In McAdams vs. Marquette hearing, justices focus on speech rights for professors

Suspended Marquette University political science professor John McAdams hopes the state Supreme Court will return him to the classroom and allow him to collect damages for being disciplined over a blog post.

The university hopes the justices will decide it followed a mutually agreed upon disciplinary process outlined in the professor's employment contract. That process led to a committee of his peers unanimously agreeing he acted unprofessionally by opening a graduate student up to public criticism, and that he should be suspended.

Attorneys for both McAdams and Marquette presented their cases to the state Supreme Court on Thursday. And justices peppered them with questions about free speech protections, whether a faculty committee should have more authority than a court over employment contract disputes, and other aspects of the case.

It could come down to whether justices believe professors at private schools are entitled to the same free speech protections as those at public schools.

Other questions raised by justices included whether a graduate student acting in the role of classroom instructor should be shielded from potential harm by a professor, or treated as an instructor.

When all was said and done Thursday, Chief Justice Patience Roggensack thanked the attorneys for "interesting" arguments, and noted "a lot of professors from a lot of universities" around the country are interested in the outcome.

Six justices will decide the case. Roggensack, Ann Walsh Bradley, Michael Gableman, Rebecca Bradley and Daniel Kelly were present for arguments.

Justice Shirley Abrahamson was absent, but listened by phone. Annette Kingsland Ziegler is not participating in the case. The reason was not stated.

An opinion is expected by the end of June.

Beyond academia, the case is playing out in the court of public opinion, and particularly in the private business realm.

Marquette — a Jesuit university — purchased a full-page ad in the Milwaukee Journal Sentinel on Sunday, and in the Wall Street Journal on Wednesday, to argue the rights of private employers. 

A private employer should be free to discipline an employee for conduct or speech that disrupts or adversely affects the particular purpose of the enterprise, according to Marquette and several business groups that submitted "friend of the court" briefs.

But his employment contract promised McAdams he could not be fired or suspended if it would impair his right for academic freedom and personal expression, McAdams attorney Rick Esenberg argued.

The contract further promised that dismissal could not be used to restrain rights protected by the U.S. Constitution, Esenberg argued.

Roggensack and Ann Walsh Bradley questioned whether free speech may be different for private vs. public institutions.

"Is Marquette University government?" Walsh Bradley asked.

She said the First Amendment prohibits government from abridging free speech rights, but said there's nothing prohibiting private entities from doing that.

The case has become something of a cause celebre for conservatives, who generally mock tenure and argue for giving universities more latitude to fire faculty.

Supreme Court Oral Argument: John McAdams v. Marquette University

Milwaukee County Circuit Judge David Hansher ruled last May that Marquette had the legal right to suspend McAdams without pay after a faculty hearing committee that investigated his conduct unanimously agreed he should be punished for acting unprofessionally.

The faculty committee released a 123-page report that laid out a history of turmoil surrounding McAdams within the political science department.  

The report cited nine prior incidents of conflicts with administrators, other faculty members and students at the private Jesuit university since 1995, including allegations that McAdams used his blog to intimidate colleagues by threatening to write about them. 

After the faculty hearing committee made its recommendation, President Michael Lovell informed McAdams that he would remain suspended without pay until he apologized to the graduate student instructor he publicly criticized by name. Lovell also demanded that McAdams promise not to repeat the behavior.

The professor refused.

Instead, he sued the university for breach of his employment contract.

The faculty contract McAdams signed says tenured faculty will not be disciplined for exercising “legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action,” and that the threat of dismissal will not be used to “restrain” constitutional rights.

In his 33-page ruling last May, Hansher said that because McAdams criticized the graduate student instructor by name, it could bring negative attention to her. Conduct standards in the contract prohibit a professor from doing that, according to the judge.

Hansher dismissed all six of McAdams' claims against Marquette and rebuked him in a recitation of what the judge said academic freedom is — and is not. Academic freedom, Hansher wrote, "does not mean a faculty member can harass, threaten, intimidate, ridicule."