Judge dismisses all of McAdams claims against Marquette

[Ellenson Guerrero]

But this isn't about how she handled it. Or about secret recordings. Or academic freedom. Or campus politics. Or any of the other noise you and others are making to cloud the real issue here.
This is about a professor using his considerable platform to subject a student to public ridicule (and worse ... though I believe worse was not his intent), after he'd already been warned against such behavior by the administration after he'd done so in the past.
It's also about an arrogant and stubborn man who'd rather drag everyone down into the muck with him rather than simply admitting he was wrong, apologizing for it and moving on.

You realize that this is just a selective recitation of the "facts" that happen to support the school's theory of the case, not some objective concrete reality.  McAdams can tell an equally factual and plausible story:

This is a case about an undergrad student who was told that his views were not allowed in a college philosophy class by the grad student teaching the class; how the university ignored the undergrad's complaints until a prominent conservative professor blogged about it; how the university investigated and reprimanded the conservative professor rather than the grad instructor; how the university held the conservative professor responsible for things anonymous third parties did to the grad instructor on the internet; and how the university president defied the recommendation of the faculty commission for a suspension and instead gave the conservative professor an ultimatum that he would be fired unless he provided a forced confession to the president's specifications.

You can try to dismiss the bad aspects of the case for MU as "noise," but that doesn't make their position any more convincing.

[jsglow]

You realize that this is just a selective recitation of the "facts" that happen to support the school's theory of the case, not some objective concrete reality.  McAdams can tell an equally factual and plausible story:

This is a case about an undergrad student who was told that his views were not allowed in a college philosophy class by the grad student teaching the class; how the university ignored the undergrad's complaints until a prominent conservative professor blogged about it; how the university investigated and reprimanded the conservative professor rather than the grad instructor; how the university held the conservative professor responsible for things anonymous third parties did to the grad instructor on the internet; and how the university president defied the recommendation of the faculty commission for a suspension and instead gave the conservative professor an ultimatum that he would be fired unless he provided a forced confession to the president's specifications.

You can try to dismiss the bad aspects of the case for MU as "noise," but that doesn't make their position any more convincing.

Perhaps to you but not to the Courts.

[Ellenson Guerrero]

Perhaps to you but not to the Courts.

We'll see I suppose, but I wouldn't take an opinion of a left-leaning Milwaukee Circuit Court Judge as a strong indication of how the staunchly conservative Wisconsin Supreme Court will view the case.

[jsglow]

We'll see I suppose, but I wouldn't take an opinion of a left-leaning Milwaukee Circuit Court Judge as a strong indication of how the staunchly conservative Wisconsin Supreme Court will view the case.

Everything through the lense of politics, never the law.

[Ellenson Guerrero]

Everything through the lense of politics, never the law.

Please explain to me the "law" you've used to reach your conclusions on this case. 

Every case is the application of laws, often ambiguous ones, to a particular fact pattern.  There really isn't much applicable case or statutory law in Wisconsin relevant to this case, so it's a basic contract case that depends on whether you view McAdams behavior as a contract violation or not, which in turn is influenced by your views on academic freedom issues, which happen to be highly politically charged at the moment.

[Lennys Tap]

You realize that this is just a selective recitation of the "facts" that happen to support the school's theory of the case, not some objective concrete reality.  McAdams can tell an equally factual and plausible story:

This is a case about an undergrad student who was told that his views were not allowed in a college philosophy class by the grad student teaching the class; how the university ignored the undergrad's complaints until a prominent conservative professor blogged about it; how the university investigated and reprimanded the conservative professor rather than the grad instructor; how the university held the conservative professor responsible for things anonymous third parties did to the grad instructor on the internet; and how the university president defied the recommendation of the faculty commission for a suspension and instead gave the conservative professor an ultimatum that he would be fired unless he provided a forced confession to the president's specifications.

You can try to dismiss the bad aspects of the case for MU as "noise," but that doesn't make their position any more convincing.

Bingo. Two sided coin, Pakuni only acknowledges one.It's only "about" what he wishes/wants it to be "about". Arrogance.

[Eldon]

Please explain to me the "law" you've used to reach your conclusions on this case. 

Every case is the application of laws, often ambiguous ones, to a particular fact pattern.  There really isn't much applicable case or statutory law in Wisconsin relevant to this case, so it's a basic contract case that depends on whether you view McAdams behavior as a contract violation or not, which in turn is influenced by your views on academic freedom issues, which happen to be highly politically charged at the moment.

Nailed it.

[Pakuni]

You realize that this is just a selective recitation of the "facts" that happen to support the school's theory of the case, not some objective concrete reality.  McAdams can tell an equally factual and plausible story:

Not sure if you're a lawyer or just play one on Scoop, but from a legal standpoint your arguments below are a disaster.

This is a case about an undergrad student who was told that his views were not allowed in a college philosophy class by the grad student teaching the class;

Neither the undergrad student nor the grad student are parties to this case. What they did or didn't do is irrelevant.

how the university ignored the undergrad's complaints until a prominent conservative professor blogged about it;

Assuming facts not in evidence, counselor. In fact, what little we do know contradicts this statement.
But regardless, the undergrad is not a party to this case, so whether the university ignored his complaint is irrelevant.

how the university investigated and reprimanded the conservative professor rather than the grad instructor

Again, likely assumes facts not in evidence (do you know that Abbate was not investigated or reprimanded?).

how the university held the conservative professor responsible for things anonymous third parties did to the grad instructor on the internet

I actually agree here. And I'm glad you agree that McAdams' behavior led to threats against Abbate.

and how the university president defied the recommendation of the faculty commission for a suspension and instead gave the conservative professor an ultimatum that he would be fired unless he provided a forced confession to the president's specifications.

Defied? Oh, please. The recommendation was just that ... a recommendation. Lovell has no legal, ethical, professional or moral obligation to follow it. If McAdams is trying to build a case around Lovell not following the faculty commission's recommendation, he lost before the ink dried on his complaint.

You can try to dismiss the bad aspects of the case for MU as "noise," but that doesn't make their position any more convincing.

The "bad aspects" of the case for MU as you present them are all either unsupported by the facts, concern people who are not parties to the case or irrelevant to legal issues therein.

[GGGG]

This is a case about an undergrad student who was told that his views were not allowed in a college philosophy class by the grad student teaching the class;

Not necessarily true.  Regardless, there are procedures in place to address these issues that neither the student nor McAdams followed.  The student I understand, but McAdams should know better.

how the university ignored the undergrad's complaints until a prominent conservative professor blogged about it;

I don't believe the university was made aware of the complaints until the professor blogged about it.  I could be wrong on my timeline.  Regardless, even if they did know, that doesn't mean his complaints were legitimate.  Remember the Wire story interviewed other classmates who said that the topic WAS addressed, but not to the extent that the student wanted.

how the university held the conservative professor responsible for things anonymous third parties did to the grad instructor on the internet;

He is being held responsible for his own actions. 

and how the university president defied the recommendation of the faculty commission for a suspension and instead gave the conservative professor an ultimatum that he would be fired unless he provided a forced confession to the president's specifications.

Which is perfectly within his right to do.

If that's his ethical defense, it's pathetically weak. 

[Ellenson Guerrero]

Pakuni, it is obvious that you can only understand one side of this case and are willing to comprehend how anyone could see the situation differently.  That is fine, but it doesn't make other perspectives wrong. 

I may think that this particular undergrad is an immature provocateur wannabe and that McAdams is a blowhard without self-awareness, but that doesn't change the fact that McAdams' legal case is stronger than Marquette's and that he's likely to win in the Wisconsin Supreme Court.   

As a practicing lawyer, a few points in response to your most recent post:

1) Most trials involve facts about what non-parties did or did not do.  There is no rule of evidence that limits the trial universe to the actions taken by parties to the case.  "Relevance" in the evidentiary sense is incredibly broad under Wisconsin law.

2) The case is not about Lovell's personal "legal, ethical, professional, or moral obligations."  It is about Marquette University and McAdams' contractual obligations to one another.  When Marquette granted McAdams tenure, it contractually promised not to fire him for his exercise of academic freedom.  There only potential defense here is that McAdams violated the Faculty Handbook's guidelines about misconduct by professors.  It would have been a stretch to fire McAdams had the faculty panel recommended that result based on their interpretation of the Faculty Handbook; when Lovell decided to fire McAdams against the faculty panel's recommendation, he really went out on thin ice, with nothing supporting his decision except himself. 

3) There is no official scoop "record" containing all of the evidence relevant to a topic--this isn't court--but you should review the summary judgment record developed by McAdams in the actual court case.  You might be surprised by what you find.       

[GGGG]

Pakuni, it is obvious that you can only understand one side of this case and are willing to comprehend how anyone could see the situation differently.  That is fine, but it doesn't make other perspectives wrong. 

I may think that this particular undergrad is an immature provocateur wannabe and that McAdams is a blowhard without self-awareness, but that doesn't change the fact that McAdams' legal case is stronger than Marquette's and that he's likely to win in the Wisconsin Supreme Court.   

As a practicing lawyer, a few points in response to your most recent post:

1) Most trials involve facts about what non-parties did or did not do.  There is no rule of evidence that limits the trial universe to the actions taken by parties to the case.  "Relevance" in the evidentiary sense is incredibly broad under Wisconsin law.

2) The case is not about Lovell's personal "legal, ethical, professional, or moral obligations."  It is about Marquette University and McAdams' contractual obligations to one another.  When Marquette granted McAdams tenure, it contractually promised not to fire him for his exercise of academic freedom.  There only potential defense here is that McAdams violated the Faculty Handbook's guidelines about misconduct by professors.  It would have been a stretch to fire McAdams had the faculty panel recommended that result based on their interpretation of the Faculty Handbook; when Lovell decided to fire McAdams against the faculty panel's recommendation, he really went out on thin ice, with nothing supporting his decision except himself. 

3) There is no official scoop "record" containing all of the evidence relevant to a topic--this isn't court--but you should review the summary judgment record developed by McAdams in the actual court case.  You might be surprised by what you find.       

And this is all fine and good.  That doesn't mean that firing him wasn't the moral and ethical thing to do.

[Lennys Tap]

And this is all fine and good.  That doesn't mean that firing him wasn't the moral and ethical thing to do.

Of course it doesn't. And nothing that Pakuni or anyone else opines doesn't mean that retaining and possibly suspending him wasn't the moral and ethical thing to do. It's a matter of opinion. Anything else is holier than thou posturing.

[Pakuni]

Your lecture about an inability to see other perspectives is interesting coming from a guy who's argument against Judge Hansher's decision is that "he's a liberal." You simply dismiss the ruling not on the merits, but on what you perceive to be the judge's political leanings.

It's not that I can't understand how others might think differently. It's just that I believe those people are offering a kneejerk defense of someone they perceive as an ally/kindred spirit (i.e. McAdams) rather than viewing the facts through an objective lens.
You're free to disagree, but my belief that MU is in the right here makes me no less capable of comprehending the other side than your belief that MU is wrong.

1) Most trials involve facts about what non-parties did or did not do.  There is no rule of evidence that limits the trial universe to the actions taken by parties to the case.  "Relevance" in the evidentiary sense is incredibly broad under Wisconsin law.

Of course, but this is very different from what you said. Bottom line, contrary to what you claim, the case is not about a brief interaction between an undergrad and his TA. No one, not even McAdams, has argued this.
Even you admit as much when you (correctly) later state that it's a simple contract matter. We agree on that. This case is about 1) Whether McAdams agreed to MU's disciplinary procedures as a condition of his employment and 2) Whether MU adhered to those procedures when McAdams was fired. [/quote]

2) The case is not about Lovell's personal "legal, ethical, professional, or moral obligations."  It is about Marquette University and McAdams' contractual obligations to one another.

Agreed.
So what does an interaction between a student and TA have to do with the contractual obligations between Marquette and a tenured professor?

It would have been a stretch to fire McAdams had the faculty panel recommended that result based on their interpretation of the Faculty Handbook; when Lovell decided to fire McAdams against the faculty panel's recommendation, he really went out on thin ice, with nothing supporting his decision except himself.

Nothing? Well, I guess if you consider the well-documented authority of the university president to count for "nothing," you could be right.
Of course, you know this is not true. You know that Lovell has the legal authority to go above and beyond the commission's recommendation. And you know that courts are loathe to supersede such authority in employment matters.

[Ellenson Guerrero]

Your lecture about an inability to see other perspectives is interesting coming from a guy who's argument against Judge Hansher's decision is that "he's a liberal." You simply dismiss the ruling not on the merits, but on what you perceive to be the judge's political leanings.

That is a straw man.  I don't think the circuit judge's ruling will hold up because it is built on deference to Lovell's personal conclusions about whether McAdams' conduct violated the Faculty Handbook, rather than any independent fact finding by the judge.  Even if courts were supposed to defer to fact findings by panels of university professors regarding breach of contract matters, which I find unlikely as a matter of law, Lovell's actions aren't supported by that either. 

Lovell actions amount to: "McAdams, I know that we said we wouldn't fire you when we granted you tenure, and I know the faculty panel concluded that what you did doesn't warrant firing you, but I really don't like what you did and I want a public apology, so dammit you're going to give me that or you're fired."  I don't think that is a winning case. 

Honestly, it is pretty clear that the circuit judge knew that this case was not going to be resolved via a trial, because he knew either party would appeal if it lost, so he picked the route that got the case up on appeal fastest. He leans liberal so he sympathized with the university purporting to defend a student from harm by a powerful professor.  The Wisconsin Supreme Court currently leans conservative, so it is likely to sympathize with the professor fired for expressing politically incorrect views that lead to unknown third parties saying bad things on the internet. 

[muwarrior69]

This is such a blatant misstatement of reality. I mean, at what point exactly did you decide to become Chico's?
Nobody on any side of this debate has ever suggested Abbate was immune from criticism. To the contrary, if there's one thing everyone agrees upon, it's that she handled the situation poorly.
But this isn't about how she handled it. Or about secret recordings. Or academic freedom. Or campus politics. Or any of the other noise you and others are making to cloud the real issue here.
This is about a professor using his considerable platform to subject a student to public ridicule (and worse ... though I believe worse was not his intent), after he'd already been warned against such behavior by the administration after he'd done so in the past.
It's also about an arrogant and stubborn man who'd rather drag everyone down into the muck with him rather than simply admitting he was wrong, apologizing for it and moving on.

Can he plead the Hillary defense; no intent.

[forgetful]

Lovell actions amount to: "McAdams, I know that we said we wouldn't fire you when we granted you tenure, and I know the faculty panel concluded that what you did doesn't warrant firing you, but I really don't like what you did and I want a public apology, so dammit you're going to give me that or you're fired."  I don't think that is a winning case. 

It's clear you don't really understand the concept of tenure.  You are also leaving out a very important piece of evidence.  McAdams was previously warned that using students names in his blogs (particularly in a defamatory manner) is unacceptable and could result in revocation of tenure.  He had acknowledged to administration he understood.

He did it anyway, and his tenure was revoked. 

This is not an academic freedom issue, it is a violation of university conduct policies involving the release of information regarding students.  Abbate was a student.  McAdams violated conduct policies that he was warned could result in revocation of tenure. 

This is not and should not be a political issue.  It is an issue of unethical, an immoral conduct that violated established University guidelines of behavior regarding students.

[Ellenson Guerrero]

This is not an academic freedom issue, it is a violation of university conduct policies involving the release of information regarding students.  Abbate was a student.

Again, just stating that this case is not about academic freedom does not convert that conclusion into reality.  The university contractually promised McAdams that none of its conduct policies would be interpreted in a manner so as to infringe on His academic freedom.  McAdams claims that MU breached that promise by firing him of this incident; MU denies that.  Whether academic freedom was infringed here is literally the centerpiece of the case, regardless of who is right or wrong (which I happen to think should have been decided by a jury).

[Pakuni]

Again, just stating that this case is not about academic freedom does not convert that conclusion into reality.  The university contractually promised McAdams that none of its conduct policies would be interpreted in a manner so as to infringe on His academic freedom.  McAdams claims that MU breached that promise by firing him of this incident; MU denies that.  Whether academic freedom was infringed here is literally the centerpiece of the case, regardless of who is right or wrong (which I happen to think should have been decided by a jury).

No, counselor, it shouldn't have been decided by a jury. Juries decide matters of fact. Judges decide matters of law. In this case, there is no dispute as to the facts. McAdams doesn't deny writing the blog. The dispute is in regards to the application of the law to those facts.

This from Inside High Ed:

1. Academic freedom does not mean a faculty member can harass, threaten, intimidate, ridicule, or impose his or her views on students.
8. Academic freedom does not protect faculty members from sanctions for professional misconduct, though sanctions require clear proof established through due process.
12. Academic freedom does not protect a faculty member from investigations into allegations of scientific misconduct or violations of sound university policies, nor from appropriate penalties should such charges be sustained in a hearing of record before an elected faculty body.

https://www.insidehighered.com/views/2010/12/21/defining-academic-freedom

[Ellenson Guerrero]

No, counselor, it shouldn't have been decided by a jury. Juries decide matters of fact. Judges decide matters of law. In this case, there is no dispute as to the facts. McAdams doesn't deny writing the blog. The dispute is in regards to the application of the law to those facts.

This from Inside High Ed:

1. Academic freedom does not mean a faculty member can harass, threaten, intimidate, ridicule, or impose his or her views on students.
8. Academic freedom does not protect faculty members from sanctions for professional misconduct, though sanctions require clear proof established through due process.
12. Academic freedom does not protect a faculty member from investigations into allegations of scientific misconduct or violations of sound university policies, nor from appropriate penalties should such charges be sustained in a hearing of record before an elected faculty body.

https://www.insidehighered.com/views/2010/12/21/defining-academic-freedom

I would take the time to explain why I think this case involves mixed questions of law and fact that require jury findings, but I'm sure you don't really care.

[Herman Cain]

 MU got some bad publicity in the WSJ today on this matter.
https://www.wsj.com/articles/a-jesuit-school-gets-dogmatic-1515362173

[mu-rara]

My problem with this whole mess is that once again MU Administration allows a minor problem to become a BFD, allowing Mark Belling to add a chapter to his "I hate Marquette"  book.

The chair of the appropriate department should have put the student and the instructor into a room and worked this out.  I hate it when my esteemed Alma Mater continually steps on its stuff and looks stupid.  The Trustees should ask Lovell how this whole thing got so out of control.

[mayfairskatingrink]

It's happening.

This case is bypassing Appeals and going straight to WI Supreme Court. 

[Ellenson Guerrero]

It's happening.

This case is bypassing Appeals and going straight to WI Supreme Court.

No order from the Wisconsin Supreme Court yet.

[sodakmu87]

I have read over this topic from this site and pleased with the thoughtful discussion.   I am not lawyer but do appreciate the differing views here and how they are expressed.  What is interesting to me is the views that look at this mess from a truly differing point--i.e.--I like McAdams and shared his views but he was once a good guy and is now an old jerk.  Or, people look at this whole thing as a failure of Marquette to manage a PR mess.  I'm mostly in this last viewpoint.  The last place you want to read about your alma mater is getting bad PR in national publication (WSJ), even if it is in the editorial page.  The sad part is these days if you want to call your university a Catholic one you had better have thick skin,  because you will get flack from people who believe you are not Catholic enough and those who believe you are stuck in the 1950s.  When I was at MU in the 80s I felt Fr Raynor did a good job of playing the sensible middle ground, and I don't recall many who questioned how Catholic MU was,  even with Dan Maquire teaching in the THEO dept. 

[GGGG]

My problem with this whole mess is that once again MU Administration allows a minor problem to become a BFD, allowing Mark Belling to add a chapter to his "I hate Marquette"  book.

Who cares what that blowhard thinks about Marquette?