Upholding a lower court's decision, the Wisconsin Supreme Court announced Tuesday it needs more information to rule on the contested termination of a tenured University of Wisconsin-Superior professor four years ago.
Facing allegations of sexual misconduct and behavior destructive to the university, UW-S communication arts professor John Marder lost his job in an 11-3 decision from the UW Board of Regents.
But Marder contended his due-process rights were violated, specifically referencing the closed session the regents entered into just prior to their vote.
Aaron Halstead, Marder's attorney, said he believes UW-S Chancellor Julius Erlenbach presented previously withheld evidence to the Board of Regents in that closed session.
The problem arises, he said, because he and Marder were excluded from the closed session and therefore were incapable of defending themselves from any last-minute allegations.
"We are encouraged by the fact that the Supreme Court agrees that the board still has to answer for its actions in this case in meeting privately with the chancellor," Halstead said. "We're not sure, of course, about the precise substance of it, but we are convinced that he said something in that meeting that completely changed the course of events."
The course of events leading up to that closed session, some believe, would have led the regents to dismiss Erlenbach's request for dismissal.
"The personnel [committee] of the Board of Regents unanimously supported Marder and said there's insufficient grounds for dismissal all the way up to this private meeting, and then they changed," UW-Madison political science professor Donald Downs said. "So something suspicious happened at this meeting that made them change their minds."
Every single faculty senate in the UW System has passed a resolution condemning the regents' actions as it relates to the Marder case, added Downs, a UW-Madison faculty senator and president of the Committee for Academic Freedom and Rights.
According to Halstead, the case will arrive back in the 3rd U.S. Circuit Court of Appeals within the next 60 days, where he will request the court to take sworn deposition testimony from the regents and from Chancellor Erlenbach himself.
"The people that were there have to be subpoenaed and interviewed so we can know what happened," Downs said, adding he believes the circuit court now has no choice but to issue the subpoenas.
Reliable testimony may prove difficult to come by, however.
Former Regent Fred Mohs, who participated in the closed session, predicted he and his colleagues would have a difficult time recalling precisely when certain evidence was presented.
"I would, at this period, find it very difficult to remember what I heard in open session or in closed session. I find it almost impossible to recall that," Mohs said. "It would be very hard to get people to remember when and what they heard."
Mohs did, however, stand by the regents' decision to dismiss Marder and bemoaned the great cost to UW of the prolonged litigation.
"The regents were faced with what we consider to be egregious behavior and the process had become bogged down, and we had to choose between going through a protracted, arduous process and frankly eliminating an individual that we didn't want on the campus," Mohs said. "We took the latter choice. In private business, this would be a no-brainer."
Reprinted in the Supreme Court's decision, the Board of Regents confirmed several allegations against Marder, including:
– The former professor admitted sharing a hotel room with a female UW-S student during a 1995 school-related trip and also admitted that he had "consumed so much alcohol that he experienced a 'black out' and could not recall whether or not he had, as she alleged, masturbated in front of her."
– Marder pursued a personal relationship with an international student while she was "seeking advice on possible admission and later studying at UW-Superior." The female student filed a sexual harassment complaint against Marder and alleged that he "masturbated in front of her in shared hotel rooms."
– He made a series of unfounded accusations against an employee in the communication arts department after finding the employee befriended the aforementioned international student.
According to Downs, the allegations of sexual misconduct would be grounds for dismissal, but he said Marder was never found guilty in either case. Moreover, Downs said, UW-S had previously adjudicated those issues.
"If that's true, then that's certainly just cause for dismissal, but then you've got to do it through just process," he said. "The other stuff doesn't amount to anything. He was just not very collegial, but you've got to have more to dismiss someone."
The University of Wisconsin System declined comment.
