Suspended Marquette University professor John McAdams told reporters Thursday after lively oral arguments before the Wisconsin Supreme Court that the case that packed the court chambers was about nothing more than his employment contract.
“It is essentially that simple,” McAdams said.
And several of the six justices who heard the case peppered attorneys with questions about the content of McAdams’ employment contract. But that content — with its guarantees that McAdams would not be fired for exercising rights protected by the U.S. Constitution or disciplined for exercising academic freedom — generated unusually broad interest in the case and the filing of a dozen or more amicus briefs by organizations who say they have a stake in its outcome.
McAdams was represented by Richard Esenberg, president of the conservative Wisconsin Institute for Law and Liberty. WILL stepped in and filed suit in McAdams' name in 2016, in a contentious climate where conservatives argue that their voices are stifled on college campuses and skeptics of the value of higher education have championed moves to make it easier to remove tenured faculty.
McAdams refused to apologize, as demanded by Marquette president Michael Lovell, to a philosophy teaching assistant whom a faculty panel said McAdams inappropriately named in a 2014 blog post. The political science professor had accused graduate student Cheryl Abbate of silencing a discussion of gay marriage for political reasons, and linked to her blog. Abbate was eventually the target of hateful communications that she said made her fear for her safety. She left Marquette soon after the incident.
A Milwaukee County circuit judge ruled last May that Marquette had the legal right to suspend McAdams without pay after the faculty panel found unanimously that he should be punished.
Justices seemed impatient Thursday to get to the heart of the matter as they saw it, quickly and repeatedly interrupting the arguments of lawyers for both sides to ask questions.
Justices Patience Roggensack and Ann Walsh Bradley wanted to know what level of constitutional protection of speech the private university had written into McAdams’ employment contract. Under the Constitution, “the government cannot abridge free speech; there is no First Amendment right that private people can't, is there?” Bradley asked Esenberg.
Esenberg said the protection afforded through the contract was nearly as broad as that imposed on government, although Marquette attorney Ralph A. Weber later argued it was more limited.
Organizations filing briefs with the court saw important First Amendment issues in the case.
“This case offers the court an opportunity to guarantee academic freedom in Wisconsin and to adopt a comprehensive doctrinal framework for First Amendment academic-speech claims,” wrote Wisconsin Attorney General Brad Schimel.
The American Association of University Professors wrote that the “court’s decision on this crucial issue can serve to protect those who express controversial views from discipline and the silencing of their voices, thereby advancing the cause of academic freedom.”
And business groups that filed amicus or “friend of the court” briefs argued that employers should be free to discipline an employee for conduct or speech “that disrupts or adversely affects the particular purpose of the enterprise.”
Justice Rebecca Bradley spoke to the concerns of business groups in a question to Esenberg.
“The court has received multiple amicus briefs primarily from business interests who are concerned this court will create a speech right that will supersede the provisions of private employer-employee contracts. Are you asking the court to supersede provisions pf private contracts?” she asked.
“Absolutely not, we’re simply asking the contract be enforced,” Esenberg replied. Marquette did not have to make commitments to its employees to protect constitutional rights, but if it does so it must honor them, he said.
Justice Daniel Kelly argued that the case was, simply, a contract dispute.
“It’s not a complicated thing,” he said.
He queried Marquette’s attorney over whether the contract specified that the faculty panel would be the “exclusive mechanism” for resolving disputes between faculty members and the university. It did not.
Justice Michael Gableman repeatedly questioned the findings of the faculty panel that recommended McAdams be disciplined for contributing to a “culture of intolerance.”
And he questioned why McAdams was disciplined for his behavior, while Abbate was “counseled” on how she mishandled a student’s insistence on talking about gay marriage in class.
Gableman also pointed to inferences in the case record that Abbate had not left Marquette because of the fallout from the incident with McAdams, but had been trying to find a new position for years.
Marquette attorney Weber told reporters after the hearing that the case “is not about free speech, it’s about safety,” and the target McAdams put on Abbate’s back with his blog post.
McAdams said he wants to go back to teaching at Marquette, but said he has no regrets about refusing to apologize to Abbate, thereby making indefinite the two-semester suspension recommended by the faculty panel.
“Demanding a forced and insincere apology reminds one of the Inquisition, the Stalinist purge trials of the 1930s and the Cultural Revolution in China in the early 1970s — it has a totalitarian ambiance to it,” McAdams said. “I’m not going to render an apology and I didn’t do anything wrong.”