AAUP Amicus Briefs, 2005-08

In accord with the Association's principles and litigation priorities, the AAUP Legal Office is active in filing amicus briefs in cases involving, among other things, academic freedom, discrimination, and affirmative action, and, in rare circumstances, participating as a party in cases involving academic freedom, First Amendment rights, and national security.

Topics covered below include:
Academic Freedom and Public Employee Speech
Academic Freedom and National Security 
Academic Freedom and Teaching
Academic Freedom and Institutional Matters
Tenure
Discrimination
Intellectual Property
Affirmative Action

See also AAUP Amicus Briefs, 1999-2004.

Academic Freedom and Public Employee Speech

Garcetti v. Ceballos

Update: On May 30, 2006, the Supreme Court reversed and remanded the Ninth Circuit’s holding in a 5-4 decision authored by Justice Kennedy.  The opinion held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” regardless of whether the speech implicates matters of public concern.  The Court rejected the notion that the First Amendment requires the Court to balance the competing interests of a government employee and employer when the employee is “performing his or her job duties,” concluding that under those circumstances, the government’s interest in efficiency automatically outweighs the employee’s interest in free speech.  Because Ceballos made his statements as part of his official duties as a deputy district attorney, the Court held that the statements did not constitute protected speech, and Ceballos’ demotion and transfer therefore did not violate the law. 

Fortunately, the Court recognized the concerns raised by AAUP that such an approach to public employee speech could be read as an impingement on academic freedom. Responding to Justice Souter’s dissent, in which he commented that “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties,’” Justice Kennedy 's majority opinion observed that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”  He therefore concluded that “we need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”  Read the decision (pdf).

Hong v. Grant

On March 17, 2008, the AAUP and the Thomas Jefferson Center for the Protection of Free Expression filed a jointly-authored amicus brief (.pdf) in the U.S. Court of Appeals for the Ninth Circuit.  The amicus brief supported the appeal of Dr. Juan Hong, a full professor at the University of California-Irvine, in his suit against the university and its administrators.  Dr. Hong had, while participating in faculty governance, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and by his opposition to the university’s use of lecturers in place of professors.  After Dr. Hong was denied a merit salary increase, he filed suit against the university for violating his First Amendment right to free speech.

The U.S. District Court for the Central District of California rejected Dr. Hong’s claim, finding in favor of the university.  The judge reviewed the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) (see discussion above) and concluded that because Dr. Hong was purportedly acting “pursuant to his official duties,” which included participation in faculty governance, he could not avail himself of First Amendment protection if his employer retaliated against him based on his expression of opposition to the university’s policy.  According to the court, the University of California-Irvine “‘commissioned’ Mr. Hong’s involvement in the peer review process and his participation is therefore part of his official duties as a faculty member.  The University is free to regulate statement made in the course of that process without judicial interference.”  In so holding, the court failed to acknowledge the fact that courts treat the speech of professors in an academic context differently than the speech of employees of public agencies in other contexts, and that the Garcetti decision explicitly set aside the question of academic speech.

The amicus brief focuses on the unique status granted to academic speech, including involvement in shared governance. The brief notes that academic speech has been accorded special First Amendment protection by the Supreme Court, starting with Sweezy v. State of New Hampshire, 354 U.S. 234 (1957) (Frankfurter, J. concurring) through Keyishian v. Board of Regents, 385 U.S. 589 (1967) and Grutter v. Bollinger, 539 U.S. 306 (2003), and argues that such protection must include the right of faculty to participate in shared governance. The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community.  The brief also notes that the district court mistakenly characterized Dr. Hong’s participation in faculty governance as an “official duty.”  Instead of a “duty”, the brief argues, participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation.

Academic Freedom and National Security

Mukasey v. John Doe

On August 1, 2005 the AAUP joined with the American Booksellers Foundation for Free Expression, the American Library Association, the Association of American Publishers, the Freedom to Read Foundation, and the PEN American Center in filing an amicus brief (pdf), which was written by Jenner & Block. The brief argues that by giving the government an unprecedented ability to intrude on the intellectual and academic freedom of the above organizations, their members and patrons, and the general public, Section 2709 violates the First Amendment in at least two respects. First, it authorizes the compelled disclosure of constitutionally protected information without any governmental showing that the information actually further a terrorism investigation or any other substantial governmental interest. Second, Section 2709’s automatic gag rule violates the First Amendment because it unjustifiably imposes a blanket ban of secrecy upon recipients of orders without any showing of need for such secrecy.

Status:   In March 2006, Congress amended the relevant provision of the Patriot Act to allow for judicial review of NSLs and to permit recipients of NSLs to consult with an attorney.  Because of these changes, the Second Circuit declined to decide the First Amendment implications of the revised provision of the Patriot Act before the trial court had had a chance to do so.  The appeals court therefore vacated and remanded the case to the U.S. District Court for the Southern District of New York.  On September 9, 2007, the District Court issued a decision (.pdf) in which it struck down the amended National Security Letter provision.  The opinion held that the Patriot Act provision permitting the FBI to prevent those who received NSLs from speaking about them was unconstitutional, and also held that because the Patriot Act prevented courts from engaging in meaningful judicial review of that “gag power,” the statute violated the First Amendment and the principle of separation of powers.

Update: Attorney General Michael Mukasey appealed to the Second Circuit the portions of the District Court’s decision relating to when an NSL can be issued and the breadth of the gag order that accompanies an NSL.  The plaintiffs opposed this appeal, urging the Second Circuit’s affirmance of the decision of the lower court.  On March 17, 2008, the AAUP filed an amicus brief (.pdf) with the American Library Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, and the PEN American Center in support of the plaintiff’s request for affirmance.  The AAUP and the other amici argue in the brief that the lower court correctly found that the features that made the former Section 2709 unconstitutional were camouflaged by, but survived under, the new Section 2709 and Section 3511.  The brief, which was drafted by Jenner & Block, also notes that the revised statutory provisions, if upheld, would give the government a blank check to issue NSLs as it wishes, without any obligation to demonstrate that its intrusions on First Amendment rights are truly necessary, and without any obligation to consider competing interests in free speech.  Moreover, the brief argues that the provisions, if upheld, would deprive the courts from meaningful review of the government’s certification of an NSL gag order as “necessary.”

ACLU, AAUP, & Pen American Center v. Department of State, Department of Homeland Security, Department of Justice, and Central Intelligence Agency

Update:  On January 20, 2006, the District Court ordered the State Department, the CIA, and two components within the Department of Homeland Security (the Bureau of Customs and Border Protection and the Bureau of Citizenship and Immigration Services) to process the plaintiffs’ March 2005 FOIA request.  Subsequently, the Department of Justice and the CIA found no relevant records, and were dropped from the case.  In June, the court ordered each remaining defendant to produce an itemized index of each document withheld by the government and a justification for why it was withheld.  In exchange for receiving the Records and Statistical Information that the government was able to produce in response to the requests, the plaintiffs dismissed the FOIA case on January 22, 2007.  The dismissal does not prevent the plaintiffs from filing different FOIA requests if new information comes to light.

In January 2006, the AAUP, along with the American Academy of Religion and the PEN American Center, filed a lawsuit challenging a decision by two agencies of the U.S. Government—the Department of Homeland Security and the State Department—barring Professor Tariq Ramadan from entering the United States to accept speaking invitations extended by the AAUP and other organizations of scholars.  Neither the professor nor the university received an explanation for the government’s action, but a spokesperson for the Immigration and Customs Enforcement division of the Department of Homeland Security told the press in 2004 that the visa was revoked “because of a section in federal law that applies to aliens who have used a ‘position of prominence within any country to endorse or espouse terrorist activity.’”  The lawsuit claims that the government wrongfully used this section of the USA Patriot Act, known as the “ideological exclusion” provision, to deny a nonimmigrant visa to Dr. Ramadan, a prominent Swiss scholar and outspoken critic of American policy in Iraq.
 
Tariq Ramadan is one of Europe’s leading scholars of the Muslim world.  He is currently a visiting fellow at St. Anthony’s College at the University of Oxford and a Senior Research Fellow at the Lokahi Foundation in London. The ideological exclusion provision (originally added as part of the Patriot Act) allows the government to deny a visa to anyone who has “endorse[d] or espouse[d] terrorist activity or persuade[d] others to endorse or espouse terrorist activity or support a terrorist organization.”  The AAUP lawsuit contends that the government is using the law not only to exclude terrorists but also to influence political and academic debate inside the United States.  AAUP invited Professor Ramadan to speak at its 2005 annual meeting, but because of the visa denial, he was forced to speak by videoconference.  Professor Ramadan was also invited again to speak at the 2006 Annual Meeting.  The AAUP is represented in the lawsuit by the American Civil Liberties Union. 
 
The ACLU also filed an application on behalf of the plaintiffs for a preliminary injunction compelling the government to adjudicate Professor Ramadan’s longstanding application for a visa.  On June 23, 2006, Judge Paul Crotty, a federal trial judge in New York City, issued a decision (pdf) that sharply criticizes the government’s conduct in failing to act on Professor Ramadan’s visa application and orders the government to make a decision on the pending application by September 21, 2006.  The decision, which can be viewed here, makes clear that if the government fails to supply a legitimate and bona fide explanation for its exclusion of Professor Ramadan and the court determines that the plaintiffs’ First Amendment rights have been violated, the government may not continue to exclude Professor Ramadan from the United States.  The court expressed frustration with the government’s repudiation of its original stated rationale for excluding Professor Ramadan; the court characterized the government’s position as “shifting” and suggested that “the government might be in a better position if it explained [the Department of Homeland Security’s] statement of August 2004, reconciled that statement with its current legal position, and provided a legitimate and bona fide reason for its exclusion of Ramadan.”  The court further rejected the government’s claim that the court had no jurisdiction over visa decisions, holding flatly that such an argument does not apply in cases where United States citizens bring suit to vindicate their constitutional rights, including First Amendment rights.  The court’s decision specifically noted that the AAUP had criticized the government’s revocation of Professor Ramadan’s visa. 

Update:  Just before the court’s deadline, Professor Ramadan received a letter from the United States Embassy in Bern informing him that his visa had been denied for allegedly providing “material support” to a terrorist organization.  The letter cited several donations by Professor Ramadan to Palestinian relief organizations that, the government alleges, in turn gave money to Hamas, a designated terrorist organization; Professor Ramadan had himself previously disclosed these donations to the U.S. government.  The organizations were registered charities in France at the time that Professor Ramadan made any donations, and were not deemed terrorist organizations by the United States until 2003, after Professor Ramadan’s final donation. 

On January 30, 2007, the AAUP and the other plaintiffs filed a motion for leave to file an amended complaint, along with the amended complaint itself, available here (.pdf) and here (.pdf), which responds to the government’s material support argument.  Specifically, the amended complaint asserts that the government’s new reasons for excluding Professor Ramadan are as unjust and unlawful as its reliance on the ideological exclusion provision: the organizations were not listed as terrorist organizations at the time that Professor Ramadan gave his donations, and he neither knew nor should have known that they were providing funds to Hamas (if in fact they were).  The amended complaint therefore seeks, in addition to a declaration that the ideological exclusion provision is unconstitutional on its face and as applied to Professor Ramadan, a declaration that the material support provision is inapplicable to Professor Ramadan and an injunction prohibiting the government from relying on the provision to exclude him.

In addition, the amended complaint refers to the AAUP’s historical and ongoing commitment to the free circulation of scholars, including its advocacy of United States immigration reform and its intervention on behalf of foreign scholars who have been excluded from the country on the basis of their political beliefs and associations.  Most recently, as noted by the amended complaint, the AAUP wrote to the Departments of State and Homeland Security to protest the exclusion of Professor Adam Habib, the executive director of South Africa’s Human Sciences Research Council’s Democracy and Governance Programme, and the eventual revocation of Professor Habib’s visa and the visas of his wife and two young children.  Those letters are available on the AAUP’s website.

On February 23, 2007, the AAUP and the other plaintiffs filed a Motion for Summary Judgment (.pdf), accompanied by an extensive supporting declaration (.pdf) by AAUP President Cary Nelson.  The motion challenges the government’s reliance on the ideological exclusion provision and the material support provision, and requests several kinds of relief from the court: a ruling that the government’s reliance on the material support provision to exclude Professor Ramadan violates the U.S. Constitution and federal law; a declaration that the ideological exclusion provision violates the U.S. Constitution; an injunction against using the material support provision to exclude Professor Ramadan; and an injunction against using the ideological exclusion provision to exclude Professor Ramadan or any other person.  The motion was supported by declarations from each plaintiff organization, the ACLU’s lead attorney, Professor Ramadan, and an expert on Muslim charities.  AAUP President Cary Nelson’s declaration outlines the AAUP’s historic and continuing defense of academic freedom and scholars’ freedom to travel, as well as the AAUP’s consistent opposition to restrictions on foreign scholars’ ability to address academic communities in this country.

On March 2, 2007, a group of scholarly and First Amendment organizations, including the Latin American Studies Association, the Middle East Studies Association, the Association of American Law Schools, and the National Coalition Against Censorship filed an amicus brief in support of the litigation.  The amicus brief (.pdf) focuses on why the ideological exclusion provision facially violates the First Amendment and the history of the government’s exclusion of controversial speakers.

On May 21, 2007, the government filed a cross-motion (.pdf)  for summary judgment and an opposition to the AAUP’s and other plaintiffs’ motion for summary judgment.  On June 21, the AAUP and other plaintiffs filed a reply (.pdf) and an opposition to the government’s motion for summary judgment.  On July 13, the government filed a reply (.pdf) and supporting declaration (.pdf).  Oral argument was held before Judge Crotty on October 25, 2007, to address whether the government can lawfully exclude Professor Ramadan from the United States under the "material support" provision and whether the "ideological exclusion" provision is constitutional under the First Amendment.  

On December 20, 2007, the district court granted summary judgment to the government.  In the opinion, the court held that the so-called doctrine of consular non-reviewability insulates visa denial decisions made by a consular official from judicial review. The court agreed, however, that U.S. citizens (though not foreigners) can challenge exclusion decisions indirectly by arguing, as the AAUP did, that the visa denial violates their constitutional rights--in this case, the rights of the AAUP to hear Ramadan’s ideas. Nevertheless, the court held that even when constitutional interests are at stake, the government need only provide a “facially legitimate and bona fide reason” for the exclusion. 

In concluding that Ramadan’s donations to a group not designated as a terrorist organization at the time supplied a facially legitimate and bona fide reason for his exclusion from the country, the court retroactively applied the portion of the Real ID Act (part of the USA Patriot Act) that permits the government to exclude an alien who has provided “material support” to a “terrorist organization.” Specifically, the court concluded that an alien who knows that he or she has given money to an organization that is later determined to be a terrorist organization falls under the material support provision and can be lawfully excluded from this country. The only way to overcome that exclusion is to prove by clear and convincing evidence that the alien “did not know, and should not reasonably have known, that the organization was a terrorist organization. 

In this case, Ramadan supplied ample evidence that he did not know, and could not have known, that the Palestinian relief organization to which he donated was a “terrorist organization” (a designation that it did not receive until after his donations). In addition to declaring under oath that he was unaware that the group provided money to Hamas, Ramadan also offered evidence that the organization was a verified and legitimate charity according to the Swiss government at the time he donated, as well as an expert opinion that a reasonable person in his place would not have known that the organization was funding Hamas. Nevertheless, the court concluded that the government had met the “limited burden” imposed upon it, and that Ramadan had failed to show that he lacked knowledge of the relief organization’s “illicit activities.”  The court therefore granted summary judgment to the government.

Appeal: On April 28, 2008, the AAUP and the other plaintiffs, through the ACLU, filed an opening brief (.pdf) appealing the district court’s decision with the U.S. Court of Appeals for the Second Circuit.

ACLU, et al v. National Security Agency, et al.

On November 17, 2006, the AAUP joined in an amicus brief  (.pdf) filed in the U.S. Court of Appeals for the Sixth Circuit by a large coalition of civil rights organizations in support of the American Civil Liberties Union’s case against the National Security Agency challenging the government’s warrantless wiretapping program.  

The wiretapping program, which was authorized by President Bush shortly after September 11, 2001, involves the warrantless interception of telephone and email communications between one person in the United States and one person who is, according to the NSA’s “reasonable” belief, “a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”  The suit, which was filed in January 2006 on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East, argues that the wiretapping program violates the plaintiffs’ First Amendment rights by impairing their ability to obtain information from sources abroad, conduct scholarship, and engage in advocacy, as the people they would want to speak to are the types of people who might be targeted by the NSA.

In August 2006, a federal district court judge ruled that the wiretapping program violated the Fourth Amendment by operating without warrants and was therefore unconstitutional.  The government appealed that decision to the Sixth Circuit Court of Appeals.  The amicus brief submitted by the AAUP and other groups focuses on the historical effect of wiretapping on the civil rights movement, and the consequent chilling of speech and open communication.  The brief also notes that the wiretapping program has constrained faculty and graduate students from fully pursuing research or scholarship while traveling abroad because of the legitimate fear that they or their sources will be subject to reprisal, thus inhibiting academic freedom.  

Oral arguments were held before the Sixth Circuit on January 31, 2007, at which the government argued that the case was now moot because the Attorney General had agreed to allow the secret Foreign Intelligence Surveillance Court to review the program.  The ACLU argued that without court intervention, the government could resume warrantless wiretapping, and urged the appeals court to uphold the lower court’s order and unseal secret documents filed in the case by the government.

Status:  In July 2007, the Sixth Circuit dismissed the case, ruling in a lengthy opinion that because the plaintiffs could not show that they had actually been subject to the NSA wiretaps and therefore could not demonstrate that they were injured by the existence of the program, they did not have “standing” to sue.  The plaintiffs were unable to provide such evidence because, under the State Secrets Doctrine, any evidence relating to specific wiretaps was privileged and therefore kept secret by the government.  Because the plaintiffs were not able to demonstrate standing to sue, the court of appeals returned the case to the district court with instructions to dismiss it. 

ASA, AAUP, AAADC, BCPR, and Habib v. Secretaries of Homeland Security and State 

On September 25, 2007, as part of its continued commitment to oppose the ideological exclusion of foreign scholars and academics, the AAUP joined several other organizations in filing suit against Michael Chertoff and Condoleezza Rice in their capacities as the Secretary of Homeland Security and Secretary of State. The lawsuit is being litigated by the American Civil Liberties Union, and the AAUP’s co-plaintiffs include the American Sociological Association, the American-Arab Anti-Discrimination Committee, the Boston Coalition for Palestinian Rights, and Professor Habib himself.  

In October 2006, Professor Habib, who obtained his Ph.D. from CUNY and had entered the United States on various other occasions to address American audiences, flew to this country to attend scheduled meetings with officers of the Social Science Research Council, Columbia University, the National Institutes of Health, and the World Bank. He was detained at JFK airport and ultimately denied entry to the United States; the State Department subsequently took the unprecedented step of revoking the visas of his wife and two young children. Professor Habib subsequently applied for a new visa to enable him to attend the annual meeting of the American Sociological Association in August 2007; the government failed to act on his visa application by the time of the meeting, rendering him unable to come and the attendees unable to speak with or hear from him.  On October 26, 2007, the American consul in South Africa sent Professor Habib a letter informing him that he was inadmissible under a section of the USA Patriot Act that empowers the government to exclude an alien who has “engaged in terrorism.”  The consul also indicated that if Professor Habib were to apply for a waiver of ineligibility, it would not be granted.  The government has never provided evidence supporting its assertion that Professor Habib has engaged in terrorism.  

The complaint (.pdf) filed on September 25, 2007, contended that censorship at the border prevents U.S. citizens and residents from hearing speech that is protected by the First Amendment. The lawsuit sought the immediate processing of Professor Habib’s pending visa application and a declaration that his exclusion without explanation since October 2006 violates the First Amendment rights of U.S. organizations, citizens, and residents.  On November 14, 2007, the plaintiffs filed an amended complaint, and on December 3, 2007, filed a second amended complaint (.pdf).  The second amended complaint asked the court to declare that the government’s denial of a visa and a waiver of inadmissibility to Professor Habib violates the First Amendment and the Administrative Procedures Act, which requires that actions by government agencies not be “arbitrary and capricious,” in violation of constitutional rights, or “in excess of statutory authority or limitations.”  The complaint also asked the court to prohibit the government from relying on the “engaged in terrorism” section of the Patriot Act to exclude Professor Habib, and to enjoin the government from “denying a visa to Professor Habib on the basis of speech that U.S. residents have a constitutional right to hear.”

Update:  On January 14, 2008, the government filed a motion to dismiss (.pdf) the lawsuit in light of the decision in favor of the government in the Ramadan litigation, described above. The motion asserts that courts do not have the authority to review consular decisions denying visas or waiver requests, even where the First Amendment rights of U.S. citizens and residents may be affected by the exclusion. On February 13, the AAUP and the other plaintiffs filed a motion for summary judgment (.pdf) and motion in opposition to the government’s motion to dismiss, accompanied by a declaration (.pdf) from AAUP president Cary Nelson. The AAUP’s motion for summary judgment argues that the government’s denial of a visa and waiver to Professor Habib violates the First Amendment; that contrary to the government’s argument, courts may review visa-related decisions where First Amendment rights are implicated or where governmental officials other than consular officials made those decisions; and that the government’s denial of a visa to Professor Habib violates the Administrative Procedures Act. On March 20, 2008, the government filed a reply (.pdf)  to the plaintiffs’ motion for summary judgment, as well as a motion to hold the summary judgment motion in abeyance while the court decides whether the plaintiffs are harmed by the exclusion of Professor Habib. On April 3, 2008, the plaintiffs filed a reply (.pdf), again asking the court to grant the motion for summary judgment and to deny the government’s request to be permitted to conduct an investigation into the specific injury imposed by the inability of the plaintiffs and their members to interact with Professor Habib face-to-face. The judge heard oral argument from the parties on June 25, 2008, in the U.S. District Court for the District of Massachusetts, in Boston.

Academic Freedom and Teaching

FAIR v. Rumsfeld

This case involves the Solomon Amendment, a federal law requiring that schools allow the military full access to recruiting on campus, even though the military does not comply with the schools' policies against aiding any employer who discriminates on the basis of sexual orientation. The Solomon Amendment punishes universities with a loss of federal funding if the university, or any individual component thereof, excludes military recruiters from campus. Because the Solomon Amendment puts the schools and their faculty in the position of violating their own policies regarding discrimination on the basis of sexual orientation, or risking millions of dollars in federal funding throughout the institution, a coalition of law schools came together as the Forum for Academic and Institutional Rights (FAIR) for the specific purpose of challenging this law. The plaintiffs argue that the Solomon Amendment violates their First Amendment rights to academic freedom, free speech, and freedom of association. (The Yale University faculty and University of Pennsylvania faculty have also brought individual cases making similar arguments, and other individual law schools are also considering filing cases in different circuits around the country. See below.)

On September 21, 2005 the AAUP filed its amicus brief in this case before the U.S. Supreme Court. The brief, written by Kathleen M. Sullivan, a constitutional law professor and former dean of Stanford Law School, argues that the current version of the Solomon Amendment interferes with the First Amendment rights of individual faculty academic freedom and the faculty’s collective academic governance. The brief further contends that by requiring equal, rather than adequate, access for military recruitment, the Solomon Amendment improperly discriminates based on the viewpoint of faculty. Lastly, the brief argues that by withdrawing federal funding from the entire university, the Solomon Amendment unconstitutionally penalizes protected speech. Read the amicus brief (pdf).

Update: On March 6, 2006, the Supreme Court issued a ruling in FAIR v. Rumsfeld, in which it held that Congress was free to impose direct requirements on law schools to accept military recruiters, and an offshoot of that freedom – conditioning receipt of funds upon the grant of such access – was not unconstitutional.  The Court further concluded that the Solomon Amendment regulates conduct, not speech, and rejected the law schools’ argument that enforcing nondiscrimination policies by barring military recruiters from campus was a form of expression. Moreover, because the law schools were free to express discontent with the military’s “don’t ask, don’t tell” policy, the Court concluded that mandating that recruiters be allowed on campus was not a restriction on speech. 

Burbank v. Rumsfeld (University of Pennsylvania)

Pending before the District Court for the Eastern District of Pennsylvania. The court recently issued an order staying the case until the Supreme Court decides what action to take on the FAIR case. Read the AAUP's amicus brief (pdf).

Burt v. Rumsfeld (Yale University)

On January 31, 2005 , the Connecticut District Court issued a decision granting the faculty plaintiffs' request for summary judgment and criticizing the government for its "refusal to come forward with information within its control" and "denial of facts without supporting evidence." By threatening to cut off federal funding to the University unless it allowed military recruiters to participate in recruiting, the court concluded, the Solomon Amendment imposed unconstitutional conditions upon the receipt of federal funds.

The district court found the "condition imposed by the Solomon Amendment [to be] in [no] way related…to the purposes for which the federal funds have been given to Yale," and thus dismissed the Department of Defense's argument that such restrictions were allowed under the Spending Clause of the Constitution. Instead, the court concluded that the Solomon Amendment interfered with the faculty members' First Amendment right to expression by compelling them to allow military recruiters to participate in school sponsored programs, and thus "coerced [them] into assisting DoD in sending its message." The court also held that the Solomon Amendment violates faculty members' First Amendment freedom of association rights by blocking them from "using their freedom to associate, or disassociate, [as a means of] inculcat[ing] their values in their students and … propagat[ing] publicly their beliefs regarding discrimination."

Finally, the court declined to find the new substantive due process right of "educational autonomy" advocated by the faculty. (The faculty had put forth the novel argument that the "right to ban discriminatory conduct from all of the Law School 's activities in order to protect their students and to create the environment necessary to carry out the Faculty Members' educational mission" was a substantive due process right under the Fifth Amendment). Instead, however, the court noted that such a claim was "functionally a First Amendment academic freedom claim," and affirmed the right of First Amendment academic freedom by noting that where "a particular Amendment [already] provides an explicit textual source of constitutional protection against a particular sort of government behavior," a more generalized notion of substantive due process should not be substituted for that Amendment. Read the decision (part 1, part 2) (pdf). Read the AAUP's amicus brief (pdf).

Status: In April 2005, Defendant Donald Rumsfeld filed an appeal with the Second Circuit Court of Appeals, which was suspended pending the Supreme Court’s decision in FAIR v. Rumsfeld. On September 17, 2007, the Second Circuit issued an opinion (now titled Burt v. Gates, because of Secretary Rumsfeld’s departure as Secretary of Defense), in which the federal appeals court reversed the district court’s decision.  The appeals court concluded both that the Supreme Court had “almost certainly” rejected the academic freedom argument in Rumsfeld v. FAIR and that, in any event, the academic freedom argument lacked merit because the “relationship between barring military recruiters and the free flow of ideas” was too “attenuated.” 

Academic Freedom and Institutional Matters

Schrier v. University of Colorado

Robert Schrier, M.D., is a tenured faculty member at the University of Colorado School of Medicine, and was chair of the department of medicine for over 20 years, until the administration removed him from that position in October 2002. Dr. Schrier opposed a proposal and ultimate decision of the Board of Regents to move the medical school to another campus. He sued the school, arguing, in part, this his removal as chair violated his First Amendment right of academic freedom, and seeking reinstatement. The district court rejected Dr. Schrier's legal claims. In particular, the district court opined that Dr. Schrier's status as a university professor, who also served as department chair, entitled him to no rights distinctive from those of any other public employees. Dr. Schrier appealed the ruling to the Tenth Circuit. In December 2003, the AAUP filed an amicus brief in the case, which was written by lawyers at Covington & Burling. The AAUP brief argues that a distinctive First Amendment right to academic freedom exists, and to rule otherwise conflicts with U.S. Supreme Court precedent and other federal appellate courts, including the Tenth Circuit. Read the brief (pdf).

Status: On November 1, 2005 the Tenth Circuit affirmed the denial of Schrier's injunction by the lower court, affirming that Schrier's speech was on a matter of public concern, but ruling that the administration's interest in suppressing Schrier's speech outweighed his right to free expression. The decision is available at http://www.kscourts.org/ca10/cases/2005/10/03-1275.htm.

Tenure

Edwin Otero-Burgos v. Inter-American University

On January 25, 2008, the AAUP requested leave from the United States Court of Appeals for the First Circuit to file an amicus brief (.pdf) in support of Professor Edwin Otero-Burgos. Professor Otero-Burgos was dismissed in 2002 from Inter-American University (IAU), a private institution in Puerto Rico where he had taught for 28 years, nearly 10 of those as a tenured professor. Professor Otero-Burgos was terminated by IAU after appealing an administration decision that he believed violated his academic freedom.

Specifically, IAU overruled Otero-Burgos’s authority to determine the management of his course and the assignment of grades.  The university administration assigned another professor to prepare and administer an additional exam to one of Otero-Burgos’s students after the student requested that he receive a special opportunity not provided to other students to raise his grade. Otero-Burgos objected and appealed the decision, alleging a violation of his academic freedom. A Faculty Appeals Committee (FAC) ruled in his favor.  The campus’s chancellor rejected the ruling and instead appointed an Ad Hoc Committee to consider grounds for dismissing Otero-Burgos and the members of the FAC.  After the Ad Hoc Committee recommended that Otero-Burgos be terminated and the FAC members sanctioned, Otero-Burgos appealed again; a second FAC ruled in his favor, recommending that he be reinstated.  The chancellor again rejected the ruling, however, and terminated Professor Otero, giving rise to his lawsuit.
  
The U.S. District Court for the District of Puerto Rico concluded in a December 2006 opinion (.pdf) that although Professor Otero-Burgos’s termination may have violated the contractual relationship detailed in IAU’s faculty handbook, the only remedy available to Professor Otero-Burgos came from a Puerto Rico law called Law 80.  Law 80 provides that an employer who dismisses an employee without “just cause” need only provide a certain set percentage of the employee’s former salary, but is responsible for no other damages or reinstatement. 

It is AAUP’s belief that Law 80, which protects at-will employees who would otherwise have no recourse at all from arbitrary firings, was not intended to limit so drastically the remedies available to tenured faculty members who are guaranteed permanent employment by the institution and the historical safeguards of tenure.  Such an application of Law 80, the AAUP contends in its brief, undermines academic freedom and the safeguards afforded by tenure to faculty as well as to institutional interests in stability and educational quality.  It also allows universities to pay only a small penalty for stripping professors of tenure without just cause, and effectively transforms tenured faculty members into at-will employees.

In its brief, AAUP urges the First Circuit to recognize that the district court’s decision starkly contradicts the appeals court’s and district court’s own precedent, as well as the intent of the Puerto Rico legislature in passing Law 80. 

The law firm Covington & Burling provided pro bono support for the drafting and filing of the brief. 

On January 6, 2006 the AAUP filed an amicus brief before the Colorado Court of Appeals in Saxe v. Board of Trustees of Metropolitan State College of Denver.  The case arises from actions taken in 2003 by the college's board of trustees in unilaterally adopting a new faculty handbook.  The plaintiffs, which include five tenured faculty members at the institution and the Colorado Teachers Federation, sought a declaratory judgment seeking a judicial declaration that the 2003 handbook provisions "establish conditions under which employment of tenured faculty members can be terminated or their compensation reduced," thus eviscerating the meaning of tenure in the academic community.  In May 2005 the state trial court granted the college administration’s motion for summary judgment. The court ruled that the administration had not breached the tenure protections afforded by the faculty handbook.  In an amicus brief, the AAUP argued, first, that the faculty handbook changes unilaterally imposed by the college’s board abrogated the rights inhering in tenure during retrenchment, and second, that new handbook provisions governing retrenchment failed to afford due process to affected faculty members.  The AAUP policies implicated in this case include the 1940 Statement of Principles on Academic Freedom and Tenure, various AAUP  statements and committee reports on retrenchment, and AAUP investigating reports on reductions in force. Read the amicus brief (pdf).

Update: On March 8, 2007, the Colorado Court of Appeals reversed the decision of the trial court on most of the important points and sent the case back to the trial court level for further proceedings based on the appeals court’s decision.  The appeals court first noted and endorsed the trial court's ruling that the burden of proving that a faculty member’s dismissal was proper must remain with the president, rather than the faculty member being responsible for showing that the dismissal was improper.  Second, the appeals court considered the breach of contract claim, and concluded that the Board of Trustees could not modify on its own any rights in the previous handbook that were both substantive and vested.  Invoking both AAUP policy and the expert testimony of Matthew Finkin, a former General Counsel for the AAUP and former Chair of Committee A, the court determined that tenured faculty members’ rights to priority and relocation during retrenchment were substantive, but that most of the changes made to the dismissal hearing process in the 2003 handbook were procedural.  The appeals court therefore remanded to the trial court to determine whether the priority and relocation provisions of the older handbook were vested rights, in which case the Board’s unilateral changes to them would have been improper.  The appeals court directed the trial court to balance two potentially competing public interests as it made its determination: the right to academic freedom and the need for flexible staffing decisions.   

The appeals court also agreed with the tenured professors that even though none of them had been subject to employment decisions as a result of the new handbook, they could still bring due process claims related to the new provisions.  The court held: “Here, Professors already work under the employment contract.  They entered into the contract in reliance upon the terms stated in the contract and face substantial uncertainty as to the terms of the contract.”  On the specific due process violations, the appeals court agreed with the professors that the provision in the 2003 handbook giving the president final authority to dismiss a tenured faculty member was a violation of the professors’ right to procedural due process, because the president could both initiate and resolve a dismissal with no right to an appeal of the final decision.  The court further ordered that any “simple unelaborated statement” of the decision of the dismissal hearing officer (a position that replaced the previous hearing committee) would be sufficient only if the officer “issue[d] a decision stating, at a minimum, the reasons for that decision and the evidence relied upon.”  Read the opinion. (.pdf)

Discrimination

Crawford v. Metropolitan Government of Nashville and Davidson County

On April 16, 2008, the AAUP joined in an amicus brief (.pdf) filed in the U.S. Supreme Court by a coalition consisting of the AAUP, the National Employment Lawyers Association, the National Employment Law Project, and Public Justice, P.C.  The amicus brief supports the appeal of petitioner Vicky Crawford against her former employer.  This case raises important Title VII issues central to the AAUP’s mission. 

The petitioner, Vicky Crawford, was a thirty-one-year employee of the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”), who worked in the employee relations office of the Nashville school system.  In 2001, the Metro Human Resources Department learned that employees in the office where Crawford worked had complained about the inappropriate conduct of their manager.   Metro investigated these complaints and interviewed Crawford (who was not one of the original complainants) regarding the manager’s conduct.  During the interview, Crawford reported that the manager had made sexually explicit remarks and gestures towards her.  Two other employees provided similar accounts of the manager’s conduct.  Ultimately, Metro took no disciplinary action against the manager, but the two other employees who had disclosed the manager’s misconduct were quickly discharged on other grounds.   Crawford herself was terminated in January 2003 on grounds that ultimately proved unfounded.  Crawford filed a lawsuit claiming retaliation in violation of Title VII.  

Crawford claimed that her cooperation in Metro’s internal investigation constituted both “opposition” to a practice made unlawful by Title VII and “participation” in a Title VII investigation – both actions explicitly protected by Title VII.  Crawford argued that Metro violated both the “opposition” and “protection” clauses of Title VII when it discharged her for cooperating in its investigation. 

The federal trial court rejected Crawford’s claims that either Title VII’s opposition or participation clause applied to her and ruled in favor of Metro.  Crawford appealed and the United States Court of Appeals for the Sixth Circuit affirmed [.pdf] the district court’s judgment.  The appeals court ruled that Crawford’s actions did not constitute “opposition” under Title VII because Crawford allegedly did not take an “active” and “consistent” stance against her manager’s discriminatory acts.  The court also held that Crawford’s “participation” in Metro’s internal investigation was not protected activity under the participation clause because no EEOC charge had yet been filed in the matter.  According to the court, the “participation” clause only protects employees who agree to help their employer investigate discrimination after “an employee . . . [has] filed a charge with the EEOC or otherwise instigated proceedings under Title VII.” 

After the Sixth Circuit issued its decision, Crawford asked the U.S. Supreme Court to review the Sixth Circuit’s reasoning, and the Supreme Court agreed.  The AAUP and our coalition partners filed an amicus brief arguing in favor of Crawford’s position that the Sixth Circuit had erred. 

The coalition’s brief focuses on the conflict between the Sixth Circuit and other federal appeals courts, which extend protection to employees participating in an investigation even before an EEOC complaint is filed.  In addition, the brief argues that Congress intended Title VII’s “participation” and “opposition” clauses to be very broadly defined, to provide an incentive to participate in discrimination investigations or oppose acts of discrimination.  In fact, courts generally recognize that Congress intended employers to police themselves under Title VII and have interpreted the “participation” and “opposition” clauses with this understanding.  Finally, the brief notes that the Sixth Circuit’s opinion actually exposes not only employees, but also employers, to increased risk and uncertainty.  If an employer cannot assure its employees that they will not be disciplined for participating in an internal investigation prior to the filing of an EEOC charge, then employees will protect themselves by filing EEOC charges immediately.  Employers will thus be deprived of the ability to address potentially discriminatory situations without government involvement. 

In the higher education context, a decision by the Supreme Court upholding the Sixth Circuit’s ruling could put at risk faculty members and other employees who participate in an internal harassment or discrimination investigation before an EEOC charge is filed, and could inhibit the ability of faculty grievance committees to accurately investigate and assess harassment- or discrimination-related grievances.

Meacham v. Knolls Atomic Power Laboratory

On March 11, 2008, the AAUP joined in an amicus brief (.pdf) filed in the U.S. Supreme Court by a coalition consisting of the AAUP, AARP, and the National Employment Lawyers Association.  The amicus brief supported the appeal of the petitioners, twenty-eight former employees of Knolls Atomic Power Laboratory (KAPL). 

This case arose when KAPL instituted a layoff of thirty-one employees, thirty of whom (including all twenty-eight plaintiffs) were over forty years of age.  The employees sued KAPL under the Age Discrimination in Employment Act (ADEA), claiming that KAPL violated the law by creating a layoff plan that had a disproportionate effect, or “disparate impact,” on older workers.  KAPL attempted to show that reasonable age-neutral criteria determined which employees would be laid off, without regard to their age.  Initially, the employees’ suit was successful; the jury hearing their case found that KAPL could have achieved the same cost-saving results without disproportionately affecting older workers.  KAPL appealed to the Second Circuit Court of Appeals.  The Second Circuit initially denied KAPL’s appeal, but was required to re-evaluate when the case was remanded back to it by the Supreme Court to reconsider in light of new precedent. 

Upon reconsideration, the Second Circuit concluded (.pdf) that if an employer in an ADEA disparate-impact case claims that it based an adverse employment decision (i.e., termination) on “reasonable factors other than age,” it is up to the disparately-impacted employees to demonstrate that their employer’s claim is pretext.  Because the employees could not meet that burden, the court determined that judgment should have been awarded to KAPL and the jury’s award to the employees vacated.  The employees then appealed the Second Circuit’s decision to the Supreme Court, which agreed in early 2008 to hear the appeal.

The AAUP coalition’s amicus brief argues that an employer’s “reasonable factors other than age” defense is an affirmative defense, which means that the party raising the defense is required to persuade a fact finder that it is the best explanation of the facts.  Thus, if an employer asserts that its decision to terminate an employer or group of employees protected by the ADEA was based on “reasonable factors other than age,” the employer itself should bear the burden of demonstrating those facts and their relevance to the employment decision.  This position is supported not only by the majority of circuit courts, but also by the demands of common sense; it is impractical to place the burden of disproving an employer’s defense on employees, particularly when the employer controls all of the evidence regarding its decision-making process and motivations.  The brief notes that the Second Circuit’s decision, if adopted by the Supreme Court, would damage the protections the ADEA was designed to afford older workers by allowing employers to shield violations of the law behind the walls of a defense they can raise without having to prove.

Update: In a 7-1 decision, the Supreme Court held (.pdf) on June 19, 2008, that when an employer makes an employment decision that has a disproportionate impact on older workers, and alleges that the decision was based on “reasonable factors other than age” (RFOA), the employer bears not only the burden of production but also the burden of persuasion regarding those factors; employees are not obligated to show that such factors did not exist.  (Justice Breyer was recused and Justice Thomas dissented in part.)  The Court confirmed that the RFOA clause in the ADEA operates similarly to the ADEA clause permitting an employer to consider bona fide occupational qualifications (BFOQs); the BFOQ was already recognized as an affirmative defense.  The Court also analogized the ADEA to the Fair Labor Standards Act (FLSA) and noted that Congress intended for the ADEA to be interpreted in line with the FLSA.  “As against this interpretive background,” the majority said, “there is no hint in the text that Congress meant [the RFOA section] to march out of step with either the general or specific[] FLSA default rules placing the burden of proving an exemption on the party claiming it.”  After reviewing additional legislative and case history, including the Older Workers Benefit Protection Act (OWBPA), the Court again said firmly, “Congress understands the phrase the same way we naturally read it, as a clear signal that a defense to what is ‘otherwise prohibited’ is an affirmative defense, entirely the responsibility of the party raising it.”  The majority also laid to rest any question about the role of the business necessity defense in ADEA cases, saying that “we are now satisfied that the business necessity test should have no place in ADEA disparate-impact cases.”  It rejected any argument, however, that that conclusion would “stand in the way of our holding that the RFOA exemption is an affirmative defense.” 

The Court did add some reassuring words for employers, noting that ADEA plaintiffs are still required to “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities”; as in City of Jackson, an employee ADEA challenge could be rejected on the grounds that the employee had only pointed out that a pay plan was less generous to older workers and “ha[d] not identified any specific test, requirement, or practice within the pay plan that ha[d] an adverse impact on older workers.”  The Court concluded that the additional burden imposed by its decision (and by the balance already set by Congress) will come “mainly in case where the reasonableness of the non-age factor is obscure for some reason, [where] the employer will have more evidence to reveal and more convincing to do in going from production to persuasion.”

Engquist v. Oregon Department of Agriculture

On February 27, 2008, the AAUP joined in an amicus brief (.pdf) filed in the U.S. Supreme Court by a coalition consisting of the AAUP, AFL-CIO, and the National Education Association.  The amicus brief supported the appeal of petitioner Anup Engquist, a former employee of the Oregon Department of Agriculture (“ODA”), in a case against her former employer.  Engquist’s case arose when she angered her supervisor in the ODA by reporting his abusive behavior to superiors.  The supervisor retaliated by arranging a restructure within the ODA that resulted in Engquist’s discharge.  Engquist sued the ODA, asserting, among other things, that the ODA had violated Engquist’s rights under the Equal Protection Clause of the Constitution by treating her differently from her co-workers without a justifiable rationale.  This theory is known as an Equal Protection “class of one” claim, because it focuses on the employee as an individual rather than as a member of a “protected class” – i.e., a class defined by race, national origin, or gender.  The theory was first accepted by the Supreme Court in 2000, in a case involving a city’s zoning decision.  Since then, a number of federal courts have allowed public employees to use the theory in employment cases (though none has been successful).

Engquist won her case at trial and was awarded substantial compensatory and punitive damages.  The ODA appealed, however, and the U.S. Court of Appeals for the Ninth Circuit reversed the verdict, concluding that the “class of one” Equal Protection theory should be limited to circumstances where the government acts as a regulator and not expanded to the realm of public employment decisions.  The majority reasoned that the Equal Protection clause provides more protection against arbitrary government action to “ordinary citizens” than it does to “public employees.”  The Ninth Circuit also expressed its concern that applying the Equal Protection clause to government employees would erode the state-employee “employment at will” doctrine and, in addition, would result in increased litigation.

The coalition’s brief asserts that public employees are entitled to Equal Protection rights against arbitrary government action and further argues that a “class of one” challenge may be the only method for a public employee to challenge an arbitrary or vindictive employment decision.  The brief also addresses the Ninth Circuit’s concern that a flood of litigation might result from the extension of the Equal Protection “class of one” doctrine to government employees, contending that there is not a substantial risk of such a flood because of the limitations put on the doctrine.  

Update:  On June 9, 2008, the Supreme Court handed down its opinion (.pdf).  The Court concluded in a 6-3 decision that “a ‘class-of-one’ theory of equal protection has no place in the public employment context.”  The majority (through Chief Justice Roberts) reasoned that “there is a crucial difference . . . between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operations,’” and added that when the government acts as employer, it has “far broader powers than does the government as sovereign.”  The Court based this assertion on the fact that when the government acts as employer, it hires employees to carry out official duties with efficiency and integrity, and “the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.”  The majority analogized to other contexts in which the government has “greater leeway” in dealing with its own employees than it does in dealing with citizens at large, including the Fourth Amendment, Due Process clause, and First Amendment contexts; the Court called the public-employee speech cases, including Pickering and Connick, “particularly instructive.” 

According to the majority, this precedent in the public-employee context established two main principles:  “First, although govern­ment employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context.  Second, in striking the appropriate balance, we consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.” 

The Court acknowledged that the equal protection class-of-one claim had been recognized in the government-as-regulator context (beginning with Village of Willowbrook v. Olech, a 2000 Supreme Court zoning case), but distinguished that from circumstances in which the government acts as employer, stating that in Olech and similar cases, “what seems to have been significant . . . was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed.”  In Olech, for instance, the board consistently required a 15-foot easement, but arbitrarily subjected the plaintiff to a 33-foot easement.  The Court continued: “There are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.  In such cases the rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated when on person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.  In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.”

 The majority hypothesized a traffic officer who singles out one person among many driving above the speed limit to receive a speeding ticket.  As long as the speeding ticket was not based on considerations of race or sex, said the Court, there is no Equal Protection claim, because the traffic officer is exercising “what in its nature is a subjective, individualized decision.”  The majority then contended that “this principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. . . . Unlike the context of arm’s-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course.”  Recognition of a class-of-one claim would be “simply contrary to the concept of at-will employment,” in which an employee “may be terminated for a good reason, bad reason, or no reason at all.”  The Court acknowledged that Congress and all states have replaced at-will employment with some statutory protection, but held that “a government’s decision to limit the ability of public employers to fire at will is an act of legislative grace, not constitutional mandate,” and that the Equal Protection clause therefore could not provide additional protection for individual employees – particularly because Congress had already excluded some employees from federal employment protections, which “careful work” would be undone by extension of the Equal Protection Clause to class-of-one claims.  

Finally, the majority invoked the specter of a flood of litigation, suggesting that if governmental employees needed to argue “only that they were treated by their employers worse than other employees similarly situated,” any personnel action “will suddenly become the basis for a federal constitutional claim.”  The Court acknowledged that most of the claims would not prevail, because of the various elements of proof and the high burden of demonstrating that a government employment decision is not “rational,” but opined that the “practical problem” with permitting class-of-one claims in the employment context “is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack.”  Quoting Garcetti v. Ceballos (see above), the Court concluded that “the Equal Protection Clause does not require ‘this displacement of managerial discretion by judicial supervision.’”   

In dissent, Justice Stevens (joined by Justices Souter and Ginsburg) criticized the majority for using a “meat-axe” rather than a “scalpel” to perform “surgery . . . to prevent governments from being forced to defend a multitude” of claims.  The dissent analogized Olech and Engquist, noting that as in Olech, “Engquist alleged that the State’s actions were arbitrary and irrational.  In response, the State offered no explanation whatsoever for its decisions . . . .  Under our reasoning in Olech, the absence of any justification for the discrimination sufficed to establish the constitutional violation.”  The dissent also distinguished between discretionary authority, which Stevens agreed employers must be free to exercise, and an “arbitrary decision.”  “A discretionary decision represents a choice of one among two or more rational alternatives. . . . There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise [to] equal protection claims.”  As the dissent noted, the traffic officer in the majority’s hypothetical was doing just that – exercising a discretionary choice among a number of speeding drivers, all of whom could have been pulled over; an employer could similarly exercise reasonable judgment among employees to be terminated.  However, the dissent argued, “instead of using a scalpel to confine so-called ‘class of one’ claims to cases involving a complete absence of any conceivable rational basis for the adverse action and the differential treatment of the plaintiff, the Court adopts an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context.”  Finally, the dissent rejected the majority’s contention that at-will employment remains the norm, and criticized the Court for “misconstru[ing] the Constitution in order to make it even easier to dismiss unmeritorious claims.”

National Pride at Work, Inc. v. Granholm

The case involves an anti-gay marriage amendment to the Michigan Constitution, and its effect on domestic partnership benefits offered by public entities, including public universities. 

In November 2004 Michigan voters approved an amendment to the Michigan Constitution stating that “one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”  After this provision was passed, the Michigan Attorney General issued an opinion holding that the amendment precludes public employers, including public colleges and universities, from providing domestic partner benefits to their employees’ domestic partners and children.  National Pride at Work (a non-profit organization working with the ACLU) filed suit against the state, asking the court to clarify the issue and declare the Attorney General’s interpretation incorrect.  The Michigan circuit court subsequently issued a ruling against the Attorney General, declaring that the amendment “does not prohibit public employers from entering into contractual agreements with their employees to provide domestic partner benefits or voluntarily providing domestic partner benefits as a matter of policy.”  However, the Attorney General appealed the case to the Michigan Court of Appeals, which granted review on an expedited schedule.

The national AAUP joined Michigan Conference of the AAUP on an amicus  brief to the appellate court arguing that public universities have a right, and a need, to offer domestic partnership benefits to same sex employees and their children, and to forbid such benefits is an unconstitutional interference with the First Amendment academic freedom rights and contractual rights of universities and their faculty, and a violation of AAUP policy against discrimination on the basis of sexual orientation. The brief points out the educational objectives involved in domestic partnership benefits, including promotion of educational diversity by facilitating the recruitment and retention of gay and lesbian faculty and faculty interested in working in a diverse environment, sending a message of welcome to gay and lesbian students, and sending a policy message of the value of tolerance, diversity, inclusion and equality.  

Update:  The AAUP brief (.pdf) was filed December 14, 2005.  On February 1, 2007, the Michigan Court of Appeals issued a decision(.pdf) overturning the circuit court decision.  The court concluded that “the operative language of the [Michigan amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union.”  The court noted that most of the employment plans, including those of the two state universities, require domestic partners to have entered into some sort of formal domestic partnership agreement in order to receive benefits, and therefore concludes that “a public employer that requires proof of the existence of a formal domestic partnership agreement to establish eligibility for benefits ‘recognizes’ the validity of a same-sex union as reflected in the ‘agreement’ for the ‘purpose’ of providing the same benefits to a same-sex couple that would be provided to a married couple.  This violates the plain language of the amendment prohibiting such unions to be ‘recognized . . . for any purpose.’”

The court also concluded that the amendment did not conflict with universities’ special autonomous status under the Michigan constitution and does not violate the state constitution’s equal protection clause.  The court ruled that the universities remain subject to government regulation, including “the public policy mandate of the people as reflected in” the marriage amendment, and that in any event the narrower marriage amendment must control over the broader constitutional provisions on university autonomy.  On the equal protection issue, the panel pointed to Michigan law holding that only “arbitrary and invidious” distinctions violate the guarantee of equal protection, and concluded that “the marriage amendment’s purpose, ‘to secure and preserve the benefits of marriage for our society and for future generations of children. . .,’ is neither arbitrary nor invidious on its face.”  Finally, the court ruled that the amendment also did not violate equal protection as applied in this case, because neither same-sex couples nor heterosexual couples who are not married can obtain employment benefits “on the basis of an agreement ‘recognized as a marriage or similar union for any purpose.'"  The court did not address the AAUP’s argument that prohibiting the universities from conferring domestic partnership benefits implicates issues of academic freedom. 

On March 6, the court of appeals denied the plaintiffs’ motion for reconsideration.  On August 15, 2007, the Michigan conference and national office of the AAUP jointly filed an amicus brief (.pdf) in support of the plaintiffs’ appeal to the Michigan Supreme Court.  The Michigan Supreme Court will hear oral arguments on the case during its November 6-8, 2007 session.

In June 2004 the United States Supreme Court granted certiorari in this case. The issue before the Court is whether Title IX of the Education Amendments, which prohibits discrimination in federally assisted education programs and activities, provides for a retaliation cause of action. The petition was filed by Roderick Jackson, a high school basketball coach who was allegedly removed from this position in retaliation for complaining about his all-girl team being denied equal funding and access to sports facilities and equipment. The AAUP joined a variety of coach associations in signing onto an amicus brief written by the National Education Association. The amici argue in the brief that the enforcement of Title IX would be seriously compromised if educators, who play an essential role in enforcing Title IX, could be subjected to retaliation without redress when they seek to correct violations of the law. The amici also contend that Congress' intent that Title IX "provide individual citizens effective protection" would be undermined if educators were not protected from retaliation for raising Title IX concerns. Read the amicus brief (pdf).

Status: On March 29, 2005, the U.S. Supreme Court ruled in a 5-4 decision that Title IX provides for a retaliation cause of action. The Court reasoned that "if Title IX's private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied." The Court emphasized that "teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators." The Court remanded the case for further fact finding consistent with its reasoning. The decision is available at http://supct.law.cornell.edu/supct/html/02-1672.ZS.html.

Update: On November 28, 2006, Jackson and the Birmingham Board of Education settled the lawsuit, which was scheduled to go to trial in December.  According to the terms of the settlement, the Board must: appoint Title IX coordinators for the Birmingham school system and for each school within the system; adopt Title IX policies and grievance procedures; conduct training to ensure Title IX compliance; and conduct a review of compliance with the Title IX athletics regulations in all schools and programs in the Birmingham school system and prepare public reports of the findings.  In addition, Jackson received $50,000 from the Board.

Smith v. City of Jackson

On March 29, 2004 the United States Supreme Court granted certiorari in this case. The issue before the Court was whether employees can sue employers under the federal Age Discrimination in Employment Act ("ADEA") for actions or policies that have a disparate impact, or unintentionally fall more harshly, on employees over the age of 40. The AAUP joined other civil rights groups in signing onto an amicus brief penned by the AARP that argues that the legislative history of the ADEA clearly establishes that Congress intended that disparate impact cases should be actionable. AAUP's On Discrimination policy prohibits "colleges and universities from practicing illegal or unconstitutional discrimination, or discrimination on a basis not demonstrably related to the job function involved, including but not limited to, age . . . ." AAUP is deeply concerned that the unavailability of the disparate impact method of proof under the ADEA would undermine the ability of professors to ensure freedom from age discrimination in the academic workplace. Read the amicus brief (pdf).

Status: On March 30, 2005 the U.S. Supreme Court ruled in a 5-3 decision that disparate impact cases are actionable under the ADEA. The decision is available at http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/03-1160.html#opinion1.

Intellectual Property

This case involves a challenge by the Kansas National Education Association (KNEA) to the Kansas Board of Regents’ proposed policy giving ownership of faculty intellectual property to the universities at which they work.  In 2004, a Kansas appellate court ruled against the KNEA, stating that the Regents were not required to engage in bargaining with the union on copyright ownership issues because such a practice would conflict with federal law’s provision that an author may negotiate away his or her intellectual property rights but cannot be required to do so. The appellate judge reached this decision by assuming that the faculty members’ intellectual property was work-for-hire, and thus the property of the University.

The KNEA appealed the case to the Kansas Supreme Court, and on July 13, 2005, the AAUP filed an amicus brief (pdf) in that court on the narrow issue of faculty members’ ownership of their own copyrights. The AAUP argued that the work-for-hire doctrine does not include faculty intellectual property, noting that federal appellate court decisions, traditional academic practices, and notions of academic freedom all point to faculty retaining ownership of their work as original authors. The brief highlighted AAUP’s Statement on Copyright, which emphasizes that preservation of academic freedom requires that faculty members control their own intellectual property. A copy of the brief is available (.pdf).

Status: In a victory for AAUP, on November 10, 2005 the Kansas Supreme Court ruled that intellectual property rights are not simply assumed to be work-for-hire belonging to the university and can be a subject of collective bargaining.  Finding the appellate court’s reasoning to be an “incorrect application of federal copyright law,” the Kansas Supreme Court concluded that to assume universities’ blanket ownership of faculty intellectual property was “too big a leap.”  Instead, the court recognized that the question of ownership of faculty work is a complex one, depending on a careful analysis of the employment relationship and the reason for and method of creation of the work itself.  The court cited the AAUP Statement on Copyright, and recognized that faculty intellectual property ownership cannot be treated simply as the work of an employee belonging to an employer, but rather “will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation.”  The decision is available at http://www.kscourts.org/kscases/supct/2005/20051110
/91305.htm. 

The court returned the case to the district court, which returned it to the Public Employee Relations Board (PERB) “for additional findings regarding whether ownership of intellectual property is a condition of employment” and therefore mandatorily negotiable under the Public Employer-Employee Relations Act (PEERA), and whether ownership of intellectual property is an “inherent management prerogative” and therefore not mandatorily negotiable under an exception in the state law.  In a second victory for the KNEA and faculty members, the PERB concluded in February 2007 (.pdf) that ownership of intellectual property was a mandatory subject of bargaining; the PERB therefore found that the university and Regents had engaged in various prohibited bargaining practices and ordered that the KBR and university withdraw its unilateral implementation of the intellectual property policy and meet and confer in good faith with the KNEA on intellectual property rights. 

The PERB noted that under Kansas law, an employer is prohibited from willfully refusing to meet and confer with the exclusive representative of employees in a bargaining unit over “conditions of employment,” which include (but are not limited to) such matters as salaries, wages, hours of work, leave, benefits, and grievance procedures.  To determine whether intellectual property rights, which are not expressly included in the list of conditions of employment, are mandatorily negotiable, the PERB weighed the interests of the employer and employees “by considering the extent to which the meet and confer process will impair the determination of governmental policy.”  To appropriately balance those interests, the PERB looked to three criteria, two of which were relevant here: whether the intellectual property policy “intimately and directly affects the work and welfare of public employees;” and, if so, whether the policy “is a matter on which a negotiated agreement would not significantly interfere with the exercise of inherent managerial prerogatives.”  As the PERB noted, the basic inquiry “must be whether the dominant concern involves an employer’s managerial prerogative or the work and welfare of the public employee.”  

The PERB concluded that “the topic of intellectual property ‘intimately and directly affects the work and welfare of’ the public employees” of Pittsburgh State.  The PERB also ruled that there was no “inherent managerial prerogative” that would “suffer significant interference by negotiating in regard to intellectual property rights.”  The PERB dismissed the Regents’ and university’s argument that a meet and confer requirement with respect to intellectual property rights would interfere with the university’s right “to direct the work of its employees,” responding that the issue was not the university’s right to direct its employees’ work but the union members’ rights “regarding intellectual property after it has been created.”  Finally, after a long analysis of the meaning of the word “willfully,” the PERB concluded that the Regents and university “intentionally, voluntarily, or deliberately” unilaterally adopted the policy and refused to meet and confer about the policy with the union, and therefore engaged in prohibited practices under Kansas law. The decision, which was an “initial order,” became a final order (.pdf) after consideration by the full PERB on August 16, 2007. 

Affirmative Action

Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Bd. Of Education

These two cases, being decided jointly, address the issue of whether local school districts can make decisions based on race as a method of ensuring racial diversity, and avoiding segregation, in public schools.  In 2000, a parental coalition called Parents Involved in Community Schools sued the Seattle School District, arguing that its policy of allowing all students to apply to attend any district high school, but using race as a tiebreaker when a high school received more applicants than it could accept violated the Equal Protection Clause of the 14th Amendment.  The district court upheld the tiebreaker plan under federal and state law.  After sending the case back to the state court for a ruling on state law, the United States Court of Appeals for the Ninth Circuit on en banc review in 2005 found that the school district had a compelling interest in securing the educational and social benefits of racial and ethnic diversity, and in attempting to end racial segregation in its high schools by ensuring that its assignments do not simply replicate Seattle’s segregated housing patterns. It also concluded that the District’s Plan was narrowly tailored to achieve its compelling interests.

In June 2006 the Supreme Court granted review and will hear Parents Involved in Community Schools v. Seattle School District No. 1 together with Meredith v. Jefferson County Bd. Of Education, a similar case from Kentucky. The court will address the questions of how the Equal Protection rights of public high school students are affected by the jurisprudence of the University of Michigan admissions cases Grutter and Gratz, and whether racial diversity is a compelling interest that can justify the use of race in selecting students for admission.  

AAUP joined an amicus brief to the Supreme Court with the American Council on Education and many other higher education organizations.  The brief notes that “[w]hile there are important differences between higher education and the elementary and secondary school settings at issue in these cases, a broad consensus exists among educators at all levels that diversity is essential to their mission and that government should defer to good faith efforts to attain its educational benefits.”  The brief also argues that “programs to promote racial and ethnic diversity in K-12 education advance …efforts to achieve excellence in higher education.”   Specifically, it argues that respect for the institutional competence and judgment of educators, along with a recognition of the well-established benefits of student diversity, counsels in favor of giving deference on this issue to educators in the same way the court did to higher education in the Michigan cases.  In making this argument, it discusses the compelling governmental interest in student diversity, drawing on a broad range of research showing the benefits of racial diversity at all levels of education. 

Status:  The brief (pdf) was filed October 11, 2006.  At the end of June, the Supreme Court issued a decision striking down both school districts’ desegregation plans, though without overturning Grutter.  The decision suggests that universities seeking diversity will need to conduct individual assessments and consider a variety of indicators of diversity, not limited to race.  It remains to be seen precisely how this case will be applied in the higher education context.

See also:

Affirmative Action in Higher Education: A Current Legal Overview
AAUP Amicus Briefs 1999-2004

(updated 7/08)