Special Concern of 

the First Amendment", 7 Loy. J. Pub. Int. L. 1, 5 (2005). As 

the court explains, Marquette does not dispute that it adopted 

AAUP's 1940 Statement of Principles on Academic Freedom and 

Tenure. See majority op., ¶¶61-62, n.20. 

11 Russell Kirk, Academic Freedom: An Essay in Definition 1

(1955) (quotation marks omitted).
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understanding of academic freedom likely originated in German 

principles of Lehrfreiheit and Lernfreiheit, the freedom to 

teach and the freedom to learn, respectively. Julie H. 

Margetta, Taking Academic Freedom Back to the Future: Refining 

the "Special Concern of the First Amendment", 7 Loy. J. Pub.

Int. L. 1, 5 (2005). The German conception of academic freedom 

encompassed students, perhaps a recognition that inhibiting the 

freedom of teachers impedes learning. 

¶104 The concept appears in American history as early as 

the eighteenth century in Thomas Jefferson's founding vision of 

the University of Virginia: "This institution will be based on 

the illimitable freedom of the human mind. For here we are not 

afraid to follow truth wherever it may lead, nor to tolerate any 

error so long as reason is left to combat it."12 Nineteenth 

century academics did not confine their exercise of academic 

freedom to the classroom, but understood the principle to 

protect their "right to express their opinions even outside the 

walls of academia, even on controversial subjects." Geoffrey R. 

Stone, A Brief History of Academic Freedom, in Who's Afraid of 

Academic Freedom? 5 (Akeel Bilgrami & Jonathan R. Cole eds., 

2015). Protection of extramural speech——expression beyond the 

boundaries of the university——endures: "Freedom of extramural 

 

12 University of Virginia, Comprehensive Standards 

3.7.4: Academic Freedom, http://www.virginia.edu/sacs/standards/

3-7-4.html (last visited June 18, 2018).
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utterances is a constitutive part of the American conception of 

academic freedom."13

¶105 Academic freedom encompasses "two distinct concepts": 

(1) "professional academic freedom" tied to AAUP standards, and 

(2) the "legal concept of academic freedoms" tied to the First 

Amendment. Margetta, supra ¶7, at 4-5. Academic freedom has 

also been expressed as a right under the First Amendment, which 

in public universities serves as the source for academic 

freedom. See generally Donald A. Downs, Academic Freedom: What 

It Is, What It Isn't, and How to Tell the Difference, Pope Ctr.

Series on Higher Educ., May 2009, at 1. The AAUP specifically 

accords extramural statements protections that are coextensive 

with the First Amendment, noting that a university questioning a 

professor's fitness should "remove from consideration any 

supposed rhetorical transgressions that would not be found to 

exceed the protections of the First Amendment."14 Academic 

freedom and free speech are interconnected concepts and frequent 

companions. I discuss these doctrines synchronously because 

Marquette guaranteed McAdams both rights and contractually 

shielded him from discipline for his exercise of either.

 

13 AAUP, Statement on Civility, https://www.aaup.org/issues/

civility (last visited June 18, 2018). 

14 AAUP, Ensuring Academic Freedom in Politically 

Controversial Academic Personnel Decisions (Aug. 2011), 

https://www.aaup.org/NR/rdonlyres/895B2C30-29F6-4A88-80B9-

FCC4D23CF28B/0/PoliticallyControversialDecisionsreport.pdf.
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II

¶106 The United States Supreme Court has repeatedly 

recognized the importance of academic freedom and freedom of 

expression on America's college campuses, without which "our 

civilization will stagnate and die." Sweezy, 354 U.S. at 250. 

In 1957, the Court noted the "essentiality of freedom in the 

community of American universities" as "almost self-evident," 

concluding that "[s]cholarship cannot flourish" unless 

"[t]eachers and students . . . always remain free to inquire, to 

study and to evaluate, to gain new maturity and understanding." 

Id.

¶107 A decade later, the Court affirmed: "Our Nation is 

deeply committed to safeguarding academic freedom" which is "a 

special concern of the First Amendment." Keyishian, 385 U.S. at 

603 (1967). The role "played by those who guide and train our 

youth" in America's universities cannot be understated. Id.

(quoting Sweezy, 354 U.S. at 250). Public discourse on 

controversial topics is essential to our success as a nation. 

Id. "To impose any strait jacket upon the intellectual leaders 

in our colleges and universities would imperil the future of our 

Nation." Id. (emphasis added).

¶108 In 1972, the Court stressed that the "college 

classroom with its surrounding environs is peculiarly the 

'marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180 

(1972). The Court "reaffirm[ed] this Nation's dedication to 

safeguarding academic freedom." Id. at 180-81. And, in 2003, 

it emphasized that "universities occupy a special niche in our 
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constitutional tradition." Grutter v. Bollinger, 539 U.S. 306, 

329 (2003).

¶109 This collection of cases establishes the centrality of 

academic freedom on college campuses, and the judicial branch's 

responsibility to vigilantly protect it. Several federal 

appellate courts have acknowledged the right of university 

professors "to disseminate publicly [their] views 

as . . . teacher[s] or scholar[s]." Omosegbon v. Wells, 335 

F.3d 668, 677 (7th Cir. 2003). Protecting academic freedom is 

particularly pressing when the views expressed "fall outside the 

mainstream." Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 

F.3d 703, 708 (9th Cir. 2010). "Without the right to stand 

against society's most strongly-held convictions, the 

marketplace of ideas would decline into a boutique of the banal, 

as the urge to censor is greatest where debate is most 

disquieting and orthodoxy most entrenched." Id.

¶110 For example, a federal district court denied the 

University of Illinois' motion to dismiss a newly hired 

professor's breach of contract action against the University for 

rescinding the contract based on the professor's profanity-laden 

diatribe against Israel, which he posted on Twitter. Salaita v. 

Kennedy, 118 F. Supp. 3d 1068, 1075-84 (N.D. Ill. 2015) 

(classifying professor's personal tweets as a matter of public 

concern and determining Salaita's complaint sufficiently alleged 

a First Amendment claim); see also Starsky v. Williams, 353 F. 

Supp. 900, 922-24, 927 (D. Ariz. 1972), aff'd in part, rev'd in 

part, 512 F.2d 109 (9th Cir. 1975) (firing professor for 
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participating in a protest and making profane remarks critical 

of administration violated AAUP standards that prohibit such 

discipline as well as a First Amendment right to express 

unpopular views); Adamian v. Jacobsen, 523 F.2d 929, 931, 934 

(9th Cir. 1975) (professor who made profane comments, disrupted 

campus ceremonies, and incited potential violent confrontation 

during Vietnam and Kent State protest cannot be disciplined for 

such political agitation; remanded for further proceedings).

¶111 It is the expression of opinions divergent from what 

is currently politically correct that needs protection under the 

doctrine of academic freedom. "If there is any principle of the 

Constitution that more imperatively calls for attachment than 

any other it is the principle of free thought——not free thought 

for those who agree with us but freedom for the thought that we 

hate." United States v. Schwimmer, 279 U.S. 644, 655 (1929) 

(Holmes, J., dissenting). If academic freedom does not protect 

dissident viewpoints, the doctrine is worthless. After all, 

"[i]ntellectual advancement has traditionally progressed through 

discord and dissent, as a diversity of views ensures that ideas 

survive because they are correct, not because they are popular." 

Rodriguez, 605 F.3d at 708.

¶112 Academic freedom, however, is not limitless. Like 

Marquette, many universities have adopted the AAUP's 1940 

Statement of Principles on Academic Freedom and Tenure. With 

rights come responsibilities and the AAUP guides the exercise of 
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academic freedom in its Statement on Professional Ethics.15 For 

example, this ethics code for professors demands the practice of 

"intellectual honesty," the protection of students' academic 

freedom, and the avoidance of creating any impression of 

speaking on behalf of the university.

¶113 Courts have also circumscribed some limits around 

academic freedom. It does not impede a "university's ability to 

control its curriculum," Edwards v. Cal. Univ. of Pa., 156 F.3d 

488, 491 (3d Cir. 1998), or "to regulate the content of what is 

or is not expressed" when it is the university that is speaking, 

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 

819, 833-34 (1995).16 But, the doctrine does preclude 

universities from punishing academic speakers who publicly 

discuss matters of public concern beyond the classroom. See

Vikram Amar & Alan Brownstein, Academic Freedom, 9 Green Bag 2d 

17, 25-26 (2005). Just as no citizen could "be punished for 

writing a book that angers the state legislature——no matter how 

outrageous or offensive the book might be," id., professors at 

universities should not be punished for speaking on matters of 

 

15 AAUP, Statement on Professional Ethics (1966), 

https://www.aaup.org/report/statement-professional-ethics (last 

visited June 18, 2018).

16 Similarly, the First Amendment does not protect all 

speech. See State v. Breitzman, 2017 WI 100, ¶¶51-54, 378 

Wis. 2d 431, 904 N.W.2d 93 (explaining classes of speech not 

protected).
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public concern even if——especially if——that speech does not 

conform with mainstream thought.17

III

¶114 Courts have been "particularly vigilant" when there is 

an "alleged assault" on the First Amendment involving academic

freedom. Larry D. Spurgeon, A Transcendent Value: The Quest to 

Safeguard Academic Freedom, 34 J.C. & U.L 111, 150 (2007) ("A 

'special concern' means that courts should be particularly 

vigilant when an alleged assault on the First Amendment involves 

academic speech."). The First Amendment protects speech of 

university employees when it involves "matters of public 

concern"——speech that can be "fairly considered as relating to" 

issues "of political, social, or other concern to the 

community."18 Connick v. Myers, 461 U.S. 138, 146 (1983); see 

also Pickering v. Bd. of Educ., 391 U.S. 563, 572-73 (1968).

19

 

17 The court received a variety of amicus briefs from 

private businesses concerned about the reverberations of this 

case on the private sector. Their fears are unfounded. 

University campuses inhabit a unique environment. The doctrine 

of academic freedom has no application within private 

enterprise, unless of course a private entity incorporates the 

doctrine into employee contracts. Marquette University, 

although a private institution, chose to guarantee academic 

freedom to McAdams in his contract.

18 The text of the First Amendment provides:

Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; 

or abridging the freedom of speech, or of the press; 

or the right of the people peaceably to assemble, and 

to petition the Government for a redress of 

grievances.

(continued)
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¶115 The Court struck down a West Virginia law compelling 

all teachers and students to salute the American Flag while 

pledging allegiance to it and those who refused were expelled 

from school. W. Virginia Bd. of Educ. v. Barnette, 319 U.S. 

624, 626-30 (1943). The Court, declaring the law violative of 

the First Amendment, proclaimed: "If there is any fixed star in 

our constitutional constellation, it is that no official, high 

or petty, can prescribe what shall be orthodox in politics, 

nationalism, religion, or other matters of opinion or force 

citizens to confess by word or act their faith therein." Id. at 

642.

¶116 In Keyishian, the Court nullified New York laws 

requiring university professors to certify they were not 

communists. 385 U.S. at 603-04. Concerned about both academic 

freedom and the First Amendment, the Court identified the 

"chilling effect upon the exercise of vital First Amendment 

rights" when vague and general restrictions cause a teacher to 

 

As a private entity, Marquette, of course, is neither 

Congress nor the government, and can adopt and enforce rules not 

implicated by the Constitution. Marquette, however, chose to 

incorporate into McAdams' contract rights guaranteed "by the 

United States Constitution."

19 These two cases are often discussed together in assessing 

whether speech of a public employee was protected, which is 

known as the Pickering-Connick test. But cf. Garcetti v. 

Ceballos, 547 U.S. 410, 425 (2006) ("[E]xpression related to 

academic scholarship or classroom instruction implicates 

additional constitutional interests that are not fully accounted 

for by this Court's customary employee-speech jurisprudence.").
No. 2017AP1240.rgb

14

"guess what conduct or utterance may lose him his position." 

Id. at 604.

¶117 Similarly, the Court held unconstitutional an Oklahoma 

law requiring teachers to take a "loyalty oath" disclaiming 

affiliation "directly or indirectly" with any organization or 

group determined "to be a communist front or subversive 

organization." Wieman v. Updegraff, 344 U.S. 183, 186 (1952). 

The Court held the law infringed individual constitutional 

rights, was an "assertion of arbitrary power," and offended due 

process. Id. at 188-91. It recognized that "inhibiting 

individual freedom of movement" when a teacher may have 

innocently joined a group would "stifle the flow of democratic 

expression and controversy at one of its chief sources." Id. at 

191.

¶118 Sweezy involved a professor who was convicted for 

refusing to answer political association questions. 354 U.S. at 

238-45. The Court reversed the conviction, emphasizing academic 

freedom and freedom of expression. Id. at 249-50. Recognizing 

freedom of expression as a "fundamental principle of democratic 

society," the Court professed the significance of divergent 

voices: "Mere unorthodoxy or dissent from the prevailing mores 

is not to be condemned. The absence of such voices would be a 

symptom of grave illness in our society." Id. at 251.

¶119 Finally, in Shelton, the Court struck down an Arkansas 

statute requiring teachers to annually file an affidavit listing 

"every organization to which [they have] belonged or regularly 

contributed within the preceding five years." 364 U.S. at 480. 
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15

The Court held this law abridged teachers' constitutional rights 

by inhibiting free speech, assembly, and association. Id. at 

485-89. "Such unwarranted inhibition upon the free spirit of 

teachers . . . has an unmistakable tendency to chill that free 

play of the spirit which all teachers ought especially to 

cultivate and practice . . . ." Id. at 487 (quoting Wieman, 344 

U.S. at 195 (Frankfurter, J., concurring)).

IV

¶120 In every case presenting the Supreme Court with the 

issue, it unfailingly declared the importance of academic 

freedom and freedom of expression in academia. It struck down 

many laws that undoubtedly had the support of a majority of the 

people. In the midst of the fear and tension gridlocking 

American international politics during the Cold War, few would 

publicly object to ensuring that teachers——entrusted with 

educating the future leaders of America——would denounce 

Communism and would not influence students to become Communists. 

Despite the good intentions underpinning such laws, the Court 

repeatedly struck them down and continually emphasized the 

importance of academic freedom, the need for free expression on 

college campuses, and the significant value that opposing

viewpoints play in the advancement of ideas. From Aristotle 

challenging the then-predominant belief that the Earth was flat 

to Susan B. Anthony and Elizabeth Cady Stanton asserting the 

then-preposterous idea that women should vote, the past is 

replete with examples of unpopular ideas proven right when 
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16

freely aired and debated. To squelch discussion of any idea 

jeopardizes our future.

¶121 Academic freedom exists to further the search for 

truth through vigorous open inquiry, discourse, and debate. 

See, e.g., Healy, 408 U.S. at 180. Permitting debate ensures 

"the security of the Republic, the very foundation of 

constitutional government." DeJonge v. State of Oregon, 299 

U.S. 353, 365 (1937) ("to the end that government may be 

responsive to the will of the people and that changes, if 

desired, may be obtained by peaceful means"). And, as Pickering

instructs, criticisms of campus administration are part of the 

public debate. 391 U.S. at 573-74.

¶122 This court acknowledged the importance of academic 

freedom, specifically the freedom to criticize university 

administration, almost sixty years ago when it decided State ex 

rel. Ball v. McPhee, 6 Wis. 2d 190, 94 N.W.2d 711 (1959), 

overruled in part on other grounds, Stacy v. Ashland Cty. Dep't. 

of Public Welfare, 39 Wis. 2d 595, 159 N.W.2d 630 (1968). In 

that case, this court recognized that a university should not be 

able to discharge a professor on the basis of the professor's 

expression of philosophical disagreements with administration: 

"Surely a teacher in a state college is entitled to some 

academic freedom in criticizing school programs with which he is 

in disagreement. Such acts of criticism do not qualify as 

either inefficiency or bad behavior." Id. at 204.
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V

¶123 Professional academic freedom is often regarded to be 

"alive and well"20 as the dearth of court cases may corroborate. 

News reports of intra-campus clashes between professors and 

administrators21 suggest otherwise, although many disputes never 

reach the courts for obvious reasons, not least among them, "it 

is always dangerous to shoot at the king."22 However, when 

"there is a breach in the academic fortress . . . the next line 

of defense, in some instances, is the court."23 This is one of

those instances.

¶124 McAdams, as he had done many times before, wrote a 

blog post on a matter of public concern calling into question 

the prevailing orthodoxy on Marquette's campus.24 The impetus 

for this particular blog post arose after an undergraduate 

student, J.D., turned to McAdams for help because J.D. was 

 

20 Larry D. Spurgeon, A Transcendent Value: The Quest to 

Safeguard Academic Freedom, 34 J.C. & U.L 111, 130 (2007).

21 Heather MacDonald, The Penn Law School Mob Scores A 

Victory, Wall St. J. (Mar. 18, 2018), 

https://www.wsj.com/articles/the-penn-law-school-mob-scores-avictory-1521397094; Erika Christakis, My Halloween Email Led to 

a Campus Firestorm, The Wash. Post (Oct. 28, 2016), 

https://www.washingtonpost.com/opinions/my-halloween-email-ledto-a-campus-firestorm--and-a-troubling-lesson-about-selfcensorship/2016/10/28/70e55732-9b97-11e6-a0edab0774c1eaa5_story.html?utm_term=.7fae2361b7d7.

22 Spurgeon, supra note 20, at 130.

23 Id.

24 McAdams has been employed as a professor at Marquette 

since 1977. Marquette granted him tenure in 1989.
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18

troubled by how his Philosophy teacher (who was a graduate 

student), and Marquette's Philosophy Department Chair Nancy Snow 

and Assistant Chair Sebastian Luft had shut down his attempt to 

understand why the topic of same sex marriage had been censored 

during a class discussion. Abbate invited J.D. to drop the 

class and Snow told him to "change his attitude so he comes 

across as less insolent and disrespectful," later calling him a 

"little twit" and a "jackass" in email exchanges with 

colleagues. Absurdly, Marquette's Faculty Hearing Committee 

would later support its disciplinary recommendation against

McAdams by citing Marquette's Guiding Values, which obligate 

professors to "respect the dignity of others" to "acknowledge 

their right to express differing opinions" and to "nurture an 

inclusive, diverse community that fosters . . . vigorous yet 

respectful debate."

¶125 McAdams reached out to Abbate for comment, but Abbate 

declined the opportunity to respond. The blog post reported on 

the student's experience and discussed McAdams' political view 

of popular tactics used for "shutting people up." It was 

critical of Marquette and of censorship. Unlike the Philosophy 

Department faculty's criticisms of J.D., it did not contain any 

intemperate language or ad hominem attack. The blog post did 

not contain a call to action or make any demands inciting 

violence or attack. In fact, Marquette's Dean of Arts and 

Sciences did not believe the post was harmful to Abbate at all 

and Abbate apparently agreed, remarking: "When I saw the blog I 

was pleasantly surprised." 
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¶126 Despite her pleasant surprise, Abbate flamed this 

fire. She drafted a formal letter of complaint insisting that 

Marquette discipline McAdams for the blog. Abbate also asserted 

she had been "the target of harassing emails, sent by [McAdams'] 

followers," although as of the date of that statement, Abbate 

had only received a single email critical of her. Two weeks 

later, Abbate threatened to sue Marquette and subject it to 

adverse publicity, unless the University acceded to her demands 

that the University fire McAdams, punish J.D., and pay 

"reparations" to her.25

¶127 J.D. and Abbate each shared their respective sides of 

the story with online news sources——J.D. with College Fix26 and 

Abbate with the Daily Nous.27 Other news sources picked up the 

story and it became national news.28 After the story went viral, 

Abbate received numerous emails, some in support, some critical, 

and others vile and threatening.

 

25 A short time later, Abbate left Marquette for University 

of Colorado.

26 Matt Lamb, Student told he can't openly disagree with gay 

marriage in class at Jesuit college, The C. Fix (Nov. 17, 2014), 

http://www.thecollegefix.com/post/20138/. 

27 Justin Weinberg, Philosophy Grad Student Target of 

Political Smear Campaign, Daily Nous (Nov. 18, 2014), 

http://dailynous.com/2014/11/18/philosophy-grad-student-targetof-political-smear-campaign/.

28 See, e.g., Colleen Flaherty, Ethics Lesson, Inside Higher 

Ed (Nov. 20, 2014), https://www.insidehighered.com/news/2014/11/

20/marquette-u-grad-student-shes-being-targeted-after-endingclass-discussion-gay; Todd Starnes, Teacher to student: If you 

don't support gay marriage, drop my class, Fox News: Opinions 

(Nov. 22, 2014), http://www.foxnews.com/opinion/2014/11/22/teach

er-to-student-if-dont-support-gay-marriage-drop-my-class.html.
No. 2017AP1240.rgb

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¶128 Marquette found itself embroiled in a controversy it 

did not initiate. In response, it suspended McAdams from 

teaching, banished him from campus, and initiated disciplinary 

proceedings against him. After hearings, the Faculty Hearing 

Committee (FHC) recommended McAdams be suspended without pay. 

Marquette's President, Michael Lovell, accepted the FHC's 

recommendation but as a condition of reinstatement as a member 

of the faculty, demanded McAdams express his "deep regret"——a 

proviso reminiscent of forced confessions of guilt for imaginary 

crimes in oppressive regimes. Instead of abiding by its 

contract, which guaranteed academic freedom, Marquette breached 

it. As the court correctly holds, McAdams' blog post plainly 

falls within the definition of academic freedom under McAdams' 

contract.

¶129 Marquette subjected a tenured professor to discipline 

for writing something that triggered an adverse response from 

third parties over whom he has no control, thereby holding 

McAdams responsible for the actions of third parties. Allowing 

this retribution to stand would set a dangerous precedent, 

leading faculty to self-censor for fear of third-party reactions 

to speech and post hoc disapproval of it. If universities 

impose culpability on professors for the actions of others, it 

will undoubtedly cause the same chilling effect and result in 

the same stifling of expression that led the Supreme Court to 

strike down the legal imposition of "not-a-communist" promises, 

loyalty pledges, and disclosures of association in Keyishian, 
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21

Weiman, and Shelton, respectively. And academic freedom would 

be severely wounded, perhaps fatally. 

VI

¶130 "And though all the winds of doctrine were let loose 

to play upon the earth, so Truth be in the field, we do 

injuriously by licensing and prohibiting to misdoubt her 

strength. Let her and Falsehood grapple; who ever knew Truth 

put to the worse, in a free and open encounter." John Milton, 

Areopagitica 166-67 (James Russell Lowell ed., 1890) (1644).

¶131 Academic freedom is deeply entrenched in the history 

of this country and its college campuses. Universities are 

unique places for intellectual growth, where both students and 

professors can "follow truth wherever it may lead." Those who 

engage in the pursuit of truth, who propound ideas and challenge 

others, must enjoy the freedom to speak on matters of public 

concern without the sword of Damocles menacing their discourse.

¶132 "Mere unorthodoxy or dissent from the prevailing mores 

is not to be condemned. The absence of such voices would be a 

symptom of grave illness in our society." Sweezy, 354 U.S. at 

251. Suppression of viewpoints confronting the current cultural 

orthodoxy would surely lead to academic stagnation and imperil 

the future of America. If institutional silencing of nonmajority viewpoints replaces the search for truth, higher 

education becomes nothing more than an echo chamber of familiar 

and recycled perspectives, and the dialectic dies with it.
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¶133 The court ensures the dialectic is alive and well in 

Wisconsin, and academic freedom along with it. I join the 

majority opinion in full. 
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¶134 DANIEL KELLY, J. (concurring). I offer this brief 

concurrence because 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. 

Faculty Statutes § 307.07(6). But it was not just the FHC——

everyone in the disciplinary process was a University employee. 

Thus, the University (by its designated prosecutor1) presented 

its case to the University (in the form of the FHC2), which then 

made a recommendation to the University (in the person of 

President Michael Lovell3). We have long known the problems 

attendant upon allowing a party to decide its own case:

No man is allowed to be a judge in his own cause;

because his interest would certainly bias his 

judgment, and, not improbably, corrupt his integrity. 

With equal, nay with greater reason, a body of men,

are unfit to be both judges and parties, at the same 

time; . . . .

The Federalist No. 10, at 59 (James Madison) (Jacob Cooke ed., 

1961). Echoing Madison, the United States Supreme Court has 

said that "no man can be a judge in his own case[,] and no man 

 

1 See Faculty Statute § 307.07(11) (stating the 

"Administration may appear or be represented by its legal 

counsel"). At the hearing, the University appeared by two 

attorneys.

2 See Faculty Statute § 307.07(1).

3 See Faculty Statutes § 307.07(18)-(19); Faculty Handbook 

art. 4, § 1.01.1(1).
No. 2017AP1240.dk

2

is permitted to try cases where he has an interest in the 

outcome." In re Murchison, 349 U.S. 133, 136 (1955).

¶135 And yet, the University tells us we are to defer to 

its determination that it did not breach its contract with Dr. 

McAdams. That proposition threatens the very concept of 

contract. A contract is supposed to bind the parties to 

ascertainable obligations. Mgmt. Comput. Servs., Inc. v. 

Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67 

(1996) ("[A] contract must be definite as to the parties' basic 

commitments and obligations."). But if in a contract between 

Mr. Smith and Mr. Brown, Mr. Smith is the unreviewable judge of 

whether he has himself breached the contract, then his 

contractual obligations mean nothing but what he wishes them to 

mean. That, of course, is no contract at all.

¶136 I am not the only one to notice how this type of 

structural bias can turn tenure into employment-at-will. The 

D.C. Circuit in McConnell v. Howard University, 818 F.2d 58 

(D.C. Cir. 1987), recognized the incongruity of casting a 

university as the unreviewable judge of its dispute with one of 

its faculty members. "If we were to adopt a view limiting 

judicial review over the substance of the Board of Trustees' 

decision, we would be allowing one of the parties to the 

contract to determine whether the contract had been breached." 

Id. at 68. I agree with McConnell that it "would make no sense 

for a court blindly to defer to a university's interpretation of 

a tenure contract to which it is an interested party." Id. at 
No. 2017AP1240.dk

3

69. Doing so "would make a sham of the parties' contractual 

tenure arrangement." Id. at 68.

¶137 I am authorized to state that REBECCA GRASSL BRADLEY 

joins this concurrence.
No. 2017AP1240.awb

1

¶138 ANN WALSH BRADLEY, J. (dissenting). At its core, 

academic freedom is a professional principle, not merely a legal 

construct.1 It embraces the academic freedom of the faculty as 

well as the academic freedom of the institution. "Academic 

freedom thrives not only on the independent and uninhibited 

exchange of ideas among teachers and students, but also . . . on 

autonomous decisionmaking by the academy itself." Regents of 

Univ. of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985)

(internal citations omitted).

¶139 Within academic freedom lies the concept of shared 

governance. It includes the right of faculty to participate in 

the governance of the institution on academic-related matters. 

Shared governance in colleges and universities has been forged 

over decades to address the specific issues that arise in the 

workplace of higher education.

¶140 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. As a result, it dilutes a private 

educational institution's autonomy to make its own academic 

decisions in fulfillment of its unique mission.

 

1 Rachel B. Levinson, Academic Freedom, Shared Governance, 

and the First Amendment after Garcetti v. Ceballos, Stetson

University College of Law, 31st Annual National Conference on 

Law and Higher Education 2 (Feb. 2011), 

https://www.aaup.org/NR/rdonlyres/4C126513-1194-4317-8123-

459BD9F30A6D/0/Stetson2011AcadFreedomFirstAmdmtoutline.pdf.
No. 2017AP1240.awb

2

¶141 Further, the majority compounds this error by 

rendering meaningless a key component of shared governance, 

reducing the faculty's bargained-for role in reviewing dismissal 

for cause to "nothing" or a mere "distraction." In disregarding 

the faculty hearing committee's expertise and unanimous 

recommendation, it throws aside a process that is mutually 

agreed upon and time-honored. 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.

¶142 Additionally, the majority conducts its analysis with 

a selective view of the facts. Missing from its opinion are key 

facts that informed McAdams' action. After publishing the blog 

post, McAdams actively promoted it to local and national media 

outlets. The record reflects that McAdams did so by 

"distributing copies of the audio recording to interested 

journalists and bloggers, posting follow-up stories linking back 

to the Nov. 9 post, creating a category of posts linked to 

Abbate by name, and arranging to appear on radio and television 

interviews about the story and subsequent controversy." McAdams 

wrote that he was aware that "'[w]hen one does something that 

gets national publicity, some jerks are going to say nasty 

things."

¶143 That prophecy was fulfilled here. Within hours of the 

blog post, Abbate started receiving negative emails, which only 

multiplied in the following weeks. She feared for her safety at 

Marquette and within weeks withdrew her dissertation proposal 
No. 2017AP1240.awb

3

and transferred to another university despite adverse 

consequences to her academic progress.

¶144 The travesty of the majority opinion lies not just in 

its decision for Marquette University. Because Marquette has 

adopted a definition of academic freedom and uniform procedures 

that have been embraced by many other colleges and universities, 

the decision is far reaching. The majority's decision to so 

readily discard institutional academic freedom and to disrespect 

part of the time-honored and bargained-for shared governance 

procedures will reverberate throughout this state.

¶145 Finally, because I determine that the doctrine of 

academic freedom does not protect McAdams from discipline, I 

address his argument that the First Amendment does. McAdams is 

wrong. His contract does not give him the full-throated First 

Amendment rights that would be given a private citizen vis-à-vis 

the government.

¶146 Accordingly, I respectfully dissent.

I

¶147 The majority errs first by curbing its discussion of 

academic freedom. It takes an expansive view of McAdams' 

academic freedom, but does not pay any mind to the academic 

freedom of the university.

¶148 "Academic freedom thrives not only on the independent 

and uninhibited exchange of ideas among teachers and students, 

but also . . . on autonomous decisionmaking by the academy 

itself[.]" Ewing, 474 U.S. at 226 n.12 (internal citations 

omitted). The term "academic freedom" is used to denote both 
No. 2017AP1240.awb

4

the freedom of the academic institution to pursue its ends 

without interference from the government, as well as the freedom 

of the individual teacher to pursue desired ends without 

interference from the institution.2 Piarowski v. Illinois Cmty.

 

2 The definition of academic freedom in Marquette's faculty 

handbook focuses on this second type of academic freedom, 

"[p]rofessorial academic freedom," or "that proper to the 

scholar-teacher." Marquette University, Handbook for Full-Time 

Faculty, "Rights and Responsibilities" 47 (version approved Aug. 

27, 2013, last amended Nov. 13, 2017),

http://www.marquette.edu/provost/_includes/documents/Facultyhand

booklastupdatedMay82018numbered.pdf. Marquette's definition of 

academic freedom follows closely that of the AAUP's 1940 

Statement of Principles on Academic Freedom and Tenure. 

Marquette's definition provides in relevant part:

Academic freedom is prized as essential to Marquette 

University and to its living growth as a university. 

Professorial academic freedom is that proper to the 

scholar-teacher, whose profession is to increase 

knowledge in himself/herself and in others. As proper 

to the scholar-teacher, academic freedom is grounded 

on competence and integrity.

When scholar-teachers carry on their academic lives in 

educational institutions, integrity requires both 

respect for the objectives of the institution in which 

they choose to carry on their academic lives and 

attention to the task of reevaluating these objectives 

as a necessary condition of living growth in human 

institutions.

The University, because it prizes academic freedom, 

proposes the following safeguards to that freedom:

. . .

c. The college or university teacher is a 

citizen, a member of a learned profession, and an 

officer of an educational institution. When 

he/she speaks or writes as a citizen, he/she 

should be free from institutional censorship or 

discipline, but his/her special position in the 

civil community imposes special obligations. As 

(continued)
No. 2017AP1240.awb

5

Coll. Dist. 515, 759 F.2d 625, 629 (7th Cir. 1985) (citations 

omitted); see also Feldman v. Ho, 171 F.3d 494, 495 (7th Cir. 

1999); J. Peter Byrne, Academic Freedom: A "Special Concern of 

the First Amendment", 99 Yale L.J. 251 (1989).

¶149 To manifest this freedom to pursue their ends, 

educational institutions set their own missions. As a Catholic, 

Jesuit institution, Marquette University operates according to 

certain guiding values. These values include the "holistic 

development of students" and a "commitment to the Jesuit 

tradition and Catholic social teaching."3 It is also a guiding 

value of the institution to foster "vigorous yet respectful 

debate."

¶150 Marquette's status as a Jesuit institution is a 

cornerstone of its identity. According to amicus Association of 

Jesuit Colleges and Universities: "Being 'Catholic, Jesuit 

universities' is not simply one characteristic among others but 

is [their] defining character, what makes [them] to be uniquely 

 

a man/woman of learning and an educational 

officer, he/she should remember that the public 

may judge his/her profession and institution by 

his/her utterances. Hence, he/she should at all 

times be accurate, should exercise appropriate 

restraint, should show respect for the opinions 

of others, and should make every effort to 

indicate that he/she is not an institutional 

spokesperson.

Id.

3 See Marquette University, 

http://www.marquette.edu/about/mission.php (last visited June 

22, 2018).
No. 2017AP1240.awb

6

what [they] are. . . . As Jesuit colleges and universities, 

[they] are a continuation of the Ignatian heritage and of the 

distinctive tradition of Jesuit education."

¶151 Jesuit institutions operate under the "Ignatian 

pedagogy." This educational philosophy encourages faculty to 

consider the "context" of the individual students in the 

classroom and "uniquely characterizes the relationship the 

faculty member has with the student [with whom] he [or] she 

attempts to create a teaching/learning environment."4

¶152 Private institutional learning environments present 

unique concerns and a particular need for independence in 

decision making. If the founding principles of each individual 

university are to be given life, the institution must possess 

the freedom to determine the consistency or inconsistency of 

actions with those principles.

¶153 Institutional academic freedom is inclusive of four 

"essential freedoms": "to determine for itself on academic 

grounds who may teach, what may be taught, how it shall be 

taught, and who may be admitted to study." Sweezy v. State of 

N.H. by Wyman, 354 U.S. 234, 263 (1957) (Frankfurter, J., 

concurring). Although no court has clearly defined the scope of 

institutional academic freedom, McAdams' conduct and the faculty 

hearing committee procedures at issue in this case appear to 

 

4 Dr. Susan Mountin, What is Ignatian Pedagogy?, Marquette 

University Explore Series, 

http://www.marquette.edu/mission/IgnatianPedagogy.php (last 

visited June 25, 2018).
No. 2017AP1240.awb

7

implicate the first of these "essential freedoms": who may 

teach. Although also relevant to public universities, this 

concern is especially germane in the context of private 

universities.

¶154 In determining who may teach at its university, 

Marquette has academic freedom to uphold its values and 

principles. It has academic freedom to provide an educational 

environment that is consistent with its mission as a university.

¶155 McAdams' appeal focuses on his individual rights, and 

the majority follows suit. However, McAdams' rights to academic 

freedom are not the only rights at issue.5 An educational 

institution, here a private, Catholic, Jesuit institution, 

possesses the academic freedom to operate in accordance with its 

principles as long as it does not violate governing laws.6 Such 

a right should be given some consideration, rather than the 

silent treatment the majority offers.

 

5 See J. Peter Byrne, Academic Freedom: A "Special Concern 

of the First Amendment", 99 Yale L.J. 251 (1989) (explaining 

that institutional autonomy is a key facet of academic freedom); 

David M. Rabban, A Functional Analysis of "Individual" and 

"Institutional" Academic Freedom Under the First Amendment, 53 

Law & Contemp. Probs. 227, 256 (1990), 

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=405

7&context=lcp; Donna R. Euben, Academic Freedom of Individual 

Professors and Higher Education Institutions: The Current Legal 

Landscape, American Association of University Professors 6 (May 

2002), 

https://www.aaup.org/sites/default/files/files/Academic%20Freedo

m%20-%20Whose%20Right%20(WEBSITE%20COPY)_6-26-02.pdf.

6 See, e.g., Powell v. Syracuse Univ., 580 F.2d 1150, 1154 

(2d Cir. 1978) (explaining that institutional academic freedom 

does not embrace the freedom to discriminate).
No. 2017AP1240.awb

8

II

¶156 Within the concept of academic freedom lies the right 

of faculty to participate in the governance of the institution 

in academic-related matters. The majority errs next in 

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. In the majority's view,

the work of the faculty hearing committee (FHC) is of no import. 

It instead serves as a mere "distraction": "all of the time, 

energy, and resources that went into the Discipline Procedure 

and the richly-detailed Report are distractions from the 

necessary focus of our analysis." Majority op., ¶46.

¶157 Further, the majority doubles down on this assertion, 

overtly stating that the FHC's work represents nothing of 

substance: "As far as the Faculty Statutes and Faculty Handbook 

are concerned, the president may proceed as if the Report said 

nothing but that the FHC had completed the Discipline 

Procedure." Id., ¶49. It deems the work of the FHC not 

relevant and even raises the specter that perhaps the university 

need not have convened the FHC at all. See id., ¶47 n.16. Each 

of these conclusions ignores the context in which this dispute 

arises. Such analysis renders the concept of shared governance 

merely illusory and completely removes faculty input from these

important decisions.

¶158 As observed above, the university has a strong 

interest in its own academic freedom to make autonomous 
No. 2017AP1240.awb

9

decisions. It exercises that academic freedom through the 

manifestation of the framework of shared governance.7

¶159 "Shared governance" allows university faculty to play 

a role in decisions that affect the academic mission of the 

university. The American Association of University Professors 

(AAUP) has extensively considered and set forth principles of 

shared governance in guidance documents. In 1940, it issued a 

Statement of Principles on Academic Freedom and Tenure, and in 

the decades that followed, it further refined the foundational 

principles therein.8 The principles adduced by the AAUP are well 

recognized and have been widely adopted throughout higher 

education.9

¶160 Faculty participation in decisions regarding 

curriculum, tenure, and other academic-related matters is 

 

7 See Emergency Coal. to Defend Educ. Travel v. U.S. Dep't 

of the Treasury, 545 F.3d 4, 15 (D.C. Cir. 2008) (Edwards, J., 

concurring); Judith Areen, Government as Educator: A New 

Understanding of First Amendment Protection of Academic Freedom 

and Governance, 97 Geo. L.J. 945, 953-66 (2009).

8 The 1940 Statement had its genesis much earlier, in 1915, 

when the AAUP's Committee on Academic Freedom and Academic 

Tenure formulated a "Declaration of Principles." In 1970, 

"interpretive comments" were added to the 1940 Statement 

clarifying certain statements and illuminating the intent of 

others.

9 See Aaron Nisenson, Faculty Rights in the Classroom, 

Academe, Sept.-Oct. 2017, at 10, 

https://www.aaup.org/article/faculty-rightsclassroom#.WykylGrwZhE ("[M]any colleges and universities have 

adopted, either in whole or in substantial part, AAUP policies 

on academic freedom, tenure, and governance in faculty 

handbooks, faculty contracts, or collective bargaining 

agreements.").
No. 2017AP1240.awb

10

essential to the operation of the university. As the Marquette 

Academic Senate put it in its amicus brief to this court, 

"[s]hared governance includes, as a necessary component, prior 

faculty review of any attempt by the University administration 

to override the protections of tenure and dismiss or suspend a 

tenured faculty member."

¶161 AAUP's guidance documents include recommended 

procedural protections for faculty members. These procedural 

protections require that any proposed suspension or dismissal of 

a tenured faculty member come before an independent faculty 

committee for review prior to any adverse employment action. 

Marquette adopted a statutory procedure consistent with the 

AAUP's recommended methodology, which sets forth procedures for 

contested suspensions or terminations.10 

¶162 The independent committee called for in the AAUP's 

guidance documents manifest in Marquette's case as the FHC. It 

is made up of tenured faculty members elected to serve threeyear terms. In accordance with the adopted procedure, the FHC 

serves as an advisory body tasked with scheduling a hearing, 

determining the existence of cause, and making findings of fact 

and conclusions. 

 

10 See Marquette University Statutes on Faculty Appointment, 

Promotion and Tenure § 307.07, 

http://www.marquette.edu/provost/_includes/documents/Facultyhand

booklastupdatedMay82018numbered.pdf.; compare American 

Association of University Professors, Recommended Institutional 

Regulations on Academic Freedom and Tenure 79, 83-84, 

https://www.aaup.org/file/RIR%202014.pdf (last visited June 25, 

2018).
No. 2017AP1240.awb

11

¶163 Under the majority's analysis, the FHC proceedings are 

rendered completely unnecessary.11 It is the President who makes 

the decision as to discipline, the majority states, so there is 

no product of the FHC to which a court can defer. This 

treatment of the FHC ignores its role within the shared 

governance structure of the university.12

¶164 The FHC is a mutually agreed-upon dispute resolution 

mechanism. It is composed of Marquette faculty members who 

signed contracts similar to McAdams' and whose employment 

relationships are governed by the same faculty statutes. In 

other words, the members of the FHC live and breathe academic 

freedom and are in a position to say what the intent of the 

 

11 The majority accuses this dissent of proffering a 

"formless notion of what shared governance ought to be" rather 

than grounding its interpretation in the language of the Faculty 

Statutes. See majority op., ¶58. I acknowledge that the 

Faculty Statutes define the FHC as an "advisory" board. Faculty 

Statute § 307.07(1). However, the faculty statutes also include 

the bargained-for procedural safeguards giving the faculty the 

imperative to weigh in prior to any adverse employment action. 

See Faculty Statute § 307.07. The "form" of shared governance 

is provided by these procedural safeguards, which the majority 

discards as a "distraction." 

12 The majority exhorts that this dissent would end the 

University's "carefully balanced shared governance" by "turning 

a cooperative relationship into an adversarial contest." See

majority op., ¶89. But the facts of this case fail to bear this 

out. Indeed, in this case the faculty, who the majority

indicates "tries to expand its own sphere of academic freedom at 

the expense of the other," unanimously determined that McAdams' 

conduct was unprotected. Id.
No. 2017AP1240.awb

12

parties was in signing a contract guaranteeing "academic 

freedom."13

¶165 Indeed here, the FHC was composed of seven tenured 

members of the faculty, chaired by a law professor, and was 

observed by a representative of the AAUP. After receiving 

evidence over the course of four days, the FHC unanimously found 

that there was clear and convincing evidence that Marquette had 

"discretionary cause" to impose discipline.14 Accordingly, the 

FHC recommended that Marquette University President Michael 

Lovell impose a paid suspension of up to two semesters. 

Consistent with the FHC's recommendation, President Lovell 

imposed upon McAdams a two-semester suspension.

 

13 I also observe that professors like those who make up the 

FHC are likely to support a robust academic freedom doctrine. 

The members of the FHC are not only sitting in judgment of a 

colleague, but interpreting the rules that govern themselves. 

It is telling that this group of people unanimously arrived at 

the conclusion that McAdams' conduct crossed the line.

14 Marquette University Statute on Faculty Appointment, 

Promotion and Tenure § 306.03 defines "discretionary cause" as 

inclusive of:

[T]hose circumstances, exclusive of absolute cause, 

which arise from a faculty member's conduct and which 

clearly and substantially fail to meet the standard of 

personal and professional excellence which generally 

characterizes University faculties, but only if 

through this conduct a faculty member's value will 

probably be substantially impaired. Examples of 

conduct that substantially impair the value or utility 

of a faculty member are: serious instances of 

illegal, immoral, dishonorable, irresponsible, or 

incompetent conduct. In no case, however, shall 

discretionary cause be interpreted so as to impair the 

full and free enjoyment of legitimate personal or 

academic freedoms of thought, doctrine, discourse, 

association, advocacy, or action.
No. 2017AP1240.awb

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¶166 The United States Supreme Court has directed that

"[w]hen judges are asked to review the substance of a genuinely 

academic decision, . . . they should show great respect for the 

faculty's professional judgment." Ewing, 474 U.S. at 225. It 

made this pronouncement with respect to a faculty decision that

it characterized as "made conscientiously and with careful 

deliberation." Id. We can realize the Supreme Court's command 

by affording the respect due to the FHC's expertise and 

specialized knowledge.

¶167 With regard to the FHC's factual findings, "great 

respect" is surely appropriate. The FHC heard four days of 

evidence and produced a detailed 123-page report that was 

clearly "made conscientiously and with careful deliberation." 

See id.

¶168 It is the FHC, and not this court, that observed the 

demeanor of witnesses and is in a position to assess 

credibility. Deference to circuit courts' factual findings is 

appropriate in similar circumstances. Welytok v. Ziolkowski, 

2008 WI App 67, ¶28, 312 Wis. 2d 435, 752 N.W.2d 359 (citation 

omitted) (explaining that "such deference is appropriate because 

the court has the opportunity to observe firsthand the demeanor 

of the witnesses and gauge the persuasiveness of their 

testimony").

¶169 Other jurisdictions have echoed this approach, and 

realize the Supreme Court's exhortation of "great respect" by 

affording deference to the conclusions of faculty hearing 

committees. For example, in Yackshaw v. John Carroll University
No. 2017AP1240.awb

14

Board of Trustees, 624 N.E.2d 225, 225-27 (Ohio Ct. App. 1993), 

the Ohio court of appeals reviewed a similar breach of contract 

case involving a private university's hearing committee. The 

Yackshaw court found "rationale and guidance from the standard 

of review adopted by administrative agencies, especially when 

the involved parties have bound themselves contractually." Id.

at 228.

¶170 Such "great respect" makes particular sense in the 

context of a private, Catholic, Jesuit institution with a 

distinct mission like Marquette. Indeed, in Murphy v. Duquesne 

University of the Holy Ghost, 777 A.2d 418, 433 (Pa. 2001), the 

Pennsylvania Supreme Court further explained the rationale for 

its determination that a faculty hearing procedure like that at 

issue here was an exclusive procedure. The Murphy court

observed that Duquesne, like Marquette, is a private, Catholic 

university with a particular mission:

The University is an ecumenically-based institution 

dedicated to promoting through the members of its 

tenured faculty the ethical and religious values of 

the "Judaeo–Christian tradition in its Catholic 

dimension." It comes as no surprise that the 

University and its faculty agreed not to cede to any 

lay outsider or secular institution the right to 

define and determine what behavior on the part of a 

faculty member was so antithetical to its mission that 

he could not remain a member of the University's 

community, and instead, concurred that the process set 

out in the Contract would finally decide whether a 

faculty member's actions rose to the level of serious 

misconduct and whether forfeiture was in order.

Id. at 433.

¶171 Here, it is also the faculty that is in the best 

position to determine "what behavior on the part of a faculty 
No. 2017AP1240.awb

15

member [is] so antithetical to its mission that he could not 

remain a member of the University's community." See id. The 

faculty unanimously determined that McAdams exhibited such 

behavior that violates the norms of the academic profession so 

as to call into question his fitness as a member of the 

university community. As President Lovell observed in his 

letter to McAdams, a unanimous decision in the context of 

academia is no small feat: "Getting a diverse group of faculty 

to unanimously agree on any topic can be difficult, so to have 

seven of your peers uniformly condemn and characterize your 

actions as egregious sends a strong message to my office and to 

the broader Marquette community."

¶172 By refusing to afford "great respect" to President 

Lovell's reliance on the unanimous faculty determination, the 

court as the third branch of government inserts itself into the 

fray. Such an exercise is antithetical to the freedom of the 

academic institution to pursue its ends without interference 

from the government.

¶173 Rather than properly according the respect due to 

President Lovell's reliance on the FHC's findings and 

conclusions, the majority opinion renders meaningless a key part 

of shared governance, reducing the faculty's role in this 

decisionmaking to nothing. It disregards the FHC's expertise, 

throwing aside a process that is mutually agreed-upon and timehonored.
No. 2017AP1240.awb

16

III

¶174 The majority errs third by disregarding significant 

facts in its analysis. It concludes that McAdams' blog post 

cannot be the basis for discipline because the posting was a 

legitimate exercise of McAdams' academic freedom. Majority op., 

¶84. In the majority's view, "the blog post has nothing 

relevant to say about Dr. McAdams' fitness as a professor." 

Id., ¶73. It further determines that "[j]ust because vile 

commentary followed the blog post does not mean the blog post 

instigated or invited the vileness." Id., ¶76. The majority 

misframes the issue.

¶175 In his letter to McAdams informing him of the 

disciplinary action taken, President Lovell is clear that it was 

not the views expressed in the blog post that led to discipline: 

"I think it is important to state that the sanctions being 

brought against you are solely based on your ACTIONS as a 

tenured faculty member at Marquette University, and have nothing 

to do with the political or ideological views expressed in your 

blog" (capitalization in original). President Lovell's letter 

thus makes clear that McAdams was disciplined for his actions, 

and not the blog post's viewpoint. Thus, the question is not 

"whether [the blog post's] contents remove the doctrine's 

protections." Id., ¶64. It is whether McAdams' actions are 

worthy of protection.

¶176 The majority recognizes that in engaging in extramural 

activities, a professor "occupies a 'special position in the 

civil community,' one that comes with 'special obligations.'" 
No. 2017AP1240.awb

17

Majority op., ¶65. Included in these "special obligations" is 

the duty to "exercise appropriate restraint." Id.

¶177 McAdams did not exercise any restraint at all, let 

alone appropriate restraint. I agree with the FHC that "where 

substantial harm is foreseeable, easily avoidable, and not 

justifiable, it violates a professor's obligations to fellow 

members of the Marquette community to proceed anyway, heedless 

of the consequences."

¶178 McAdams' actions were well summarized in President 

Lovell's discipline letter, where he approvingly quoted from the 

FHC report: "[McAdams'] use of a surreptitious recording, along 

with Ms. Abbate's name and contact information, to hold Ms. 

Abbate up for public contempt on his blog, recklessly exposed 

her to the foreseeable harm that she suffered due to Dr. 

McAdams's actions."

¶179 The majority unpersuasively asserts that the vile 

commentary immediately following the blog post "does not mean 

the blog post instigated or invited the vileness." Majority 

op., ¶76. The only way the majority can reach this conclusion 

is by ignoring significant facts in the record.15

 

15 The record reflects that at the time of the events at 

issue in this case, Abbate was a graduate student in the 

philosophy department at Marquette. In addition to working on 

her dissertation, in the fall of 2014 Abbate taught two sections 

of Theory of Ethics, a philosophy class for undergraduates. I 

observe that throughout its opinion, the majority cherry-picks 

facts when it refers to Abbate as an "instructor" and not a 

"student." See, e.g., majority op., ¶1. In doing so, it colors 

the facts, disregarding the realities of the power dynamics at 

play here between a tenured professor and a graduate student.
No. 2017AP1240.awb

18

¶180 First, McAdams knew the effect his blog post would 

have on Abbate. Among the FHC's factual findings that go 

unmentioned by the majority is that Dr. McAdams wrote in a blog 

post that "[w]hen one does something that gets national 

publicity, some jerks are going to say nasty things," indicating 

he was well aware of this modern media phenomenon. Indeed, that 

is exactly what happened here.

¶181 Shortly after the post's publication, Abbate began to 

receive hateful emails. The negative communications multiplied 

over the next several days, particularly after the incident 

received coverage on Fox News. She was forced to shut down her 

email account and remove her email address from Marquette's 

graduate student website.

¶182 Several of the communications Abbate received 

expressed violent and profane thoughts. She feared for her 

physical safety and experienced significant detrimental effects 

on her mental and physical health. A public safety officer was 

even posted outside Abbate's classes for two weeks.

¶183 Abbate ultimately withdrew from her dissertation 

proposal defense and transferred to another university. This 

transfer requires that she repeat three semesters of course 

work.

¶184 The majority further fails to mention that "Dr. 

McAdams purposefully omitted the name of a supporter of his blog 

from a comment he posted because 'the person was afraid of 

blowback or harassment.'" Why would McAdams do this if he was 
No. 2017AP1240.awb

19

blissfully unaware of the consequences of publishing a student's 

name, as the majority asserts?

¶185 Additionally, the FHC report demonstrates that McAdams 

has "on at least three occasions used the prospect of a mention 

on his blog as a threat." It indicates that McAdams threatened 

a Marquette student, the vice president for student affairs, a 

university provost, and a Dean that he would "raise hell" on his 

blog if they acted in a manner inconsistent with McAdams'

wishes. McAdams pointedly told a Dean to "be careful" because 

"you don't want to be on my blog." Why would McAdams make such 

threats if he did not know what would happen to those whose 

names were published?

¶186 Also conveniently omitted from the majority opinion 

are any facts related to McAdams' active promotion of the blog 

post to local and national media outlets. After he made the 

blog post, McAdams actively promoted the story by distributing 

copies of the audio recording to interested journalists and 

bloggers, posting follow-up stories linking back to the post, 

creating a category of posts linked to Abbate by name, and 

arranging to appear on radio and television interviews about the 

story and subsequent controversy. He provided copies of the 

surreptitious recording to representatives of Fox News, Inside 

Higher Ed, and a local Fox television affiliate.

¶187 These omitted facts indicate that McAdams indeed did 

"instigate" or "invite" the vileness that followed his blog 

post. He knew what would happen, and he actively ensured that 

it would happen.
No. 2017AP1240.awb

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¶188 McAdams' actions certainly have something "relevant to 

say about Dr. McAdams' fitness as a professor." See majority 

op., ¶72. McAdams knew what he was doing, and, unfortunately 

for Abbate, the blog post had its intended effect. The 

revealing of a student's contact information for the purpose of 

holding that student up for public ridicule and harassment is 

not a protected act of academic freedom.16

IV

¶189 Because I determine that academic freedom does not 

save McAdams from the consequences of his actions, I also must 

address his argument that the First Amendment provides such 

salvation. I begin my examination of McAdams' argument by 

defining the parameters of the First Amendment protections to 

which McAdams is entitled.

¶190 "The [F]irst [A]mendment to the United States 

Constitution limits the actions of the federal and state 

governments. It provides no protection against action by 

private persons." Harman v. La Crosse Tribune, 117 Wis. 2d 448, 

452, 344 N.W.2d 536 (Ct. App. 1984) (citation omitted); see also

Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("It is, of course, a 

commonplace that the constitutional guarantee of free speech is 

 

16 I also observe the potential effects of the majority 

opinion on the uninhibited exchange of ideas between faculty and 

students at Marquette. The direct effect of the majority's 

decision is to condone or acquiesce in professors' publicly 

subjecting students to ridicule and harassment. But it also 

sends an indirect message that may chill the exchange between 

faculty and students, lest they find themselves in the same 

position as Abbate.
No. 2017AP1240.awb

21

a guarantee only against abridgement by government, federal or 

state.") (citation omitted).

¶191 Thus, as a private institution, Marquette's actions 

are not limited by the First Amendment. The First Amendment 

does not, without more, protect McAdams from discipline in his 

capacity as a professor at a private university.17

¶192 However, Marquette Faculty Statute § 307.07(2) 

provides that "[d]ismissal will not be used to restrain faculty 

members in their exercise of academic freedom or other rights 

guaranteed them by the United States Constitution." McAdams 

contends that this language grants him a contractual right to 

free speech that "is coextensive with his right to freedom of 

expression under the First Amendment as a private citizen."18

 

17 The First Amendment to the United States Constitution 

provides in relevant part: "Congress shall make no 

law . . . abridging the freedom of speech . . . ." Over the 

years, "Congress" has been defined as any government actor. 

See, e.g., Matal v. Tam, 582 U.S. __, 137 S. Ct. 1744, 1757 

(2017) ("The First Amendment prohibits Congress and other 

government entities and actors from 'abridging the freedom of 

speech'").

18 In his argument before the FHC, McAdams advanced a 

different interpretation of this language. He maintained that 

the provision was intended to give Marquette faculty members the 

same right vis-à-vis Marquette that government employees have 

under the First Amendment to their employers. Although neither 

party argues ambiguity here, it appears that such an argument 

could be made given the varied interpretation advanced by 

McAdams. The First Amendment rights of a private citizen are 

not coterminous with the First Amendment rights of an employee 

of a government employer. See, e.g., Pickering v. Board of Ed.

of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 

568 (1968).
No. 2017AP1240.awb

22

¶193 Of note in this discussion is the difference between 

the Marquette Faculty Statute and the AAUP's recommended 

institutional regulation on this subject. McAdams relies on 

language that is nonexistent, having been specifically removed 

from the Marquette Faculty Statute. 

¶194 The AAUP recommends for inclusion in faculty contracts 

language stating that: "Dismissal will not be used to restrain 

faculty members in the exercise of academic freedom or other 

rights of American citizens."19 Marquette's choice not to adopt 

the recommended "American citizens" language likely explains why 

McAdams' arguments before the FHC asserted rights not as a 

citizen but rather rights tantamount to those of an employee of 

a government employer. 

¶195 He now changes course before this court, appearing to 

realize that the First Amendment rights of an employee of a 

government employer have been recognized as less than those 

afforded an American citizen. See, e.g., Pickering v. Board of 

Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 

563, 568 (1968). Marquette's choice not to adopt the language 

also supports the argument that it did not intend that Faculty 

Statute § 307.07 afford to McAdams the contractual right to the 

full-throated First Amendment protections of a citizen.

 

19 American Association of University Professors, 

Recommended Institutional Regulations on Academic Freedom and 

Tenure 79, 83, https://www.aaup.org/file/RIR%202014.pdf (last 

visited June 25, 2018).
No. 2017AP1240.awb

23

¶196 Further, I agree with the FHC, the circuit court, and 

Marquette that McAdams' proffered interpretation leads to absurd 

results. See Star Direct, Inc. v. Dal Pra, 2009 WI 76, ¶62, 319 

Wis. 2d 274, 767 N.W.2d 898 (explaining that contracts are 

construed to avoid absurd results). If it is indeed the case 

that the protections granted by Marquette Faculty Statute 

§ 307.07 are "coextensive" with the rights afforded to private 

citizens under the First Amendment, McAdams would be free to 

teach virtually anything or nothing at all in his classes. 

Marquette would be unable to discipline McAdams unless his 

speech fell into one of the few, narrow categories of speech 

that is not afforded First Amendment protections.20

¶197 McAdams asserts that this conclusion does not follow 

because conduct within the classroom is governed by the 

provisions on absolute cause set forth in his contract, and 

conduct amounting to absolute cause is not protected by the 

First Amendment. But that is not what Faculty Statute § 307.07 

says. By its plain language, Faculty Statute § 307.07, applies 

equally to dismissals based on absolute or discretionary cause.

21

 

20 See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) 

(speech intended and likely to incite imminent lawless action); 

Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942) (fighting 

words).

21 Marquette Faculty Statute § 307.07(2) provides in 

relevant part:

A faculty member who has been awarded tenure at 

Marquette University may only be dismissed upon a 

showing of absolute or discretionary cause, as these 

terms are defined by the Handbook for Full-Time 

Faculty (hereinafter University Statutes), Section 

(continued)
No. 2017AP1240.awb

24

¶198 In fact, McAdams' interpretation of Faculty Statute 

§ 307.07 would render Marquette's standards for absolute and 

discretionary cause meaningless. See Maryland Arms Ltd. P'ship 

v. Connell, 2010 WI 64, ¶45, 326 Wis. 2d 300, 786 N.W.2d 15 

("When possible, contract language should be construed to give 

meaning to every word, 'avoiding constructions which render 

portions of a contract meaningless, inexplicable or mere 

surplusage.'"). Under McAdams' misreading, so long as some form 

of protected speech was involved, he could not be punished 

despite failing the tests for absolute or discretionary cause. 

¶199 Accordingly, I conclude that neither academic freedom 

nor the First Amendment saves McAdams from the consequences of 

his reckless actions.

¶200 For the foregoing reasons, I respectfully dissent.

¶201 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.

 

306.02 (absolute cause) or 306.03 (discretionary 

cause). Dismissal will not be used to restrain 

faculty members in their exercise of academic freedom 

or other rights guaranteed them by the United States 

Constitution.
No. 2017AP1240.awb

1