Friends of the court

Outside parties and organizations who are not directly involved in a court case can file a supportive brief if they feel their organization may be affected by the court’s decisions. The following organizations have filed Friend of the Court briefs that support Marquette’s arguments.

Metropolitan Milwaukee Association of Commerce (MMAC)

MMAC is a 157-year-old private, not-for-profit organization representing approximately 2,000 member businesses located primarily in Milwaukee, Waukesha, Washington and Ozaukee Counties. Its mission is to improve metro Milwaukee as a place to grow businesses, invest capital, and create jobs. MMAC is the leading business organization in the Greater Milwaukee Area. MMAC’s members collectively employ approximately 300,000 persons in the region in a wide variety of businesses, including manufacturing, service, wholesale, and transportation.

Key statements from Amicus Brief:

  • “This is not a case about the First Amendment or its limits on the government’s right and ability to regulate speech. It is a case about contract law—specifically, an employment contract between two private parties.”
  • “In general, a private employer is free to discipline an employee for speech that adversely affects the enterprise or its various constituents. It is fundamental that the First Amendment does not of its own force apply to a private employment relationship.”
  • “In short, a private employer is and should remain free to discipline an employee for conduct or speech that disrupts or adversely affects the particular purpose of the enterprise or its constituents. First Amendment principles are implicated only if and to the extent that the employment contract incorporates them (here, by promising academic freedom) and, even then, must be read in light of other provisions of the contract and the overall purpose to which the enterprise is dedicated.”
  • “Thus, where the employment contract establishes a process to resolve disciplinary disputes, judicial review should be limited to whether the procedures promised were substantially followed. Any greater review would involve an evaluation of the organization’s mission, values, and priorities—not an inquiry into which courts should delve.”
  • “This Court should make clear that where, as here, a private employment contract provides a reasonable process for resolving disputes about an employee’s rights and responsibilities, a court’s review should be limited to whether the process was substantially fulfilled consistent with the contract. Deeper review or the creation of any extraordinary speech right that supersedes the provisions of the private employer-employee contract would interfere with the employer’s right to define its mission, set its priorities, and assess the impact of the alleged infraction on the overall health of the enterprise.”

Association of Jesuit Colleges and Universities (AJCU)

The AJCU is a national organization that represents twenty-eight Jesuit institutions of higher education located throughout the United States. Its mission includes fostering a unified Jesuit identity and educational policy, supporting national and international collaboration among institutions, improving the educational effectiveness of Jesuit colleges and universities, and assisting faculty to incorporate Ignatian teaching methods into their courses. Today, Jesuit colleges and universities in the United States enroll more than 215,000 students and employ nearly 22,000 faculty members.

Key statements from Amicus Brief:

  • “Marquette pledges ‘to offer personal attention and care to each member of the Marquette community.’ In stark contrast, Dr. McAdams’ appeal focuses exclusively on his individual rights, failing to account for the context surrounding the disciplinary process to which he contractually agreed and which was followed assiduously.”
  • “When a university and its faculty have agreed that a panel of faculty members will determine whether a professor’s conduct meets the university’s mission-informed standards of professional conduct, this Court should honor that arrangement.”
  • “Based on centuries of experience, Jesuit institutions recognize that an environment conducive to personal growth requires that the faculty be ‘keenly conscious of and sensitive to the institutional environment of the school or learning center; being alert as teachers and administrators to the complex and often subtle network of norms, expectations, behaviors and relationships that create an atmosphere for learning.’ Thus, they strive to foster an atmosphere where all members of the community are able to grow as individuals.”
  • “While Dr. McAdams may well believe that Marquette and his peers acted out of hostility to the viewpoints that he expressed in the blog post at issue, the reality is that he operated his blog for 10 years, publishing more than 3,000 posts that regularly engaged with controversial political and social topics, encountering no adverse actions by Marquette. Indeed, the FHC made clear that it was Dr. McAdams’ decision to publicize a graduate student’s name and contact information in an inaccurate and inflammatory post that was the basis for their recommendation, not his viewpoints on the underlying controversy.”
  • “Recognizing the broader implications of Dr. McAdams’ behavior for Marquette’s campus, the FHC concluded that he had created an environment of public shaming antithetical to the University’s mission. It noted that he had a track record of using publication on his blog as a threat in disagreements with others on campus and that junior faculty members in his own department feared that they might become his next target, chilling Marquette’s intramural discourse.”
  • “[A]s the FHC emphasized, faculty members’ obligations to avoid harm to others in the educational community ‘take on special resonance at Marquette, which is a Jesuit university that has incorporated the concept of cura personalis—care for the whole person—into its foundational values.’”
  • “A university does not forfeit its interest in maintaining its educational environment simply because a professor enjoys academic freedom.”
  • “Wisconsin courts are properly wary of overriding decisions made by faith-based institutions with respect to employee conduct implicating institutional values. The Court should defer to the results of the disciplinary process specified in Dr. McAdams’ contract, to which Marquette and its faculty committed the protection of those values.”

National Association of Manufacturers

 The National Association of Manufacturing is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12 million men and women, contributes $2 .25 trillion to the United States economy annually, has the largest economic impact of any major sector, and accounts for more than three-quarters of all private-sector research and development in the nation.

 Key statements from Amicus Brief

  • “The National Association of Manufacturers files this brief to support the position of Marquette University and to adopt the arguments made by the Metropolitan Milwaukee Association of Commerce (‘MMAC’).”
  • “The MMAC's brief identifies the interests of private and, in particular, commercial employers in responding to employees' extramural speech. Private employers should remain free to discipline an employee for conduct or speech that disrupts or adversely affects the particular purpose of the enterprise. And where an employment contract establishes a process to resolve disciplinary disputes, judicial review should be limited to whether the procedures promised were substantially followed.”
  • “These interests and positions taken by the MMAC are not unique to Wisconsin and its business community-they are shared by the members of the National Association of Manufacturers. Accordingly, the National Association of Manufacturers joins the MMAC's arguments and incorporates them by reference.”
  • “For all the reasons stated in the Metropolitan Milwaukee Association of Commerce's amicus curiae brief, this Court should make clear that where, as here, a private employment contract provides a reasonable process for resolving disputes about an employee's rights and responsibilities, a court's review should be limited to whether the process was substantially fulfilled consistent with the contract.“
  • “Deeper review or the creation of any extraordinary speech right that supersedes the provisions of the private employer-employee contract would interfere with the employer's right to define its mission, sets its priorities, and assess the impact of the alleged infraction on the overall health of the enterprise.”

Wisconsin Association of Independent Colleges and Universities (WAICU)

WAICU is the association of the twenty-four independent and private institutions of higher education in Wisconsin. Its membership is limited to accredited, nonprofit institutions that are headquartered in Wisconsin. It was founded to develop and foster a unique philosophy of higher education and curriculum development. WAICU’s members currently educate and serve over 55,000 students at its member institutions and directly employ over 17,000 individuals.

 Key statements from Amicus Brief

  • “The Wisconsin Association of Independent Colleges and Universities asks this Court to first consider the regulatory framework that governs—or more appropriately stated—that protects private colleges and universities and preserves their independence.”
  • “Over many decades of legislative sessions, the legislature has repeatedly sought to protect the freedom and independence of private colleges and universities and distinguish them from their public university counterparts. It is important that these legislative choices are respected.”
  • “It is through this lens that WAICU asks the Court to consider the case before it and reject McAdams invitation to override the deference and independence the legislature has afforded private universities regarding contractual governance of their employees.”
  • “The legislature has specifically left such things as tenure decisions and dismissal of faculty to the private colleges and universities and their faculty. For public universities, on the other hand, the legislature has set forth a robust regulatory framework. If this Court were to heed McAdams request to develop the common law of academic freedom, it undoubtedly would begin to ignore the policy preferences made by the legislature.”
  • “[T]he legislative and executive branches have sought the appropriate amount of regulation of private universities that is sensitive to institutional diversity and independence, while also addressing society’s needs.”
  • “McAdams' attempts to recast his contract dispute into one involving the First Amendment is without merit under the facts presented here.”
  • “The legislative and executive branches have explicitly regulated the tenure, suspension, and dismissal procedures at public universities while preserving the independence of Wisconsin's private colleges and universities. Were this Court to develop the common law of academic freedom instead of interpreting the contract between the parties, there would be a plethora of unintended consequences that would come to fruition. This Court should reject McAdams invitation to override the deference and independence the legislature has afforded private universities regarding contractual governance of their employees.”

University Academic Senate for Marquette University (UAS)

The UAS is a deliberative body composed of twenty-eight elected members of the Marquette faculty; three of Marquette’s eleven Deans; three elected students; two Vice Provosts; and the Provost. It is the primary vehicle through which the faculty of Marquette exercises its role in decisions that affect the academic mission of the University, a process known as “shared governance.”

Key statements from Amicus Brief

  • “The principle of "shared governance" is based on the recognition that the faculty have interests and responsibilities that are distinct from those of the administrators of a university, and that the optimal governance structure requires faculty participation in important decisions concerning curriculum, programs, promotion and tenure, and other academic matters.”
  • “The UAS seeks to file this brief to emphasize that prior faculty review of the proposed dismissal or suspension of a tenured faculty member is an essential element of both the concept of academic freedom and the contractual protections afforded to faculty members at Marquette.”
  • “Despite widespread agreement on the importance of academic freedom, however, the line between what is protected and what is punishable proved difficult to define.”
  • “The determination of whether a professor has violated the norms of the academic profession, or lacks ‘fitness’ to continue serving, is necessarily imprecise and subjective. It is therefore a critically important matter of shared governance that the faculty have the prior opportunity to approve or disapprove of the proposed suspension or dismissal of a tenured faculty member for cause, in order to act as a check on administrative discretion.”
  • “Academic freedom is, like many rights, not absolute. Professors recognize that while academic freedom is broad at its margins it must be balanced against their obligations to the university, to colleagues, to students, and even to the society at large. The determination of whether that line has been crossed is necessarily specific to the facts of each case.”
  • “It is therefore a key component of shared governance at Marquette and at other universities that the faculty be given an opportunity to engage in a thorough review of any proposed suspension or termination of a tenured faculty member. That thorough review was performed in this case.”
  • “Despite representing a diversity of viewpoints, the FHC rendered a unanimous recommendation in this case, and meticulously documented its rationale in a detailed and thorough report.”