Tuesday, July 17, 2018

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.

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