Rick Esenberg: Facts and Implications of Our Legal Case

From a Federalist Society Teleforum, the head of our legal team (Rick Esenberg) discusses the facts of our academic freedom case against Marquette university, as well as the implications for the judicial protection of free expression on campus.

Wisconsin Supreme Court Trashed Marquette, Faculty Hearing Committee

A victory for academic freedom was a massive fiasco for Marquette, as the Wisconsin Supreme Court laid waste to Marquette’s attempt to fire us for a blog post where we reported about a graduate philosophy instructor who insulted and demeaned an undergraduate who wanted to express his opposition to gay marriage.

Marquette has touted a “123 page report” from the Faculty Hearing Committee to support its claim that we should be disciplined. Somehow, the fact that it’s a long report is supposed to mean it’s really good. The sensible people, in contrast, will suspect that anybody with a cogent argument doesn’t need to drone on for 123 pages.

Worse, the university tried to use the Faculty Hearing Committee report as an excuse to fire us, when in fact it only recommended we be suspended for one or two semesters.

Supreme Court Unimpressed

The Wisconsin Supreme Court was entirely unimpressed with the report of the Faculty Hearing Committee. One problem (and a damning one in the view of at least some justices) was that Prof. Lynn Turner had attacked us in an open letter signed by a few dozen leftist faculty. The Court found:

¶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.

But more basic was the faulty logic the FHC (and Marquette) used:

¶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 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 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.

Note that it sounds nice to say “professors should always be accurate.” But if any inaccuracy — even a trivial one — can be used as an excuse to fire a troublesome professor, academic freedom doesn’t mean much. Further, what is “accurate” is often a matter of opinion. Can a professor who expresses skepticism about man-made, catastrophic global warming be fired for being “inaccurate?” What about a professor who says that Donald Trump would not have been elected without the interference of the Russians?

But worse, nothing about our blog post was inaccurate.

¶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 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.

The Supreme Court decision was a humiliating defeat for Marquette generally, and specifically for the Faculty Hearing Committee and President Michael Lovell.

Both the FHC and Lovell actually believed they could ignore Marquette’s contractual promise to faculty of free expression. The Faculty Statutes say:

“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.”

What sort of arrogance on the part of Michael Lovell and mendacity on the part of the Faculty Hearing Committee made them think they could trample on that legally binding promise?

Marquette’s Lame Arguments to Wisconsin Supreme Court: Must Defer to Faculty Hearing Committee

Although we were never completely sure before the decision was announced, the implausible, tortured arguments Marquette presented to the Wisconsin Supreme Court in our legal case should have made it obvious the court would come down on our side.

Exhibit 1: Marquette’s Claim that the court should defer to the verdict of the Faculty Hearing Committee, which claimed that our blog post was grounds to suspend us without pay for one or two semesters.

Of course, the Faculty Hearing Committee did not say we should have to render a Stalinist apology for the blog post. That was entirely Michael Lovell. So Marquette was demanding that the FHC be deferred to in one issue, but contravened on another.

The Decision

The Supreme Court trashed that notion:

The University denies Dr. McAdams’ right to litigate his breach 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”).

Why did the court refuse to defer to Marquette? For several reasons.

¶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. [...]

¶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 review of a contractual dispute. 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. . . .

¶27 The Faculty Statutes also contain an explicit, positively-stated recognition of Dr. McAdams’ right to litigate. . . .

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.

Why Defer to the Faculty Hearing Committee?

Marquette was touting the Discipline Procedure of the Faculty Hearing Committee as authoritative, but the court saw no reason to treat it that way:

¶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 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.

The Court Liberals Speak

The two liberal justices dissented. This is not surprising, given that liberals less and less believe in free speech. Both Ann Walsh Bradley and Shirley Abrahamson sided with Marquette, invoking the “academic freedom” of the university.

¶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.

¶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.

This, of course, is complete nonsense. The “group of tenured faculty members” (the Faculty Hearing Committee) does not “live by academic freedom.” Most of them have nothing much controversial to say, or if they do, they express the leftist opinions approved by most of the faculty (and thus safe from faculty-centered disciplinary procedures).

Further, most faculty who participate in “shared governance” are, to put it bluntly, sycophants. Administrators have a lot of goodies to hand out to faculty (raises, promotions, grants, reduced teaching loads, administrative positions, etc.) and few faculty are inclined to get on the wrong side of the campus bureaucrats.

Marquette’s Choice

Marquette, of course, had the academic freedom to refuse to give faculty a contractual guarantee of free expression. Some schools (mostly religious ones) don’t guarantee academic freedom, and are honest about the fact that they will fire faculty they consider heretical.

But Marquette made a different choice.

The Majority Responds

The majority responded to the liberal judges as follows:

¶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 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.

Marquette’s case was so poor we are left wondering “what were they thinking?” Quite likely, when they began their jihad against us, they expected we would just take some money and walk away. But when they found that wasn’t so, why did they not back off?

It is difficult to avoid the conclusion that Marquette President Michael Lovell is so rigid, and so arrogant, that he was unable to cut the university’s losses. Those losses have been huge.

Michael Lovell’s Fiasco: The Cost

Marquette’s defeat in the Wisconsin Supreme Court for its attempt to fire us was epic. The Court trashed Marquette’s lame arguments, one of which was that it should defer to a Faculty Hearing Committee that said we had been guilty of misconduct and should be suspended without pay for one or two semesters.

The court noted that we had not agreed in our contract to accept the judgment of a bunch of other professors as to whether we could express our opinions on our blog. Further, Marquette President Michael Lovell went beyond the Faculty Hearing Committee in punishing us, demanding a Stalinist apology. Marquette, in other words, was arguing that Faculty Hearing Committee was binding when it was convenient for the university, but not binding when it was inconvenient.

“Guiding Values”

The university claimed it could invoke its “Guiding Values” to override our black letter guarantee of free expression. The Court trashed this notion:

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.

The Court was doubtless unimpressed with Marquette’s pious rhetoric about “values” in light of the fact that our blog post highlighted an instructor who insulted a student, telling him that his opposition to gay marriage would sound homophobic, would be offensive, and could not be expressed in her class. When he complained to authorities he was blown off, and indeed insulted.

Even if the Court had been inclined to defer to Marquette’s real values, why should they defer to hypocritical rhetoric about values?

Michael Lovell

Marquette President Michael Lovell has, quite simply, been responsible for a huge fiasco. His obtuseness in not recognizing our binding contractual right to the same free expression guaranteed in the Constitution, and his stubbornness pushing the issue all the way to the Wisconsin Supreme Court has been stunning.

The Cost

Three sources of ours intimately familiar with this case and with lawyers’ billing rates estimate the legal fees Marquette has incurred at between $750,000 and $1,000,000.

But there were further costs. The Chronicle of Higher Education quotes Lovell (paywall):

The university has forcefully pushed back against McAdams’s narrative that the key issue is academic freedom. It pressed its case in advertisements in newspapers, including The Wall Street Journal. It set up a web page, complete with a timeline and fact-vs.-myth section. It hired a public-relations firm with a storytelling team.

“In terms of our brand and public perception,” Lovell says, “we were taking a beating. We thought it was important to at least try to get the truth out about what we felt our side of the story was.”

Marquette, in fact, even bought Google ads to lead web surfers to a page that attacks us.

None of this came out of Lovell’s pocket. He has spent other people’s money. It was either endowment, or tuition, or a combination of the two. His jihad against this blogger has been expensive.

Lovell’s Motivation

There are two theories about what moves Michael Lovell. One is that he is simply a careerist bureaucrat wanting to “move up” to a more prestigious institution. The theory is that his incessant pandering to the forces of political correctness is his strategy for doing this. Thus he demonstrated in sympathy with students at the University of Missouri — students who latched onto bogus grievances and began bullying everybody else on campus.

Thus he piously claimed to “stand against racism” when black students at Marquette were in an uproar about a “racist” photo that was not, in fact, racist.

It bears repeating: We shouldn’t expect only students of color to respond to racism. I’m asking all of @MarquetteU to join me and share why you #StandAgainstRacism pic.twitter.com/ZzS4nlSxqU

— Michael Lovell (@PresLovell) April 30, 2018

The other theory, one we are beginning to favor, is that Lovell is an actual social justice warrior. That, instead of being an opportunist, his pandering to the forces of political correctness is sincere, and his campaign to fire us was was a matter of conviction.

Unfortunately, having a president who is a sincere social justice warrior is even more toxic than having an opportunist bureaucrat. The latter might back off of a disastrous policy.

Jerry Bader: Two Important Takeaways from the McAdams Victory

What Marquette Could Have Done, But Didn’t

From Margot Cleveland, writing in The Federalist: an analysis of our recent Wisconsin Supreme Court victory. Cleveland sides with us and the court, and explains:

Next, the court considered whether Marquette had “discretionary cause” to suspend McAdams. The court began by citing the relevant contractual provisions, which defined “discretionary cause” as conduct that “clearly and substantially fail to meet the standard of personal and professional excellence which generally characterizes University faculties.”

However, as the court highlighted, the faculty contract expressly stated that discretionary cause will not “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.” The court then methodically considered Marquette’s rationale for suspending McAdams, stressing that it was McAdams’ conduct—and not the response of third parties—that mattered, explaining:

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.

But Cleveland goes on to highlight the fundamental social problems behind this whole incident:

Further, Marquette’s attempt to hold McAdams responsible for threats meted out by third parties upends academic freedom. It implies a faculty member must self-censor and limit criticism out of a fear that others will respond with threats or even violence. Yet nothing McAdams wrote reeked of an incitement to harassment or violence. The Wisconsin Supreme Court published the entire blog post and a quick read confirms the court’s view that McAdams had not invited the vile emails Abbate received.

Yet Abbate did receive emails that made her fear for her safety. I am not unsympathic to Abbate’s concerns, and few conservative journalists or politicians would be. But McAdams isn’t the problem. The problem is a society that teaches that words spoken in a classroom debate are so offensive that they must be silenced; a society that resorts to doxxing to silence speech instead of countering speech; and a society that views harassment and violence as appropriate responses to “offensive” speech.

This says nothing about McAdams, who criticized Abbate on the merits of her conduct, and everything about the decline of civility facing our country.

What Marquette Could Have Done

Cleveland goes on to highlight a grain of truth in the two leftist justices’ dissent.

Two Wisconsin Supreme Court justices dissented from the majority’s decision in favor of McAdams. The dissent merits consideration, not because of the faulty analysis of McAdams’ case, but because of the helpful discussion of academic freedom.

Many wrongly believe academic freedom rests solely with faculty members, but the dissent, authored by Justice Ann Walsh Bradley, highlights that academic freedom includes two components: academic freedom of the faculty and academic freedom of the institution. Marquette’s “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.’“

As a Catholic, Jesuit institution, Marquette possesses the right to exercise these four “essential freedoms” consistent with its guiding values, described by the dissent as the “holistic development of students” and a “commitment to the Jesuit tradition and Catholic social teaching.” Marquette could, then, have hired only faculty members willing to instruct students consistent with the university’s professed Catholic mission, in which case it could fire faculty members who do not live up to that commitment.

But it didn’t, as is obvious from the university’s decision to employ an instructor who, in contradiction of clear church teaching, taught students that “everybody agrees” on “gay rights.” Marquette instead promised faculty members the right to individual academic freedom, without regard to the university’s Catholic character. By committing itself “not to impair the full and free enjoyment of legitimate personal or academic freedoms,” Marquette forfeited its right to rein in McAdams’ speech as purportedly contrary to the university’s mission.

In its news release, Marquette hinted that it intends to reassert its institutional right to academic freedom, explaining that “in light of today’s decision, Marquette will work with its faculty to re-examine its policies, with the goal of providing every assurance possible that this never happens again” (emphasis added). Of course, by “this,” Marquette means public criticism of an instructor. If only the Jesuit university meant assuring faculty members do not silence student speech, especially speech defending Catholic teaching against a professor’s heresy. That is something I could get behind.

Marquette claims the right to hire “for mission.” This means Marquette has the right to hire people loyal to Catholic teaching, and even to prefer practicing Catholics.

This is perfectly consistent with academic freedom if, once hired, faculty are free to write and speak as they please. In some departments, this has largely been ignored. In Political Science we have always hired on the basis of pure scholarly credentials. This blogger has been as guilty of that as anybody else in the department.

In many departments, hiring is anti-mission. Somebody who opposes abortion, or gay marriage, or who believes homosexual acts are illicit would be quickly vetoed in the job search.

If Marquette is unwilling to hire for mission (which it certainly is), it could at least demand that faculty be tolerant of arguments on different sides of an issue. But in fact, Marquette doesn’t mind politically incorrect arguments being shut up — even when those arguments support Catholic teaching.

WILL: Academic Freedom Wins at State Supreme Court

Our client, Dr. John McAdams, gets to teach at Marquette again

July 6, 2018 – Milwaukee, WI -- Today the Supreme Court of Wisconsin delivered a clear, decisive victory for our client, Dr. John McAdams, a conservative political science professor who was indefinitely suspended by Marquette University for blogging on a controversial topic. The victory ends a nearly four year fight between the Wisconsin Institute for Law & Liberty and Marquette University to have McAdams reinstated.

As we have argued since the beginning, the only thing Professor McAdams wants to do is to teach students with the academic freedom protections promised by Marquette University. And, because of today’s ruling, McAdams will be back in the classroom very soon.

The Wisconsin Supreme Court, in a decision written by Justice Dan Kelly, found that Professor McAdams’ blog post in defense of an undergraduate student - and criticizing a graduate student instructor - could not possibly have shown him to be unfit as a member of Marquette’s faculty, and Marquette’s decision to fire him violated its contractual promise to protect his academic freedom.

In addition, according to the Court, 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. The Court rejected the notion that disciplinary decisions regarding free speech by faculty members should be made by administration or faculty. The concept of academic freedom is worthless unless it protects expression which is opposed by the institution and is unpopular with most of the faculty.

Furthermore, today’s decision from the Wisconsin Supreme Court relies on one of the simplest rules of fairness – you cannot punish somebody for violating a rule that did not exist when it was supposedly “broken.” Universities are free to create rules – even strict rules – about what their tenured professors can and cannot say publicly. What they cannot do is make up rules after the fact to punish a professor they want to get rid of.

We sincerely hope Marquette University learns from its mistakes and takes the utmost care at preserving free speech on campus. Unfortunately, the response today from Marquette gives us some pause. Marquette’s statement hints at curtailing academic speech for all their professors, which should alarm students and professors across the political spectrum. They repeat the claim– first made by the Metropolitan Milwaukee Association of Commerce (MMAC) – that private employers must have the right to set their own standards for employees. Their attorney declared that today’s decision “should be of grave concern to private businesses.”

That is, of course, nonsense. As explained by Justice Rebecca Bradley in her concurrence, “the doctrine of academic freedom has no application within private enterprise, unless of course a private entity incorporates the doctrine into employee contracts.” The only entities that should be concerned of today’s decision are universities who promise free speech to their professors and do not keep that promise.

All across the country, academic freedom is under assault on campuses. Universities are treating academic freedom as the right to say only what administrators or the loudest factions on campus approve of.

But today, the Wisconsin Supreme Court struck a major blow in favor of free speech, delivering the unequivocal message that “academic freedom” means just that.

###

Another Marquette Falsehood Before Wisconsin Supreme Court

We have already blogged about one falsehood that Marquette lawyer Ralph Weber told to the Wisconsin Supreme Court at our hearing last Thursday: the claim that Cheryl Abbate left Marquette because of the blow-back from our blog post detailing how she insulted and demeaned a student who wanted to express opposition to gay marriage in a class discussion.

In reality, she had wanted to leave Marquette and enter the philosophy graduate program at the University of Colorado the year before. Further, she was unhappy with Marquette’s graduate program.

Judge Michael Gableman thoroughly humiliated Weber on this point.

Was Abbate Disciplined?

Less noticed was a part of the hearing when Gableman asked whether Abbate had violated Marquette’s supposed “Guiding Values,” which Marquette claimed we had transgressed.



Weber admitted that “she could have handled that exchange better, a more experienced teacher would have deescalated the situation . . .” and further that “She was counseled and explained that the way she handled that conversation with the undergraduate . . . [Gableman interrupts, and then] yes, she was counseled.”

This is flatly untrue. As Rick Esenberg has explained (using information gained during “discovery” in our lawsuit):

The student complained to Dr. Susanne Foster in the College of Arts & Sciences, and was sent to the Philosophy Department where he spoke with then-chair Dr. Nancy Snow and Dr. Sebastian Luft. Neither Dr. Snow nor Dr. Luft took any action on behalf of the student. In fact, Dr. Snow referred to him as an “insolent little twerp” in a communication with the College of Arts & Sciences. What Dr. Snow did do was communicate immediately with Ms. Abbate to tell her, in essence, that they had her back. Dr. Snow reported to Ms. Abbate that she told the student that he “needed to change his attitude” and that she would be “monitoring” the situation. Dr. Snow told Ms. Abbate to let her know if the student did anything that Ms. Abbate found objectionable. Ms. Abbate thanked Dr. Snow and said that hopefully the student learned that “oppressive discourse is not acceptable.”

Abbate was, in other words, not some green, inexperienced instructor who needed some tips on how to deescalate a confrontation. She was a politically correct leftist whose suppression of politically incorrect ideas reflected the views of her faculty mentors, and of the leadership of the Marquette Philosophy Department.

See the Entire Hearing

You can see the entire hearing at the website of Wisconsin Eye.

Rick Esenberg Discusses McAdams v. Marquette Supreme Court Hearing

On Vicki McKenna, April 19, the head of our legal team, Rick Esenberg, discusses the just concluded oral arguments before the Wisconsin Supreme Court.

Guest Editorial: Vote for Prosser

This from a recent Marquette Law graduate:

Tomorrow is Election Day in Wisconsin, and there is a very important race for the Wisconsin Supreme Court on the ballot.

I want to take a moment to encourage you to vote for Justice David Prosser for the Wisconsin Supreme Court tomorrow, Tuesday, April 5. Justice Prosser has served the people of Wisconsin for his entire career — as a prosecutor, a legislator, and for the last twelve years, a Supreme Court justice. He is an independent, fair justice — we don’t agree in every single case, but we share a common commitment to deciding cases as “judicial conservatives” — following the rule of law, deferring to the political branches as appropriate, and sticking to the text of the laws at issue. I also know him personally as a friend and mentor, and appreciate his lifetime of honorable service to our state.

Thanks for your consideration; however you decide in this race, please make sure to take a few minutes tomorrow to do your civic duty and vote.

State Supreme Court Candidate Gableman At Marquette Tomorrow

From an e-mail sent to the Marquette community by the Office of Marketing and Communication:

Law School hosting forum with Michael Gableman

State Supreme Court candidate Michael Gableman is the next guest for “On the Issues with Mike Gousha” at the Law School. Gableman will discuss his judicial philosophy and whether judicial campaigns should look like other political campaigns on Tuesday, Jan. 15, from 12:15 p.m. to 1:15 p.m. in room 325 of Sensenbrenner Hall, 1103 W. Wisconsin Ave.

Gableman, a Burnett County Circuit Court judge, is running against Justice Louis Butler in the upcoming election. He is a former district attorney, administrative law judge, adjunct professor of law, deputy corporation counsel, private practice attorney and teacher. Justice Butler appeared at the Law School in November; a podcast of his appearance is available online.

Visit the Law School Web site for more information and to register.

We probably won’t be able to live blog he event.

Justice Louis Butler: Judicial Activist

Via GOP3.COM, and excellent piece of analysis from Daniel Suhr of the “jurisprudence” of Wisconsin Supreme Court Justice Louis Butler, who is running for reelection.

Suhr reviews several controversial cases, and finds Butler acting more like a liberal legislator than a judge.

He sums up the case for Butler’s judicial activism thus, and lists the cases where we see it:

Arrogance Over Deference

Justice Butler often substitutes his own judgment for that of another institution when that institution is entitled by law to deference.

Failure to defer to the trial court – Love, Armstrong, Dubose, Shomberg

Failure to defer to the legislature – Trujillo, Kohn, Diana P., Max G.W., Kolupar

Failure to defer to the U.S. Supreme Court – Knapp, Dubose, McGrew

Failure to defer to a government agency – Johnson, Meyers, Szleszinski

Overturning Precedent

Justice Butler often fails to show appropriate respect for the Court’s decisions in past cases. Trujillo, Knapp, Dairyland, Bartholomew

Acting Like a Legislator

Justice Butler often fails to respect the constitutional and practical limitations of the judicial office.

Extensive citations to non-legal authorities – Dubose, Shomberg, Thomas

Moral outrage substituted for sound legal reasoning – Thomas, Jones

The election is going to be a real donnybrook, which Butler being supported by a range of interests who like his legislation.

Linda Clifford’s Desperate Phone Calls

The Clifford campaign for Wisconsin Supreme Court must be desperate.

Fred Dooley of Real Debate Wisconsin put the state’s blogosphere onto a questionable Clifford campaign tactic.

The campaign has been making automated phone calls, saying that that she will “support public schools, their students and their employees’ rights.”

Given that there is no disclaimer saying who is paying for them, the calls are illegal. They also came with no caller ID.

The rhetoric about “public schools” looks very much like a coded way of saying that Clifford will oppose school choice, something her earlier statements clearly imply. As part of a liberal majority on the court, she would have the power to kill Wisconsin’s choice program.

Another, apparently different call, went out that gave the impression that the Milwaukee Journal-Sentinel was calling and asking for support for Clifford.

The liberal Journal-Sentinel did endorse Clifford, but didn’t take kindly to the calls, labeling them “misleading” and having their lawyer call the Clifford campaign on Monday afternoon to demand that they be stopped.

Clifford, who has been attacking the judicial ethics of her opponent, Annette Ziegler, has run a stunningly unethical campaign.

Ziegler Lenient on a Sex Offender?

Most of the cases in which the Linda Clifford campaign has accused Annette Ziegler of being soft on sex offenders hardly need any further analysis. But let’s look at one that is featured in a Linda Clifford campaign ad.

From FactCheck.org:

No Prison Time for a Sex Offender?

The Greater Wisconsin Committee, a state-wide political action committee funded by labor, education and healthcare PACs, attacked the tough-on-crime image that’s been a staple of Ziegler’s own ads with a spot claiming that Ziegler gave a convicted sex offender a lighter sentence than even his own defense attorney asked. The ad is true only if the sentence is measured strictly by years in prison. The whole story is more complicated.

In December 1998 a jury found Gary Tate guilty of sexually assaulting his step-daughter repeatedly during a three-year period. Ziegler sentenced Tate to 25 years in prison but stayed the sentence, instead giving him a year in county jail and 20 years’ probation conditioned upon Tate successfully completing a treatment program for sexual offenders. At the time, admission of guilt was a requirement of the treatment program.

According to the Milwaukee Journal-Sentinel, Ziegler made this comment at the sentencing:

MJ-S: “I want very much to punish the defendant for what he did,” Ziegler said. “I want very much to protect the community.” Equally important is providing treatment “so this never happens to anyone else again,” Ziegler said.

Tate filed a motion asking for a new trial, but Ziegler denied it. Tate refused to admit he was guilty, which meant he automatically flunked his sexual-offender treatment. His probation was revoked as a result, and he began serving his 25-year prison sentence.

In November 2002, Tate appealed his probation revocation. The case went to the state Supreme Court. Tate’s lawyers argued that since his sexual-offender treatment required him to incriminate himself and thereby forfeit any possibility of future appeals, the revocation of his parole was unconstitutional. The Supreme Court ruled in Tate’s favor. He was released from prison and is living in Wisconsin, according to the Wisconsin Sex-Offender Registry.

The ad is misleading in implying that Ziegler sentenced Tate to nothing more than a year in county jail. It would have been accurate to say that Tate became a free man just four years after his conviction as a result of Ziegler’s sentence.

So we ask, as we did in a previous post: do liberals see anything ethically wrong with campaign ads that intentionally try to mislead?

Linda Clifford: Sleazy, Misleading Campaign Ads

One of the more bizarre things about the very expensive and rather dirty race for the Wisconsin Supreme Court is the fact that the liberal (Linda Clifford) has been accusing the conservative (Annette Ziegler)of being soft on sex offenders.

This isn’t merely a matter of opinion. It’s simply untrue, and Clifford is being intentionally misleading.

The facts of the case are outlined in this press release from the Ziegler campaign.

West Bend – Linda Clifford’s campaign has been caught lying again. In both a press release and new attack television commercial, the Clifford campaign deliberately attempts to mislead voters.

Clifford’s campaign claims that nearly 60% of the child sex offenders (1st and 2nd Degree Sexual Assault and Repeated Sexual Assault of a Child) sentenced by Judge Ziegler were given a year in jail or less. However, they include the following cases in their calculation:

• 1997CF000270 – The sentence in that case was handed down by Judge Richard Becker, not Judge Ziegler.
• 2001CF000271 – The defendant in this case was sentenced in multiple cases (see 2001CF000359) on March 15, 2002 and was given 25 years in prison by Judge Ziegler for his crimes.
• 2000CF000432 – The defendant in this case was convicted of a misdemeanor and not eligible for prison.

In eight of the nine remaining cases Clifford cites, Judge Ziegler simply was signing off on the district attorney’s joint agreement.

“Linda Clifford should be ashamed of herself for launching these desperate attacks against a judge who is known for her tough sentences of sex predators,” said Sheriff Maury Straub, who is one of the 54 sheriffs endorsing Judge Ziegler. “Linda Clifford has a clear problem with telling the truth and voters are going to reject her dishonest campaign on Tuesday.”

According to the Wisconsin Sentencing Commission, the median prison sentence given for Repeated Sexual Assault of the Same Child (948.025(1)) is 10 years. Judge Ziegler’s median sentence for the same crime is 20 years in prison – twice the statewide number.

Additionally, since 2000, Ziegler has been substituted ten times in child sex offender cases. During that same period of time, the other three judges in Washington County were only substituted for in a cumulative total of four child sex offense cases. That means Judge Ziegler has been substituted on over twice as many times in child sex offender cases as the other three judges combined.

“Judge Ziegler has one of the strongest records in the state when it comes to handing out sentences to child sex offenders,” said District Attorney Todd Martens, who is one of the 43 district attorneys endorsing Judge Ziegler. “Sex offenders actually work hard to get out of her courtroom because they know what her real sentencing record.”

Judge Ziegler is the only judge and only prosecutor running for the Supreme Court. In addition to the bipartisan support of a majority of Wisconsin’s sheriffs and district attorneys, Judge Ziegler has been endorsed by every law enforcement organization that has endorsed in the race.

The Clifford campaign has made a big deal of Ziegler’s failure to recuse herself from several cases that involved West Bend Savings and Loan (where her husband sits on the Board of Directors).

But nobody has even claimed that anybody was treated unfairly in any of these cases, which were mostly so routine that they were handled by a clerk.

But what are we do think about the ethics of a candidate who intentionally tries to convince voters that a judge who is in fact tough on sex offenders is actually lenient?

Is there an ethical problem about that?

Linda Clifford on Marquette Radio

Liberal Wisconsin Supreme Court candidate Linda Clifford was just heard on the Marquette radio program Bipartisan Bickering with Matt and Joseph.

Joseph Schuster, the conservative/libertarian on the program, was well prepared, asking Clifford about school choice and gay marriage.

On school choice, she backed off earlier statements that seemed to question the concept, saying “I think that it is settled law.”

She did express interest in the financing of education in Wisconsin. This is a huge can of worms, because activist liberal courts in numerous other states have (for example) ordered legislatures to change school financing to rely less on the property tax, and more on state funds.

This, of course, makes local schools much less responsive to local citizens, and redistributes influence into the hands of lobbies that are powerful at the state level.

Yes, we are talking about WEAC.

Liberal activist courts have also ordered legislatures to increase spending on education, and raise taxes as much as is necessary to satisfy the judges’ notions of what level of spending is required.

On gay marriage, she refused to back off even a bit, but did equivocate.

When confronted by Schuster with her letter to the Wisconsin legislature attacking the Defense of Marriage Amendment, she said that “nobody will say this day how anybody will vote” and “I can’t say today.”

And she added “we don’t know what the arguments of the parties would be.”

She also said she didn’t know how the law would “develop” in the next few years. Translation: if other state Supreme Courts order gay marriage, she is leaving the door open to using the “developing” law to legalize homosexual unions.

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Hear audio:

• Judge Ziegler
• Linda Clifford

State Supreme Court Candidates on Marquette Radio Sunday

Sunday on Marquette radio, there is a show with the infelicitous title “Bipartisan Bickering with Matt and Joseph.” The hosts are Matt Woleske, Joseph Schuster, and this week they have scored a coup.

The will be interviewing both candidates for the Wisconsin Supreme Court election, which will be held this coming Tuesday.

The interview with Ziegler will be recorded tomorrow, but Clifford will actually be interviewed live, calling the show at 3:15 on Sunday afternoon.

One never knows when candidates will “let slip” something that fundamentally illuminates their judicial philosophy, which is why we wouldn’t think of missing the show.

Gay Lobby Favors Linda Clifford for State Supreme Court

Via CAFFEINATED POLITICS, some insight on the judicial philosophy of liberal State Supreme Court candidate Linda Clifford, from the website of the gay lobby group Fair Wisconsin.

Both Supreme Court candidates were asked a variety of “litmus test” questions, such as “Do you have any friends or family who are LGBT” (lesbian, gay, bisexual or transgendered).

But they were also asked about their judicial philosophy. Clifford claimed hers to be as follows:

As a justice, I promise:

• To uphold the rule of law, putting aside personal or political preferences;
• To rely on legal precedent to promote legal stability, but not blindly, respecting the need for the slow evolution of the common law to reflect social, technological, or legislative change; and
• To interpret and uphold legislative enactments to advance legislative intent--UNLESS those enactments violate civil liberties, constitutional rights, or fundamental freedoms or violate other constitutional or statutory provisions.

Then, I would have the courage to strike them down. That’s not activism; that’s not legislating from the bench. [emphasis in original]

Unfortunately it is legislating from the bench when you believe “civil liberties, constitutional rights, or fundamental freedoms” can mean pretty much what you want them to mean.

Highly revealing is Clifford’s naming of Wisconsin Chief Justice Shirley Abrahamson as one of the figures she wishes to emulate.

On the issue of gay marriage, Clifford clearly believes that Wisconsin’s Protection of Marriage Amendment violates the Federal 14th Amendment, based on a letter to the Wisconsin legislature that she signed.

So it’s pretty clear that in her world “civil liberties, constitutional rights, or fundamental freedoms” means “those policies that I really, really want.”

Thus the gay lobby is quite rational to support her. Having lost in November when they carried their case to the electorate, they naturally turn to the Court.

Supreme Court Race: Future of School Choice on the Line

George Mitchell is a long-time Wisconsin political activist and policy wonk who has been a strong supporter of school choice. In a circular e-mail, sent Tuesday and reprinted here with permission, he lays out the danger to school choice that the election of Linda Clifford to the state Supreme Court would entail:

Take Note

Unreported in today’s article on the Supreme Court debate is a comment by candidate Linda Clifford, who responded to a question saying that the law regarding “school choice” needs “clarification.”

It does? What does that mean?

The Wisconsin Supreme Court in 1998 upheld the constitutionality of the Milwaukee Parental Choice Program. On a 4-2 vote, with Justice Ann Walsh Bradley recusing, the court rejected each and every point raised by lawyers for teacher unions.

In 2002 the United States Supreme Court upheld the constitutionality of the Cleveland voucher program.

There is no benign way to interpret Clifford’s comment. “Clarifying” the 1998 court decision can only suggest an adverse impact on Milwaukee’s program. This would affect not only Milwaukee but parents and families statewide, as some candidates for public office and some sitting officials favor an expansion beyond Milwaukee. While that likely would not occur while Jim Doyle is governor, he won’t be governor forever. However, Linda Clifford, his candidate for the Supreme Court, easily could serve for decades if elected April 3.

After April 3, three of seven Supreme Court justices on the court in 1998 will remain. They are Chief Justice Abrahamson, Justice Patrick Crooks, and Justice Ann Walsh Bradley.

Justice Abrahamson dissented in the 1998 decision. Justice Crooks voted with the majority. For reasons not publicly explained, Justice Bradley recused herself.

New to the court are Justice Butler, a Doyle appointee; Justice Pat Roggensack; and Justice David Prosser.

As an appellate judge, Justice Roggensack authored a lengthy dissent in support of the Milwaukee program’s constitutionality when the case was heard in 1997. Her dissent became the spine of Justice Steinmetz’s 4-2 majority opinion in 1998. So, she clearly is on record, as is Justice Crooks.

Justice Prosser was a member of the Legislature and strong supporter of school choice in the 1990s. He, too, presumably believes the law is constitutional.

So, that is three apparent votes to sustain the principles established in the 1998 Wisconsin and 2002 U.S. Supreme Court case.

Chief Justice Abrahamson is on record that the program is unconstitutional. When I asked Louis Butler his opinion during his candidacy against Diane Sykes, he pointedly declined to answer.

Justice Bradley’s reasons for recusing in 1998 are not known, as is whether she would recuse herself if another case came before the court. Justice Bradley often agrees with Chief Justice Abrahamson.

So, the math is clear. Three apparent votes to sustain prior rulings on choice. Three potential votes not to sustain.

Linda Clifford is seeking the fill the seat of Justice Wilcox, who voted with the majority in 1998. She could provide a fourth vote to “clarify” the school choice law.

I am unaware of Judge Ziegler’s position, though the presumption must be that she would vote to sustain the precedent set by the 1998 and 2002 decisions.

Linda Clifford’s comment is significant beyond the very ominous implications for school choice. If anything has seemed clear in the school choice debate, it is that the law is settled. Yet Clifford is saying otherwise, notwithstanding two court rulings (that happen to reflect the thinking first set down by Justice Roggensack).

What other established precedents does Linda Clifford think need “clarification”?

Does Clifford’s opinion on choice explain the Greater Wisconsin Committee’s issue ad in her behalf? Did WEAC fund that?

These and many related questions now are at the center of this race.

This is what happens when judges adopt an activist posture. Constitutions cease to matter. Precedents cease to matter. All that comes to matter are the policy preferences of the judges. And Clifford is a liberal, endorsed by all the usual liberal suspects. They must feel -- and they are probably right -- that she will give them the policies they want.