Nov. 30, 2005

Tenured Professor’s Firing (Largely) Upheld

The University of Wisconsin System’s Board of Regents abided by state law in 2001 when it fired a tenured professor for alleged sexual harassment and other misconduct, the Wisconsin Supreme Court ruled Tuesday. While it largely sided with the university in the case of John Marder, the court sent the case back to a lower court to resolve one factual issue.

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In 1999, Marder, a tenured associate professor of communications at the University of Wisconsin at Superior, received a letter outlining 18 charges that the campus’s chancellor, Julius Erlenbach, said “evince a pattern of behavior that is inconsistent with the expectations this university has of tenured faculty members and which further violate standards of professional conduct, thus constituting just cause to dismiss you from your tenured faculty position at UW-Superior.”

The university accused Marder, among other things, of sharing hotel rooms with two different students and of engaging in sexual misconduct with both and of repeated “harassing and disruptive behavior” toward fellow faculty and staff members. In 2001, over the objection of a faculty committee and after a board committee had twice stopped short of firing Marder, the board voted to dismiss him. He sued, charging that the system had failed to follow proper procedures and that the Board of Regents had been tainted against by inappropriate “ex parte” communications between system officials and board members, including a closed door session between the chancellor and the board immediately before the vote.

After mixed decisions in the lower courts, Wisconsin’s highest court ruled Tuesday that the regents had followed the “proper pre-termination procedure for a tenured faculty member” and that “there has been no showing” that any discussions between the chancellor and one regent or between lawyers for the university system and the regents had compromised Marder’s rights.

The court, however, said that it could not determine from the court record whether the board had based its decision to fire Marder on “new facts” it received in a discussion with the chancellor just before the vote. If the board based its decision on any “new facts” provided in that discussion, the court said, Marder’s right to due process would have been violated because he would not have been notified of the charges against him. The Supreme Court sent the case to the lower court “for the limited purpose ” of determining “whether the chancellor presented any new facts upon which Marder’s termination was based.”

— Doug Lederman

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